Now Accepting New Clients!

PROBATE 28: Probate court enters a protective order providing support for a community spouse.

In this case, M is an institutionalized individual who receives Medicaid benefits to cover part of his healthcare costs. His spouse, R, sought a protective order under the Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq., claiming that she lacked sufficient income to meet her needs and asserting that she was entitled to support from M.

The Department of Health and Human Services (DHHS) opposed the petition, arguing that R did not exhaust available administrative remedies regarding Medicaid determinations, that the proposed order would leave M impoverished and unable to meet his own obligations, and that R did not need additional income from M.

A probate court has the authority to enter a protective order providing support for a community spouse whose institutionalized spouse is receiving Medicaid benefits,  but that authority does not include the power to enter an order preserving the community spouse’s standard of living without consideration of the institutionalized spouse’s needs and his or her patient-pay obligations under Medicaid. In order to issue a protective order under MCL 700.5401(3)(b), the spouse requesting support must make a showing of need, not merely a desire to maintain a current standard of living without regard to the other spouse’s circumstances.

Whether the community spouse is entitled to support will depend on all the facts and circumstances, including the incapacitated individual’s financial means and ability to provide assistance. For instance, when crafting a protective order, the probate court should consider the protected individual’s foreseeable needs, the interests of the protected individual’s creditors, and the interests of the protected individual’s dependents.

A probate court’s consideration of the couple’s circumstances cannot involve an assumption that the institutionalized spouse should receive 100% free medical care under Medicaid or an assumption that a community spouse is entitled to maintain his or her standard of living. Medicaid is a need-based program, and a Medicaid recipient is obligated to contribute to his or her care.

Here, the probate court entered an order awarding R 100% of M’s monthly income, thereby leaving M without sufficient income to support himself. In doing so, the court reasoned: It is clear from the record that without the protective order, the joint assets will be depleted to the point that R will not be capable of supporting herself.

The DHHS argued that R was required to exhaust administrative remedies available before seeking a protective order from the probate court, and that the probate court should have declined to exercise jurisdiction until all administrative remedies were exhausted.

Absent from the court’s findings is any indication that it considered (1) whether R needed—as opposed to simply wanted—money and (2) whether R was entitled to M’s support despite the CSMIA provided under Medicaid and M’s patient-pay amount under Medicaid. Because those findings are necessary before a probate court may enter a protective support order under MCL 700.5401(3)(b), the appeals court conclude that the probate court abused its discretion by entering the order awarding R 100% of M’s monthly income.

Aldrich Legal Services offers comprehensive guidance throughout the probate process, including the filing of petitions, notices to creditors, distribution of assets to beneficiaries and other services required throughout the probate process.

To schedule a free consultation with an experienced probate and estate administration lawyer at our firm, contact our law office in Plymouth, Michigan.

Contact Aldrich Legal Services

FAMILY LAW 50: A Michigan Court has jurisdiction to make an initial custody determination when it is the home state of the child on the date of the commencement of the proceeding or within 6 months before the commencement of the proceeding.

PROCEDURAL HISTORY  Plaintiff and defendant have twin sons, but never married.  On August 13, 2008, the Court of Common Pleas Juvenile Division in Montgomery County, Ohio established plaintiff as the legal father of the children and...

When You Should Contest a Will?

Wills usually go through without a problem. Well over 90% of wills have no issue making it through probate. However, there are several grounds you may have to contest a will. As a beneficiary, or someone who would gain from a will, there are legal...

What You Need to Know About Distracted Driving

A great U.S. freedom is the ability to drive the open roads. However, every year there are more than 20,000 car accidents in Michigan. Many of these accidents come from distracted driving and could have been avoided. Distracted driving is such a...

Reasons Your Will or Trust Could be Contested

Everyone reacts in their own way when a family member passes away. Emotions can run high, and people can react more strongly than they normally would. Some family members may feel cheated by what a will or trust grants them leading them to contest...

Penalties For Driving Without Insurance in Michigan

Getting into a car and going for a drive isn’t perfectly safe. Driving on the Michigan roads can be dangerous. Driving those same roads becomes financially dangerous if you drive without car insurance. Between fees, charges, and possible...

PROBATE 36: Undue influence to execute Lady Bird deed.

This probate dispute between siblings arises out of the death of their father. Their father lived alone. In 2013, however, he asked appellee to live with him. She agreed, moving into the home in August 2013. Appellants allege that in the years...

Top 5 Most Common Traffic Violations in Michigan

Staying safe on the roads is in everyone’s best interest. However, keeping yourself or others out of danger is everyone’s responsibility. Getting a traffic ticket ends up costing drivers big time. Traffic tickets and citations cost money...

Don't let a bad decision, unfair contract, or a messy divorce get in the way of a promising future!
Contact the experienced team at Aldrich Legal Services today to schedule your free initial
and secure reliable and trustworthy representation today!
Get the Help You Need From a Team You Can Truly Count On: (734) 404-3000