The risks of not having an influence of legal professional

By James S. Rizzo, Esq.

“A man who hesitates in his choice will inevitably make his choice through circumstances.” – Hunter S. Thompson

Customers are often surprised when I tell them that power of attorney is arguably the most urgent estate planning document, with a will and health power of attorney as a tight runner-up. Ideally, all three documents should be available to anyone over the age of 18. However, if you experience a short- or long-term health setback where you cannot manage your own assets and do not have proper authorization to handle them, your return to health can be achieved with a tremendous financial burden.

With a power of attorney, you determine who has control over your assets and who can take care of your affairs when you are unable to do so.

Below are some of the most common and highly preventable issues that can occur without a current power of attorney:

Your family may need to initiate guardianship proceedings. If you become incapacitated, your loved ones may be forced to seek guardianship in court to act on your behalf. This also applies if you are married so that a spouse acts on your behalf. The legal costs of guardianship proceedings can run into the thousands and take several months to complete. It can also increase the potential for hostility and costly litigation if other family members disagree and contest the request.

Serious financial problems. This is a broad and potentially devastating category. If your bills, accounts, mortgages, and so on are all in your name, someone needs authorization to pay those debts on your behalf. Bad credit, home foreclosures, loss or loss of insurance coverage, judgments and liens against you, and bankruptcies are just a few of the avoidable financial black holes one can get into without a responsible adult having the authority to manage debt.

Nursing Home Bills and Denial of Medicaid Eligibility. With the average cost of upstate New York nursing homes ranging from $ 10,000 to $ 12,000 per month, even a month of non-Medicaid eligibility can lead to great financial hardship. The Medicaid application process, even with qualified attorneys involved, requires a careful and responsible person who will compile a variety of records, sign numerous documents, and meet the myriad of requirements to achieve Medicaid coverage. Generally, when a Medicaid application is denied, you will need a personal representative to appeal or due process to obtain coverage.

Inability to obtain medical records. A power of attorney should include a power of attorney for your designated agent to handle health care billing and payment matters and to access medical records in accordance with the strict data protection requirements of the Health Insurance Portability and Accountability Act (“HIPAA”), even a spouse or partner Another close family member is denied access to review records and / or the ability to oversee proper treatment and care. This becomes more urgent if you suspect a malpractice or mistreatment by the care provider.

Inability to transfer assets if necessary. There can be a variety of circumstances in which a probate attorney can recommend transferring an asset such as a house or other large property on behalf of an incapacitated person. The most common and usually dangerous circumstance without a qualified probate attorney is during the Medicaid application process when a person needs home care. There may be other tragic circumstances too, e.g. B. a person in the last stage of life, where the transfer of an asset while the person is alive can avoid lengthy and drawn-out inheritance proceedings after their death. Such a transfer of assets can only take place if the power of attorney is up-to-date and a fully completed “statutory donation” is available.

While there are many unexpected and stressful circumstances that can arise without a power of attorney, the good news is that these situations can be easily avoided by meeting with a real estate attorney, typically for less than an hour. The power of attorney should be an inexpensive part of any estate plan. It provides security, is easily updated, and relieves your family members significantly of emotional and financial stress by clearly defining who is responsible and allowing these people to efficiently resolve matters for you should such situations arise. In short, don’t let procrastination and chance determine what happens to your hard-earned fortune!

James S. Rizzo is an attorney with the law firm Rheinhardt and Bray, PC, with offices in Rome and Ilion, NY and serving the CNY space. He can be reached at (315) 339-0503 or [email protected] for a free, confidential initial consultation. Visit us on the Internet at:

Last revised: July 16, 2021

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