Avoid Legally Stale Paperwork

The most important thing regarding your powers of attorney, both financial and health care, and your living will is that these be accepted by the financial institution; by the brokerage firm; or by the hospital, doctor or long-term care facility that you or your loved ones are depending on.

Increasingly, financial institutions such as banks and brokerage houses are demanding fresh documents when dealing with both powers of attorney and revocable living trusts. I recently had a brokerage firm which, despite a legally executed financial power of attorney (several years old), wouldn't accept it and required the holder of it to have the revocable living trust amended to add her as an independent co-trustee. This was time consuming and could have been fatal if the person giving the power had become incapacitated because of trauma, stroke, Alzheimer's or other dementia. This would not have happened if the financial power of attorney had simply been updated.

If the documents relied on have been inadequately drawn, the same sort of problem can result. Take Medicaid: Because Medicaid has increasingly complicated qualification rules, someone acting on your behalf may need to make some changes to the way your assets are held. Usually a financial power of attorney does not allow your agent to modify your estate plan or create other documents that can protect you and your healthy spouse from going totally broke — basically a requirement to qualify for Georgia Medicaid. If you're in a nursing home or incapable, you need a powerful power of attorney. This is not something you can just download off the Internet, because you need to understand the Medicaid rules and how to create and use a powerful power of attorney.

What if you have paid for a typical revocable living trust? Recently, it has become popular for estate attorneys to create a joint revocable trust for married couples. It's cheaper than creating two trusts, and in a traditional situation, there likely won't be a problem. It's easier to administer during two healthy lifetimes. However, if one of you becomes disabled, this trust often transforms itself into an irrevocable trust (unless it's carefully drawn). An irrevocable trust usually does not allow the healthy spouse to make changes in the way the assets of the couple are held. As a consequence, the healthy spouse may be forced by the terms of the trust to spend a great amount of the couple's assets to care for the ill spouse before he or she can qualify for Medicaid.

Most people's idea of estate planning involves having an attorney draft a will for them and their spouse. Frankly, a will does nothing for you until you die. If you have become incapacitated years prior to your death and go through years of long-term care without an enhanced power of attorney, virtually nothing regarding your assets can be changed to preserve them for the next generations or your spouse. Your 401(k), IRAs, annuities and life insurance can't be adjusted to protect your assets because you are still alive.

Medicaid's limitation on assets sits at approximately $2,000, so all but a small sum will be taken away from you to pay your nursing home costs. You will be allowed a "needs allowance" of approximately $60 per month. As a woman, how often can you get your hair done for $60 per month? How do you replace hearing aids, glasses, dentures? What happens? You, who have worked hard for your assets all your life, and scrimped and saved, become totally dependent on your children or grandchildren to provide these things for you, because you will be out of money and out of options.

You deserve something better. You deserve a plan that looks ahead to protect your spouse and loved ones so that they do not become impoverished by never-ending long-term care costs. You deserve a power of attorney that enables your agent to take special and necessary actions to protect you and your loved ones — to carry out your wishes, ethically and legally. Basically, you need an attorney skilled in creating powerful and enhanced documents which fully authorize your loved ones to change the way your assets are held and, thus, to provide the absolute best protection for you and your family in the event that you have long-term care needs. Estate planning and Medicaid planning are not do-it-yourself projects.

If you want to make sure you get the protection you deserve, call the experienced attorneys at the Hodges Law Firm at -404-824-4225, or contact us online.