What do providers need to know about petitioning for guardianship on behalf of an indigent resident?
The same guardianships procedures apply whether the resident has assets or is destitute.
In every guardianship, the petitioner has the same dual burden of proof to meet. First, the petitioner must prove that the subject of the proceeding lacks the capacity to protect his or her own interests. Second, the petitioner must prove that the subject of the proceeding has a present need for assistance. In order to meet this burden of proof by clear and convincing evidence, the petition submitted to the court must include a description of the resident’s functional limitations and specify the powers being sought for the guardian. Once the petition is filed, the court appoints a court evaluator to independently investigate the resident’s circumstances. The court evaluator then reports back to the judge with a recommendation about the need for a guardian. Thereafter, the judge sets the matter down for a hearing and issues a decision. Unfortunately, the procedure can be protracted and costly even when the resident is indigent and only needs help applying for Medicaid.
Who covers the costs of bringing a guardianship?
Guardianship petitions can be filed by a variety of persons concerned about the welfare of the alleged incapacitated person (AIP). Whether the petitioner is the resident’s child, or the facility in which the AIP resides, the attorney representing the petitioner will need to be paid. Typically, guardianship attorneys enter into fee agreements with their clients whereby the attorney will ask the court to order the legal fees to be paid out of the AIP’s assets and the client accepts responsibility for any fees left uncovered by the court’s fee award. Again unfortunately, when the AIP is indigent and has no assets the entire cost of bringing a guardianship can fall on the petitioner.
What should petitioners look for in a guardianship attorney?
Guardianships are rarely brought in a vacuum. When a wealthy individually loses capacity, a guardian is required to manage his or her property. When an alleged incapacitated person (AIP) lacks a support system in the community, a guardian is required to put services in place. And when an incapacitated resident has no payment source for his or her nursing home stay, a guardian is required to pursue a means of financing that needed medical care. Since most nursing home residents rely on medical assistance to cover their care, every guardianship petition filed on behalf of an institutionalized AIP should be drafted and litigated with an eye toward Medicaid. Ideally, the petitioning attorney will proceed in a manner that expedites a “pending guardianship” pick up, secures Medicaid post-appointment, reduces NAMI collection issues, and confers Fair Hearing standing.
How does GRIN help nursing home petitioners?
Guardianship judges have long struggled with the challenge of finding appropriate fiduciaries to appoint as guardian for low-asset nursing home AIPs. GRIN was established to fill that void. Where the goal is to secure medical assistance for the AIP, drafting petitions that anticipate the Medicaid issues and recommend GRIN’s appointment as guardian can streamline the process. Using this coordinate approach promises both economy and efficiency.
For additional information on how the guardianship attorneys at Abrams Fensterman, LLP can assist you as petitioner, please CLICK HERE or contact Ellen L. Flowers, Esq. or Danielle M. Visvader, Esq. at 516-328-2300.