Drafting the proper power of attorney

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Drafting the proper power of attorney

Life is not the way it’s supposed to be. It’s the way it is. The way you cope with it is what makes the difference.— Virginia Satir, American author and psychotherapist, 1916-1988

Thank you so much for writing, calling and e-mailing with your suggestions and thoughts regarding the name of this column. Interestingly, but perhaps not too surprising, is that 70 percent of readers who responded to the request for name suggestions wanted to keep the current name Senior Moments.

From the other suggestions, the Byrd & Byrd staff chose “A Byrd’s Eye View” and “Senior Focus” as favorites. In the end, we will follow the instructions of the Editor regarding what to do. All of us have seen enough old newspaper movies to know who has the last say, even in All the President’s Men. Whatever is decided, this weekly space will still be me and you, and I look forward to it.

One reader suggested that we also answer questions in this column. If you have a legal or practical question regarding aging, aging in place, caregivers or any of the topics we typically address in this space, please send it to seniormoments@byrdandbyrd.com. It will be answered by me, or by another elder law attorney I can recruit to keep you supplied with the latest and most accurate information available.

Moving on to a cautionary tale: Once upon a time, around these parts, there lived a young man, who was an only child. By his own admission, he may have been a little immature and irresponsible, perhaps spoiled in the way that only children can sometimes be.

His father died. A few months later, his mother was diagnosed with Alzheimer’s disease. Having some understanding of the future, the mother signed a power of attorney designating her only child to act as her agent when she became unable to act. Signing a power of attorney was a wise and good decision. Unfortunately, this particular power of attorney was poorly drafted and had a fatal flaw—one that probably no one noticed at the time of its execution.

Later, the mother (whose last lucid thoughts may have included some satisfaction that everything was in order) was admitted to a local nursing facility, and her son began paying the facility using his mother’s funds.

Long-term custodial care is expensive. The mother’s money funded care in the neighborhood of $42,000 annually in the beginning. Six more years resulted in payments exceeding a quarter of a million dollars to the facility.

As the years passed and his mother’s money was getting low, son took out a loan. He continued to pay for her care and to pay off the loan. Then he took out another loan. He paid it back. Then, during the years when interest rates lowered, he said to himself, “Mom and I own this house jointly. I will refinance the house to get a lower interest rate, I will use that money to buy out mom’s share of the house, and then she will have money to continue paying for her care.”

Good plan. Enter the poorly drafted power of attorney. After half a dozen tries, the young man had to face the fact that the power of attorney, drafted when his mom was legally competent, was not sufficient to allow him to refinance the house he owned with his mother. Because of the document’s weakness, it was necessary to ask the courts whether son can assume guardianship over his mother for the purpose of refinancing the house.

The courts do not look lightly upon a request to assume guardianship over another person—even if it is only for a specific transaction. Therefore, an attorney was appointed to represent the allegedly disabled mother (called allegedly disabled because her disability had not yet been proven to the court). In the judicial hearing, the attorney representing the young man was required to prove, to the court’s satisfaction, that the son had not wasted his mother’s assets in riotous living.

If the young man won, he would be able to pay the nursing home a while longer. If he lost, Mom would need to go on Medicaid sooner, and the state may have put a lien on the house for recovery of funds after mom’s death.

Ironically, as the law stands right now, the young man could have gifted everything his mother owned, including the house, to himself a long time ago and she would have been eligible for Medicaid five years from that gift. Moral: Doing the “right” things may not result in the “right” outcome, if your estate planning documents are poorly drafted. Check and double check.

Make sure that your elder law attorney first of all knows the law. Secondly, the attorney should understand the complexities of your particular situation. The attorney should explain to your understanding how to meet your individual and family goals. He/she should answer all your questions kindly and help you to choose among the options available to you.

Thank you for reading. Stay well. See you next week.

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