February 2024

From The Certified Elder Law Attorney's Desk:


William W. "Bill" Erhart

Blog Spotlight:

Ohio Court Finds that an Agent using a Power of Attorney is not Personally Liable for cost for cost of a Nursing Home.

By: William "Bill" Erhart

January 19th, 2024

Article of Interest:

Texas woman, 114, becomes oldest living American: Her tips for a happy, long life.

By Anna Kaplan

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Inspirational Quote

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From The Certified Elder Law

Attorney's Desk:

William W. “Bill” Erhart


We all rely upon powers of attorney to manage incapacity. Who will help us when we need help? Who will assist us when we need someone to help us, not actually take over? Powers of attorney are essential to make healthcare and financial decisions for us. The person making or giving the power is known as the “principal”. The one receiving the authority is known as the “agent.” The word “attorney” means substitute. I am an attorney at law. An agent under a power of attorney is an “attorney in fact.”

Lawyers, accountants and other professionals who represent taxpayers before the IRS use Form 2848, Power of Attorney and Declaration of Representative. This is the form of power of attorney that the IRS recognizes. Attorneys often prepare powers of attorney for their clients. But if a taxpayer who signed a power of attorney becomes incapacitated and cannot sign a Form 2848 for the IRS the issue becomes what is the power of attorney worth? The answer is: It depends.

The IRS will accept a power of attorney in lieu of a Form 2848 if the power of attorney includes all of the elements specified in the IRS regulations at 26 CFR §§ 601.501 – 601.509. Publication 216, Conference and Practice Requirements. Twenty-six CFR § 601.503(b)(4) discusses powers of attorney. The power of attorney must include:

1. Taxpayer’s name and mailing address

2. Taxpayer’s TIN (i.e., SSN, EIN, etc.)

3. An employee plan number, if applicable

4. Name and mailing address of the representative

5. A description of the matter or matters for which the

representation is authorized that must include, as applicable -

a. Type of tax involved;

b. Federal tax form number involved;

c. Specific year(s) or non-annual period(s) involved; and

d. Decedent’s date of death in estate matters.

6. “A clear expression of the taxpayer’s intention concerning the

scope of authority granted to the…representative(s).”

26 CFR § 601.503(a).

Powers of attorney rarely have this information in them. Only if the specific tax issue is known at the time the power of attorney is prepared will it contain this information.

Sometimes this can be managed. The IRS will accept a Form 2848, with a power of attorney if:

1. The agent individual authorized in the power of attorney

executes a Form 2848 on behalf of the taxpayer that includes

the missing information, such as the type(s) of tax, tax form

numbers, and tax periods applicable to the situation for which

the representation before the IRS is needed; and

2. The power of attorney authorizes agent to handle federal tax

matters or otherwise gives this authority.

The requirements for IRS acceptance of a power of attorney, are referenced in the Instructions to Form 2848. Or you may go to your lawyer or CPA. If a power of attorney does not authorize in some manner the agent to handle federal tax matters, then a guardian has to be appointed by the Court of Chancery. The guardian can complete the necessary Form 2848 (to authorize representation by a tax practitioner) and file the notice of fiduciary. Form 56, Notice Concerning Fiduciary Relationship.

Ohio Court Finds that an Agent using a Power of Attorney is not Personally Liable for cost of a Nursing Home

Friday, January 19th, 2024 by William Erhart

Thanks to Professor Katherine Pearson of Dickinson Law School for bringing this case to our attention.

On May 1, 2023, an appellate court in Ohio found that the daughter's role as agent acting under a power of attorney prevented her from becoming personally liable for her mother's costs of care. The daughter appears to have properly cooperated or assisted in the original Medicaid application. 

The daughter gave authority to the nursing home to debit the bank account where her mother's Social Security checks were deposited every month, in order to pay itself the "patient pay" of her monthly income for the cost of care. This is the income a resident of a nursing home who is receiving Medicaid has to contribute to be otherwise eligible for Medicaid. However, the Social Security deposits made into the mother’s bank account eventually exceeded the $2,000 limit and the state Medicaid office terminated benefit to the mother without giving notice of the reason. Thus the nursing home appears to have had at least the same ability as the daughter to avoid accumulation of a sum greater than $2,000. The court pointed to the failure of the state agency to give effective notice to interested parties about when and why it was terminating Medicaid.  See National Church Residences First Community Village v. Kessler, 2023 WL 3162188 (Ohio Ct. App. 2023).  

The nursing home sued the daughter-agent for $42,000.00. The court ruled that the daughter acting as agent had no personal liability for the deficiency. Additionally, there was no evidence that the daughter as agent breached any agreement with the nursing home.

The court also noted that the Nursing Home Reform Act is Congress’s intended scheme to protect nursing home resident and their families. Feder law bars nursing homes which accept either Medicaid or Medicare from compelling guarantees from third parties such as family members. National Church Residences at p. 20.

Bottom line? Family members attempting to help an elder or disabled person get proper care are well-advised to consult with an experienced elder law attorney early in the process about how to qualify and protect eligibility for Medicaid.


Texas woman, 114, becomes oldest living American: Her tips for a happy, long life.

Elizabeth Francis is now the fifth oldest person in the world at age 114.

By: Anna Kaplan for Today

A 114-year-old Houston woman has become the oldest living person in the U.S., according to LongeviQuest, an organization that tracks human longevity across the globe.

Elizabeth Francis is now the oldest living American at age 114 and 217 days after Edie Ceccarelli, the previous oldest living American, died at age 116 on Feb. 22 in California, according to LongeviQuest.

Francis is now also the fifth-oldest person on Earth, according to LongeviQuest. She's also included on the list of supercentenarians — people who are 110 and older — validated by the Gerontology Research Group, which verifies and tracks the world’s oldest people.

The 114-year-old Houston resident previously reflected on her longevity with TODAY.com.

“It’s not my secret. It’s the good Lord’s good blessing,” Francis said an interview in August 2023. “I just thank God I’m here.”

Francis was born on July 25, 1909, a few months after William Taft was inaugurated president and 11 years before women had the right to vote in the U.S. She's lived through two World Wars, the Spanish Flu and the COVID pandemic.

The supercentenarian lives with her 94-year-old daughter, Dorothy Williams, in a private residence where caregivers come to the home every day, Francis' granddaughter Ethel Harrison told TODAY.com.

“It’s just amazing,” Harrison, 68, said. “We’re so grateful that she’s still here, and my mom, who’s her daughter — she only had one child — is still alive also.”

Longevity runs in Francis' family — one of her sisters lived to age 106, and her father died at age 99, Harrison said.

Harrison said Francis has some memory problems and is confined to her bed, but she's mentally alert and recognizes her family.

“Try to do the best thing you can to everybody. Love everybody,” Francis said.

Harrison shared some of Francis' healthy habits with TODAY.com, including having social connections and supportive relationships, eating fresh, home-cooked foods and having faith.

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