Power of Attorney — Importance of Gift Rider

Power of Attorney — Importance of Gift Rider

By Scott Koldin

This entry was posted on April 26, 2013

A Power of Attorney is an important legal document where you give your agent(s) (person you appoint to serve on your behalf) the legal authority to handle your finances and make other business decisions on your behalf. If you become incapacitated in the future and have not signed a Power of Attorney, a Guardianship proceeding may become necessary.

New York law provides a standard form commonly known as the "statutory short form." The "statutory form" has the basic powers. Most general practice attorneys provide their clients with this basic statutory form.

The law then allows for substantial modification of the basic form, including adding a "gift rider." We have found that most new clients who come to our office either don't have a Power of Attorney at all or have one prepared by their family attorney without any gift rider.

Most family attorneys likely only view the gift rider for the purpose of making gifts and may have concluded that most of their clients don't need this power. Elder Law Attorneys, such as the Koldin Law Center, P.C., recognize the critical importance of this gift rider.

If someone enters a nursing home and faces the loss of his/her entire life savings, the gift rider allows the agent under the Power of Attorney to transfer assets and take other steps to protect assets from being lost towards the cost of care and to qualify the person for Medicaid coverage. Without such a gift rider, it could become difficult, if not impossible, to protect assets.

In addition, if there is no gift rider, a spouse will be unable to access funds from an incapacitated spouse's IRA or 401(k). Many people believe that if they are the beneficiary of their spouse's retirement account, they may access it themselves at any time. However, without a properly drafted Power of Attorney with the appropriate gifting language, the healthy spouse may not be able to access any accounts that are solely in the ill spouse's name. The only alternative at that point would be to file a guardianship proceeding which can be costly and time consuming.

The Koldin Law Center, P.C., has prepared an enhanced Power of Attorney with a gift rider that provides additional powers we feel are important if a catastrophic illness occurs.