An Act To Amend the Probate Code Relating to the Authority of the Probate Court To Approve Transfers from a Protected Person's Estate
Maine Legislature, Session 125, LD 1186
Committee: Judiciary
Sponsors: HOBBINS, HASTINGS, DRISCOLL
Amends: 18-A MRSA §5

Legislative Document 
No. 1186 
S.P. 361 
In Senate, March 22, 2011 
An Act To Amend the Probate Code Relating to the Authority of the 
Probate Court To Approve Transfers from a Protected Person's 
Estate 
Reference to the Committee on Judiciary suggested and ordered printed. 
JOSEPH G. CARLETON, JR. 
Secretary of the Senate 
Presented by Senator HOBBINS of York. 
Cosponsored by Senator: HASTINGS of Oxford, Representative: DRISCOLL of Westbrook. 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1.  18-A MRSA §5-408, sub-§(6), as enacted by PL 2005, c. 12, Pt. DDD, 
§4 and affected by §17, is amended to read: 
(6).  The court may authorize a gift or other transfer for less than fair market value 
from the protected person's estate other than to the protected person's spouse or 
dependent, blind or disabled child if the court finds that the gift or other transfer will not, 
directly or indirectly, diminish the protected person's estate in order to qualify for federal 
or state aid or benefits, including the MaineCare program under Title 22, chapter 855, and 
the court finds: 
(a).  That the remaining estate assets of the protected person are sufficient for the 
protected person's care and maintenance for the next 36 60 months, including due 
provision for the protected person's established standard of living and for the support 
of any persons the protected person is legally obligated to support and any 
dependents of the protected person; and 
(b).    That the gift or other transfer will not hasten the date of eligibility for 
MaineCare coverage of the protected person's long-term care expenses during the 
next 36 60 months. 
If the gift is being made to the protected person's spouse or blind or disabled child, the 
court need not make such findings.  This subsection does not prevent a transfer to a trust 
established pursuant to 42 United States Code, Section 1396p(d)(4) or otherwise 
specifically allowed by law governing the federal Medicaid program under 42 United 
States Code. 
Sec. 2.  18-A MRSA §5-409, sub-§(d), as enacted by PL 2005, c. 12, Pt. DDD, 
§6 and affected by §17, is amended to read: 
(d).    The court may authorize a gift or other transfer for less than fair market value 
from the protected person's estate other than to the protected person's spouse or 
dependent, blind or disabled child if the court finds that the gift or other transfer will not, 
directly or indirectly, diminish the protected person's estate in order to qualify for federal 
or state aid or benefits, including the MaineCare program under Title 22, chapter 855, and 
the court finds: 
(1).    That the remaining estate assets of the protected person are sufficient for the 
protected person's care and maintenance for the next 36 60 months, including due 
provision for the protected person's established standard of living and for the support 
of any persons the protected person is legally obligated to support and any 
dependents of the protected person; and 
(2).    That the gift or other transfer will not hasten the date of eligibility for 
MaineCare coverage of the protected person's long-term care expenses during the 
next 36 60 months. 
If the gift is being made to the protected person's spouse or blind or disabled child, the 
court need not make such findings.  This subsection does not prevent a transfer to a trust 
established pursuant to 42 United States Code, Section 1396p(d)(4) or otherwise 
specifically allowed by law governing the federal Medicaid program under 42 United 
States Code. 
Sec. 3.  18-A MRSA §5-425, sub-§(b-1), as enacted by PL 2005, c. 12, Pt. DDD, 
§8 and affected by §17, is amended to read: 
(b-1).    The court may authorize a gift or other transfer for less than fair market value 
from the protected person's estate other than to the spouse or dependent, blind or disabled 
child if the court finds that the gift or other transfer will not, directly or indirectly, 
diminish the protected person's estate in order to qualify for federal or state aid or 
benefits, including the MaineCare program under Title 22, chapter 855, and the court 
finds: 
(1).    That the remaining estate assets of the protected person are sufficient for the 
protected person's care and maintenance for the next 36 60 months, including due 
provision for the protected person's established standard of living and for the support 
of any persons the protected person is legally obligated to support and any 
dependents of the protected person; and 
(2).    That the gift or other transfer will not hasten the date of eligibility for 
MaineCare coverage of the protected person's long-term care expenses during the 
next 36 60 months. 
If the gift is being made to the protected person's spouse or blind or disabled child, the 
court need not make such findings.  This subsection does not prevent a transfer to a trust 
established pursuant to 42 United States Code, Section 1396p(d)(4) or otherwise 
specifically allowed by law governing the federal Medicaid program under 42 United 
States Code. 
SUMMARY 
This bill amends the Probate Code to provide that the Probate Court does not need to 
make a finding about the adequacy of the protected person's estate when approving a gift 
or transfer for less than fair market value from the protected person's estate if the gift or 
transfer is to the protected person's spouse or blind or disabled child.  The bill 
incorporates the federal change in the look-back period from 36 months to 60 months.