We see situations where the Power of Attorney, the “Agent” in charge of a disabled loved one’s financial affairs, will decide to make gifts of assets to themselves or other family members; sell the house at a steep discount to their child; or comingle the disabled person’s assets with their own so that some percentages of those funds are used to pay the Agent’s monthly bills. There are multiple versions of these scenarios. They occur often enough to comment on.
Here are some of the justifications we hear from the Agent:
I didn’t know that I shouldn’t do that.
My aunt is 95 years old and will probably die in the next year.
My aunt doesn’t need the money.
I was just trying to help my son, who was in financial straits.
I heard that a person needs to spend down their assets to $2,000 before applying for Medicaid.
Here is what is wrong with this level of decision-making:
Using a loved one’s money as their Agent for personal purposes is a breach of fiduciary duty. The Court can and will hold the Agent personally accountable if the situation comes to its attention.
This behavior is taking advantage of a disabled person, which may be criminal if egregious enough.
Giving away or selling assets at a discount is considered a gift under Medicaid rules. Gifts create a delay in having the Medicaid application approved. During the resulting waiting period, the disabled person has to self-pay full price for their care. What if the disabled person out lives their life expectancy and their monthly cost of care are $ 5,000, $7,500, or $15,000? Now what?
