MHL ARTICLE 81 - New York State Unified Court System

Matter of M.L., 25 Misc. 3d 1217A; 901 N.Y.S.2d 907 (Sup. Ct. Bronx Cty., 2009) (Hunter, J.)
Guardian’s motion for leave to expand his powers to gift a percentage of available assets in
accordance with the IP's testamentary intentions to the date of the order to show cause nunc pro tunc
and to make a loan of a percentage of the IP's available assets to the guardian and initiate Medicaid
planning nunc pro tunc was, upon reargument, granted. The guardian submitted an affidavit and
stated upon the record that he understood that he would be bound by a promissory note to use the
remaining portion to pay for the IP's care through the penalty period created by the gift.
Matter of Emil Z., 9/4/09, NYLJ 29, (col. 3) (Sup. Ct. Nass.Cty.)(Asarch, J.)
Court permitted Medicaid exempt transfers to the AIP’s wife to allow her to continue to support the
family in the family residence and to reimburse herself for certain expenses she incurred for the
benefit of the IP but declined further transfers that would leave an amount in the IP’s name that
would provide for his care for only a 5 year period. Part of the court’s rational was that the wife had
been delinquent in paying for some of the IP’s past care and the court was hesitant to permit the
transfer of additional assets that might leave him dependent upon others outside the jurisdiction of
the court to pay for his care. The court stated that these funds, which were damages in the medical
malpractice action, were for the IP’s future care and should remain in a vehicle established for his
benefit and suggested that the guardians consider establishing an SNT.
Matter of M.L 24 Misc.3d 293; 24 879 N.Y.S.2d 919 (Sup. Ct. Bronx Cty. 2009) (Hunter, J.)
A guardian made application for authorization to engage in Medicaid planning on behalf of the IP.
Although most of the plan was approved by the court, the court would not authorize a proposed gift
to the IP's niece as a means of achieving Medicaid eligibility. This niece had been named by the
IP as the beneficiary in her Last Will & Testament. Instead of allowing the gift, the court compelled
the guardian to use the vehicle of a pooled trust rather than a gift to create Medicaid eligibility stating
that if the funds were gifted outright to the niece, there would be no legal obligation that the niece
spend the IP's money on the IP's needs. The court opined that although the IP's intent was for the
niece and not the charity that operated the pooled trust to inherit her money upon her death, the IP
would presumably want her own needs met during her lifetime and the pooled trust arrangement
would insure that result even though it would undermine her testamentary intent.
Matter of Mildred A., 21 Misc.3d 1123A; 873 N.Y.S.2d 511 (Sup. Ct., Nassau Cty.
2008)(Asarch, J.)
Where the IP’s daughters were in dire financial situations and homeless, the IP had a long standing
history of making gifts to her daughters, and where the court determined that under a worst case
scenario there would be sufficient assets to support the IP, the court permitted the guardian to make
gifts to the daughters under a theory of substituted judgement and specified that these gifts were
made for purposes other than qualifying the IP for Medicaid so as to avoid any penalties.
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