All too often, even if people have powers of attorney, the powers of attorney do not give the well spouse (or anyone else) the power to do things that are necessary to allow the ill spouse to qualify for Medicaid, or that allow assets that can be saved from a Medicaid spend down to actually be saved.

   Good power of attorney documents that are designed with the possibility of Medicaid in mind can often allow very considerable amounts of assets to be saved from Medicaid, while still allowing the ill spouse to qualify for Medicaid.

   Even if a person has a power of attorney, the power of attorney often lacks gifting clauses, self dealing clauses, and/or disclaimer clauses that can be fundamentally important to saving assets from Medicaid spend down.

   In such a case, often the only way to get control of such assets and to save them from Medicaid spend down is to go to court, seeking a conservatorship, or to go to court, seeking similar remedies under ORS 125.650, allowing for a one time transfer of assets.

   Not all courts will grant these powers.

   The delay can be significant, and expensive, with care costs totaling $10,000 a month or even more during the period when one is seeking these powers from the court, even if the court does grant the powers.

   Sometimes a trust will allow for similar powers in regard to assets held in the trust. Often, however, a trust will, instead, trap assets in the trust, and prevent them from being saved for the well spouse.

   It is important to be sure that one has an appropriate power of attorney, and if one has a trust, it is important to be sure that the trust is written properly, with Medicaid in mind, if there is any reasonable possibility of either spouse needing Medicaid.

   Given the possibility of a rapid onset illness, such as a stroke, even people who think that there is little possibility that they will need Medicaid at any point in the foreseeable future should consider this possibility.

   If one spouse is already heading down the path towards Medicaid, it becomes even more important that the estate and incapacity plans of both spouses be examined and modified if necessary, with this in mind.