Guardian’s Medicaid Spend-Down Plan Denied (Pa. Super.)

Posted on by July 5, 2026

The Orphan’s Court denied the guardian’s petition to allow the incapacitated person to continue to qualify for Medicaid through a combination of an annuity and gifts, and the Superior Court affirmed. The guardian did not aver or produce evidence that the incapacitated person’s assets were not required for her maintenance, support, and well-being, or that the proposed spend-down plan would minimize current or prospective taxes, or continue a lifetime pattern of giving, as required under 20 Pa.C.S. § 5536(b), or that the plan would benefit the incapacitated person in any way. In re: S.C., an Incapacitated Person, ___ A.4th ___, 2026 PA Super 140 (7/1/2026).

[This opinion was authored by the same justice who wrote a similar non-precedential opinion two months ago reaching the same result. See “Guardian’s Medicaid Spend-Down Plan Not Approved.”]

Jurisdiction over Guardianship (Pa. Super.)

Posted on by July 5, 2026

An appeal of a denial of legal fees is not an interlocutory appeal but an appeal allowable under Pa.R.A.P. 342(a)(5) because it is a determination of whether the petitioner is a creditor of the incapacitated person’s estate. However, a determination of incapacity is a form of in rem jurisdiction, and so a lack of jurisdiction over the incapacitated person is a non-waivable lack of subject matter jurisdiction. The in rem jurisdiction that the Orphans’ Court needs to adjudicate incapacity is the “jurisdiction” that is defined by the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA), 20 Pa.C.S. Ch. 59, so an issue under the UAGPPJA may be raised at any time. Whether the alleged incapacitated person intended to leave Pennsylvania temporarily was not determined by the Orphans’ Court, so the case was remanded to make that determination as well as other factual findings that may be necessary under the UAGPPJA, before the Superior Court could reach the merits of the fee dispute. In re: Mary D. Avery, an Alleged Incapacitated Person, ___ A.4th ___, 2026 PA Super 124 (6/16/2026).

The Client’s Agent and the Lawyer’s Duty of Confidentiality

Posted on by June 15, 2026

A lawyer will sometimes get a call or email from the agent acting under a client’s durable general power of attorney with questions about the client’s estate plan. The lawyer continues to owe a duty of confidentiality to the client…

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Charitable Deductions for Estates and Trusts under Amended IRC § 68: Update

Posted on by June 8, 2026

In a previous article, it was suggested that the new limitation on itemized deductions, reducing itemized deductions by 2/37ths of the amount by the amount by which taxable income is subject to tax at the maximum 37% rate, should not…

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Guardian’s Medicaid Spend-Down Plan Not Approved

Posted on by May 31, 2026

The refusal of the Orphans’ Court to approve a “spend-down plan” to allow the incapacitated person to qualify for Medicaid by spending principal on a burial fund and making gifts was not an abuse of discretion or an error of law because the proposed spend-down plan would neither minimize taxes nor carry out a lifetime giving pattern as required by 20 Pa.C.S. § 5536, and would not benefit the incapacitated person in any way, but only benefit the guardian as the recipient of the proposed gifts. (The Orphans’ Court also ordered that the guardian pay the counsel fees associated with the petition seeking approval of the spend-down plan, but that part of the order was not appealed.) In re: J.C.B., an Incapacitated Person, 2397 EDA 2025 (Pa. Super. 5/26/2026) (non-precedential).