Planning

Joint Tenancy With a Right of Survivorship (JTWROS) is a manner by which many of us hold bank and other financial accounts with others.  It is a traditional method of account ownership that has many benefits.  It commonly reflects the unity between spouses.  It avoids probate when one party dies.  It can be used for administrative convenience when one party ages and requests the help of another party, typically a child, in managing his or her financial affairs.

Unfortunately, many perils have arisen in using these accounts.

Peril #1

Estate Taxes:  Mike and Julie have been married for 50 years.  They have approximately $1,300,000 in assets.  As New Jersey residents, they know that when they die, any assets over $675,000 are subject to an estate tax.  In their case, this tax will be approximately $50,000.  To avoid this tax, they each execute a Will with a Disclaimer Trust, which will shield $675,000 each, of $1,350,000.  However, all of their accounts are owned jointly; thus, when the first spouse dies, everything goes to the survivor and the Disclaimer Trust is never funded.

Lesson:  Jointly held accounts can lead to unnecessary taxes.

Peril #2

Nursing Home Costs:  Jenny, who is single, has had her mother, Harriet, as a joint owner of her bank accounts for years, so that Harriet can take care of managing her money if Jenny ever becomes incapacitated.  Unfortunately, Jenny’s father, George, has a stroke and needs to enter Happy Acres Nursing Home for permanent nursing care.  After George and Harriet have spent down their funds to pay for part of George’s care and retain some assets for Harriet, Harriet applies for Medicaid on behalf of George.  During the application process, Jenny’s account is discovered.  The Medicaid office takes the position that those accounts need to be spent as the legal presumption is that they are the property of Harriet, and spouses must spend down their assets even on behalf of their husbands or wives.

Lesson: Your assets can be exposed to the liabilities of a joint account holder. 

Peril #3

Theft of Inheritance:  Frank has four children whom he loves very much and his Will treats them equally.  Due to a decline in health, he puts the name of his daughter, Mary, on his financial accounts as a joint holder so she can manage his finances and pay his bills.  He fully expects that any balance in these accounts will be divided equally among his children when he dies.  However, when he dies, Mary tells her siblings that the money is all hers.  The law supports her as it states that there is a presumption that jointly held accounts pass to the surviving owner.

Lesson:  A joint account holder can thwart one’s estate planning goals.

Certainly, there is a time and place for the establishment of jointly held accounts.  However, one must evaluate the disadvantages that can arise when setting them up. Prudent legal advice can anticipate and avoid the scenarios detailed above, as well as other perils.

In the event of multiple owners, a company may wish to utilize a Trusteed Cross-Purchase Buy/Sell Agreement.  Under this arrangement, all policies would be owned by a trust, and only one policy per shareholder would be required to fund the Agreement.  An independent trustee would be the beneficiary of each policy.  Upon the death of a particular shareholder, the trustee would transfer the death benefit to the decedent’s estate in consideration of the decedent’s shares, in turn transferring the shares to the remaining shareholders at a “stepped-up” basis.  The major consideration in this case is to avoid the assessment of tax for a transfer for value to the surviving shareholders.

The alternative to a Cross-Purchase Agreement is a Stock Redemption Plan.  This plan establishes an agreement in which the company purchases the insurance on behalf of the shareholders.  Upon death, the company utilizes the proceeds to purchase shares from the deceased shareholder’s estate.  Administratively, this plan is easier in that fewer policies must be purchased.  However, certain disadvantages exist.  For example, the surviving shareholders’ interest will increase, but not the basis in the shares.

In all, a Buy/Sell Agreement should explore business viability and estate planning concepts.  The type of agreement employed should reflect the analysis of such concepts.

In essence, all of the programs can work to “fill in the blanks”.  However, they don’t provide advice.  They don’t ask questions or generate answers regarding significant issues which may be facing family members such as divorce, creditors, alienation or any other special needs and circumstances.  The programs also do not provide alternatives that may exist to maximize estate benefits for any individuals who have significant non-probate assets such as life insurance, annuities, retirement plans and IRA’s.  Most importantly, the programs do not address variations in state probate laws, mixed marriages, special needs children and taxation.

In all, as the old saying goes, you get what you pay for, and, considering the time and effort expended over many years to accumulate your assets, it is proper to say you deserve better than that.

