(a) Guardianship fees must not exceed $175 per month; (b) Costs directly related to establishing a guardianship for a client must not exceed $700; and (c) Costs to maintain the guardianship must not exceed $600 during any three-year period.
Full Answer
· WAC 388-79A-005 Maximum amount of guardianship fees and related costs for a long-term care medicaid eligible client. Revised March 8, 2019. As mandated by RCW 43.20B.460 and in accordance with RCW 11.92.180, the maximum amount of guardianship fees and related costs must not exceed the limits of this section when the person under guardianship is: . A …
establishes or continues a legal guardianship for a client: (a) Guardianship fees must not exceed $175 per month; (b) Costs directly related to establishing a guardianship for a client must not exceed $700; and (c) Costs to maintain the guardianship must …
· Maximum guardianship fees and related cost deductions are as follows: The total deduction for costs directly related to establishing a guardianship for a client cannot exceed $1,850; The total deduction for guardianship-related costs cannot exceed $1,200 during any three-year period; and; The amount of the monthly deduction for guardianship fees cannot …
· Seventh: The attorney will represent the client(s) before the Medicaid agency. Many Medicaid workers give clients and families wrong information. We see many mistakes that are not to the client’s benefit. For example, the agency will lose an application and tell the client to re-file with the result of loss of months of coverage.
If the client has another fiduciary, payee, or other principal-agency relationship and the agent is allowed compensation, any monthly guardianship fee approved under this section is reduced by the agent's compensation.
The total deduction for guardianship-related costs cannot exceed $1,200 during any three-year period; and
The agency adjusts the client's room and board after receiving the court order, regardless of any provision of chapter 182-513 or 182-515 WAC.
The eligibility rules under Title 182 WAC remain in full force and effect.
Seventh: The attorney will represent the client (s) before the Medicaid agency. Many Medicaid workers give clients and families wrong information. We see many mistakes that are not to the client’s benefit. For example, the agency will lose an application and tell the client to re-file with the result of loss of months of coverage. Your attorney will not allow that to happen.
We might note that there are two ways attorneys charge for applications: 1) attorney asks for a retainer and bills hourly against the retainer; 2) a flat fee. Most clients prefer the latter since they know the fixed cost and the fee will be part of “spend down.”.
How can the attorney help? He can often avoid the cost and delay of probate court entirely by having the resident knowingly sign a power of attorney.
Spend down means that the applicant has only $2,000 at the time of application. If an average suburban married couple follows the advice of most nursing homes they may spend over $100,000 at the nursing home before applying for Medicaid. The attorney should be able to help an average couple to save that $100,000.
A Medicaid application will be rejected without “documentation” of the current cash value of the asset. It can take four weeks to get the needed paperwork. When children help elderly parents, finding or recovering the documentation can be challenging and time consuming.
And a bonus, Eighth: The attorney should prevent the applicant/resident from being transferred out of a good nursing home, where he got post-hospital rehab, to a poor one that always has beds open because nobody wants to be there. We have prevented many such transfers and our clients stay at the good nursing home.
So who does and who should hire an attorney? It is the client who has significant savings in various institutions, a home and other “assets.” This person has much to lose. And, the need is doubly true if the client has a spouse. Clients do not hire an attorney to fill out a four to six page application. There is much more to do and much more to the value of the attorney’s work. Here are some considerations:
After reviewing Florida's rules regarding SSI-Related Medicaid and State Funded Programs regarding eligibility for Medicaid, any Guardianship expenses deducted from Gross Income must be added in to determine if the applicant meets income eligibility requirements.
You can pay for acquiring the guardianship: probate costs, attorney fees, etc, from the applicant's resources. On an ongoing basis (in Michigan) you're allowed $ 60/month for guardianship/conservatorship fees (don't spend it all in one place!). Consult with local counsel to get the best results.
It is possible but there are many factors that determine this. Given that you cannot obtain a guardianship without an attorney, this should be discussed with your guardianship attorney.
