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32 Wake Forest L. Rev. 341 (1997)
Giving Guardians the Power to Do Medicaid Planning

handle is hein.journals/wflr32 and id is 357 raw text is: GIVING GUARDIANS THE POWER TO DO MEDICAID
Hal Fliegelman*
Debora C. Fliegelman**
In this article, Attorney Hal Fliegelman and Professor Debora
Fliegelman promote the permissibility of Medicaid planning by
guardians of incompetents. After first tracing the roots of guardian-
ship law and the general background of the Medicaid statutes, this
article suggests judicial standards which may be applied in support
of Medicaid planning by guardians of incompetents. Although recent
statutes may question the permissibility of any Medicaid planning as
currently practiced, the authors conclude that incompetents should
not be precluded from wise financial planning practices otherwise of-
fered to competent persons.
In August of 1996, President Clinton signed into law the Health
Insurance Portability and Accountability Act of 1996.1 Buried in that
Act is a tiny provision making it a federal crime to transfer assets
causing Medicaid ineligibility,2 an estate planning tactic that previ-
ously enabled individuals to transfer assets and qualify for Medicaid.
Medicaid planning, as it is known, has become to many a scapegoat
for all the problems with the American welfare system. Rather than
address the larger-and far more problematic-issues of the astro-
nomical cost of long-term health care and the inability of our current
health care system to deal with the graying of America, politicians
have chosen instead to blame the middle class for allegedly bankrupt-
ing the welfare system.
Medicaid planning is still practiced by competent people of all
socio-economic classes in all fifty states.3 This article does not explore
* Elder law attorney; Member, National Academy of Elder Law Attorneys. BA4_,
Brown University;, J.D., Widener University School of Law.
** Lecturer in Law, Roger Williams University School of Law. BA, University of
Pennsylvania; MA, Georgetown University; J.D., Temple University School of Law.
1. Pub. L. No. 104-191, 110 Stat. 1936 (to be codified in scattered sections of 42
2. Id. § 217, 110 Stat. at 2008-09 (to be codified at 42 US.C. § 1320a-7b(a)(6)).
3. See, e.g., Jan Ellen Rein, Misinformation and Self-Deception in Recent Long-
Term Care and Policy Trends, 12 J.L. & Po. 195, 229 (1996) (stating that Medicaid plan-
ning is a legal activity that merely takes advantage of the governing complex rules and
regulations). For a further discussion of Medicaid planning, see infra Part II.


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