He can no longer communicate or understand.

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Section 402(a) of the Uniform Trust Code in my state (Massachusetts) says that a trust shall be created ONLY IF:the settlor [the grantor, person establishing the trust] has capacity to create a trust.

The Uniform Trust Code in my state does allow an agent acting under a power of attorney to have the powers to revoke, amend or distribute trust property in an existing trust, but only to the extent expressly authorized by the terms of the trust and the power of attorney documents. [Section 602(e)].

Consult with an attorney in your state. A Power of Attorney document must include certain powers if you are going to make transfers that would benefit you. If the document lacks the necessary powers, you will be creating serious problems if you go beyond your authority.

You may already have considered other significant issues. If your father needs nursing home care, any transfers you make with his assets will have an impact on whether Medicaid will pay for his care.

The concept of a Power of Attorney was conceived many years ago, to provide a way for those of us with modest means to give advance directions about our assets and property, without needing to pay the costs of establishing a trust instrument.

If the banking laws in your state allow you to set up accounts for your Dad so that the funds are TOD (Transferred on Death) or POD (Payable on Death) or jointly owned, you might accomplish the intent of probate avoidance.

If the Power of Attorney allows you to transfer real estate, you could make arrangements that avoid probate. But, again, you must consult an attorney in your state who can advise on real estate, tax and Medicaid laws.

A final thought you could bring to your attorney is the idea of a "pooled trust." Charitable institutions In my state have established pooled trusts for elderly and disabled clients. The pooled trust administrators have accepted the authority of a power of attorney to open an account in the pooled trust for beneficiaries who lack competence. Each pooled trust has administration fees and rules, but it might be an idea to consider.
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If he is already on Medicaid, it is too late to move anything without notifying them. MERP knows all the tricks.
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