Initial attorney fees at the beginning of the proceeding must often be paid personally by the guardian or the conservator, although the court might order that the ward's estate reimburse them. 15
After appointment, the guardian or conservator must usually seek court approval in many cases before taking specific actions or making certain decisions on behalf of the ward. 10 This, in turn, will lead to attorney's fees for the preparation and filing of the appropriate court petition.
A conservatorship and a guardianship are actually two separate arrangements. A guardian oversees personal issues for the ward , such as healthcare issues and even care, feeding, and supervision, depending on the extent of the ward's incapacity. 4
If you enlist the help of an attorney in preparing and filing the petition, that professional's services will cost as well.
A guardian's responsibilities might include some minor financial transactions as well, such as taking care of the ward's daily expenses.
The Social Security Administration allows that a portion of a ward's benefits account can be diverted to pay for guardianship proceedings and court-ordered fees under some circumstances. This provision applies to guardianships, not conservatorships.
Some states require that conservators must post bond, a type of insurance policy to protect the ward's estate in the event of any wrongdoing. That costs money, too.
The elder care lawyer can assist by developing a proposed plan that the guardian or guardianship attorney can present to the guardianship court for approval. The plan would be attached as an exhibit and would, in great detail, explain what we propose to do with the assets and how, once a court order is granted approving the Medicaid plan, it will substantially help the ward receive extra care or provide him/her with additional resources. The Medicaid lawyer can also be available to appear in court to explain the benefits of the Medicaid plan should the judge have questions. I also like to provide the judge with options.
Medicaid planning in a guardianship context adds extra layers of complexity because the ward (usually) is not speaking for themselves and Medicaid planning often involves moving around assets, or converting existing countable assets into medicaid-exempt assets.
The guardianship judge loved this plan because Dad's money was being protected while allowing him to continue to live with his loving daughter as caregiver and receive extra care that he otherwise would not have been able to receive for very long.
Guardianship requires proving that someone has lost the capacity to make certain (or all) decisions regarding their well being, and becomes especially necessary if the alleged incapacitated person failed to sign a comprehensive and durable power of attorney. Even if a valid durable power of attorney was previously executed, guardianship may be sought if, for example, one believes that the agent is abusing the power granted to them by the POA (or failing to act; or making well-intentioned, yet poor, decisions on behalf of the principal).
If you are a guardian, professional guardian, or guardianship attorney, please feel free to consult with me should the need to preserve a ward's assets arise. Medicaid and VA planning are excellent and useful tools to help the incapacitated person lead the highest possible quality of life.
Some Medicaid lawyers offer free consultations, while others charge an initial consultation fee or offer Medicaid planning conferences that range in cost from approximately $175 – $500.
On the other hand, Medicaid attorneys often focus more on the legal aspects of Medicaid planning, such as creating Medicaid asset protection trusts or Qualified income trusts, which makes them the better option for this type of assistance.
This strategy reduces one’s countable assets, while at the same time , protecting some of them for family. Essentially, Medicaid applicants gift approximately half of their “excess” assets (assets over Medicaid’s limit) to their loved ones and then purchase an annuity with the remaining “excess” assets. (An annuity turns countable assets ...
Medicaid attorneys and specialists also assist with crisis planning, which occurs when a senior needs Medicaid benefits within 30-60 days.
One such strategy that elder law attorneys can implement is a Medicaid asset protection trust (MAPT). This type of trust not only prevents one from becoming ineligible for Medicaid due to gifting assets (if done prior to the look back period), but it also allows one to protect assets for spouses to ensure they can live independently. Furthermore, MAPTs protect assets, including one’s home, for relatives upon the death of the Medicaid recipient, as assets in this type of trust are protected from Medicaid’s estate recovery program. This means that the state cannot attempt to be reimbursed for long term care costs for which it paid for the Medicaid beneficiary via these assets.
For persons who have Medicaid cases that are fairly simple and straightforward, a Medicaid planner, also called a Medicaid specialist or a Medicaid Advisor, might be a good option. Working with a professional Medicaid planner can be a lot more cost efficient than working with a Medicaid attorney.
