Article 5: PROTECTION OF PERSONS UNDER DISABILITY AND THEIR PROPERTY
Part 4: PROTECTION OF PROPERTY OF PERSONS UNDER DISABILITY AND MINORS
§5-425. Distributive duties and powers of conservator
(a). A conservator may expend or distribute income or principal of the estate without court authorization or confirmation for the support, education, care or benefit of the protected person and his dependents in accordance with the following principles:
(1). The conservator is to consider recommendations relating to the appropriate standard of support, education and benefit for the protected person made by a parent or guardian, if any. He may not be surcharged for sums paid to persons or organizations actually furnishing support, education or care to the protected person pursuant to the recommendations of a parent or guardian of the protected person unless he knows that the parent or guardian is deriving personal financial benefit therefrom, including relief from any personal duty of support, or unless the recommendations are clearly not in the best interests of the protected person. [1979, c. 540, §1 (NEW).]
(2). The conservator is to expend or distribute sums reasonably necessary for the support, education, care or benefit of the protected person with due regard to (i) the size of the estate, the probable duration of the conservatorship and the likelihood that the protected person, at some future time, may be fully able to manage his affairs and the estate which has been conserved for him; (ii) the accustomed standard of living of the protected person and members of his household; (iii) other funds or sources used for the support of the protected person. [1979, c. 540, §1 (NEW).]
(3). The conservator may expend funds of the estate for the support of persons legally dependent on the protected person and others who are members of the protected person's household who are unable to support themselves, and who are in need of support. [1979, c. 540, §1 (NEW).]
(4). Funds expended under this subsection may be paid by the conservator to any person, including the protected person to reimburse for expenditures which the conservator might have made, or in advance for services to be rendered to the protected person when it is reasonable to expect that they will be performed and where advance payments are customary or reasonably necessary under the circumstances. [1979, c. 540, §1 (NEW).]
[ 1979, c. 540, §1 (NEW) .]
(b). If the estate is ample to provide for the purposes implicit in the distributions authorized by the preceding subsections, a conservator for a protected person other than a minor has power to make gifts to charity and other objects as the protected person might have been expected to make, in amounts that do not exceed in total for any year 20% of the income from the estate, subject to the provisions of subsection (b-1).
[ 2005, c. 12, Pt. DDD, §17 (AFF); 2005, c. 12, Pt. DDD, §7 (AMD) .]
(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 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 [2005, c. 12, Pt. DDD, §17 (AFF); 2005, c. 12, Pt. DDD, §8 (NEW).]
(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 months. [2005, c. 12, Pt. DDD, §17 (AFF); 2005, c. 12, Pt. DDD, §8 (NEW).]
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.
[ 2005, c. 12, Pt. DDD, §17 (AFF); 2005, c. 12, Pt. DDD, §8 (NEW) .]
(c). When a minor who has not been adjudged disabled under section 5-401, paragraph (2) attains his majority, his conservator, after meeting all prior claims and expenses of administration, shall pay over and distribute all funds and properties to the former protected person as soon as possible.
[ 1979, c. 540, §1 (NEW) .]
(d). When the conservator is satisfied that a protected person's disability, other than minority, has ceased, the conservator, after meeting all prior claims and expenses of administration, shall pay over and distribute all funds and properties to the former protected person as soon as possible.
[ 1979, c. 540, §1 (NEW) .]
(e). If a protected person dies, the conservator shall deliver to the court for safekeeping any will of the deceased protected person which may have come into his possession, inform the executor or a beneficiary named therein that he has done so, and retain the estate for delivery to a duly appointed personal representative of the decedent or other persons entitled thereto. If after 40 days from the death of the protected person no other person has been appointed personal representative and no application or petition for appointment is before the court, the conservator may apply to exercise the powers and duties of a personal representative so that he may proceed to administer and distribute the decedent's estate without additional or further appointment. Upon application for an order granting the powers of a personal representative to a conservator, after notice to any person demanding notice under section 3-204 and to any person nominated executor in any will of which the applicant is aware, the court may order the conferral of the power upon determining that there is no objection, and endorse the letters of the conservator to note that the formerly protected person is deceased and that the conservator has acquired all of the powers and duties of a personal representative. The making and entry of an order under this section shall have the effect of an order of appointment of a personal representative as provided in section 3-308 and Parts 6 through 10 of Article III except that estate in the name of the conservator, after administration, may be distributed to the decedent's successors without prior retransfer to the conservator as personal representative.
[ 1979, c. 540, §1 (NEW) .]
SECTION HISTORY
1979, c. 540, §1 (NEW). 2005, c. 12, §§DDD7,8 (AMD). 2005, c. 12, §DDD17 (AFF).
