Appointing an Agent to Handle Your Affairs
This edition of the Koldin Law Center E-Newsletter is part of a series about the role of an Elder Law Attorney. In this newsletter we discuss appointing someone to handle your affairs in the event you become unable to do so.
The Koldin Law Center, P.C. limits its practice to the specific field of Elder Law which includes estate planning and Medicaid law.
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Power of Attorney and Health Care Proxy
Example 1: Tom and Mary Jones are married. They are 75 years old. They have never met with an attorney before. They have 2 children ages 45 and 50. Tom has dementia and is no longer competent. Tom and Mary have not done any estate planning.
Example 2: Tom and Mary Jones meet with an Elder Law attorney. They are 65 years old. They have never met with an attorney before. They have 2 children ages 35 and 40. As part of their estate planning, they signed Powers of Attorney and a Health Care Proxy. Ten years later, when they are 75 years old, Tom has a stroke.
Examples 1 and 2 have the same facts except that when Tom became incompetent in Example 2, he had agents appointed to handle his affairs as part of his estate planning with his Elder law attorney. In Example 1, Mary and his children do not have the authority to handle his affairs.
As we discussed in the previous newsletter in this series, part of Elder Law estate planning is to designate someone to handle your affairs, including both financial and medical decisions.
In Example 1, in order for Mary to obtain access to Tom’s bank accounts and retirement funds along with anything else that comes in just Tom’s name, such as a Social Security or Pension check, she will need to go to Court and become appointed as his legal Guardian over his financial and personal/medical affairs. This is a time consuming, invasive and costly process.
In Example 2, since Tom appointed Mary as his Power of Attorney, Mary has the authority to act on Tom’s behalf to access his financial institution accounts.
Also, if the Power of Attorney contains important additional powers such as the power to make gifts, Mary will be able to transfer funds from Tom’s accounts to herself to pay for her living expenses.
In Example 2, since Tom appointed Mary as his health care agent under his Health Care Proxy, she will be able to make medical decisions for him. If the Health Care Proxy contains the necessary language, Mary will also have the authority to remove life support, feeding tubes and hydration.
Another advantage of a Power of Attorney and Health Care Proxy is that it allows you to appoint alternate agents to serve. Rather than leaving it to a Court in a Guardianship proceeding to determine what is in Tom’s best interests, Tom can make his wishes known and authorize his agent(s) and alternate agent(s) to act on his behalf.
Also, Tom can spell out what authority his agent(s) and alternate agent(s) are being granted in the Power of Attorney and Health Care Proxy.
New York State has model forms for a Power of Attorney and Health Care Proxy. These model forms do not contain important additional powers. Attorneys who are not well-versed in Elder Law often use New York’s standard basic forms, leaving out critical powers in the event of incapacity.
The Koldin Law Center, P.C. reviews with clients these important additional powers that we recommend be included in these documents.
For example, if you were to need long term care in a nursing home and you want your agent(s) to be able to take steps to protect your life savings from being lost towards the cost of your care before you can establish eligibility for Medicaid, your Power of Attorney document needs to have the necessary additional authority beyond the standard form used by most attorneys.
For more information about Powers of Attorney and Health Care Proxies, please visit our website by clicking here.
The next newsletter in this series will continue the discussion of the role of an Elder Law Attorney in the preparation of your Last Will and Testament.
At the Koldin Law Center, P.C., located in East Syracuse, New York, we have over 50 years of experience helping individuals plan for immediate crisis and long term care. Our attorneys are available to discuss your estate planning options, including the advantages and disadvantages of Revocable Trusts and Irrevocable Trusts, along with other estate planning considerations including a Will, Power of Attorney, and Health Care Proxy.
When the Koldin Law Center, P.C. handles a Medicaid case, we not only handle the entire application process, but we also review asset protection options with our clients. We review with our clients who are already in a Nursing Home options to protect some or all of their assets beyond merely establishing Medicaid eligibility.
We do not charge a fee for the initial consultation. We welcome your children, family attorney, accountant, and/or financial planner to be present at the initial consultation.
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We have been told by many clients who are in a crisis that they wish they had known about our firm much sooner. We are proud of the many families we have helped in times of crisis.
We are also proud of the many families we helped avoid financial crisis by doing estate planning in advance.
We all share the responsibility for making our family and friends aware of the planning options available to them.
Your referral to the Koldin Law Center could make a major difference in the lives of your family and friends if they are someday faced with a long term illness.
Remember that the Koldin Law Center offers many services for clients of all ages. Our services range from basic estate planning such as a simple will to complex estate planning including asset preservation planning.
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