Bench & Bar

MAY 2013

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.

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FEATURE: KENTUCKY'S ELDER LAW to be administered. Finally, these orders detail the individuals with whom they have been discussed, the basis for the order, and the periodic review of the order. Kentucky's living will directive and end of life decision making process need to be revisited or perhaps supplemented by a POLST program. Some states have a state wide register of advanced directives. The issue of mental capacity to execute powers of attorney needs to be reviewed. CONCLUSION Our attorney colleagues need to be aware of the importance to their aging clients of powers of attorney documents and be sure that these instruments adequately and specifically address the activities an attorney in fact needs to undertake on behalf of their principal when she/he can no longer act for themselves. Attorneys need to counsel their aging clients regarding the important functions these documents serve. In today's financial environment, a power of attorney is often more important than a will. The biggest risk to the estate of a middle class family is end of life expenses rather than inheritance/estate taxes. Rather than asking the client "what do you want to happen when you die," an attorney's question to the elder client should be "what will happen if you continue to live?" The issue will be how to accommodate any period of incapacity or simple inability to function. Properly drafted powers of attorney and advanced directives are essential to addressing these issues and managing and conserving family assets. B&B; 1 2 3 4 5 6 7 8 20 9 10 11 A power of attorney is an instrument that states an agent's authority. Restatement of the Law Agency, American Law Institute, Vol I Sec. 1.04(6); Id. At Sec. 3.4(1). A principal must have adequate capacity to understand the instrument's purpose. The breadth of the authority granted under a general power of appointment requires comprehension of the ability of the agent to bind the principal to an agreement. Id. At Sec. 3.04(1); see also KRS 386.093(1). In planning for unmarried partners, powers of attorney may be the most important component of an estate plan as there is no legal relationship upon which one partner can depend to access information to assist an incapacitated loved one. Id. Note 1, Supra. Couch v. Couch, 824 S.W.2d 65, 71 (Mo. App. 1991). 376 S.W. 3d 581 (2012). Id. Id. Id. Note 1, Supra at Sec. 1.04(1). Priestly v. Priestly, 949 S.W.2d 594 (Ky. 1997). KRS 386.093(6). Practitioners may advance the argument that a general power of attorney granted B&B; • 05.13 12 13 14 15 16 17 18 19 20 21 prior to the 2000 amendment may not require an express gifting clause. It is recommended, however, that if possible, the attorney have an executed a document with specific gifting language because without it planning for an incapacitated individual may have to be approved through a guardianship proceeding. 74 S.W.3d 783 (Ky. App. 2002). 7 S.W.3d 379 (Ky. 1999). KRS 386.093(6). In a Minnesota Bar Ethics case, the Minnesota Supreme Court publicly reprimanded and placed the license of an elder law attorney on probation for advising his Attorney in Fact to make gifts in a Medicaid plan contrary to the express authority in the instrument. In re: Petition for Disciplinary Action against Donald W. Felt, Minn S.C. A09-1862. Such a clause might indicate in a guardianship context that the respondent wanted to limit gifts, not maximize them. The Health Insurance Portability and Accountability Act provides for specific titles of representatives such as agent and representative. 23 Leibson and Faller, KENTUCKY PRACTICE, ELDERLAW (2012). KRS 202A.422: see also KRS 202A.430, Form of advanced directive for mental health treatment. KRS 202A.422. An excellent research report entitled "Improving Advanced Illness Care: The Evolution of State POLST Programs (2011)" is available from the ABA web page. It was co-authored by Charles P. Sabatino of the AVA and Naomi Karp of the AARP Public Policy Institute. It lists all jurisdictions currently cooperating in similar programs. The objective is to provide a specific medical directive from a physician rather than the legal community. Many vie this process as a medical rather than a legal matter. Amy E. Dougherty is a member of Bluegrass Elderlaw, PLLC, where she focuses her practice on elder and disability law. She previously practiced for Legal Aid of the Bluegrass where she assisted older persons with Wills, POAs, Advanced Directives and Trusts to qualify for Medicaid long term care. She also advocated for clients before Social Security, Medicare, and Medicaid agencies and defended against involuntary dismissal from long term care facilities. Prior to Legal Aid, Dougherty worked for Kentucky Public Service Commission advising that agency on matters of in-state utility regulation. She is a graduate of the University of Kentucky where she earned her B.A. (History) and J.D. degrees.She is a member of the Fayette County Bar Association, the Kentucky Bar Association (Elder Law Section) and the National Academy of Elder Law Attorneys. Dougherty is admitted to practice in the Eastern District of KY, the Western District of KY, the Sixth Circuit Court of Appeals and the U.S. Supreme Court. Robert L. McClelland maintains a private practice in Lexington focusing on counseling families of aging clients and special needs families on legal issues affecting asset protection and public benefits, guardianship, financial exploitation and abuse. McClelland has been published repeatedly on issues familiar to attorneys with older clients and is a frequent speaker at continuing legal education seminars and workshops. He is a graduate of the University of Charleston and received his J.D. from Northern Kentucky University Salmon P. Chase College of Law. He serves as chair of the Kentucky Bar Association's Elder Law Section, on the Board of Directors for the Kentucky Guardianship Association and is an appointee to the Lexington Fayette Urban County Government's Senior Services Commission. McClelland is a member of the National Academy of Elder Law Attorneys, Inc.; the Special Needs Alliance, LLC; ElderCounsel, LLC; and the Bluegrass Estate Planning Council. Monica M. McFarlin is an experienced healthcare and tax attorney whose previous employment includes positions as vice president at KCTCS, general counsel at CHA Health and assistant attorney general, Office of Rate Intervention. McFarlin received her B.A. from the University of Kentucky, J.D. from Ohio Northern University College of Law and LLM/Taxation from Emory University Law School and is a member of the Kentucky, Georgia and Ohio Bar associations. Carolyn Kenton has been in private practice in Lexington since 1992. She established Bluegrass Elderlaw, PLLC in 2011. This practice focuses on the areas of elder law and Medicaid planning, estate planning and trusts, guardianship, and estate settlement. A lifelong Kentuckian and former State Representative, prior to opening her private practice, she served as a trust officer/estate planner for National City/PNC Bank in Lexington, working in estate planning, current asset management and business development. Kenton has been a frequent lecturer on the subjects of elder law, guardianships, Medicaid and the probate process. She is a co-author of Volume 23, Kentucky Practice, ElderLaw, by West Publications. She is a graduate of the University of Kentucky where she earned her B.A., M.A. and J.D. degrees and is a member of the Fayette County Bar Association, the Kentucky Bar Association Elder Law and Probate and Property Sections and the National Academy of Elder Law Attorneys.

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