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Tina
Tina, Lawyer
Category: Family Law
Satisfied Customers: 32378
Experience:  JD, 17 years legal experience including family law
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law regarding divorce of husband who is in an alzheimer un

Customer Question

law regarding divorce of husband who is in an alzheimer unit.
Submitted: 1 year ago.
Category: Family Law
Expert:  Tina replied 1 year ago.

Hello and welcome.

My name is XXXXX XXXXX my goal is to provide you with excellent service today. Before I can give you an accurate answer to your question, please provide the following additional information:

Does your husband have someone appointed as his guardian? Have you filed for divorce yet?

I look forward to assisting you as soon as I have received this information. Thank you.

Customer: replied 1 year ago.

No, as to guardian- I have power or attorney


 


No, I have not filed for a divorce wanted to know options, as I understand


this could effect my financial planning later ( 2nd marriage for both) he


has no children.... I have the majority of my estate in trust.

Expert:  Tina replied 1 year ago.
I see. Thank you for clarifying the situation, Illa.

What typically occurs where one of the spouses is not competent in a divorce case, is the filing spouse requests that the court appoint a guardian ad litem to assess the best interests of the other spouse with regard the division of assets and other issues that may arise in the case.

You could not typically sign all the documents in the case on behalf of your husband as POA because you would be acting in your own interest or raise the appearance of that since you would be divorcing him. Therefore, it normally would be necessary for a guardian ad litem to be appointed.

Here is a link which summarizes the law on appointing a GAL (See especially section 2.2):
http://www.ncids.org/other%20manuals/guardianship%20manual/Chapter%202.pdf

I hope this helps clarify the situation for you. Please remember to rate my service once you have all the information you need so I will be compensated for my time from the deposit you posted with this website. If you have any other questions, please ask me – I’ll be happy to respond. Thank you!

Tina

Customer: replied 1 year ago.

Who appoints the guardian....court???


Or can someone who knows him be appointed????


 

Expert:  Tina replied 1 year ago.
Hello again,

A court typically appoints a GAL but a person he knows could petition the court for guardianship instead.
Customer: replied 1 year ago.

As stated previously, my house and assets are in an irrevocable trust...


When we married he wanted to live in his home, which I agreed to,


it is in a managed trust and originally his brother was his trustee, however,


several months ago, after his placement decided he did not want to be


trustee, and named me as trustee..... which all the paperwork was done..


I believe in this state (NC) after he has reached his cap on long term insurance, it would be necessary to go into his annuities(which he did not


have in trust) and then the house or after my assets.... I guess I am trying to


save at least his home for heirs.... can I put it in an irrevocable trust????

Expert:  Tina replied 1 year ago.
Hello again, Illa.

He wishes to protect it if/when he attempts to qualify for Medicaid, is that what you mean by saving his home?
Customer: replied 1 year ago.

Yes......


A stated prior, he has no children, but does have living one sister,


and 2 brothers, one of which is developmentally impaired so his


would have to go into trust...


I am still trying to find what is best for both of us.... I have two daughters,


so want to protect my assets....that is why the question of possibly a


divorce came up, as I will be liable for his bills, once he has exhausted


his resources......

Expert:  Tina replied 1 year ago.
I see.

There is typically a 5 year look-back period, so if he will not exhaust his assets before that time, then disposing of them now would not typically pose a problem for him in qualifying for Medicaid. However, if he gifts property to others, even a trust, the state can require that he pay the value of the property gifted within the 5 year period prior to the date of application for Medicaid toward his health care expenses before Medicaid will pay his expenses.

However, a primary residence, no matter its value, is not considered in determining eligibility for Medicaid normally, so there is typically no need to protect that asset. Here is a link which provides more information on this:

http://www.elderlawfirm.com/north-carolina-nursing-home-guide/north-carolina-medicaid-and-asset-protection.html

I hope this helps clarify the situation for you. Please remember to rate my service once you have all the information you need so I will be compensated for my time from the deposit you posted with this website. If you have any other questions, please ask me – I’ll be happy to respond. Thank you!

Tina

Tina, Lawyer
Category: Family Law
Satisfied Customers: 32378
Experience: JD, 17 years legal experience including family law
Tina and 13 other Family Law Specialists are ready to help you
Expert:  Tina replied 1 year ago.

Thank you very much for your positive rating of my service. It has been my pleasure to assist you and I hope you will ask for me should a future legal need arise.

If you receive a Customer Satisfaction Survey from JustAnswer, please consider scoring me a 9 or 10. It benefits my ability to assist you and other customers, and would be tremendously appreciated.

Thanks again and all the best to you.

Tina

Note: Please feel free to request me if you have future legal questions by typing your new question in the question box on my profile page. Here is a link to that page, which you can bookmark or add to your favorites: http://www.justanswer.com/law/expert-tina/. I look forward to hearing from you again should the need arise.

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