Page 9 - Jupiter West - June '22

Jupiter West, Page 9
Southwood Case Reminds Us

That Incapacity Planning Is Important

Submitted by Anné The resident could not access their financial accounts due to their trustee can step in and manage the trust property according to
Desormier-Cartwright, J.D. incapacity and so could not provide the necessary documentation your written instructions in the trust document.
As we age, our likelihood to the Medicaid office in order to get their application for benefits Why should you be proactive and plan for your incapacity?
of mental incapacity increases. approved. The court ruled that the inability to access an account First, it gives you control. The person you want to handle your
After all, our bodies and did not render the account an uncountable asset for Medicaid affairs will be named. The things you want to happen will
minds deteriorate as we age. eligibility. Because the resident had the legal right to the funds happen. Second, it will save your family the grief and expense of
Mental incapacity could result in the account, the account was still countable. The resident going through a court process. They won’t have to take time off
from dementia, stroke, brain would have to first go through the lengthy court process to get work, they won’t have to get up on the witness stand, and they
injury, or other illness. What is a guardian appointed, the guardian could access this account, won’t have the headache of coming up with thousands of dollars
mental incapacity and in what and then another Medicaid application could be submitted. in lawyer’s fees. Finally, as we learned from the Southwood
ways can you plan to be best If the nursing home resident had instead planned for his case, above, sometimes you need someone to act quickly for
prepared for it? incapacity before it happened, he could have been able to have you. If you have a plan in place, then things that need to get
You are mentally incapacitated if you are unable to carry a Medicaid application submitted on his behalf without going done can be done in a timely manner. Your agent can access
out your affairs. Meaning, you can’t make meaningful through the court process of getting a guardian appointed. This financial accounts and records and submit an application for
decisions that are in your best interests regarding your planning involves creating a Financial Power of Attorney. public benefits for you, your agent can manage your investments
finances or your property. Now that doesn’t mean that if you A Financial Power of Attorney is a document that you can so they are taken care of, your bills can get paid on time, and
make financial decisions that others don’t agree with that sign while you still have capacity that allows another to act on your property can be maintained. Planning is all about peace
you are incapacitated. Just because you decide to spend your your behalf in the event you later become incapacitated. This of mind. If you are one of the lucky ones and never become
money in an unusual way doesn’t mean that you can’t handle person named in the Financial Power of Attorney is your agent. mentally incapacitated, then your agent won’t have to act on
your affairs. Instead, some questions to ask are: Do you have As with a guardian, an agent must act in your best interests and your behalf. But if you are one of the millions that will need an
a sound reason for this decision? Do you understand the there are consequences if the agent doesn’t do so. But by signing agent as you age, you will have a plan in place to give you and
nature of and repercussions of this decision? Is this decision this document before you become incapacitated, you can bypass your family that peace of mind.
detrimental to your financial health? a costly court proceeding and simply have your agent act on If you have questions about your estate plan and what
If someone thinks you lack mental capacity, they can sue your behalf in the event you are unable to do so. documents you should have in place to plan your estate, schedule
you in a court of law to have a judge issue an order saying you What are some other ways to plan for incapacity? a free consultation today by calling our office at (561) 694-7827,
are incapacitated. In the court proceeding, an evaluation will be • You can sign a Health Care Power of Attorney. Just as a Anné Desormier-Cartwright, Esq., Elder & Estate Planning
done on you to determine if a doctor thinks you are incapacitated. Financial Power of Attorney allows someone to act on your Attorneys PA, 480 Maplewood Drive, Suite 3, Jupiter, FL 33458.
Hearings will be held, witnesses will be called, and testimony behalf if you become incapacitated, so does a Health Care The content of this article is general and should not be relied
will be examined. In the end, if you are found to lack capacity, Power of Attorney. The former gives the agent authority to upon without review of your specific circumstances by competent
the judge will appoint someone, a guardian, to now be in charge make financial decisions for you; the latter gives the agent the legal counsel. Reliance on the information herein is at your
of your finances. This guardian will have complete control authority to make health care decisions for you. own risk, as it expresses no opinion by the firm on your specific
over your affairs and will be responsible for taking care of you • You can sign a HIPAA document. This document circumstances or legal needs. An attorney client relationship is
financially. This guardian could be someone you trust (someone gives doctors and other health care providers permission not created through the information provided herein.
you would have chosen) or someone you don’t even know. to give information about your condition to the authorized To comply with the U.S. Treasury regulations, we must
If you haven’t been proactive and done planning, then a recipients that you name. inform you that (i) any U.S. federal tax advice contained in this
guardian could be necessary. And, appointing this guardian • You can create a revocable living trust. This is a contract newsletter was not intended or written to be used, and cannot
timely could be needed to obtain Medicaid benefits. In a recent between you and your trustee to hold and manage property in be used, by any person for the purpose of avoiding U.S. federal
case out of Indiana, Southwood Healthcare Center v. Indiana a certain manner. After you sign the contract, you transfer your tax penalties that may be imposed on such person and (ii) each
Family and Social Services Administration, a nursing home property to the trust. Because you no longer own property in taxpayer should seek advice from their tax advisor based on the
resident was incapacitated but did not have a guardian appointed. your personal name, if you become incapacitated the successor taxpayer’s particular circumstances.