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POA's (Powers of Attorney) vs Court-Appointed Positions
POA’s vs Court-Appointed Positions
The differences between a Power of Attorney and Court-appointed Conservators and Guardians are quite substantial.
One can be done prior to its need arising, while the others are usually done after a traumatic incident has occurred and decisions for the person must be made by another party. The differences will be discussed in part as they pertain to Long Term Care Medicaid.
A Power of Attorney, or POA, for medical decisions and financial transactions is a set of documents that will allow someone of your choosing to make decisions for you if you should become incapacitated and are not able to make decisions on your own. The POA’s may be done years in advance of being needed, and can be done thru an attorney or with forms available at office supply stores or online.
With these documents, you may appoint someone with whom you’re confident, who will make choices on your behalf. For instance, if you discuss your preferences ahead of time with your POA, the appointee would know if you want life support if needed, or if you do not want to be put onto life support. Likewise, a financial Durable POA can pay bills out of your bank account for you, sell a vehicle, or even your home if required for long term assisted housing.
For Colorado Medicaid, it is advisable in the financial Power of Attorney to include an additional paragraph that pertains to setting up trusts. Most documents have a general reference to trusts. However, Colorado Medicaid requires special verbiage in the document to work with the State. The verbiage required includes “create, amend, revoke or terminate an inter-vivos trust.” The State of Colorado requires this be included in a financial POA so the POA can set up a Medicaid income trust for the person-in-need, if required. (Please refer to previous articles where I’ve discussed income limits for the Long Term Care Medicaid program.)
Many older POA’s do not have this additional wording. Because it’s only been recently that the State made this change, it would be advisable to review your current Powers of Attorney to see if this is included.
Updating POA’s every 5-10 years or so would be advisable anyway, as situations change with time.
Did you know that a Power of Attorney appointment ends with the death of the person for whom the POA was established? Should the person pass away, the person’s POA, and their rights, end. It’s at this point that an executor of a Will begins.
If a person does not have Powers of Attorney set up and there’s a life-altering incident, such as a stroke, a court appointment for the person would be required. Conservators cover financial transactions and Guardianships take care of medical decisions. Generally speaking, a lawyer would be well-utilized in helping with the documents required for the courts. The Conservatorship/ Guardianship process can be cumbersome, so having an attorney who is familiar with the procedures is very helpful. Unfortunately, it’s also costly.
Overall, the best advice would be to have Powers of Attorney set up while you’re healthy and able to make your own choices. Including the inter-vivo’s wording ensures the POA will cover transactions that may be required. ~
Editor’s Note: This article was submitted by Joell Gray, owner of JG Medicaid Consulting LLC. She can be reached at 970-216-4999 or by email at jg.ltc. med@gmail.com. See ad below
Specializing in Long Term Care for the Elderly & Disabled
Financial application assistance for Long Term Care Medicaid:
• Assist with Medicaid application • Complete additional documentation as needed • Supply an itemized list to client for verifications required • Guidance on how to proceed and what to expect from county • Act as the liaison between client and county office
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