These trusts are frequently sold by companies who outright lie about their benefits and the disadvantages of a will.  They typically induce people to get acquainted with them through mailers and/or free dinner offers.  They then tell them that their finances will be in ruin if all they have is a will.  They fabricate, claiming that the executor of an estate gets a 10% commission, when it’s actually 5% of the first $200,000, 3.5% of the next $800,000 and 2% of the balance.  The fee is discretionary, too.  They state that the attorneys who write wills must be used as their Executors, and that the attorneys receive mandatory outrageous fees.  The number I frequently hear used is $60,000.  However, this is false, because legal assistance is not required to administer an estate, and any fees required are usually the result of the estate being taxable, not because of probate. They also claim that estates get tied up due to probate.  In New Jersey, that is absolutely false.  Ten days elapse between the date of death and the probate of the will.  That is all.

The trust mills frequently talk about benefits of a trust, such as tax avoidance or protection of assets against long term care costs.  These are both false.  A living trust is a grantor trust, which means that the property within it is treated, for tax and creditor purposes, equally as if the trust were in an individual’s name.

The cost for these trusts usually exceeds $2,000, which goes to the trust mill and the attorney to whom they purportedly farm out the work of document preparation.  It should be noted that these trust mills are not just companies who purport to represent seniors, but attorneys as well.  Such a cost greatly exceeds that which an honest attorney will charge for basic estate planning.

The other type of scam involves the hard sale of computer products stating that individuals should handle their estate plans without a lawyer.  Frankly, it is theoretically possible to use these correctly.  However, estate planning comprises more than mere documents. Skilled estate planning frequently involves reallocation of assets and advice  that cannot be provided by software.  Of course, the sellers of these software programs won’t be there to back up your estate if there is an error in the preparation of the documents.  At least their cost is nominal.  One should just remember, “You get what you pay for.”

In conclusion, we should remember the story of Goldilocks and the porridge: not too hot, not too cold, just right.  The same applies to wills and estate planning.  You need one that is not too expensive, not too cheap, but one that is just right.

If you are a parent, you may be thinking of the “talk” you had with your children when they were pre-teens, but, that is not what I am referring to. This “talk” is with your family members about your “later in life” thoughts.

Do your family members know your preferences about critical life support?  Funeral details?  Where to find your important documents?  Your assets?  Who you wish to have notified in the event of illness or death? Computer passwords and log in?  Your safe deposit box location? Your list of medications? Health history?

You may have shared this information at some point with your family, but situations change.  Perhaps you have moved — do they know where you have placed your documentation?  Perhaps you have named new parties to act on your behalf.  Have you discussed your affairs with them?

If you use a computer, do you have log-in information and passwords written someplace to enable them to access your “electronic” assets?

While knowing the whereabouts of your financial information and Estate documentation, your last wishes are some of the most important details to share with your loved ones.  Do your loved ones know your wishes?

With regard to Health Care Directives, do not assume your loved ones are of the same opinion as yours, or each other.  If you don’t have your documents in order, it can be difficult for your loved ones to make a decision.  You should carefully consider the person you are naming as your agent to make health-care decisions when you are unable to make them for yourself.  Have a heart-to-heart talk with this person to feel comfortable in knowing they will abide by your wishes and that they share the same thoughts as you.

This is a difficult conversation to have, but there are advantages of doing so — to name a few:  your wishes are known, you have named someone to make decisions on your behalf thus hopefully avoiding angst and tension among your loved ones, and not the least of all, avoiding medical personnel making decisions which may be contrary to your wishes, some decisions that when made and implemented are not easily undone.

In addition to health care issues, share with your family your wishes for your funeral — do you have arrangements made, what your views are as to burial versus cremation, cemetery location, religious or memorial services.

Many times, as a part of your Estate planning, attorneys will draw up a separate document to address these issues of post-mortem wishes.  The document is separate from your Will, but provides information and your preferences to your loved ones.

If you are a parent, this “talk” may be more difficult than the “talk” with your children years ago, but is perhaps more vital than the earlier one.  Don’t put it off.  Children – encourage this dialogue with your parents – some day you will be glad you did.

Many of you have been in this situation. Grandma or Aunt Tillie wants to give your child money or stock – not enough to warrant some more aggressive estate planning techniques, but enough that the donor wants the funds to be invested for the long term.  This is where the Uniform Transfer to Minors Act (UTMA) comes in handy.  A UTMA account is easy to set up – any bank or broker can help the donor and there is no need to create a trust document.  Almost any type of property can be held in the account. For simple situations, it may be ideal.

