[WSBAPT] New DPOA Law and Using DPOA in Favor of AIF

[John Creahan]

Jacob,
I don’t know if this answers your question, but RCW 11.125.240 specifically authorizes “even in the absence of a specific grant of authority, make any transfer of resources not prohibited under chapter 74.09<http://app.leg.wa.gov/RCW/default.aspx?cite=74.09> RCW when the transfer is for the purpose of qualifying the principal for medical assistance or the limited casualty program for the medically needy.”
Thanks,
John

John Creahan
www.cairn-law.com<http://www.cairn-law.com/>
New contact information
effective January 1
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From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Jacob Menashe
Sent: Thursday, January 5, 2017 8:47 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] New DPOA Law and Using DPOA in Favor of AIF

Thank you so much for the response. I am totally tracking you about Medicaid – but that probably doesn’t address the point about using a durable power of attorney and whether the restriction of 11.94.070 still survives.

Best,

Jacob

Jacob H. Menashe
Hickman Menashe, PS
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From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Setareh Mahmoodi
Sent: Wednesday, January 04, 2017 3:16 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] New DPOA Law and Using DPOA in Favor of AIF

Jacob,

In a recent CLE, it was suggested that if the POA (pre 2017) was silent on gifting, it was good, and allowed transfers and gifting for the purposes of Medicaid.
However, post 2017 including language as below would be helpful to allow the AIF to make gifts or transfers to qualify the Principal for Medicaid. Obviously you will need to tweak it as necessary for each individual. This is mostly meant for spouses as AIF.
I hope this answers your question.
Setareh

"
My agent shall have the power to make transfers of my property whether outright or in trust, including unlimited gifts to the attorney-in-fact, for the purpose of qualifying or maintaining eligibility for government benefits, including Medicaid, or to avoid estate recovery related to such benefits.  Any transfers made pursuant to this paragraph shall be deemed not to be a breach of fiduciary duty by the attorney-in-fact.
"

On Wed, Jan 4, 2017 at 8:24 AM, Jacob Menashe <jacob at hickmanmenashe.com<mailto:jacob at hickmanmenashe.com>> wrote:
Thanks Heather. I think, though, that limitation applies to all gifting, not just to the powerholder, right? But what about if a durable power of attorney explicitly authorizes Medicaid gifting (which could exceed annual exclusion gifting). Prior to January 1, I think the answer (given 11.94.070 and RCW 11.95.100) was probably no, but now?

Best,

Jacob



Jacob H. Menashe
Hickman Menashe, PS
4211 Alderwood Mall Blvd., Suite 202
Lynnwood, WA 98036
(425) 744-5658<tel:(425)%20744-5658> phone
(425) 744-6078<tel:(425)%20744-6078> fax
Satellite Office in Bellevue
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CONFIDENTIALITY: The contents of this message and any attachment(s) may contain confidential or privileged information. Any disclosure, copying, distribution, or unauthorized use of the contents of this message is prohibited and doing so may destroy the confidential nature of the communication.  If you have received this message by mistake, please do not review, disclose, copy, or distribute the e-mail.  Instead, please notify us immediately by replying to this message or telephoning us at (425) 744-5658<tel:(425)%20744-5658>.

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>] On Behalf Of Heather deVrieze
Sent: Tuesday, January 03, 2017 9:18 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] New DPOA Law and Using DPOA in Favor of AIF

Jacob, there is the provision in the new act limiting gifts in excess of tax exclusion amounts (11.125.390), but also the provisions of 11.125.140 regarding duties to act in good faith, loyally, and to keep estate plan intact. So that I think is better than what was there before.

That said, I think it will take a while for this to shake out and see what sort of new problems we find.

Heather

Heather S. de Vrieze
Attorney-at-Law
[cid:image001.jpg at 01D013C2.30F35160]
3909 California Avenue SW
Seattle, WA 98116-3705
(206)938-5500<tel:(206)%20938-5500>
heatherd at westseattlelaw.com<mailto:heatherd at westseattlelaw.com>
www.westseattlelaw.com<http://www.westseattlelaw.com/>

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From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Jacob Menashe
Sent: Friday, December 30, 2016 2:38 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] New DPOA Law and Using DPOA in Favor of AIF

The old DPOA statute – old, as of Sunday ☺ - had a limitation on exercising a power in favor of the holder of the DPOA. This was at 11.94.070, and referenced RCW 11.95.100. I am not finding corresponding language in the new statute. Am I am missing something? Does 11.95.100 – or some other authority – still limit when/how an AIF can use a DPOA in his or her favor?

I’m not sure who is still working at this point on Friday before our holiday weekend but Happy New Year to all!

Best,

Jacob

Jacob H. Menashe
Hickman Menashe, PS
4211 Alderwood Mall Blvd., Suite 202
Lynnwood, WA 98036
(425) 744-5658<tel:(425)%20744-5658> phone
(425) 744-6078<tel:(425)%20744-6078> fax
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