If I am power of attorney for my uncle, amI accountable for his spending should he go into nursing home in the future?

My uncle is 87 and of sound mind. He has over $180,000 in bank plus a $120,000 home, not to mention insurance policies. If he starts spending money and/or gives it to family members as gifts, can I be held responsible for this should he have to go into nursing home and eventually need medicaid? Can Medicaid come after me or my assets since I am POA. I would like to control his money so as to protect myself. Is he free to do with his money as he wants? I do not want to be held accountable for his doings.

Asked on March 31, 2011 under Estate Planning, Ohio

Answers:

MD, Member, California Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

If you are a power of attorney for your uncle, it depends on what your power of attorney states is within your ability. If he is of sound mind, and he is not been declared incompetent, he can do with his money and assets as he pleases. So unfortunately, if you obtain a power of attorney against his will, it could be voidable. Further, as to the assets, does he have a trust to ensure these items are kept and preserved? If not, he may wish to look at a spendthrift trust to control possible out of control spending. As to the power of attorney, if he wishes for you to control all assets, you may wish to do this in conjunction with a trust so as to not only be a power of attorney and not have items preserved for certain beneficiaries within the trust. Either way, you can indeed be putting yourself in the position of a fiduciary but unless there is outward abuse or attempt to sway your uncle's bequests and gifts, you won't be necessarily directly sued. Keep in mind, if you are also a beneficiary, you should consider a trustee who is neutral or a two party trustee.  Talk to counsel and see what is best for your uncle and for you, so as not to place yourself in the position of potentially being sued.


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