• Protecting the real and personal property of an incapacitated person by applying for Medicaid is legally permissible in NJ
• New Jersey court rules define the guardianship process to protect assets from a nursing home thereby qualifying for Medicaid
When is Guardianship Appropriate?
Appointment of a guardian is warranted when an alleged incapacitated person is unfit and unable to govern himself/herself and to manage his/her affairs. Pursuant to N.J.S.A. 3B:1-2, an “incapacitated individual” is defined as one who is “impaired by reason of mental illness or mental deficiency to the extent that he/she lacks sufficient capacity to govern himself/herself and manage his/her affairs.” When making an application for guardianship, the Rules require affidavits from two medical physicians opining that the alleged incapacitated individual is not able to govern himself/herself or his/her affairs (R 4:86-2.) and lacks the ability to care of for himself/herself personally and to make rational choices involving his/her person and property and is in need of a Guardian.
Guardians Can Do Medicaid Planning
A Guardian may also ask for the ability to undertake Medicaid and Asset Protection Planning, including the ability to sell real and personal property including a residence. The Guardian should be authorized to act as a reasonable and prudent person would act in the management of his/her own estate under similar circumstances, unless there is evidence to the contrary. Our Supreme Court has expressly sanctioned Guardians to engage in Medicaid and Asset Protection Planning, declaring that “(s)o long as the law allows competent persons to engage in Medicaid planning, incompetent persons, through their Guardians, should have the same right.” N.J.S.A. §3B:12-49 gives a Guardian of an estate “the power to convey or release the ward’s present, contingent and expectant interests in real and personal property” and the Courts have recognized the transfer of a marital home as a common Medicaid and Estate Planning strategy.
It is within the Court’s power to directly authorize a Guardian to engage in Asset Protection Planning for the purpose of qualifying a ward for Medicaid.
To discuss your NJ Medicaid matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com. Please ask us about our video conferencing consultations if you are unable to come to our office.
By Fredrick P. Niemann, Esq. of Hanlon, Niemann & Wright, a Freehold Township, Monmouth County, New Jersey Medicaid Attorney