The account is opened in the name of a “custodian,” who could be a parent, grandparent, or actually any adult or even a financial institution. Make sure the donor names a successor custodian to take over in case the first one dies or fails to act.  If you are acting as custodian, you should name a successor now to take your place if you can no longer serve. I have seen more than one situation where a successor was not named, and in that case either a guardian must be appointed for the minor or an application must be made to the court to appoint a successor.  Having to take these steps involves additional time and expense and negates the simplicity of setting up a UTMA account in the first place.

A UTMA account is like a trust in many ways.  The custodian acts like a trustee, in that he/she holds the money and invests it (or lets it accumulate interest). The custodian decides when to spend the money and for what purpose – although the funds must only be spent for the use and benefit of the minor.

But there are substantial disadvantages to a UTMA account. It is much less flexible than a trust.  The balance must be distributed no later than age 21 (and in some cases at age 18), when many children are not ready to handle the funds, but the custodian has no choice or discretion in the matter.  There can only be one custodian at a time – so if the intended custodian is not good at handling money, the donor can’t name someone else to act with the custodian as investment advisor.  An account can only be set up for one beneficiary and once the beneficiary is named, the donor cannot take back the gift or redirect it to another beneficiary based on future circumstances. If these factors are important, you should reconsider the use of a UTMA account and create a trust instead.

Questions regarding this article may be sent to Publications@Capehart.com.

Tangible Personal Assets: What are they worth? This could spark an intense debate.

Whether you are looking to value tangible personal assets – collections, cars, jewelry, art – for estate planning purposes or for estate administration purposes, it is important to have the valuation completed by qualified persons. Beauty can be in the eye of the beholder; sentimental value can inflate the owner’s value. However, using a qualified party to establish the value will provide you with an unbiased current fair market valuation of your assets. You will want to ask for the valuation to be the current fair market value and not salvage or replacement or reproduction values; you want to know, if you were to sell the item, what the reasonable amount to expect to receive for the sale would be. There are many factors that can impact the valuation of an item – popularity (trends/fads), authenticity, supply and demand, condition, uniqueness – sometimes favorably and sometimes less favorably. If you own items of significant worth, you may wish to consider an endorsement to your homeowner’s insurance to cover the valuable assets.

If you have items of value, don’t rely on word of mouth of the person next door, the amount originally paid for an item, or how much value you place for sentimental reasons as you may be surprised to find out how much an item is really worth. A qualified appraiser is your best bet.

The issue of whether or not guardians can undertake Medicaid planning on behalf of their wards has come to the forefront of New  Jersey probate litigation in the past two decades. Commencing in 1995, many of New  Jersey’s Superior Courts began to recognize and permit guardians to transfer assets in order to expedite their wards’ eligibility for Medicaid benefits.

Unfortunately, decisions in this area were not uniform, and applications for such relief could be granted or denied by the personal or political feelings of the county probate judge. For several years, no statute or regulation existed to authorize this planning, nor was there any written opinion from the Appellate Division or state Supreme Court to provide direction to the Superior courts. Fortunately, a decision from the Appellate Division was rendered in 1998 which validated this form of estate planning by guardians.

A. Background
1. Statutory Backdrop
N.J.S.A. 3B:12 establishes that a guardianship is a “protective arrangement.” Derived from Anglo-Norman legal traditions, the court acts under the doctrine of parens patriae over wards in a guardianship setting. While guardianships are nominally established to protect the person and the estate of mentally incapacitated individuals, the primary purpose of the guardianship power has been to prevent persons from becoming public charges or squandering their resources to the detriment of their heirs. Brakel and Rock, The Mentally Disabled and the Law, at 250 (Rev. Ed. 1971); Casasanto, Michael D.; Simon, Mitchell; and Roman, Judith, A Model Code of Ethics for Guardians, New Hampshire, 1989.

Clearly, guardians cannot undertake Medicaid planning without court approval. A guardian may reasonably expand or distribute the ward’s assets for the benefit of the ward, as well as those legally dependent upon the ward, and to pay for the necessary expenses for services by third parties on behalf of the ward without court approval (See N.J.S.A. 3B:12-43, 46, and 47, respectively). Most powers, however, must be conferred by the court, which has the authority to both expand and limit powers to guardians. (N.J.S.A. 3B:12-37, 49 and N.J.S.A. 3B:14-24)

The power to make gifts lies in N.J.S.A. 3B:12-58, which states:
If the estate is ample…, the guardian for the estate of a mental incompetent may apply to the court for authority to make gifts to charity and other objects as the ward might have been expected to make.

