Medicaid Asset Protection Planning Prevented if the Power of Attorney Does Not Authorize it

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Medicaid Attorney

Recently a client consulted with a Medicaid lawyer in north Jersey because their mother moved to a nursing home. At $12,000 per month, the family can’t afford it much longer. The lawyer said the mother’s power of attorney doesn’t give her son as agent, the right to do Medicaid eligibility planning for her. I was asked if “this advice is correct?” The document says the agent can do whatever Mom could do for herself.

My initial reaction was that the Durable Power of Attorney (POA) does not specifically allow the agent to make gifts. That power is at the heart of many planning techniques. N.J. law authorizes an agent to perform only those functions identified in the POA. Any power not listed, especially if it might be interpreted as not in a person’s best interest, is assumed not to be authorized. A generic form of Power of Attorney document stating an agent has all the powers that a parent has doesn’t cut it for Medicaid planning purposes.

While this post is very general in nature and does not address a number of favorable and/or unfavorable options to my readers, each interested person may want to consider having a doctor determine if their parent is competent to execute a new POA. If not, you will have to seek court guardianship over him/her. Once appointed as guardian you will be allowed to engage in Medicaid planning if approved by the court. Given the cost of long term care, a guardianship may be your only option.

To discuss your NJ Medicaid Planning & Guardianship matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.