Month: July 2011

Legislature Tinkers With Power of Attorney Form

On: By: Bill Gatesman

As noted in other articles I have written, Maryland changed its Power of Attorney law effective October, 2010. If an individual uses one of the form Powers of Attorney in the statute, or a power of attorney that is in substantially the same form, and a bank refuses to accept it, then the individual can have the refusing party pay her legal fees if she goes to court to force that party to accept the Power of Attorney.

Because the form documents are not sufficiently comprehensive, lawyers, including William M. Gatesman and Michael G. Day & Associates, with whom Mr. Gatesman is associated, have created Powers of Attorney that are sufficiently comprehensive and which also are “substantially in the same form” as the statutory document. These Powers of Attorney are designed to be comprehensive enough to meet the client’s needs and to also qualify for the attorney’s fees remedy provided for in the new law.

Perhaps to keep everyone on their toes, but in fact to remedy a significant omission in the statutory form, Maryland’s legislature has amended the new Power of Attorney law in recent months. This amendment changes the “Banks and other financial institutions” section of the Personal Financial Power of Attorney form in the statute, which now reads, in pertinent part, as follows:

Banks and other financial institutions – With respect to this subject, I authorize my agent to: continue, modify, transact all business in connection with, and terminate an account or other banking arrangement made by or on behalf of the principal; establish, modify, transact all business in connection with, and terminate an account or other banking arrangement . . . .

Therefore, in order to have a Power of Attorney for which one may rely on the legal fees remedy in the statute after the effective date of the recent amendment, the Power of Attorney should have the language quoted above in the “Banks and other financial institutions” section of the Power of Attorney.

Please contact us for a complimentary review of your existing Power of Attorney.

May a Personal Representative Represent an Estate in Court Without a Lawyer?

On: By: Bill Gatesman

Several lawyers have been pondering whether it is illegal for a Personal Representative to bring a legal action without a lawyer because doing so would be considered the unauthorized practice of law.

This office was involved in a case a few years ago in which the Maryland Court of Special Appeals ruled that a Personal Representative (who was not also an estate beneficiary) may not pursue a legal action in Circuit Court without a lawyer. The Appellate Court ruled that doing so constitutes the unauthorized practice of law. The Court ruled also that an estate is not a person who can pursue a legal action “pro se”.

When an individual goes to court without a lawyer, such person is said to be acting “pro se”. Only individuals are allowed to pursue legal actions in court on a pro se basis. Parties who are not individuals, such as corporations, may not do this, but rather, must be represented by a lawyer.

According to the Court of Special Appeals in this unpublished opinion, an estate likewise must have a lawyer to pursue a legal action in Circuit Court.

You may click here to read the case.

Medicaid Waiver and the Young

On: By: Bill Gatesman

Some people require skilled care services even at a young age. For example, some people in their early 50’s with advanced Parkinson’s Disease or Multiple Sclerosis find that the only way to afford needed services is to reside in a nursing home where Medical Assistance will cover the costs of care.

Unfortunately, while such people need intensive physical care, they often do not suffer from dementia and are decades younger than most other nursing home residents. Consequently, a nursing home would not to be the most appropriate care environment from a socialization point of view.

The good news is that in Maryland and other states, the Medicaid program sometimes will waive the requirement that one reside in a nursing home to obtain Medicaid benefits for long term care costs. These programs are known as Medicaid Waiver programs. However, there is a vast waiting list for the Medicaid Waiver program in Maryland, and it can take three or four years before one’s name rises to the top of the list.

Fortunately, there is a shortcut to the top of the Medicaid waiver waiting list. If an individual is receiving long term care in a nursing home and applies for and is awarded Medicaid, for which there is no waiting list, then, once Medicaid is established, such person could transfer to assisted living, or even return home and receive home care, and have the Medicaid dollars follow him out.

In other words, the Medicaid eligible nursing home resident can move to another care environment and immediately qualify for the Medicaid Waiver program, bypassing the waiting list altogether.

Thus, relatively young people who suffer from advanced debilitating disease may be able to obtain Medicaid dollars to cover the care costs in an appropriate care setting. However, such person may first have to undergo a less appropriate nursing home stay in order to secure such benefits.

The Gatesman Law Office assists clients in obtaining public benefits to cover essential and prohibitively expensive health care coverage which otherwise would be unavailable.