Weigh power of attorney carefully, expert says

Published 11:22am Thursday, June 19, 2014

Falling off a tractor and suffering a serious head injury might be more likely than death from any single cause, which makes assigning powers of attorney to a trusted family member a pressing need for adults of all ages, a Jackson elder law attorney said Wednesday.

“You are much more likely — three and a half times more likely, the statistics are — to become incapacitated by a disability than you are to die during any period you want to project,” said Richard A. Courtney, a certified elder law attorney and specialist in public benefits law and personal assets protection with Jackson-based Frascogna Courtney, PLLC.

Written authorization to handle various personal and business affairs, or power of attorney, can be vital and best done while someone is in good health.

“Power of attorney is a personalized document,” Courtney told the Vicksburg Lions Club. “It’s fundamental to think about. If you don’t, you’re behind the curve.”

Courtney used general examples on the importance of naming someone who can make financial decisions for people before health issues make such decisions impossible.

Typically, firms that handle elder law guide families through a process that will put the most capable person in control of a senior’s bank accounts, health care decision-making and concerns over property that commonly involve home sales.

Courtney advised against “do-it-yourself” powers of attorney agreements — ones done either informally or conservatorships, which involve an often-unwieldy accounting of a person’s assets monthly before chancery court. Also, he said, the age and gender of a spouse or family member isn’t locked into the law as widely thought and formal “pre-incapacity planning” is a must.

“I had a client named Sam come in and say his daughter asked him to talk to me about it,” Courtney said, adding he asked the man what would happen if he fell off his tractor and injured his head. “He said he was just going to make his eldest son power of attorney because he was the oldest. Can Sam Jr. deal with his dad’s money and bank accounts and so forth? No, because it’s not Sam Jr.’s property. It’s his dad’s property.”

Giving away pieces of assets as gifts to lower income for tax and other purposes is a vital piece of advice, he said.

“If you go to a nursing home, it’s good to use power of attorney to gift some of the property and assets to someone else in your family in order to qualify for Medicaid assistance,” he said.

In 1998, the Legislature enacted the first of a few changes in elder law when a statute allowing end-of-life mechanisms for the terminally ill was eliminated. Subsequent changes have allowed married individuals to assign someone other than their spouse to handle property such as residences in the case a subject has dementia or other forms of incapacitation. The law provided relief from a separate statute that excluded residences as what spouses have the authority to sign away.

“My wife cannot sign over the deed for me even if she has power of attorney,” he said.

Courtney advised people “think of family dynamics” when assigning duties of making any decisions for older family members, whether incapacitated or not.

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