What do providers need to know about the intersection of Medicaid and Guardianship Law?

  • Medicaid may be conditionally secured for a resident pending the Guardianship. 

    • When the guardianship papers are properly drafted, Medicaid may summarily approve the alleged incapacitated applicant for coverage while the guardianship is pending. A good set of court papers can also support a zero NAMI budget both before and during the guardianship. Once a Guardian is commissioned, Medicaid will request the resident’s financial documents. If the requested documents either cannot be secured or reveal disqualifying resources or penalized transfers, a Guardian with Medicaid experience and its authorized counsel can use the procedural protections and legal remedies in the regulations to fight to keep the incapacitated resident on the roster.

  • Medicaid is not bound by a Guardianship Judge’s orders.

    • Even if a Judge directs Medicaid to deduct the Guardian’s monthly fee of $450 to $600 from the resident’s NAMI, Medicaid can and will ignore that directive and budget the resident’s full Social Security check (less the $50 PNA) to the facility as NAMI. Since Medicaid can budget NAMI in disregard of any court order, providers are often left holding the bag when a resident’s Social Security is used to pay a Guardian’s court-ordered fee. Providers pay Guardians as a cost of doing business, but the fee should be fair and the NAMI should be paid over. GRIN’s fee is fair, and GRIN has the experience and representation needed to pursue Medicaid for its wards.

  • Medicaid treats one-time Guardianship Fees differently than monthly fees.

    • Most DSS offices will deduct the one-time fees associated with bringing and terminating guardianships from the NAMI, but the monthly fees awarded to the Guardian are not deductible when the incapacitated resident only receives Social Security. When the resident also receives certain types of pensions Medicaid may approve the monthly deduction, but not always for the full amount of the guardian’s compensation. GRIN and its counsel believe in maximizing Medicaid reimbursement for every incapacitated resident, and will request revised NAMI budgets to reflect all deductible guardianship fees.

  • Medicaid has a priority claim on any funds that the incapacitated resident owns at death.

    • Even if the incapacitated resident had a shortfall in coverage due to excess resources, or dies owing a NAMI debt to the facility, Medicaid will claim to be the preferred creditor of the deceased recipient’s estate regardless of the Guardian’s final accounting. GRIN’s counsel can appear in Surrogate’s Court to challenge Medicaid’s preferred creditor status, or take the case to a Fair Hearing if Medicaid gets reimbursed from the deceased resident’s estate.

Abrams Fensterman has extensive experience dealing with the issues that arise at the intersection of Medicaid and Guardianship Law. Please feel free to visit the firm’s website, or see what the attorneys at Abrams Fensterman have written about these issues: