The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.
Issue link: https://kentuckybenchandbar.epubxp.com/i/132126
Since under present Kentucky law the attorney in fact is held to no standard of performance, it is prudent to state in the document that the agent is required to maintain accounting records and to make those records available to the principal or others as requested. To permit the agent to be paid for services rendered places this responsibility on a more professional footing and leaves no doubt in anyone's mind that it is a responsible position. Another provision which will be important as the "boomer generation" ages will be a provision which allows the agent access to the growing and changing property interests in electronic assets including passwords to a variety of devices. Simply accessing email for an incapacitated client may prove to be impossible without such authority. Advanced directives, health care powers of attorney and end of life directives for personal issues relating to health care should have the same specificity as powers of attorney for legal affairs. The issue of health care directives, their expression and implementation has evolved over the years. The current Kentucky Living Will statute, KRS 311.621, was adopted in 1994 and there have been many changes in end of life expressions since its enactment. In each case, the thrust has been to make the decision process more personal. One of the more recent end-of-life proposals is that where the physician orders life-sustaining treatment or POLST. 21 The goal of POLST is to develop a program to improve patient care and reWhere Medicaid is involved, the objective of duce medical gifting is often to preserve the family home Though Kentucky does not require any witerrors. The from Medicaid recovery. As stated above, nesses to a power of attorney, other jurisdicsystem would the instrument must specifically empower Principal tions may. Thus, for some clients it will be allow the the agent to execute a deed. KRS 382.370 prudent for the power of attorney to be witphysician and and KRS 382.335(1) require that an originally nessed by two persons to ensure that it may patient to idenexecuted power of attorney, executed with a be used to transfer land in tify a patient's scribner's signature, be utilized to transfer foreign jurisdictions. wishes regarding land, be recorded in the county where the medical treatment and comland is located as proof that the agent had For additional thoughts Finances municate those wishes by creatthe authority to execute a deed as attorney in this area, consult the ing portable in fact. Statutory language specifically prochapter on Powers of medical vides: "The power of attorney possesses the Attorney, by Kelli E. Brown orders. power to sell, exchange, quitclaim, conin Elder Law. 18 Property The vert, partition, grant an option on, process is abandon, gift or otherwise dispose of based on all or any part of my real or personal POWER OF Medical conversations property or my interest in such propATTORNEY Care between a physician and patient erty, including, but not limited to, auduring which the physician comtomobiles, stocks, bonds, and real espletes a medical order detailtate owned by me individually, as a ing the patient's wishes for tenant in common, tenant by the entreattirety or otherwise, upon any terms OTHER ment. The and conditions." DOCUMENTS form of the TO CONSIDER As a practical matter, the attorney should order states encourage or facilitate the filing of his For some elder specifically that client's power of attorney document in any clients, a psychiatric it is to accomcounty in which the client owns real estate. health care advance Gifts pany the paAdvanced directive would be tient when the Directives appropriate. 19 An patient is transADDITIONAL PROVISIONS advanced direcferred or disIN POWER OF ATTORNEY tive allows the client to name a surrogate for charged and is INSTRUMENTS decisions regarding mental health care and included in The following additional provisions in a powto list instructions for mental health treatthe medical er of attorney may also be useful. To faciliment. The client may list specific psyrecord. The ortate Medicaid applications, a provision allowchotropic medications that the client refuses der details whether or not to resuscitate the ing the attorney-in-fact to interact with the to have administered. The client can conpatient if the patient has no pulse and is not Medicaid office for the principal is helpful. sent or not consent to electroconvulsive breathing. Types of medical intervention, therapy. The client can list preferred procesuch as comfort-only measures or limited In today's medical privacy environment, a dures for emergency interventions, such as additional interventions or full treatment, are provision to allow the agent access to medseclusion, physical restraints, and medicathen selected. These orders can also detail ical information in compliance with HIPAA is tion by injection. 20 17 whether antibiotics, fluids and nutrition are important. B&B; • 05.13 19 torney forms contain a gifting clause that limits gifts to the "annual exclusion for federal estate tax purposes." There is very little benefit to the client, however, to limit gifting to that amount. Effectively the language prevents Medicaid planning. 16 Annual gifting limits in the document only complicates Medicaid eligibility without substantially preserving assets. With the federal unified gift amount now established by the American Tax Payers Relief Act of 2012 at $5,120,000 per person (linked to the annual CPI) and no effective state gift tax in Kentucky imposed on a decedent's children, an unlimited gifting power, judiciously used, is essential for Medicaid asset preservation. If the attorney is not familiar with the Medicaid limits on gifting, he or she should consult with a qualified elder law attorney.