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The Importance of a Current Florida Durable Power of Attorney for Medicaid Planning

July 1, 2020 in News

by Christian N. Horde, J.D., LL.M.

A Durable Power of Attorney (DPOA) is a document that gives a trusted person, of your choosing, (the Agent) the legal authority to act on your behalf regarding financial matters.  A DPOA withstands incapacity and is very important document for you to have in the event you lose capacity due to a stroke, memory loss or injury.

However, not all DPOAs are created equal. If certain powers are not specifically mentioned in the document or initialed properly, then the Agent cannot meet all your future needs.  Many elders need to implement Medicaid planning when they need nursing home case, assisted living or home care.  When it comes to Medicaid planning there are many financial planning steps that need to be taken in order to complete proper Medicaid planning. Oftentimes, the elder in need of Medicaid will have to rely on their Agent named in their DPOA to handle planning on their behalf.  However, if the DPOA is insufficient then the elder and their family can find themselves in a difficult and costly situation, where a guardianship may be required.

“Super Powers” for Medicaid Planning

The Revised Florida Power of Attorney Act from October 1, 2011 (Fla Stat. § 709.2202) introduced what are called “Super Powers” or specific grants of authority, which include:

(1) the power to create an Inter Vivos Trust,

(2) the Power to Amend, Modify, Revoke, or Terminate a Trust created by the Principal, the Power to make gifts,

(3) the Power to Create or Change Rights of Survivorship, and

(4) the Power to Create or Change Beneficiary Designations.

These powers are very important when it comes to Medicaid planning and must be initialed property to be legally effective. Here are some examples of specific powers and initials needed in a DPOA to accomplish Medicaid planning:

  1. An elder is over the income limit for Medicaid long term care. The DPOA will need to allow the agent to create a Qualified Income Trust (QIT) or pooled special needs trust joinder to allow the elder to be eligible for Medicaid. The power will also need to be initialed in accordance with Florida law.
  2. An elder is applying for Medicaid and asset protection planning is necessary to leave assets to the elder’s children and avoid probate. The DPOA will need initialed super powers to change ownership and add beneficiary designations, consistent with the elder’s estate planning wishes.
  3. An elder is over the asset limit for Medicaid long term care. The DPOA will need certain powers to allow for various planning strategies such as: executing a personal care contract, real estate powers for investing in income producing property, making funeral arrangements, dealing with pooled special needs trusts, purchasing Medicaid compliant annuities or promissory notes. The DPOA must have initialed superpowers to complete these planning options and have additional specific language to effectuate the Medicaid planning.
  4. An elder has a DPOA signed in 2016 that has many of the Medicaid planning super powers mentioned above, but the individual powers are not separately initialed on the document. The powers are not legally effective. There must be initials next to each enumerated super power under Florida law. Even one initial at the bottom of the page that includes all the powers on that page is not legally sufficient.

These are just a few examples we see daily.  It is very important for your future that an experienced elder law attorney reviews and drafts your DPOA to make sure it is sufficient for future Medicaid planning.   If you do not have a DPOA or your DPOA is old or executed in another state, it is important to have an experienced elder law attorney review same.  Don’t postpone this decision.  Often times people wait until it is too late, and the elder lacks capacity and cannot update his/her DPOA. 

At the Elder Law Center of Kirson & Fuller we offer full legal services for all of your elder law needs.   Our estate planning and Medicaid attorneys are well versed in the intricacies required for your documents  and we will work with you to ensure you are prepared for what the future holds. Contact us today 407-422-3017 to learn more!



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