464-A:26-a Estate Planning by Guardian. –
I. The probate court may authorize the guardian of the estate to make lifetime gifts, to allocate income, and/or to plan for the testamentary distribution of the ward's estate consistent with the ward's wishes. If the ward's wishes cannot be ascertained, the probate court may authorize the guardian of the estate to plan for the testamentary distribution of the ward's estate in order to minimize taxation or to facilitate distribution of the ward's estate to family, friends, or charities who would be likely recipients of gifts from the ward.
II. Before authorizing a guardian to make lifetime gifts or to allocate income, the probate court shall consider the ward's present and anticipated future expenses for maintenance, support, and medical care, any current or future debts of the ward, and any duty or legal obligation of the ward to support a spouse or dependent family members.
III. The guardian of the estate shall petition the probate court for authorization to make lifetime gifts, to allocate income, and/or to plan for the testamentary distribution of the ward's estate. This petition shall include the following information:
(a) A description of the proposed action;
(b) The anticipated results including any income, estate, or inheritance tax savings, and, if the gift is being made in order to qualify the ward for Medicaid, whether the action will maximize payments by Medicaid for the ward's care or result in a period of Medicaid disqualification;
(c) The ward's wishes, if known;
(d) The ward's financial condition, including present and anticipated future expenses for maintenance, support, and medical care, debts, and support obligations;
(e) The ward's medical condition;
(f) The ward's prior estate planning action, including significant life-time gifts, will, beneficiary designations, joint ownership, or trusts;
(g) The ward's family situation, including the family members who would inherit from the ward if the ward dies intestate;
(h) Whether the gift is intended to reduce the ward's assets or income in order to qualify the ward for Medicaid or other governmental benefits;
(i) The ward's housing situation during the 12 months prior to the filing of the petition; and
(j) A description of the care and services that the ward requires and is currently receiving.
IV. Notice of the petition shall be given to all interested parties, including the ward, the intended donees or beneficiaries of the contemplated estate plan, family members who would inherit from the ward if the ward died intestate, beneficiaries under current estate planning documents or contracts, the attorney for the ward, and such other parties as the court directs.
V. Before authorizing the guardian to make lifetime gifts or to plan for the testamentary distribution of the ward's estate, the probate court must find, by a preponderance of the evidence, that the proposed gifts and/or testamentary plan are consistent with the ward's wishes or, based on the circumstances as they then exist, that:
(a) The testamentary distribution of the ward's estate will minimize taxation and/or facilitate distribution of the ward's estate to family, friends, or charities who would be likely recipients of gifts from the ward;
(b) The proposed gift is not likely to adversely affect the ward's housing options, access to care and services, or general welfare;
(c) The proposed gift does not create a foreseeable risk that the ward will be deprived of sufficient assets to cover his or her needs during any period of Medicaid ineligibility that would result from the proposed gift; and
(d) The proposed gift is not likely to result in premature or unnecessary nursing home placement or institutionalization of the ward, or compromise the ward's access to care or services in the least restrictive setting in which his or her needs can be met.
VI. The probate court, prior to authorizing a lifetime gift or an allocation of income to the ward's spouse, shall appoint a guardian ad litem if the proposed gift benefits the guardian personally or otherwise creates a potential conflict of interest between the ward's interests and the guardian's personal interests.
VII. The department of health and human services, the county attorney, and the department of justice shall be notified and shall have the opportunity to address the court in any proceeding under this section if the court, or the department, upon motion to the court, has concerns relative to:
(a) The impact on the ward of any period of Medicaid ineligibility that would result from the proposed gift;
(b) Whether the ward has been the victim of a crime or has been or is at risk of being abused, neglected, or exploited within the meaning of RSA 161-F:43; or
(c) The cost of the ward's care to be paid by Medicaid as the result of the proposed gift or income reallocation.
VIII. No petition of spousal support shall be enforceable against the department as it relates to eligibility for medical assistance unless the petitioner provides a copy of the petition to the department at least 14 days prior to filing with the court.
Source. 1998, 186:1. 2003, 312:1, 2. 2011, 224:304-306, eff. July 1, 2011. 2022, 272:25, 26, eff. June 24, 2022.