Does the community spouse need a Durable Power of Attorney?
by James
(Texas )
Question:
When one spouse becomes incapacitated, does the community spouse at home need a Durable Power of Attorney (DPOA) with an "unlimited gifting" provision, so they can transfer joint assets, exceeding the "community allowance" to the community spouse?
Answer:
If Medicaid planning is at all a possibility, then a durable power of attorney should in most cases contain authority for the "agent" (person given the power to handle the property of the "principal") to make gifts of the principal's property for Medicaid planning purposes. For a married couple, this will allow the undisabled spouse to engage in Medicaid planning should the other spouse become disabled before all steps have been taken to implement a proper Medicaid plan. Without this authority, it may be impossible to make gifts of assets titled solely in the name of the disabled spouse or even to transfer title to the name of the disabled/community spouse up to the amount of the Community Spouse Resource Allowance.
