This series highlights the eligibility rules for Maine Medicaid (MaineCare) nursing home benefits and dispels certain myths the families that work with our office often hear.
Myth 11: My Spouse or My Agent Under My Power of Attorney Has the Power to Take Property Out of My Name if I Ever Need Medicaid.
The Truth: The best tool for planning for future MaineCare eligibility is a general durable power of attorney for finances that includes gifting authority. Marriage itself does not allow one spouse to legally remove the name of an incapacitated spouse from real estate or bank accounts. And unless a power of attorney explicitly authorizes the agent to make gifts of the principal’s property, the agent cannot re-title assets belonging to the principal. Many powers of attorney do not contain gifting authority or, if they do, the power granted is inadequate. For instance, many documents have a gifting provision that limits the agent to making transfers of limited assets for estate tax planning. Such a provision is too limited for, and often irrelevant to, effective Medicaid planning.
There are risks to authorizing someone to make gifts of your assets. Your agent must be trustworthy and willing to become knowledgeable about you, your circumstances, and the MaineCare rules. You may want to require that the agent make gifts consistent with your estate plan or that he or she consult with an elder law attorney before making any asset transfers.
Rachel Trafton, Esq
Maine Elder Law Firm