On the other hand, statute and case law prohibits self-dealing. Because assets transfers almost always benefit the guardians, there is some legal tension which needs to be resolved. Until recently, most courts declined to accept applications by guardians for Medicaid planning because of this tension and political beliefs that typically focused on the propriety of replacing private funds with public funds to pay for custodial care.

2. Early Cases

Prior to 1995, few cases addressed the ability of a guardian to make inter vivos transfers for estate planning purposes. The primary case, which addressed estate planning by guardians, was In re Trott, 118 N.J. Super 436 (Chancery Div. 1972). In Trott, the court recognized that a guardian could make annual gifts in an amount not to exceed the annual limit subject to a gift tax. The court recognized that the guardian could prudently deplete the assets of an estate, to some degree, to minimize or eliminate such assets over the amount of the unified credit. There was no question that the remaining income and assets were more than ample to meet all conceivable needs of the incompetent until his or her death. In this decision, the court noted a line of cases and statutes in other states authorizing planning in such a way to minimize current or prospective state or federal income, estate, and inheritance taxes. Most succinctly, the Court noted that a guardian should be authorized to act as a reasonable and prudent person would act in the management of his or her own estate, unless there is any settled intention of the incompetent, while competent, to the contrary. Id. at 441.

In 1993, this doctrine was successfully extended by Gary Mazart, Esq., in an unreported opinion from Essex County, In re William J. Borrows, a/k/a Jeff Borrows (Docket No.: 12,336-4). In this case, the ward was involved in an accident and sustained personal injuries. His parents, who became his guardians, commenced litigation to recover damages for those injuries and that lawsuit was settled for the sum of $120,000. After payment of counsel fees and costs, the guardian successfully obtained court approval to have the net settlement proceeds placed in a supplemental needs trust which would preserve the ward’s eligibility for Medicaid benefits. Although transfers to third parties were not made in this case, this opinion clearly recognized that a guardian could undertake Medicaid planning on behalf of a ward.

3. Breakthrough Cases

Starting in 1994, the court system began to recognize the ability of a guardian to transfer assets to third parties, such as spouses and children, in order to expedite the eligibility of a ward for Medicaid benefits. The seminal Medicaid planning case was In re Klapper, (reported in the New York Law Journal on August 9, 1994 on page 26). In Klapper, the guardian/son of an incompetent obtained authorization to transfer some of the ward’s assets to his own family so that she could become eligible for Medicaid sooner and so that she could also continue her practice of supporting his family. The court found that, while competent, Mrs. Klapperdid provide almost $1,600.00 per month to her son’s family in addition to other substantial gifts. The New York Mental Hygiene Law Section 81.21 authorizes the making of gifts, although this statute did not explicitly discuss making gifts of all or a major portion of a ward’s assets for Medicaid planning purposes. The court noted that this was a case of first impression on this “novel” issue, and in deciding this case, the court noted provisions of the Mental Hygiene Law (Section 81.21(e)) which authorized the guardian to convey or release contingent and expected interests in property and to renounce or disclaim any interest by testate or intestate succession or by inter vivos transfer. The court noted these provisions were instructive since they enunciated the concept that the guardian does not need to accept the “spend down” of assets, but may release them.

The New York court authorized the above mentioned transfers, finding that, although there would be a period of ineligibility for Medicaid, the amount of assets remaining could be calculated so that they would be sufficient to pay for her care during the period of Medicaid disqualification. The court also noted that the proposed disposition would be made to the donees in a pattern consistent with Mrs. Klapper’s Will.

The Klapper case was expanded in the Matter of Beller, published in the New York Law Journal on August 1, 1994. In this case, Mrs. Beller’s son sought authorization to transfer a substantial portion of his mother’s assets to himself and to his three sisters for the purpose of Medicaid planning. The significance of this case was that there was no showing of previous gifts. Nevertheless, the court found that the plan was consistent with Mrs. Beller’s testamentary plan. The court noted that Mrs. Beller, if competent:

would not reasonably choose to “spend down” almost all of her assets in payments to the nursing home before applying for Medicaid when the law provides a manner for her to preserve a portion of her estate for the benefit of her son and the issue of her other son. The court finds that a competent, reasonable individual in the position of Dorothea Beller-Maltzman would be likely, under these circumstances to transfer part of her assets to her son and the issue of her other son.

