As a part of many estate and elder law plans, an elder law attorney will draft a financial power of attorney for a client. The client, as the principal, names another person, an agent, to act on their behalf. The power of attorney can be effective immediately, meaning the agent can act even if the principal has capacity. Or, the power of attorney can be springing, meaning the agent can only act if the principal becomes incapacitated and unable to manage his or her own financial affairs. But what happens if an agent begins to act under the document before the springing provision has been satisfied? Are the agent’s acts legally binding?

In a case out of the Superior Court of Pennsylvania, this issue was litigated. Here, Mercedes had six children. In 2013, she named child Joseph as her agent on a power of attorney form that Joseph had downloaded off the Internet. Therein was a clause that stated Mercedes must be incapacitated or disabled and there must be a physician’s statement to that effect before the power of attorney became effective and Joseph would be able to act. However, Joseph began acting as Mercedes’ agent immediately after signing the document, in routine financial affairs. Mercedes had not been declared incompetent and had not obtained a written physician’s statement.

Qualifying for long-term care Medicaid can be tricky. There are strict asset and income limits. Elder law attorneys help clients get qualified for Medicaid using variety of strategies. Some of these strategies revolve around how to plan for the client’s home.

In most states, the home is an exempt asset if the client has an intent to return home. The home is also exempt if there is a community spouse, disabled or blind child, or child under the age of 21 still living in the home. However, planning is still sometimes sought in these situations to avoid estate recovery.

One planning technique is to transfer the home to a child caretaker. This planning strategy is the result of 42 U.S.C. § 1396p(c)(2), which states:

42 U.S. Code § 1396p(c)(2):

“(2)An individual shall not be ineligible for medical assistance by reason of paragraph (1) to the extent that—

(A)the assets transferred were a home and title to the home was transferred to—

                …

(iv)a son or daughter of such individual (other than a child described in clause (ii)) who was residing in such individual’s home for a period of at least two years immediately before the date the individual becomes an institutionalized individual, and who (as determined by the State) provided care to such individual which permitted such individual to reside at home rather than in such an institution or facility;”

Former President Trump made it very clear during his presidency that he supported Medicaid work requirements. Indeed, the former Administrator for Centers for Medicare & Medicaid Services (CMS), Seema Verma, under Trump’s administration, issued policy memoranda on how states could submit Section 1115 waivers in search of work requirement approval.

Thereafter, several states submitted such waivers, including Arkansas, Arizona, Iowa, Indiana, New Hampshire, Kentucky, Kansas, Maine, North Carolina, Mississippi, Ohio, Utah, Oklahoma, and Wisconsin. Kentucky was the first to attempt to implement such work requirements. Under that waiver program, each Medicaid recipient would be required to work, look for work, or participate in volunteer work for 80 hours each month. If the requirement wasn’t met, Medicaid coverage would be lost for 6 months. There were several exceptions to the rule, such as for pregnant women, full-time students, primary caregivers to dependents, the elderly, and the disabled.