FAQs

Yes, so long as the gifts are outside the 5 year look back period. However, after the gifts are made, you will have no control over how the assets are used and the assets will be vulnerable to the recipient’s creditors. For example, a parent who gives assets to a child that gets a divorce may see those assets awarded to the child’s ex-spouse by a court. There may also be adverse tax consequences for such transfers as well, particularly when real estate is involved.

Although advance Medicaid planning is preferable and provides much better options, people in this unfortunate position can employ crisis strategies to spend-down assets in permissible ways to achieve eligibility. Among other things, this type of planning frequently involves the use of a special type of annuity, called a single premium immediate annuity (SPIA) to convert countable assets into a noncountable income stream.  

In a nutshell, guardians are appointed by the court to make healthcare related decisions for an incapacitated person. Conservators are similar except they are only empowered to make financial decisions for the person. In an appropriate situation the court may appoint someone to fill both roles. 

It depends on the circumstances and the degree to which the spouse is cognitively impaired. If your spouse executed a properly crafted durable power of attorney and health care proxy giving you the authority to make financial and healthcare decisions you may be able to delay, and possibly completely avoid, seeking court intervention. Note that a failing spouse cannot execute a durable power of attorney or health care proxy if he or she is legally incompetent, in which case court intervention will be required. Also note that simply because someone has been diagnosed with dementia does not mean that they are legally incompetent. 

No. The Caregiver Authorization Law allows a parent, without a court order, to share parental authority over a child’s education and healthcare with a caregiver for a period of up to two years. This is accomplished through the execution of a special affidavit.

No. A parent is allowed to delegate parental authority regarding “the care, custody, or property” of a minor child to a “temporary agent” for a period of up to 60 days. This is accomplished through the execution of a special document with a number of formal requirements.

Probate is a court proceeding that transfers ownership of property from a person who has died to estate creditors and the lawful beneficiaries or beneficiaries of a will, or if there is no will, statutory beneficiaries. In most cases, the court appoints a Personal Representative (formerly referred to as an Executor or Executrix) to collect, manage, and transfer estate property.

No. Typically, it is not necessary to probate an estate where the decedent’s property passed to beneficiaries by other means, such as through account beneficiary designations, rights of survivorship on jointly held property, or by living trust.

There is a relatively speedy process (called “voluntary administration”) for estates consisting entirely of personal property valued at $25,000 or less, excluding the value of any vehicle. Barring this expedited process, the probate of a will takes approximately 1 to 2 years.