The above mentioned holding was affirmed In The Matter of Cooper, 618 N.Y.S.2d 449,1162 Misc.2d 840, 1994 WL614331. In Cooper, the court noted:

While one may choose to debate whether the authority of one to engage in Medicaid planning is sound public, social or fiscal policy, less open to debate is the conclusion that the codified rules and policies to which Justice Leone referred to In the Matter of Klapper, Supra, authorized, if not encouraged, such Medicaid planning.

The statutes referred to are the New York state’s rights authorizing transfers by guardians through court approval and statutes setting forth a determination of the Medicaid penalty.

The court also noted that, under the Doctrine of Substituted Judgement, the guardian, through the court, could take such financial actions as the incapacitated person would have done if he or she had the capacity to act. Id.at 501. As the court stated:
In order to effectuate this policy, an incapacitated person should be permitted to have the same options available to him or her with respect to transfers of his or her property that are available to competent individuals. To deny a guardian the authority (where the requirements of the Mental Hygiene Law Section 81.21 are otherwise met) to make such transfers of the incapacitated person’s assets will result in denying that person the opportunity which is available to all competent persons of this State that require long term nursing home care and who have assets they desire to give to their families, simply because he or she is incapacitated and is unable from a cognitive standpoint to make such transfers by himself or herself. Such a result would be a direct contravention of the express intention of Article 81. Therefore, the court finds that Medicaid planning is a proper objective for a proposed disposition of an incapacitated person’s property. Id at 502.

In essence, Klapper opened the door to transfers to third parties, Beller expanded the authority by foregoing a requirement of previous gifting, and Cooper noted the court’s proper role of determining whether the ward would undertake this planning if competent, rather than debating the propriety of Medicaid planning.

B. New Jersey Development
In New Jersey, Medicaid planning, in the guardianship context, can be broken into four categories of cases: (1) establishment of supplemental needs trusts in personal injury actions, (2) inter spousal transfers, (3) gifts to children and other non-spousal beneficiaries, and (4) miscellaneous Medicaid transfers.

1. Establishment of Supplemental Needs Trusts
As set forth above, recognition has been given, at the Superior Court level, to place proceeds from personal injury litigation into a supplemental needs trust to preserve eligibility for Medicaid benefits. However, it is imperative for any practitioner to acquaint themselves with the revised trust requirements which were promulgated by the New Jersey Division of Medical Assistance and Health Services over the past two years before undertaking this planning.

2. Spousal Transfers
The federal and state Medicaid regulations recognize the need for protection against spousal impoverishment. To that end, community spouses of institutionalized individuals have been granted a variety of property rights. Without penalty, community spouses may transfer a residence and an automobile in their name, as well as personal effects. They are also entitled to the Community Spouse Resource Allowance (CSRA) and the Minimum Monthly Maintenance Needs Allowance (MMMNA).
Even prior to the breakthrough cases in New York, many Superior Courts authorized guardians to transfer the interest of an institutionalized individual in his or her residence to his or her spouse.

Authorization for a guardian to protect other rights of the community spouse was granted in Atlantic County in the case, In re Winfred H. Zepfel (Docket No.: 85711, decided May 26, 1995). This case occurred prior to New Jersey’s abolishment of the Miller Trust in 1995. In this matter, the institutionalized spouse received Social Security and pension in excess of the state’s income cap. To protect the community spouse, the court allowed the guardians to execute a Miller Trust on behalf of the ward and transfer life insurance policies and other assets of the ward into the name of the community spouse, as well as the interest in the marital residence. This decision enabled the community spouse to maximize his CSRA. More importantly, by executing the Miller Trust, the institutionalized spouse was immediately eligible for Medicaid, which, in turn, granted the benefit of extra income, through the MMMNA, to the community spouse.

3. Gifting to Non-spousal Beneficiaries
Prior to 2006, the most popular forms of asset transfers to non-spousal beneficiaries were: (a) large asset transfers and (b) “half-a-loaf gifting.” Since 2006, as discussed later, the latter option does not exist.

