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Living Wills, Powers of Attorney Explained

November 8, 2012
The Intelligencer / Wheeling News-Register

Question: What is the difference between living wills and medical powers of attorney?

Answer: A living will is an affirmative statement by you that if you have a terminal incurable disease, you do not want to have your life artificially prolonged by machines or medical procedures. Recently, since the Terri Schiavo case in Florida, living wills have gone into much more detail about specifically what procedures a person wants, or does not want, to take place if they have a terminal incurable condition.

Medical powers of attorney are documents in which a person names somebody to make medical decisions on his behalf if he is not capable of doing so because of a physical or mental disability. The medical power of attorney does not just cover end-of-life decisions. A medical power of attorney would let your attorney-in-fact participate in all health care decisions, and be able to discuss with your doctors your diagnosis and prognosis and obtain all medical records necessary to carry out the tasks of power of attorney.

Question: My father recently went into a nursing home and we were told he is not eligible for Medicaid because of gifts that he had made in the past to his children. Our accountant advised my father that he could gift up to $13,000 per child per year. I am confused.

Answer: While it is true that you can make gifts of $13,000 per year per child without having to file gift tax returns, this is a tax law, not a Medicaid allowance. Despite the fact that such gifts are permitted under the Internal Revenue Code, gifts made within five years in any amount can cause a penalty if you apply for Medicaid. Thus, it is extremely important to be careful when instituting a gift-giving plan if the donor is struggling with health issues.

Question: My disabled father is getting ready to go into a nursing home. I do have a power of attorney for both financial and medical matters. Is there anything I can do to protect his assets?

Answer: Yes. If the power of attorney is broad enough - i.e., there are no limitations in your ability to divest your father of assets- it is likely you can take steps to protect your father's assets. Such steps could involve transferring real estate out of his name or making monetary gifts to family members.

Question: I am concerned that my mother may be going into a nursing home. She is a resident of Wetzel County and has signed an oil and gas lease. She has received bonus monies paid up front but has not received any royalty payments because they have not drilled on her property. Is it possible to transfer this asset out of her name before she goes into a nursing home?

Answer: The problem with trying to transfer the lease out of her name at this point is that the lease will be deemed to have some value from the Department of Health and Human Resources. In other words, while they haven't drilled a well yet, there is a strong likelihood that they will. Because these future royalties will obviously have great value, transferring the lease out of your mother's name at this point could result in a penalty and she would not, therefore, be entitled to receive Medicaid benefits to pay for her nursing home care.

If you would like to submit a question for publication, email it to Jeffrey J. Rokisky is an elder law attorney with offices in Wheeling, Weirton, Elkins, Clarksburg and Robinson Township.

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