** This article has been revised from its original version which was published on March…
Should a Guardian Consider Medicaid Planning?
As Elder Law attorneys we advise our clients to execute durable powers of attorney in order to ensure that someone they trust is authorized to manage their property in the event that they no longer have the capacity to do so. In the absence of a durable power of attorney, or if the durable power of attorney does not provide sufficient powers and direction to an agent, it may be necessary to apply to the court to appoint a guardian.
Disadvantages and Advantages
A guardianship proceeding has many disadvantages, such as expense, delay, and loss of privacy. However, it also has the many advantages, one of which could be to have the court appoint a trusted and qualified person to engage in Medicaid planning, as well as apply for and obtain Medicaid coverage for an Incapacitated Person who has needed long term care.
In many cases, the loss of capacity coincides with an individual’s need for long-term care. In these cases, the guardianship is not only a means to have someone appointed to manage the personal needs and property of an incapacitated person but also to secure a method of payment for long-term care for that person.
Medicaid Payment Option
Unless the incapacitated person has sufficient resources to pay for long-term care, Medicaid may be the most viable payment option to meet his or her long-term care needs. If the incapacitated person does not have sufficient resources to pay for long-term care, but has enough resources to be considered ineligible for Medicaid (2019 Medicaid Benefits), then the guardian will need to seek guidance from an experienced Elder Law Attorney who can help them establish a Medicaid plan and have said plan approved by the court.
Guardianship court’s in New York have consistently permitted Medicaid planning by the guardian on behalf of the incapacitated person, but the petition to approve the powers necessary to establish and execute a Medicaid eligibility plan must be well-thought-out and presented appropriately.
Two Strategic Issues – Substance and Manner
The two main strategic issues with a Medicaid plan in the guardianship context are 1) the substance of Medicaid plan that will be presented to the court, and 2) the manner in which the Medicaid plan is presented to the court.
The substance of a Medicaid plan presented to the court will depend in large part on the type of Medicaid that the applicant will need. For instance, Medicaid plan for an applicant who is seeking Medicaid Home Care to provide services in the community will be very different from a plan for an applicant who is seeking Medicaid long-term care in a skilled nursing facility. Although there is no 60-month lookback period when applying for Medicaid Home Care, the guardian should consider the possibility that the incapacitated person may need long-term care in a skilled nursing facility within 60 months of executing the Medicaid plan. So, careful consideration of all the possibilities must be made by the guardian and his or her Elder Law Attorney.
Furthermore, the substance of the Medicaid plan will also rely heavily on the facts and circumstances of the case, such as what assets and income are involved, the possibility of an exempt transfer, as well as family dynamics.
The manner in which the plan is presented to the court for approval depends on at what point in the process the Medicaid plan will be presented to the court. There may also be a strategic reason to petition the court for guardianship purposes of qualifying for Medicaid.
Regardless of the facts and circumstances or the timing of when the guardianship and Medicaid planning comes into play, it is important to seek the guidance of an experienced Elder Law attorney who can guide you through not only the guardianship proceeding but the Medicaid plan.
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