Legal Question in Elder Law in New York

Good question.

I would say it would be very difficult to find liability on the part of the agent absent gross negligence.

The agent would have to actively demonstrate accepting a duty to take on the role of agent (simply being named in those roles is not good enough), and then breach that duty by acting, or failing to act, with provable negligence. I think it would be very difficult; nearly impossible to maintain an action against an agent on the medical side. More or less the same answer on the financial side of the question. Especially with respect to Medicaid planning: does an agent under a power of attorney, wherein the agent is authorized to engage in Medicaid planning, have an affirmative duty to do so? Great question. I would say no; there is no duty, because Medicaid planning is an elective financial/estate planning strategy, and although the consensus is that Medicaid planning is favorable for a senior, there is not 100% agreement on this point.

Good luck.

Rick Bryan

New York, NY