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Not all Durable Powers of Attorney are created equal! – Why a proper elder law POA is important


Powers of attorney remain one of the most important components of a Medicaid and estate planning commitment. It is a legal document in which you give another person legal authority to act on your behalf. A durable power of attorney generally authorizes your agent to act now and continue to act on your behalf after you are incapacitated. This could include paying your bills, managing your property, and handling other money matters. The purpose of this blog is to highlight the importance of a financial power of attorney (I will blog about the powers of health care attorneys in a separate post).


If you become incapacitated and DO NOT have a durable power of attorney in effect, it may be necessary for your family or friends to go to court for a guardianship proceeding in order to appoint someone to make decisions for you, both time and costly. . Also, when the court appoints a guardian, it may not have the person who will make the decisions for you that you would have chosen.


A durable power of attorney authorizes your agent to continue to act on your behalf after you are incapacitated. This document ends with his death. Under Florida law, it goes into effect as soon as you sign it. The authorities provided to your agent can be very specific or very general, and you can grant the agent role to anyone you choose. It can be your spouse, child, relative, or friend.


Many attorneys, even experienced estate planning professionals, will simply use your form document without making specific reference to many of the authorities and techniques that we use as aging attorneys to allow the agent to carry out the director’s wishes in for long-term care planning and obtaining government benefits, such as Medicaid or ALF Elderly Health Care Waiver benefits.


In October 2011, Florida enacted major changes to its power of attorney statute (Chapter 709 of the Florida statutes). As such, this is no longer a durable all-encompassing general power of attorney that allows you to “have all the powers to do everything or anything as if I were a mom / dad / potential Medicaid applicant.”


One of the most important changes / impacts in the post-2011 durable power of attorney changes includes the fact that specific authorities must be individually initialed / authorized by the signer of the document. The list of specific powers that require separate initials can be found in Florida Statute 709.2202.


When it comes to planning for Medicaid and elder law clients, some of the most critical specific authorized powers include the ability to create an intervive trust (revocable or irrevocable, amend trusts, and the ability to change beneficiary designations.


When I review documents written by another attorney, I specifically want to see provisions that allow my client’s agent to create irrevocable trusts such as qualified income trusts or special needs trusts, enter into personal or care service contracts, deal with real estate, and empower him. give my client’s agent the ability to apply for public benefits like Medicaid. Whether the client is seeking Institutional Care Program (ICP) benefits for a nursing home resident or Long Term Care for Home Care or ALF Care (HCBW) benefits, these powers are critical to enabling a client to and your agent apply for and receive Medicaid Benefits. When we prepare Medicaid applications, we include a copy of the Durable Power of Attorney to the caseworker handling the file and the last thing we want is for the case to be rejected because the agent did not have all the necessary authorities to obtain benefits. .


So while you may think you’re covered by the fact that mom / dad / loved one signed a durable power of attorney years ago, understand why I want to review it first and why I often update it to cover all planning contingencies if possible .


Fear not … the attorneys at Segal Linde, PLLC understand the importance of having a proper durable power of attorney and are here to help. WE WILL REVIEW YOUR DOCUMENT FOR FREE and inform you if the document provides the authorities that you or your agent need.


Our attorneys are here to help you and your loved ones. We serve clients throughout Florida. For more information or for a FREE INITIAL CONSULTATION please contact us today by calling 305.722.5533 or by emailing us at [email protected]!