CEA Elder Law & Guardianship 3 — Questions and Answers
Question 1: A guardian ad litem (GAL) is appointed in a guardianship proceeding. What is the GAL's role?
- To manage the ward's finances
- To represent the alleged incapacitated person's best interests in court (Correct answer)
- To serve as a temporary guardian until a permanent one is named
- To assess the potential guardian's financial fitness
Correct answer: To represent the alleged incapacitated person's best interests in court
A guardian ad litem is appointed by the court to investigate and advocate for the best interests of the alleged incapacitated person during the proceeding.
Question 2: Which of the following is NOT a valid exception to the Medicaid look-back transfer penalty?
- Transfer to a blind or disabled child
- Transfer to a sibling with an equity interest in the home
- Transfer between spouses
- Transfer to an adult child who provided occasional visits (Correct answer)
Correct answer: Transfer to an adult child who provided occasional visits
Transfers to a caretaker child who lived in the home and provided care preventing institutionalization are exempt, but occasional visits do not qualify as caretaking.
Question 3: Under what circumstances can an Emergency Temporary Guardianship be granted without standard notice to the alleged incapacitated person?
- When a family member petitions the court
- When the person is hospitalized for any reason
- When there is an immediate risk of serious harm to the person or their estate (Correct answer)
- When a physician certifies memory loss
Correct answer: When there is an immediate risk of serious harm to the person or their estate
Emergency temporary guardianships may be granted ex parte only when there is evidence of immediate, serious risk of harm to the individual or their property.
Question 4: An elder's POLST (Physician Orders for Life-Sustaining Treatment) conflicts with their older living will. Which document generally controls?
- The living will, as it was executed first
- The POLST, as it is a current physician order (Correct answer)
- Neither; the attending physician decides
- The family's wishes override both
Correct answer: The POLST, as it is a current physician order
A POLST is an actionable medical order signed by a physician and reflects the patient's most current wishes, generally taking precedence over older advance directives.
Question 5: Which Medicaid planning strategy involves converting countable assets into an exempt asset by paying down a mortgage on a primary residence?
- Medicaid asset protection trust
- Spend-down to primary residence (Correct answer)
- Qualified income trust
- Caregiver child transfer
Correct answer: Spend-down to primary residence
Paying off a mortgage converts liquid countable assets into home equity, which is an exempt asset for Medicaid eligibility purposes during the applicant's lifetime.
Question 6: A conservatorship differs from a guardianship primarily in that a conservatorship involves:
- Physical care decisions only
- Management of the ward's financial affairs (Correct answer)
- Medical treatment authority
- Residential placement decisions
Correct answer: Management of the ward's financial affairs
A conservatorship grants authority over a person's financial estate and property, while guardianship covers personal and healthcare decisions.
Question 7: When drafting a durable power of attorney for an elder client, which provision is critical to ensure the document remains effective if the principal becomes incapacitated?
- A springing clause requiring court approval
- A durability clause that expressly survives incapacity (Correct answer)
- A co-agent requirement for all transactions
- A sunset provision expiring after five years
Correct answer: A durability clause that expressly survives incapacity
A durability clause explicitly states that the power of attorney remains valid upon the principal's incapacity, distinguishing it from a conventional POA that terminates at incapacity.
CEA Elder Law & Guardianship 3
A guardian ad litem (GAL) is appointed in a guardianship proceeding.
What is the GAL's role?