A Medicaid plan can be presented to the guardianship court either before a guardian has been appointed or after, depending on when the need for a Medicaid plan arises.
Medicaid Planning at the Onset of the Guardianship Proceeding
If the need for a Medicaid plan is apparent at the onset of the guardianship proceeding, then the petitioner can request authority to do Medicaid planning and asset protection and include the Medicaid eligibility plan in the petition. The petition should not only include the proposed plan, but the reasons why it is necessary to help the incapacitated person and is consistent with his or her known wishes.
The petition for guardian of the personal needs and property management should also clearly establish the validity of the plan and explain that at no time will the alleged incapacitated person be left without assets or Medicaid to meet his/her medical needs. The petition should also specifically request the authorities that will be necessary to implement the Medicaid plan and allow the guardian to gather the information and documentation necessary to apply for Medicaid.
If possible and when appropriate, the petitioner’s attorney should discuss any issues with the Medicaid plan that might impact the alleged incapacitated person’s testamentary scheme with the interested parties to attain consent before submitting the petition.
Medicaid Planning After the Guardian is Appointed
If the need for a Medicaid plan does not arise until after the guardian is appointed, then the guardian for the property management will need to petition the court to expand the guardian’s powers to include the additional powers needed to implement the Medicaid plan.
In some cases, it may be necessary for the guardian to first get the court’s approval to retain an experienced elder law attorney to establish a Medicaid plan. The elder law attorney could prepare a memorandum to the court explaining the Medicaid plan, which would be included as an exhibit to the petition to approve the plan. Likewise, the elder law attorney should be available to appear before the court to testify or explain the benefits of the Medicaid plan and provide a recommendation to the court.
Regardless of the substance of the Medicaid plan or the manner in which it is presented to the court, it is clear that Medicaid planning has become more innovative than simple asset transfers and requires the guidance of an experienced Elder Law attorney who can help avoid pitfalls and mistakes along the way. It will be the responsibility of the guardian, with help from the elder law attorney, to present a sound basis for the Medicaid plan and to educate the court on the necessity and validity of the plan.