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Power of Attorney

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  • Power of Attorney

    Hello,

    My father is currently in a nursing home receiving cancer treatment. He is staying there because he lives alone and needed more support than I could provide. I am his only child and live in another state. He is granting me power of attorney. I have a couple of questions.

    Is it okay to order a POA online? Are they legal after they are signed and notarized? It is certainly easier (and cheaper) than waiting for our lawyer to draw one up. The POA is for finances. The nursing home is setting up the medical one. Is there a website you recommend?

    Also, his medicare days are going to run out in 3 weeks. At that point, he will have to pay out of pocket for his room and it is very expensive He doesn't think he will ever be well enough to leave, even to assisted living. He doesn't realize that he will feel better after the side affects from his cancer treatment wear off. I don't want him to come home to no money or place to live. On that end, I would like to put his home in a trust to protect it. I'm going to have our lawyer handle this. I heard they are quite expensive. Do you know what kind of trust I should get? What are some things I should ask our lawyer?

    Any input would be helpful. Thanks in advance

  • #2
    Asset protection trusts are very tricky. It is not easy to protect your assets from your own creditors like your want to do on behalf of your father. There generally needs to be some significant time between the transfer to an asset protection trust and the debt. Depending on state law, it may not even be possible for your father to protect his own assets from his creditors. You will definitely need the advice of an asset protection specialist on this issue. Keep in mind that not all estate planning attorneys are qualified to advise on asset protection. I work with excellent estate planning attorneys, each with 25 years or more of experience, and they always refer asset protection questions to a specialist on the topic.

    Even if an asset protection trust is not an option, it may be a good idea to put your father's home in a revocable trust so that probate court can be avoided after his death.

    There is no reason your father should not have medical insurance, either through medicare or the health care exchange. https://www.healthcare.gov/

    You don't need an attorney for a financial power of attorney. What is required to make it effective depends on state law and what kind of power of attorney is signed. A power of attorney is effective upon signing unless it is a "springing" power of attorney which takes effect upon a certain event (like incapacity). You can tell what kind of power of attorney you have by reading the language of the document. Many states have forms available online for free. If your father's state does not, there are several places where you can buy and download a form. What state does your father live in?
    LadyInTheRed is in the black!
    Filed Chap 13 April 2010. Discharged May 2015.
    $143,000 in debt discharged for $36,500, including attorneys fees. Money well spent!

    Comment


    • #3
      Thanks Lady. My dad lives in IL. As far as asset protection goes, I am looking toward the future. In the event he runs through all his money by paying the nursing home out of pocket (it costs a fortune), he will have to go on medicaid and they would require him to sell his house unless it is in a trust for 2 years. I want to protect the house in case he wants to come home at some point. He's on medicare and they pay half of the nursing home bill for 100 days. After that he has to pay full price out of pocket. He has no supplement insurance, as he usually gets his medical care through the VA. He doesn't qualify for VA nursing home since he did not serve during war time.

      Thanks for your help. I'll get the POA online. I'll check IL.gov website and see if they have something I can download. Much appreciated!

      Comment


      • #4
        In case you didn't find it, you can find the Illinois statutory forms at http://www.isba.org/resources/poaforms
        LadyInTheRed is in the black!
        Filed Chap 13 April 2010. Discharged May 2015.
        $143,000 in debt discharged for $36,500, including attorneys fees. Money well spent!

