Most elderly people who need skilled nursing care usually do not have legal capacity to sign appropriate documents. Legal capacity is needed to restructure assets to qualify for Medicaid benefits to pay for nursing home care.  A properly drafted durable power of attorney signed by the elderly person before she loses legal capacity is a must have to preserve the elder’s assets from nursing home spend down.

The durable power of attorney can also be the subject of abuse by the (typically) adult child who is named as the agent, or attorney in fact, for the elder person. Florida has criminal penalties for the financial abuse of the elderly through the improper use of a durable power of attorney.  Texas also has similar statutes.
Here’s a report from ElderlawAnswers.com that shows what can happen when financial abuse of the elderly occurs through the improper use of a durable power of attorney.

Agent under POA Faces 25 Years After Unsuccessfully Arguing that Transfers to Self Were for Medicaid Planning Purposes

A Texas appeals court upholds the conviction of an agent under a durable power of attorney who transferred funds to himself, supposedly to qualify his former grandmother-in-law for Medicaid. In an earlier proceeding, a jury sentenced the agent to 25 years in prison. Natho v. State (Tex. Ct. App., 3rd Dist., No. 03-11-00498-CR, Feb. 6, 2014).

Rosie Shelton signed a durable power of attorney, appointing her former grandson-in-law, Ronnie Natho, as her agent. The durable power of attorney gave Mr. Natho the power to act on her behalf, including with regard to Medicaid issues, but it did not give him the authority to make gifts on her behalf. Mr. Natho was also the sole beneficiary under Ms. Shelton’s will. After Ms. Shelton entered a nursing home, Mr. Natho, using the durable power of attorney, gifted himself her car and then consulted with an attorney who helps clients qualify for Medicaid. The attorney informed Mr. Natho that he could spend down Ms. Shelton’s money and it was acceptable for him to make gifts to himself as long as Ms. Shelton’s needs were met. Mr. Natho, using the durable power of attorney, then transferred Ms. Shelton’s life insurance policy to himself and gave himself other gifts as well.

When Ms. Shelton discovered the transfers, she revoked Mr. Natho’s durable power of attorney, and criminal charges were filed against Mr. Natho. A jury convicted Mr. Natho of misapplication of an elderly person’s fiduciary property, and sentenced him to 25 years in prison. Mr. Natho appealed, arguing he was acting in Ms. Shelton’s best interest to qualify her for Medicaid.

The Texas Court of Appeal affirms the conviction, holding the evidence was sufficient to find Mr. Natho misapplied Ms. Shelton’s assets. The court rules that the fact that the durable power of attorney did not give Mr. Natho the power to make gifts, that he gifted himself the car before he consulted with the attorney, and that the car and insurance policy would have been excluded from a Medicaid eligibility determination, show that Mr. Natho wasn’t acting to benefit Ms. Shelton.

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