Critter Corner: Acting in My Sister’s Best Interest

Dear Angel,

My sister named me as agent under her Financial Power of Attorney, and she recently had a massive stroke, so I need to step in and start managing her legal and financial affairs. She’s only 59 years old, so this was VERY unexpected.  But at least she was smart enough to do a Power of Attorney a couple of years ago. She still can’t speak much or walk unassisted, and we don’t yet know how much she’ll recover. The doctors are already saying she might need to go into a nursing home after rehab depending on how well she does in rehab.  She’s single and has no kids, so she’s saved up quite a bit of money over the years, but I know from reading your newsletters that nursing homes are hugely expensive and could easily bankrupt her given how young she is.  I also understand from reading your newsletters that I should be thinking of doing Medicaid Planning, but on the first page of her Power of Attorney, it says I must “act in her best interest.”  Of course that’s what I want to do, but I don’t really understand what that means.  Does that mean I can’t do Medicaid Planning?  Or is Medicaid Planning in her best interest?  What exactly should I be doing?


Bess Tintrest


Dear Bess,

Because you are dealing with your sister’s money and property, your duty is to make decisions that are best for her, and Medicaid Planning, when done with respect for the law and compassion for the person whose assets are being protected, is not only in her best interest, but may be essential to preserving her dignity and quality of life.

To act in your sister’s best interest, these are some guidelines:

  • Read the power of attorney and only do what it says: Your authority is strictly limited to what the document and state law allow. In Virginia and in many states, language giving you the broad power to “do anything” that your sister could do is generally meaningless.
  • Understand when the power of attorney becomes effective: It may have been effective the moment your sister signed it, or it may be a “springing” or “contingent” power of attorney, only effective when one or more doctors certify that your sister can no longer make her own decisions.
  • Look for asset protection powers: Hopefully your sister had her Power of Attorney done by an experienced Elder Law attorney who included asset protection powers, most importantly the ability to make unlimited gifts in connection with obtaining Medicaid eligibility. Without these powers, you may have to go to court to have her declared incompetent to you can become her conservator and ask the Judge to grant you the asset protection powers necessary to protect her assets.
  • Consult with a Medicaid Planning attorney as soon as possible: Since the doctors are already saying your sister may need long-term nursing home care, you need to meet with an experienced Medicaid Planning attorney, such as Evan Farr, as soon as possible. He will review the Power of Attorney to see if has the needed asset protection powers and, if not, he can petition the court for you to get the necessary powers to engage in Medicaid Asset Protection Planning.
  • As much as possible, involve your sister in decisions: Many things can affect your decisions about your sister’s money and property. For example, you might feel pressure from others.

-Even after it is clear that you must make decisions for your sister, ask her what she wants if she regains the ability to communicate coherently. If she can’t say what she wants, try to figure out what she would have wanted by reviewing her past decisions, actions, and statements.

-Ask people who care about your sister what they think she would have wanted.

– Make the decisions you think your sister would have wanted, unless doing so would harm her.

  • Don’t borrow, loan, or give your sister’s money to yourself or others except under the direct guidance of an experienced Elder Law Attorney. Even if the power of attorney or state law clearly allows gifts to you or others, you must be very careful to ensure that any gifts do not increase or complicate your sister’s taxes or change her plans as to how she wants to give away her property when she dies. Any gifts or loans should be in line with what your sister would have wanted.
  • Don’t pay yourself for the time you spend acting as your sister’s agent, unless the power of attorney or state law allows it. If you are allowed to pay yourself, you need to show that your fee is reasonable. Carefully document how much time you spend and what you do.

Thank you for your inquiry. I hope this is helpful and I hope to see you soon when you come for you consultation with my owner!


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