        Comment


        • #5
          kingray, i want to say, i hope you father will do well with his cancer treatment. from personal experience i can tell you they have come a long way with treatments. my prayers will be with you.

          it may also be a good idea to maybe contact an atty in IL to also see if they require a durable power of atty for health care decision as well, many states require this additional instrument to have any say in his health care in the future, in case a situation does arise that you need to make some decisions in case he needs at a time he is unable or needs some help from you, this way you can speak with his doctors and health care givers with no problems that may come up with the HIPPA laws .the POA document is usually dealing with one specific asset, unless you draw up what is referred to as a DPOA with is a Durable Power of Atty. this document is usually all inclusive from handling his tax issues to his banking. i would really suggest that you take a visit and go to ILL and see an estate atty. additionally, states like calif and florida for example have very strict guidelines for the elderly and you may also have to hire an atty for your dad, so there can be no further conflict of interest with any other family members. i know you stated you are an only child however, my experience in this area i have seen relative come out of the woodwork to try to take claim. drawing up a trust is an entirely different thing. however, in the mean time he can begin to give you part of the property up to 14k to both you and your spouse to protect at least a part of his home until you can it is into a trust for protection. in some cases that may not even help it will depend on the laws in your state as well as how much interest you can transfer to you now. he can also "gift" you the house. he is allowed to do so. we just had a client that was gifted over 400k and just had to file a tax form, however, there is no tax ramification due to the federal inheritance laws which max out at millions. many elderly decide to distribute while still alive. many for just this reason, to protect what is usually their main asset, their home. also this way, if the future it will prevent the house going into probate.

          again, i wish the best for your father. however, this is no area at all to not have a professionals help. estate law is complicated many times. your situation may be simply cut and dry. but it's best left to get the advise of a real estate atty and have them draw up the documents. i just did a SPA that is what a POA is called in TX and i made certain i used a TX atty had them record it and send my me a recorded copy. my point in telling you that, is each state varies completely about these legal instruments. all these documents should be put on record for your father's well being and actually yours.
          Last edited by tobee43; 03-09-2014, 11:33 AM.
          8/4/2008 MAKE SURE AND VISIT Tobee's Blogs! http://www.bkforum.com/blog.php?32727-tobee43 and all are welcome to bk forum's Florida State Questions and Answers on BK http://www.bkforum.com/group.php?groupid=9

          Comment


          • #6
            Interesting, thx. I did download the durable POA. The nursing home is doing the medical POA for me. As far as protecting his home, I'm going to contact our lawyer. If my dad stays in the nursing home and runs out of money, he will need medicaid. They will require him to sell his house unless it is protected by a trust (or some other means) for 5 years (not 2 as I thought). Can he gift me the house so medicaid can't get it? Also, we have had a joint checking acct. for years. Is that protected from medicaid because my name is on it? I'm thinking our lawyer may have to refer us to another atty but what kind? Elder lawyers, family law, real estate? I'm really only interested in saving the house and a few bucks for him when he gets out. They can have the rest (it's not that much).

            Comment


            • #7
              Originally posted by tobee43 View Post
              however, this is no area at all to not have a professionals help. estate law is complicated many times. your situation may be simply cut and dry. but it's best left to get the advise of a real estate atty and have them draw up the documents. i just did a SPA that is what a POA is called in TX and i made certain i used a TX atty had them record it and send my me a recorded copy. my point in telling you that, is each state varies completely about these legal instruments. all these documents should be put on record for your father's well being and actually yours.
              While I do agree medicare planning or any creditor protection planning should be done with the help of an attorney, that is not true for a POA or Health Care Directive in a state that has statutory forms. That's why many states provide the forms to the public. All you need to know is on the form itself. If you understand what is on the form, there is no reason to get an attorney. Some states also have statutory will forms. For many people (probably most), all of their estate planning can be done without an attorney. There is plenty of information out there to help. Nolo has good information on do-it-yourself estate planning: http://www.nolo.com/legal-encycloped...state-planning. The attorneys I work with often get calls from people and after speaking with them for a few minutes about their assets and their family situation, tell them "don't waste your money hiring me, you can do this yourself." They then give them a few tips and point them to sources of information, including the Nolo site.
              LadyInTheRed is in the black!
              Filed Chap 13 April 2010. Discharged May 2015.
              $143,000 in debt discharged for $36,500, including attorneys fees. Money well spent!

