IN THE PROBATE COURT OF _________________ COUNTY, …



IN THE PROBATE COURT OF _________________ COUNTY, ARKANSAS

_______ DIVISION

IN THE MATTER OF:

_____________________________,

An incapacitated person

No. _____________

GUARDIAN’S PETITION FOR AUTHORITY TO MAKE GIFTS FROM WARD’S ESTATE

Comes now the Petitioner, __________________, Guardian of the Person and Estate of ______________________, and for his Petition For Authority To Make Gifts From Ward’s Estate states the following:

1. Petitioner was appointed Guardian of the Person and Estate of his grandmother, ______________________, by order of this Court on _________________.

2. Petitioner has faithfully and dutifully carried out the fiduciary responsibilities imposed thereby.

3. The Petitioner, his brother, and his mother have borne full responsibility for providing the necessary daily care of the Ward.

4. The Ward is now a resident and in the care and custody of _________________ Nursing Center, ________________, Arkansas.

5. Prior to the onset of the Ward’s incapacitation, the Ward had made regular and numerous gifts to her grandsons.

6. But for the incapacitation, the Ward would have continued to make gifts to her grandsons.

7. Petitioner and Petitioner’s brother are the named heirs and beneficiaries under the Last Will & Testament of ____________________. (See attached exhibit “A”)

8. Permitted gifting would allow the Ward to expedite her qualification for Medicaid assistance benefits, is in the best interests of the Ward’s estate, would further the demonstrated intentions and desires of the Ward, and is otherwise permitted pursuant to A.C.A. 28-65-314 (b).

Therefore Petitioner prays this Court grant the requisite authority to make gifts from the Ward’s estate so as to carry out the Ward’s demonstrated intentions and desires.

Respectfully Submitted,

______________, Petitioner

By: ______________________

Chad R. Oldham

Oldham Law Firm, PLLC

2201 Fair Park Blvd., Ste. A

Jonesboro, AR 72401

870-268-4761

VERIFICATION

I, _______________________, do hereby swear and affirm that the foregoing pleadings is true & correct to the best of my knowledge.

__________________________________

Petitioner

STATE OF ARKANSAS )

)SS.

COUNTY OF __________ )

Subscribed and sworn before me this_______ day of ___________, 20___.

__________________________________

Notary Public

___________________________

My Commission Expires

IN THE PROBATE COURT OF _________________ COUNTY, ARKANSAS

_______ DIVISION

IN THE MATTER OF:

_____________________________,

An incapacitated person

No. _____________

BRIEF IN SUPPORT OF

GUARDIAN’S PETITION FOR AUTHORITY TO MAKE GIFTS

As the issues presented by the Guardian’s petition appear to be issues of first impression

to the Court, Petitioner submits the following background and legal precedence.

STATEMENT OF FACTS

The Ward, _________________, suffers from incurable advanced dementia and other health related to her advanced age. On ____________________, this Court issued an order appointed Petitioner, Ward’s grandson, ad Guardian for the person and estate of the Ward. Petitioner has faithfully and dutifully carried out the fiduciary responsibilities imposed thereby. Futhermore, Petitioner, her brother, and his mother, the Ward’s only surviving descendants, have borne full responsibility for providing the necessary daily care of the Ward. However, as a result of the Ward’s progressive deterioration, it has become necessary to place the Ward in the custody of a residential care facility. On or about _________________, the Ward was admitted as a resident of ____________ Nursing Center, _____________, Arkansas.

On ________________, the Ward validly executed her Last Will & Testament whereby she devised and bequeathed all her interests in both real and personal property equally to her grandsons, Petitioner/Guardian and his brother. (See attached Exhibit “A”) The disposition of the Ward’s estate, as reflected in her will, is commensurate with a prior pattern or lifetime gifting.

As the Ward is now confined to the residential car facility for a period that most likely will constitute the remainder of her lifetime, Petitioner seeks to carry to fruition the Ward’s prior expressed intentions regarding the disposition of her estate and thereby qualify the Ward for Medicaid long-term care assistance benefits.

