Elder Law
Protecting the Legal Rights of Your Elderly Loved Ones
Elder Law Serving the Portland, ME Area
Adult Guardianship & Conservatorship & Asset Protection Planning
Guardianships are used to arrange for care and custody of a person, and conservatorships are used to arrange for the management of a person’s financial affairs. When there are no suitable alternatives, guardianship or conservatorship proceedings may be unavoidable.
Guardian
If you or a loved one becomes disabled or incapacitated and there is no existing Power of Attorney in place, then a Guardian must be appointed by the court to care for you and manage your personal affairs. Upon appointment of a Guardian, you may lose certain legal rights to act on your own behalf, and the Guardian will be empowered to act for you. A Guardian will be responsible for making decisions regarding your housing, education, training, medical decisions, and other decisions regarding your life.
Every person in the state of Maine who is 18 years of age or older is considered to be an adult and is legally capable of directing his or her own personal and financial affairs. A person with intellectual disabilities, however, may be totally or partially unable to meet essential requirements for their physical health or safety or unable to make informed decisions about matters related to their care.
In such cases, the probate court is authorized to appoint a Guardian to supervise all aspects or certain aspects of the care of an adult with intellectual disability.
If you currently have a family member who is no longer able to manage financial and other important matters on his or her own, and that person has not prepared a Power of Attorney, Lisa can assist you through the guardianship process.
Conservator
Your Conservator will be responsible for managing your personal financial resources, making prudent investment decisions, paying all of your expenses in a timely manner, and ensuring that you do not become the victim of
conniving people.
The same person can serve as both Guardian of your person and as Conservator of your finances, if you wish.
Many families have a loved family member with diminished capacity. To care for a family member who is either mentally ill or developmentally delayed, family members need to evaluate the pros of Guardianship and Conservatorship. Guardianship often provides the tool needed help a family member receive the medical care needed. As well, Conservatorship allows family members to ensure that person’s assets are protected so that those assets are not subject to financial mismanagement.
Asset Protection (MaineCare) Planning
Planning ahead is important for clients who wish to maximize their eligibility for MaineCare and other government benefit programs in the future. MaineCare is one of several needs-based programs that provides a person with financial assistance for long term care, either in a nursing home setting or at home, and it is the most common. Most of the rules associated with MaineCare eligibility are designed to prevent people from intentionally making themselves poor (for instance by giving away assets to children) in an effort to become eligible for benefits, and yet retain their assets to pass to their family. Maine’s strict eligibility rules and guidelines for MaineCare assistance are put in place to avoid these situations.
One of the chief concerns of a family facing the decision of having loved one enter a nursing home is how they will pay the cost. Most health insurance plans and Medicare provide very limited coverage for patients in nursing homes. Unless you have long-term care insurance to cover your care, the only option is to pay for the care yourself until your assets are exhausted and then apply
for MaineCare.
Generally, to qualify for MaineCare eligibility, your financial assets can be no more than $10,000. This includes cash, stocks and bonds, bank accounts, your IRA, and real estate not your principal residence. Also, if you have transferred any financial resources to your family members or friends within five years of the date you apply for MaineCare, those transfers may be counted as available resources, and may affect your eligibility and cause you to incur a penalty.
There are a number of resources that are not counted in determining your eligibility for MaineCare however, including an automobile, household goods, clothing, jewelry, a pre-paid funeral package, and your home if you state an intention to return to it after your nursing home stay, or if it is used as the principal residence of your spouse or dependent child.
Once you qualify for MaineCare by showing that your resources have been spent down, you will have to prove that your monthly income is insufficient to pay for your nursing home care. Generally, all of your income, but not your spouse’s income, is counted. This includes pensions, Social Security, and interest and dividends from bank accounts and other investments. You are, however, permitted to keep at least $40 per month as a personal needs allowance.
If you are married and living at home with your spouse, different rules apply in determining your eligibility. Generally, your spouse is permitted to keep his or her income and any qualified retirement funds. Also, your spouse is permitted to keep a portion of the resources owned by either of you, in addition to the resources mentioned above that are not counted in determining your eligibility for MaineCare.
Contact Lisa to learn more about navigating the complexities of MaineCare planning and asset protection.
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