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Jewish World Review Feb. 25, 2008 / 19 Adar I 5768 ‘Helpful’ lawyer leaves nephew in a bind; tax deduction for assisted-living stay By Jan L. Warner & Jan Collins http://www.JewishWorldReview.com | Q: I have been looking after my uncle, now 82, for the past five years. He has no other family. He had placed my name on all of his bank accounts, his home and his stocks. I took him to a lawyer last year to get a power of attorney so that, if he became unable to take care of business, I will be able to handle matters. The lawyer filled in the blanks on a one-page form, which my uncle signed. He charged $100 and told us this was all we needed. After my uncle suffered a stroke last month, no one would accept the power of attorney even though it had been recorded, and I was told it had expired. The lawyer now tells me that I will have to go to court to get appointed as my aunt's conservator, and that he can help me. My uncle can't sign another document. What can I do? A: Under the law of every state, all powers of attorney terminate at the death of the person who has given the power. Although we have not seen the document prepared for your uncle, from what you tell us, it would seem that the document was not "durable," that is, it did not contain the language to allow you to continue to act after your uncle's incapacity — the time you need it most and the very contingency under which your uncle intended for you to have the authority to deal with his assets. Durable powers of attorney are recognized in all 50 states and the District of Columbia. We believe the form you signed was an "old one." We urge caution in relying on pre-prepared forms and fill-in-the-blanks documents. Durable powers of attorney should be individually drafted to meet the needs of the principal. What to do: Here, your uncle placed your name on all of his assets and accounts. That means you have full signatory rights on each account. It would appear that you could use your authority to pay his bills as they come due in this fashion. If there are questions and you are required to seek the assistance of a local probate or surrogate court, find another lawyer, as the one who prepared your uncle's power of attorney has "helped" enough. Q: I am concerned about my mother, who is 78, continuing to live at her home alone. She is forgetful, is not eating as she should and has been having accidents. I looked at a few assisted-living facilities and was told by the administrator of one that Mom's stay would be tax deductible. Since she is now paying income taxes on interest, dividends, and pensions she is receiving, a deduction of $40,000 per year would help. Can you tell us how to take advantage of that tax deduction? A: If your mother itemizes her deductions and is not subject to the alternative minimum tax, she is entitled to deduct unreimbursed expenses for her medical care to the extent that these expenses exceed 7.5 percent of her adjusted gross income. For income tax purposes, "medical care" means amounts paid for (1) the diagnosis, cure, mitigation, treatment or prevention of disease, or for the purpose of affecting any structure or function of the body; (2) transportation primarily for, and necessary to, medical care; (3) qualified long-term services; or (4) qualified insurance covering long-term care under a qualified insurance contract. While "medical expenses" can also include up to $50 per night for lodging while away from home for medical care provided by a physician in a licensed medical-care facility, "medical care" does not include custodial care, and an assisted -living facility is not a "medical care facility." Taking the NextStep: Under the facts that you recite, we don't believe your mother can take this deduction. We also consider the facility's claim to be outrageously wrong. Since Mom won't be able to deduct these expenses, why not ask the facility as part of the admission contract to provide your mother with an indemnification to the effect that if their monthly bills are not deductible to your mother, they will reimburse her an amount equal to what her deduction would have been. Dollars to doughnuts, you won't get this. And if the facility fabricates to get your business, you might want to look elsewhere. Every weekday JewishWorldReview.com publishes what many in in the media and Washington consider "must-reading". Sign up for the daily JWR update. It's free. Just click here. JAN L. WARNER received his A.B. and J.D. degrees from the University of South Carolina and earned a Master of Legal Letters (L.L.M.) in Taxation from the Emory University School of Law in Atlanta, Georgia. He is a frequent lecturer at legal education and public information programs throughout the United States. His articles have been published in national and state legal publications. Jan Collins began co-authoring Flying SoloŽ in 1989. She has more than 27 years of experience as a journalist, writer, and editor. To comment or ask a question, please click here. Archives © 2008, Jan Warner

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