Page 28 - Southern Exposure - June '22

Page 28, Southern Exposure

elder esTaTe Planning

Southwood Case Reminds Us That

Incapacity Planning Is Important

Submitted by Anné Desormier-Cartwright, J.D.

As we age, our likelihood financial accounts due to their incapacity and so could the trust property according to your written instructions in
of mental incapacity not provide the necessary documentation to the Medicaid the trust document.
increases. After all, our office in order to get their application for benefits approved. Why should you be proactive and plan for your
bodies and minds deteriorate The court ruled that the inability to access an account did incapacity? First, it gives you control. The person you want
as we age. Mental incapacity not render the account an uncountable asset for Medicaid to handle your affairs will be named. The things you want
could result from dementia, eligibility. Because the resident had the legal right to the to happen will happen. Second, it will save your family the
stroke, brain injury, or other funds in the account, the account was still countable. The grief and expense of going through a court process. They
illness. What is mental resident would have to first go through the lengthy court won’t have to take time off work, they won’t have to get
incapacity and in what ways process to get a guardian appointed, the guardian could up on the witness stand, and they won’t have the headache
can you plan to be best access this account, and then another Medicaid application of coming up with thousands of dollars in lawyer’s fees.
prepared for it? could be submitted. Finally, as we learned from the Southwood case, above,
You are mentally If the nursing home resident had instead planned for his sometimes you need someone to act quickly for you. If you
incapacitated if you are unable to carry out your affairs. incapacity before it happened, he could have been able to have a plan in place, then things that need to get done can
Meaning, you can’t make meaningful decisions that are in have a Medicaid application submitted on his behalf without be done in a timely manner. Your agent can access financial
your best interests regarding your finances or your property. going through the court process of getting a guardian accounts and records and submit an application for public
Now that doesn’t mean that if you make financial decisions appointed. This planning involves creating a Financial benefits for you, your agent can manage your investments
that others don’t agree with that you are incapacitated. Just Power of Attorney. so they are taken care of, your bills can get paid on time,
because you decide to spend your money in an unusual way A Financial Power of Attorney is a document that you can and your property can be maintained. Planning is all about
doesn’t mean that you can’t handle your affairs. Instead, sign while you still have capacity that allows another to act peace of mind. If you are one of the lucky ones and never
some questions to ask are: Do you have a sound reason on your behalf in the event you later become incapacitated. become mentally incapacitated, then your agent won’t have
for this decision? Do you understand the nature of and This person named in the Financial Power of Attorney is to act on your behalf. But if you are one of the millions that
repercussions of this decision? Is this decision detrimental your agent. As with a guardian, an agent must act in your will need an agent as you age, you will have a plan in place
to your financial health? best interests and there are consequences if the agent doesn’t to give you and your family that peace of mind.
If someone thinks you lack mental capacity, they can sue do so. But by signing this document before you become If you have questions about your estate plan and what
you in a court of law to have a judge issue an order saying incapacitated, you can bypass a costly court proceeding documents you should have in place to plan your estate,
you are incapacitated. In the court proceeding, an evaluation and simply have your agent act on your behalf in the event schedule a free consultation today by calling our office at
will be done on you to determine if a doctor thinks you you are unable to do so. (561) 694-7827, Anné Desormier-Cartwright, Esq., Elder
are incapacitated. Hearings will be held, witnesses will be What are some other ways to plan for incapacity? & Estate Planning Attorneys PA, 480 Maplewood Drive,
called, and testimony will be examined. In the end, if you • You can sign a Health Care Power of Attorney. Just as a Suite 3, Jupiter, FL 33458.
are found to lack capacity, the judge will appoint someone, Financial Power of Attorney allows someone to act on your The content of this article is general and should not be
a guardian, to now be in charge of your finances. This behalf if you become incapacitated, so does a Health Care relied upon without review of your specific circumstances by
guardian will have complete control over your affairs and Power of Attorney. The former gives the agent authority to competent legal counsel. Reliance on the information herein
will be responsible for taking care of you financially. This make financial decisions for you; the latter gives the agent is at your own risk, as it expresses no opinion by the firm
guardian could be someone you trust (someone you would the authority to make health care decisions for you. on your specific circumstances or legal needs. An attorney
have chosen) or someone you don’t even know. • You can sign a HIPAA document. This document client relationship is not created through the information
If you haven’t been proactive and done planning, then a gives doctors and other health care providers permission provided herein.
guardian could be necessary. And, appointing this guardian to give information about your condition to the authorized To comply with the U.S. Treasury regulations, we must
timely could be needed to obtain Medicaid benefits. In a recipients that you name. inform you that (i) any U.S. federal tax advice contained
recent case out of Indiana, Southwood Healthcare Center • You can create a revocable living trust. This is a in this newsletter was not intended or written to be used,
v. Indiana Family and Social Services Administration, a contract between you and your trustee to hold and manage and cannot be used, by any person for the purpose of
nursing home resident was incapacitated but did not have property in a certain manner. After you sign the contract, avoiding U.S. federal tax penalties that may be imposed
a guardian appointed. The resident could not access their you transfer your property to the trust. Because you no on such person and (ii) each taxpayer should seek advice
longer own property in your personal name, if you become from their tax advisor based on the taxpayer’s particular
Your ad incapacitated the successor trustee can step in and manage circumstances.

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