317:35-5-41(b)

Legal Impediment is when clients have resources that they are unable to attain access to; preventing them from spending down to become eligible for Medicaid services. A probate is always needed unless it is something that can pass outside of probate. Examples would be a home if held in joint tenancy or life insurance. Resources that are made available will need to be spent down for the client to become eligible again.

The following are examples of possible legal impediments:

• Married couple and 1 spouse passed away. Resources should now belong to the living spouse. This would require a probate to be completed. The living spouse is allowed 30 days to verify steps are being made to get the probate completed. Only after documents are submitted verifying the progress being made, is there a possibility of extending the legal impediment more than 30 days. Case notes of progress and what is happening to get the legal impediment cleared are very important.
• A client inherits property, however lacks the capacity to make decisions regarding the new resource. The client does not have a guardian. The client is going to need a legal guardian to be established before the client can then put the property on the market to sell.
• Adult Protective Services has taken guardianship of your client. The court requires them to have guardianship for a year before they are allowed to sell property to make it an available resource. This example requires AFS worker to keep in contact with APS so that when year is up, the court is petitioned to give permission to sell the property.