NYS POA Gifts rider

[gerard2006]

folks - I'm reviewing the gifts rider within the durable power of attorney for new york state. It seems this is pretty important given if the principal were to be incapacitated, then his spouse can gift all his funds to her and come within the medicaid eligibility for a nursing facility. With that being said, should the successor agent also be given a similar right for gifting in the case both husband & wife were to be in an accident causing incapacitation for both?

Also given this is filed with county clerk, does the NY gifts rider become public record?

Thank you

 

[army judge]

Also given this is filed with county clerk, does the NY gifts rider become public record?

If you seek REAL, as in LEGITIMATE, legal advice; hire yourself an attorney licensed your state of residence.

If you act on anything revealed to you here, you could end up with many regrets.

 

[Tax Counsel]

folks - I'm reviewing the gifts rider within the durable power of attorney for new york state.

There is not just one single form used for all durable powers of attorney (DPOA). They can be drafted with a nearly endless variety of terms. As a result there is no way I can comment on what you've read as I've not seen the form you are looking at.

The general issues here concern fiduciary duty, conflict of interest, and self dealing. In general if the agent makes gifts of the principals assets to himself there is a conflict of interest there that raises the prospects of self-dealing and breach of fiduciary duty. In many states it results in a rebuttable presumption that the agent was self-dealing. To deal with that when the principal truly does want the agent to be able to make such gifts they will put in an express provision in the trust document authorizing the gifts and setting whatever limits to that power that are prudent. Because of the potential for this to go wrong if it is not properly addressed, you really want to see a lawyer for assistance. This is not something easily answered in message board forum.

 

[gerard2006]

folks - what kind of living trust is most applicable to qualify for long term medicaid? Thanks

 

[army judge]

folks - what kind of living trust is most applicable to qualify for long term medicaid? Thanks

Be very careful in posing any question that Medicare might determine the answer could be used to break, skirt, or ignore existing laws.

You should be discussing these kinds of questions with a NY state licensed attorney

 

[flyingron]

A living trust doesn't do anything one way or another for Medicaid. The assets in the trust are considered the same as if you personally owned them.

Again, as you've been told several times, planning to allow for asset protection while maintaining long-term care Medicaid benefits is not something that you want to go into with a bunch of disjointed internet advice. It would behoove you if you'd STOP creating multiple threads on the same topic. It wastes the time of the volunteers here trying to help people.