Prior to 1995, New Jersey courts universally prohibited guardians from making asset transfers to non-spousal beneficiaries. Lacking any written authority, practitioners, who attempted to receive court authority for such transfers, were rebutted with the argument that it was bad public policy to deplete private assets so that public funds could pay for institutional care. Within one year after the New York trilogy of cases, a flurry of applications for Medicaid planning were approved in New Jersey courts.

Perhaps, the breakthrough case in New Jersey was In the Matter of Edna M. Key (Docket No.: 5344, decided May 5, 1995). In this Cumberland County case, the guardian successfully persuaded the court to allow gifts of up to 55% of the total value of the ward’s property. In his application, the guardian demonstrated that the remaining assets, as well as the income of the ward, would pay for the ward’s nursing home care during the period of ineligibility created by the asset transfers. Most importantly, the Honorable William L. Forester, J.S.C., recognized, in his Order, that “making gifts for Medicaid planning purposes is a legitimate step to be taken by the guardian in this matter.”

The next breakthrough occurred In the Matter of Albert M. Wallace (Docket No.: CP-063-95, June 16, 1995). In this Camden County case, the Honorable John B. Mariano, J.S.C., allowed, with broader language, asset transfers for Medicaid planning. In this case, the ward owned assets in excess of $400,000. The significance of the court’s decision was two-fold: (a) it placed no restrictions on the type, method, or amount of transfers, and (b) it recognized that there should be no need for a guardian, who undertakes Medicaid planning, to return to court for approval to transfer the ward’s real property.

4. Miscellaneous Medicaid Transfers
In addition to the aforementioned cases, a variety of techniques exist to protect or expedite eligibility for Medicaid benefits. In Bergen County, the guardian successfully persuaded the court to allow the transfer of a ward’s residence, without Medicaid penalty, to her “caregiver” son (In the Matter of Evlyn Stutcki, decided August 18, 1995). Similarly, in Burlington County, a house was deeded without transfer penalty, to a “caregiver” brother (In the Matter of Alvin J. Hellmig, Jr., decided March 22, 1996). Other cases have created authority for the transfer of life estates and even gifting to non-relatives.

D. The Labis and Kerri Decisions

Although there were a variety of successful applications for medicaid planning, numerous petitions were declined in different Superior Courts although the relief requested was substantially identical to the approved applications. Fortunately, the propriety of medicaid planning by guardians was finally recognized in 1998 by the Appellate Division. In the Matter of Manuel Labis, 314 N.J. Super. 140 (App.Div. 1998), the Appellate Division reversed a lower court rejection of a petition to transfer the interest of an institutionalized ward to his spouse in their marital residence. In its reversal, the court noted that medicaid planning is a legitimate form of estate planning and a guardian should have the right to engage in same on behalf of his ward.

In 2004, the authority of a Guardian to undertake Medicaid planning was clarified in the case, In Re Keri, 181 N.J. 50 (2004). Whereas Labis dealt merely with an interspousal transfer, Kerri dealt with a proposed half-a-loaf gift between a mother and child. By ruling that this plan was appropriate, the New Jersey Supreme Court gave approval to the concept of any form of Medicaid planning permitted by the Medicaid Laws.

E. Planning under the DRA

On February 8, 2006, President Bush signed into law the Deficit Reduction Act of 2005 (“DRA”) With the DRA came sweeping changes to Federal Medicaid law, which substantially affects the rights of individuals to preserve their assets in the event they require long-term care. The major changes promulgated by the DRA are:

1. The look back period went from three years to five years.
2. The penalty period for uncompensated transfer (gifts) commences when a person is institutionalized and is otherwise eligible for Medicaid rather than when the gift is made.
3. Equity in the home will be countable if it is over $500,000.00, unless a state decides to increase that amount of $750,000.00.
4. Annuities may be countable if they are irrevocable, non-assignable, actuarially sound and have equal payments with no deferral or balloon payments. In addition, the state must be named as a remainder beneficiary. It must be the primary remainder beneficiary unless there is a spouse or child who is either under 21 or disabled.

In light of the foregoing, Medicaid planning by Guardians has become somewhat limited. Many of the foregoing transfers are still permissible, such as interspousal transfers of a marital residence, transfer of a residence to a care-giver child and transfers to disabled children. However, it is doubtful that half-a-loaf gifting may be undertaken. Based on the pure text of the law, it appears that a Court may only be comfortable in allowing gifts between generations when such preserve assets for the entire five year look back period.