The look back period is 5 years in all states except California (Medi-Cal has a 2.5 year look back).
In a guardianship, there are four types of trusts that may be established for a Ward: Qualified Income Trust (QIT or Miller Trust); the Self-Settled Special Needs Trust created through the guardianship; a general support trust created by the guardianship; and a pooled trust through a joinder agreement in a guardianship.
The Guardian of the Estate takes charge of the Ward’s financial affairs. The Guardian of the Estate has the power to collect all property, belongings, debts, claims, and obligations of the Ward. It is the Guardian of the Estate’s duty to manage the estate as a prudent person would manage their own affairs. See Texas Probate Code §768. Generally, it is the Guardian of the Estate who marshals the assets and income. Most often a guardianship has been created because all other avenues of relief have failed. When a Guardian has been appointed, it is not uncommon to find the Ward’s records in shambles or non-existent. As with the Guardian of the Person, the Guardian of the Estate must also qualify by filing their bond, oath, and local documents. See Texas Probate Code §§699, 700, 702. The Guardian then begins a treasure hunt. It is an arduous process to marshal the assets, accessing pensions and income sources, file the proper inventories, expense applications, and monthly allowances with the court. It can be very difficult to assess the Ward’s potential eligibility for public benefits in the time frame dictated by Medicaid. Valuing life insurance policies, accounts, and clarifying ownership of an asset can take months. The best approach is to apply for Medicaid to protect the eligibility date while assets and income are being reviewed.
The Medicaid Eligibility Handbook defines the dependent family member as a person’s child (minor or adult) or a parent or a sibling (including half-sibling, step-sibling, or adopted sibling) of either member of the couple. The dependent family member must be living in the Medicaid applicant’s home before the absence of the applicant, must continue to live with the community spouse, and must be unable to support himself outside the home because of medical, social or other reasons. See Medicaid Eligibility Handbook H-1600.
In general, the Guardian of the Person has the power to take charge of the person physically and establish their residence. Additionally, the Guardian has the duty to provide care, supervision and to protect the Ward. The Guardian of the Person may not consent to inpatient psychiatric treatment but may consent to other medical and surgical treatments. See Texas Probate Code §767(a)(4). The Guardian of the Person also has the authority to create and establish a Qualified Income Trust. See Texas Probate Code §767(a)(5). Under Texas Probate Code §782, the Guardian of the Person has the power to receive funds from governmental sources as long as they do not exceed $12,000 in any twelve month period. The Guardian of the Person does not have the authority to take charge of income from funds other than from governmental sources. Non-governmental funds include military pension, Civil Service pension, private pensions, private annuities, IRAs, savings bonds, etc. While a Civil Service and military pension may be from a governmental source, the funds from these two pensions are not generally released to Guardians of the Person. To take charge of these sorts of funds, a Guardian of the Estate must usually be appointed.
There are four types of Court actions affected by this policy: (1) the Guardian of the Person; (2) the Guardian of the Estate; (3) Temporary Guardians; and (4) Community Administrations.
Under the Medicaid rules, the homestead is an exempt asset. As long as the nursing home resident intends to return home, which all do, the asset remains an exempt asset. See Medicaid Eligibility Handbook F-3120.
When this is done, each application is considered on its face. Under the federal and state rules, there are no penalties for transfers between spouses. What this means is that all of the assets can be transferred to one spouse’s name, thus impoverishing the other spouse. The impoverished spouse qualifies for Medicaid while the other spouse pays privately. When the practitioner uses this strategy, it is necessary to make a calculated risk. A careful review of both applicants’ health and financial resources must be made. It is important to remember that the priority in the guardianship is the care of the Ward. See Texas Probate Code §805. Thus, when making the application and assumptions, it is important to review and provide the court with the rationale that shows this is in the best interest of the Ward or that the Ward will not be hurt in any way by impoverishing them and qualifying the Ward for Medicaid while privately paying for the other spouse.