POINTS OF LAW AND APPLICATION TO FACTS

While the issues presented herein appear to be of firs impression to the Court, there is some recent guidance from other jurisdictions. The facts of In the Matter of Mildred Keri, 181 N.J. 50, 853 A.2d 909 (2004) (full opinion attached) are strikingly similar to the facts in the instant case. In Keri, the Guardian, Ms. Keri’s adult son, petitioned the Court to sell the Ward’s primary residence and engage in the Medicaid “spend-down” process so as to carry out the Ward’s previously expressed testamentary scheme and thereby also qualify the Ward for Medicaid long-term care assistance. Therein, the Court held that when a Medicaid spend-down plan does not interrupt or diminish an incompetent person’s care, involves transfers to the natural objects of the person’s bounty, and does not contravene an expressed prior intent or interests, the plan clearly provides for the best interest of the incompetent person and satisfies the law’s goal to effectuate decisions an incompetent would make if he or she were able to act. Id.

The Court, in Keri, adopted a five part litmus test which was previously set forth in the 1972 New Jersey Chancery Court case, In re Trott.118 N.J. Super. 436, 288 A.2d 303 (Ch. Div. (1972)). This issue presented in Trott was efficacy of proposed gifting by a Guardian for the purpose of reducing the there Ward’s prospective estate tax liability. The Trott court provides the following factors to be considered when presented with a petition to make gifts from an incompetent’s estate:

1. The possibility of restoration to competency has to be virtually non-existent;

2. After making the proposed gifts, the assets of the estate must be such that in light of the condition and life expectancy of the incompetent, the assets are more than adequate to meet his or her needs in the style and comfort in which he or she has been maintained since the onset of the incompetency;

3. The recipients of the gifts constitute the natural objects of the gifts;

4. The transfer will benefit and advantage the estate of the incompetent; and

5. There is no substantial evidence that the incompetent, as a reasonably prudent person would, if competent, not make the gifts proposed.

The Trott court also lends guidance on the prevailing theory of “substituted judgment”. The Court therein endorsed the principal that in the management of the estate of an incompetent, the Guardian should be authorized to act as a reasonable prudent person would under the same circumstances unless there is some evidence of any settled intention, formed while sane, to the contrary. Trott, supra, quoting in re Guardianship of Christiansen, 56 Cal. Rptr. 505, 521 (Ct. App. 1967). “The goal of decision making for incompetent patients should be to determine and effectuate, insofar as possible, the decision that the patient would have made, if competent.” In re Conroy, 98 N.J. 326 (1985).

Looking for further guidance on this issue, the Keri court notes that New York has established a presumption in favor of approving Medicaid spend-down proposals on the ground that a reasonable and competent person “would prefer that the costs of his car ebe paid by the State, as opposed to his family.” Keri quoting in re Shah, 694 N.Y. S 2d 82 (App. Div. 1999).

It is the Petitioner’s position that the law as expressed in Keri, and the cases cited therein, should be adopted by this Court. Applying the five-part litmus test as set forth in Trotter, and adopted in Keri, should lead this court to reach the same holding. In the instant case, the Ward unquestionably suffers from debilitating and incurable afflictions as previously recognized by this Court in the original Guardianship proceedings.

Secondly, the gifts will in no way impair the ability to meet the needs of the Ward. The Ward’s physical and mental status, now and as in recent past years, dictate that the only expenses incurred are those directly related to the Ward’s healthcare needs.

Finally, there is no assertion that the Ward has or would have ever expressed any opposition to such a plan. To the contrary, she would, but for her incompetency, have pursued the same on her own accord.

CONCLUSION

The Petitioner fully acknowledges that there are those in our society who would oppose the proposed plan as constituting an excessive or otherwise unnecessary burden on the Medicaid system. Notwithstanding, Congress has carefully defined and circumscribed Medicaid planning, as has the State by and through its administration of the program through the Department of Human Services. The Keri court addressed this issue by stating, “By its actions, Congress has set the public policy for this program and although some might choose a different course, the law has not.” Keri, supra at 69 and 920. So long as the law affords an individual such a planning opportunity, there can be no question that such benefit may not be countenanced upon the person’s competency status.

Based upon the arguments and recitations of law set forth herein, Petitioner prays this court grant his Petition to Make Gifts and for ll other just and equitable relief.

Respectfully Submitted,

______________, Petitioner

By: ______________________

Chad R. Oldham

Oldham Law Firm, PLLC

2201 Fair Park Blvd., Ste. A

Jonesboro, AR 72401

870-268-4761

VERIFICATION

I, _______________________, do hereby swear and affirm that the foregoing pleadings is true & correct to the best of my knowledge.

__________________________________

Petitioner

STATE OF ARKANSAS )

)SS.

COUNTY OF __________ )

Subscribed and sworn before me this_______ day of ___________, 20___.

__________________________________

Notary Public

___________________________

My Commission Expires

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