Article 5: PROTECTION OF PERSONS UNDER DISABILITY AND THEIR PROPERTY
Part 4: PROTECTION OF PROPERTY OF PERSONS UNDER DISABILITY AND MINORS
§5-425. Distributive duties and powers of conservator
(a). A conservator may expend or distribute income or principal of the estate without court authorization or confirmation for the support, education, care or benefit of the protected person and his dependents in accordance with the following principles:
(1). The conservator is to consider recommendations relating to the appropriate standard of support, education and benefit for the protected person made by a parent or guardian, if any. He may not be surcharged for sums paid to persons or organizations actually furnishing support, education or care to the protected person pursuant to the recommendations of a parent or guardian of the protected person unless he knows that the parent or guardian is deriving personal financial benefit therefrom, including relief from any personal duty of support, or unless the recommendations are clearly not in the best interests of the protected person. [1979, c. 540, §1 (NEW).]
(2). The conservator is to expend or distribute sums reasonably necessary for the support, education, care or benefit of the protected person with due regard to (i) the size of the estate, the probable duration of the conservatorship and the likelihood that the protected person, at some future time, may be fully able to manage his affairs and the estate which has been conserved for him; (ii) the accustomed standard of living of the protected person and members of his household; (iii) other funds or sources used for the support of the protected person. [1979, c. 540, §1 (NEW).]
(3). The conservator may expend funds of the estate for the support of persons legally dependent on the protected person and others who are members of the protected person's household who are unable to support themselves, and who are in need of support. [1979, c. 540, §1 (NEW).]
(4). Funds expended under this subsection may be paid by the conservator to any person, including the protected person to reimburse for expenditures which the conservator might have made, or in advance for services to be rendered to the protected person when it is reasonable to expect that they will be performed and where advance payments are customary or reasonably necessary under the circumstances. [1979, c. 540, §1 (NEW).]
[ 1979, c. 540, §1 (NEW) .]
(b). If the estate is ample to provide for the purposes implicit in the distributions authorized by the preceding subsections, a conservator for a protected person other than a minor has power to make gifts to charity and other objects as the protected person might have been expected to make, in amounts that do not exceed in total for any year 20% of the income from the estate, subject to the provisions of subsection (b-1).
[ 2005, c. 12, Pt. DDD, §17 (AFF); 2005, c. 12, Pt. DDD, §7 (AMD) .]
(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 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 [2005, c. 12, Pt. DDD, §17 (AFF); 2005, c. 12, Pt. DDD, §8 (NEW).]
(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 months. [2005, c. 12, Pt. DDD, §17 (AFF); 2005, c. 12, Pt. DDD, §8 (NEW).]
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.
[ 2005, c. 12, Pt. DDD, §17 (AFF); 2005, c. 12, Pt. DDD, §8 (NEW) .]
(c). When a minor who has not been adjudged disabled under section 5-401, paragraph (2) attains his majority, his conservator, after meeting all prior claims and expenses of administration, shall pay over and distribute all funds and properties to the former protected person as soon as possible.
[ 1979, c. 540, §1 (NEW) .]
(d). When the conservator is satisfied that a protected person's disability, other than minority, has ceased, the conservator, after meeting all prior claims and expenses of administration, shall pay over and distribute all funds and properties to the former protected person as soon as possible.
[ 1979, c. 540, §1 (NEW) .]
(e). If a protected person dies, the conservator shall deliver to the court for safekeeping any will of the deceased protected person which may have come into his possession, inform the executor or a beneficiary named therein that he has done so, and retain the estate for delivery to a duly appointed personal representative of the decedent or other persons entitled thereto. If after 40 days from the death of the protected person no other person has been appointed personal representative and no application or petition for appointment is before the court, the conservator may apply to exercise the powers and duties of a personal representative so that he may proceed to administer and distribute the decedent's estate without additional or further appointment. Upon application for an order granting the powers of a personal representative to a conservator, after notice to any person demanding notice under section 3-204 and to any person nominated executor in any will of which the applicant is aware, the court may order the conferral of the power upon determining that there is no objection, and endorse the letters of the conservator to note that the formerly protected person is deceased and that the conservator has acquired all of the powers and duties of a personal representative. The making and entry of an order under this section shall have the effect of an order of appointment of a personal representative as provided in section 3-308 and Parts 6 through 10 of Article III except that estate in the name of the conservator, after administration, may be distributed to the decedent's successors without prior retransfer to the conservator as personal representative.
[ 1979, c. 540, §1 (NEW) .]
SECTION HISTORY
1979, c. 540, §1 (NEW). 2005, c. 12, §§DDD7,8 (AMD). 2005, c. 12, §DDD17 (AFF).
