ElderLaw News-The Estate Planning & Elder Law Firm, P.C. — MD, VA, DC
ElderLaw News
ElderLaw News is a weekly e-newsletter that brings you reports of legal developments and other trends of vital interest to seniors and their advocates. This newsletter is brought to you by The Estate Planning & Elder Law Firm, P.C., William S. Fralin, Esq., President., William S. Fralin, Esq., President.

The Importance of Gifting Powers in Long-Term Care Planning

An appellate court, in Natho v. State (Tex. Ct. App., 3rd Dist., No. 03-11-00498-CR, Feb. 6, 2014), upheld the conviction of an agent who used a power of attorney to transfer the assets of his former grandmother-in-law, Rosie Shelton, to himself.

The facts of the case indicate that after Rosie Shelton entered a nursing home, Ronnie Natho sought counsel to assist with Medicaid planning. The attorney advised Mr. Natho to utilize the power of attorney executed by Ms. Shelton to spend down Ms. Shelton's assets for Medicaid eligibility. As a result, Mr. Natho transferred Ms. Shetlton's care, life insurance, money, and other assets to himself. These transfers led to Ms. Shelton revoking the power of attorney which named Mr. Natho as her agent and criminal charges resulting in a 25-year prison sentence. In upholding the conviction, the Texas Court of Appeals concluded that the power of attorney used by Mr. Natho did not authorize gifts to himself and that various assets that were transferred to Mr. Natho were exempt or non-countable resources for Medicaid eligibility. As a result, the court found that Mr. Natho was not acting to benefit Ms. Shelton.

A basic concept in agency law requires that an agent act within the confines of the authority given. Virginia Code § 64.2-1622 sets forth a list of powers that must be expressly granted to an agent. Such powers, to name a few, include the ability to create, amend, revoke or terminate an inter vivos trust, make a gift, change rights or survivorship or beneficiary designations, delegate authority. It is also common that such acts comply with a principal’s estate plan. As a result, when looking to act on behalf of an agent, whether it be day-to-day activity, long-term care planning, or tax planning, it is important that you, as a fiduciary, understand your responsibilities and the powers granted to you.

In long-term car planning, it is important that you not only understand what you are legally authorized to do, but that you understand what you are doing. Most public benefit programs are complicated creatures of Federal and State law. As a result, the planning involved with Medicaid eligibility varies from state-to-state. Elder law attorneys understand what assets will compromise eligibility, what transfers will not affect a 60-month look-back period or penalty, and how to use this knowledge to promote eligibility.

When looking at public benefits eligibility for another, it is important that you consult with an experienced Elder Law Attorney. As a Certified Elder Law Attorney in the Commonwealth of Virginia, William S. Fralin is one of the most experienced Elder Law Attorneys in Virginia. As a recognized national leader in the realm of Elder Law, William S. Fralin has been able to provide his team of attorneys and staff with a vast knowledge of many complicated issues involving long-term care planning, Medicaid and Medicare, Veteran’s Benefits, estate planning, special needs planning, and much more. To schedule an initial consultation, please contact us at 703-243-3200.


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The Estate Planning & Elder Law Firm, P.C.

The Estate Planning & Elder Law Firm, P.C. is an elder law firm. We represent older persons, disabled persons, their families, and their advocates. The practice of elder law includes estate planning, estate and trust administration, powers of attorney, advance medical directives, titling of assets and designations of beneficiaries, guardianships, conservatorships, and public entitlements such as Medicaid, Medicare, Social Security, and SSI, disability planning, income tax planning and preparation, care management, and fiduciary services. For more information about The Estate Planning & Elder Law Firm, P.C., please visit our website at http://www.chroniccareadvocacy.com.

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This newsletter is not intended as a substitute for legal counsel. While every precaution has been taken to make this newsletter accurate, we assume no responsibility for errors, omissions, or damages resulting from the use of the information in this newsletter. The Estate Planning & Elder Law Firm, P.C. thanks the law firm of Hook Law Center for their input to this newsletter.

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