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TOPIC: disclaimer
GelRon (User)
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disclaimer 8 Years, 2 Months ago Karma: 0  
Can someone tell me if its permissible for the personal representative or guardian of a person to file a disclaimer on behalf of an incapacitated person who is receiving medicaid?
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Miami LS (User)
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Re:disclaimer 8 Years, 2 Months ago Karma: 0  
Which state are you dealing with?

In most jurisdictions a personal representative/executor can file a disclaimer on behalf of an incapacitated person. E.g. the beneficiary is is a coma and the guardian/conservator can disclaim the bequest so that the incapacitated person does forfiet his/her federal benefits.

The Code says to look at the local law (see IRC Section 2518 below).

Sec. 2518. Disclaimers

(a) General rule
For purposes of this subtitle, if a person makes a qualified
disclaimer with respect to any interest in property, this subtitle
shall apply with respect to such interest as if the interest had
never been transferred to such person.
(b) Qualified disclaimer defined
For purposes of subsection (a), the term ''qualified disclaimer''
means an irrevocable and unqualified refusal by a person to accept
an interest in property but only if -
(1) such refusal is in writing,
(2) such writing is received by the transferor of the interest,
his legal representative, or the holder of the legal title to the
property to which the interest relates not later than the date
which is 9 months after the later of -
(A) the day on which the transfer creating the interest in
such person is made, or
( the day on which such person attains age 21,
(3) such person has not accepted the interest or any of its
benefits, and
(4) as a result of such refusal, the interest passes without
any direction on the part of the person making the disclaimer and
passes either -
(A) to the spouse of the decedent, or
( to a person other than the person making the disclaimer.
(c) Other rules
For purposes of subsection (a) -
(1) Disclaimer of undivided portion of interest
A disclaimer with respect to an undivided portion of an
interest which meets the requirements of the preceding sentence
shall be treated as a qualified disclaimer of such portion of the
(2) Powers
A power with respect to property shall be treated as an
interest in such property.
(3) Certain transfers treated as disclaimers
A written transfer of the transferor's entire interest in the
property -
(A) which meets requirements similar to the requirements of
paragraphs (2) and (3) of subsection (b), and
( which is to a person or persons who would have received
the property had the transferor made a qualified disclaimer
(within the meaning of subsection (b)),
shall be treated as a qualified disclaimer.
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