Gifts Made with a Power of Attorney – Case Law.

A Minnesota appeals court rules that a son who transferred his father's assets to himself in conjunction with Medicaid planning breached a fiduciary duty to his father and that the transferred assets are part of his father's estate.

This is a very significant case and it provides a good Medicaid Pitfall. If the facts allow planning through gifts, the maker of the gift must be empowered to do so. If the older person is incapable of making a gift, their agent, through a Power of Attorney, must have a specific gift making power. The power of attorney must say something similar to “I give my agent the right to make a gift of my assets, including a gift to my agent.” Otherwise the gift can be reversed.