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Elder Law and Probate Court

In the firm’s Elder law practice we often use the authority of the Probate Court to help clients. This can happen when someone has qualified for Medicaid or needs to qualify for Medicaid and there is a need for asset transfers. The Probate Court can be Petitioned when a disabled individual lacks an estate plan that allows for asset transfers (asset protection) upon their disability.

If a person has a cognitive impairment (dementia/alzheimer’s) or a physical illness that leaves them unable to make medical or financial decisions and the person does not have a Durable Power of Attorney then Probate Court intervention is required.  A Guardianship is a Probate Court Petition where a request is made for someone to be appointed by the Court to make health care and personal decisions for an incapacitated person. A Conservatorship is a Probate Court Petition where a request is made for someone to be appointed by the Court to make financial decisions for an incapacitated person.

The firm regularly assists Client’s setting up Guardianships and Conservatorships for their loved ones when no Durable Power of Attorney exists. Occasionally a Conservatorship becomes necessary because a Durable Power of Attorney did not authorize someone to conduct a specific financial transaction for an incapacitated person.

In the context of Medicaid planning a typical situation is when one spouse needs to be in a nursing home and the other spouse is living at home in the family home which is owned by both the husband and wife. Many times, an estate plan will not allow the home to be transferred to the community spouse in this situation because the estate plan did not contemplate disability planning. Usually it is beneficial to have the family home transferred to the spouse who is living at home.

Transferring the home to the spouse who lives at home will give them more options such as the ability to sell the home and downsize or borrow money with a mortgage and fix up the existing home. Transferring the home to the spouse living at home will also protect the home by allowing that spouse to update their estate plan so that Medicaid Probate Estate Recovery is avoided and the home can ultimately benefit the couple’s children.

When a parent has children with no surviving spouse and the parent is in a nursing home with Medicaid paying for their care it is recommended for the parent to have a Lady Bird deed.  This type of deed will transfer the parent’s home to the children upon the death of the parent.  The transfer will avoid Probate and also avoid a claim by the State of Michigan to be repaid for the care provided to the parent.  Many times, the parent does not have a durable power of attorney that will allow the children to create the Lady Bird deed.  In these instances, the Probate Court can be used to accomplish the creation of the Lady Bird deed.

Please contact us for assistance with your long term care legal issues. The first step towards learning about your rights and options is to have a consultation with an experienced Elder law attorney.


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