Legal Memorandum: Powers of Probate Court in ME

Issue: What are the powers of the Probate Court with regard to a conservator’s gift that may affect a conservatee’s eligibility for MaineCare?

Area of Law: Estate Planning & Probate
Keywords: Probate court; Conservator's gift; MaineCare, eligibility
Jurisdiction: Maine
Cited Cases: 502 A.2d 1044
Cited Statutes: 18-A M.R.S.A § 5-408(3); 18-A M.R.S.A. § 5-408(6)
Date: 03/01/2015

The Probate Court’s powers are limited to the powers granted by the Probate Code.  See, e.g., In re Adoption of G., 502 A.2d 1044, 1045-46 (Me. 1986).  Regardless, the Court is granted “all the powers over [the protected person’s] estate and affairs which he could exercise if present and not under disability, except the power to make a will.”  18-A M.R.S.A § 5-408(3) (emphasis added).  The statute specifically grants the Court the “power to make gifts, [and] to convey or release his contingent and expectant interests in property . . . and to renounce any interest by testate or intestate succession or by inter vivos transfer.”  Id

In fact, at least one court has found a guardian liable for breach of fiduciary duty when the guardian failed to consider how its actions would affect the ward’s Medicaid eligibility.  In re Guardianship of Connor, 525 N.W.2d 214 (Ill. App. Ct. 1988). 

With respect to transfers that affect MaineCare eligibility, the Court’s limits are clear:

The court may authorize a gift or other transfer for less than fair market value from the protected person’s estate if 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 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 […]


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