              Comment


              • #8
                Originally posted by Kingxray View Post
                Can he gift me the house so medicaid can't get it?
                I believe so, but the same five year requirement will apply.
                Originally posted by Kingxray View Post
                Also, we have had a joint checking acct. for years. Is that protected from medicaid because my name is on it?
                Probably not. It is considered 100% his and 100% yours because either of you can withdrawal the entire balance without the involvement of the other.
                Originally posted by Kingxray View Post
                I'm thinking our lawyer may have to refer us to another atty but what kind? Elder lawyers, family law, real estate? I'm really only interested in saving the house and a few bucks for him when he gets out. They can have the rest (it's not that much).
                For medicaid planning, you should find an Elder Law attorney. My knowledge on this topic is just enough to be dangerous, but my understanding is that Medicaid won't necessarily sell his house to pay for care, but they may place a lien on it. If the goal is to protect his home for his own use and he isn't concerned about passing it on to his heirs, it may be that nothing needs to be done.
                LadyInTheRed is in the black!
                Filed Chap 13 April 2010. Discharged May 2015.
                $143,000 in debt discharged for $36,500, including attorneys fees. Money well spent!

                Comment


                • #9
                  Ugh, so much to absorb. I already downloaded the durable POA and sent it to the nursing home to have notarized. I will definitely be using a lawyer to get some help (if any) for some asset protection. Wow, Lady, sounds like you work for some nice, honest attorneys! That's refreshing to hear. Our lawyer is like that too. You really need someone honest on your side when going through these kind of family situations.

                  Comment


                  • #10
                    Originally posted by LadyInTheRed View Post
                    While I do agree medicare planning or any creditor protection planning should be done with the help of an attorney, that is not true for a POA or Health Care Directive in a state that has statutory forms. That's why many states provide the forms to the public. All you need to know is on the form itself. If you understand what is on the form, there is no reason to get an attorney. Some states also have statutory will forms. For many people (probably most), all of their estate planning can be done without an attorney. There is plenty of information out there to help. Nolo has good information on do-it-yourself estate planning: http://www.nolo.com/legal-encycloped...state-planning. The attorneys I work with often get calls from people and after speaking with them for a few minutes about their assets and their family situation, tell them "don't waste your money hiring me, you can do this yourself." They then give them a few tips and point them to sources of information, including the Nolo site.
                    yes lady, i have the california form here, it's self explanatory. i see that. it's just with the house, and all, i would be concerned about undue influence. not only can a relative question that but also ADP could as well. that's why, and only why, i would think it best with using an atty, shoot it's $75 for the POA and have the firm record it. i'm just overly safe i guess with these issues since i have seen so many messes come up for people. but if one wants to do it themselves i get and understand your point. i have to chuckle, about your comment about wasting your time. the two estate attys i work for i have never heard those words running out of their mouths LOL!!
                    8/4/2008 MAKE SURE AND VISIT Tobee's Blogs! http://www.bkforum.com/blog.php?32727-tobee43 and all are welcome to bk forum's Florida State Questions and Answers on BK http://www.bkforum.com/group.php?groupid=9

                    Comment


                    • #11
                      Originally posted by Kingxray View Post
                      Ugh, so much to absorb. I already downloaded the durable POA and sent it to the nursing home to have notarized. I will definitely be using a lawyer to get some help (if any) for some asset protection. Wow, Lady, sounds like you work for some nice, honest attorneys! That's refreshing to hear. Our lawyer is like that too. You really need someone honest on your side when going through these kind of family situations.

                      if you have a nice family atty, you feel good with, it's certainly worth running this all by him/her don't you think? you are so right, you need a really honest good atty and if you have one, i'm certain they wouldn't charge you much to just get some general guidance on this. best of luck to you!
                      8/4/2008 MAKE SURE AND VISIT Tobee's Blogs! http://www.bkforum.com/blog.php?32727-tobee43 and all are welcome to bk forum's Florida State Questions and Answers on BK http://www.bkforum.com/group.php?groupid=9

                      Comment

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