Article 5: PROTECTION OF PERSONS UNDER DISABILITY AND THEIR PROPERTY
Part 4: PROTECTION OF PROPERTY OF PERSONS UNDER DISABILITY AND MINORS
§5-425. Distributive duties and powers of conservator
(a). A conservator may expend or distribute income or principal of the estate without court authorization or confirmation for the support, education, care or benefit of the protected person and his dependents in accordance with the following principles:
(1). The conservator is to consider recommendations relating to the appropriate standard of support, education and benefit for the protected person made by a parent or guardian, if any. He may not be surcharged for sums paid to persons or organizations actually furnishing support, education or care to the protected person pursuant to the recommendations of a parent or guardian of the protected person unless he knows that the parent or guardian is deriving personal financial benefit therefrom, including relief from any personal duty of support, or unless the recommendations are clearly not in the best interests of the protected person. [1979, c. 540, §1 (NEW).]
(2). The conservator is to expend or distribute sums reasonably necessary for the support, education, care or benefit of the protected person with due regard to (i) the size of the estate, the probable duration of the conservatorship and the likelihood that the protected person, at some future time, may be fully able to manage his affairs and the estate which has been conserved for him; (ii) the accustomed standard of living of the protected person and members of his household; (iii) other funds or sources used for the support of the protected person. [1979, c. 540, §1 (NEW).]
(3). The conservator may expend funds of the estate for the support of persons legally dependent on the protected person and others who are members of the protected person's household who are unable to support themselves, and who are in need of support. [1979, c. 540, §1 (NEW).]
(4). Funds expended under this subsection may be paid by the conservator to any person, including the protected person to reimburse for expenditures which the conservator might have made, or in advance for services to be rendered to the protected person when it is reasonable to expect that they will be performed and where advance payments are customary or reasonably necessary under the circumstances. [1979, c. 540, §1 (NEW).]
[ 1979, c. 540, §1 (NEW) .]
(b). If the estate is ample to provide for the purposes implicit in the distributions authorized by the preceding subsections, a conservator for a protected person other than a minor has power to make gifts to charity and other objects as the protected person might have been expected to make, in amounts that do not exceed in total for any year 20% of the income from the estate, subject to the provisions of subsection (b-1).
[ 2005, c. 12, Pt. DDD, §17 (AFF); 2005, c. 12, Pt. DDD, §7 (AMD) .]
(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 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 [2005, c. 12, Pt. DDD, §17 (AFF); 2005, c. 12, Pt. DDD, §8 (NEW).]
(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 months. [2005, c. 12, Pt. DDD, §17 (AFF); 2005, c. 12, Pt. DDD, §8 (NEW).]
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.
[ 2005, c. 12, Pt. DDD, §17 (AFF); 2005, c. 12, Pt. DDD, §8 (NEW) .]
(c). When a minor who has not been adjudged disabled under section 5-401, paragraph (2) attains his majority, his conservator, after meeting all prior claims and expenses of administration, shall pay over and distribute all funds and properties to the former protected person as soon as possible.
[ 1979, c. 540, §1 (NEW) .]
(d). When the conservator is satisfied that a protected person's disability, other than minority, has ceased, the conservator, after meeting all prior claims and expenses of administration, shall pay over and distribute all funds and properties to the former protected person as soon as possible.
[ 1979, c. 540, §1 (NEW) .]
(e). If a protected person dies, the conservator shall deliver to the court for safekeeping any will of the deceased protected person which may have come into his possession, inform the executor or a beneficiary named therein that he has done so, and retain the estate for delivery to a duly appointed personal representative of the decedent or other persons entitled thereto. If after 40 days from the death of the protected person no other person has been appointed personal representative and no application or petition for appointment is before the court, the conservator may apply to exercise the powers and duties of a personal representative so that he may proceed to administer and distribute the decedent's estate without additional or further appointment. Upon application for an order granting the powers of a personal representative to a conservator, after notice to any person demanding notice under section 3-204 and to any person nominated executor in any will of which the applicant is aware, the court may order the conferral of the power upon determining that there is no objection, and endorse the letters of the conservator to note that the formerly protected person is deceased and that the conservator has acquired all of the powers and duties of a personal representative. The making and entry of an order under this section shall have the effect of an order of appointment of a personal representative as provided in section 3-308 and Parts 6 through 10 of Article III except that estate in the name of the conservator, after administration, may be distributed to the decedent's successors without prior retransfer to the conservator as personal representative.
[ 1979, c. 540, §1 (NEW) .]
SECTION HISTORY
1979, c. 540, §1 (NEW). 2005, c. 12, §§DDD7,8 (AMD). 2005, c. 12, §DDD17 (AFF).
