Family and Children's Medicaid MA-3320 RESOURCES

V. INCOMPETENCY

A. General

1. Resources owned by or in which the a/r or b.u. member has a legal interest are not available to the a/r if:

a. He is alleged to be incompetent and has no legal guardian or someone with previously established power of attorney (POA) to make the resources available,

or

b. He has a legal guardian/durable POA who does not act to make the resources available.

2. If an a/r does not have resources that exceed the resource limit for the number in the b.u., incompetence is not an issue.

3. When an a/r has excess resources and he is alleged to be incompetent or has been ruled incompetent by a North Carolina court, use the following policy to determine if the resources may be excluded.

B. Definitions

1. Incompetent Adult or Emancipated Minor

"Incompetent adult" means an adult or emancipated minor who lacks sufficient capacity to manage the adult's own affairs or to make or communicate important decisions concerning the adult's person, family, or property whether the lack of capacity is due to mental illness, mental retardation, epilepsy, cerebral palsy, autism, inebriety, senility, disease, injury, or similar cause or condition.

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(V.B.1.)

2. Guardian of the Estate

A guardian of the estate, which may be awarded by a court permanently or for an interim period of time, allows the lawfully appointed guardian to act on behalf of the incompetent individual in any state where resources belonging to the individual are located.

3. Guardian of the Person

A court may appoint a guardian of the person to take care of an individual’s personal needs, but the guardian of the person does not have authority to access resources of the individual.

4. General Guardian

A general guardian is a guardian of both the estate and the person. He can access the individual's assets.

5. Interim Guardian

An interim guardian is appointed only to handle an immediate crisis or need before an incompetence hearing process is completed. Interim guardianship may be of the person,

the estate, or a general guardian. He may be able to access the individual’s assets if the court so orders. Examine the order appointing the interim guardian to determine his authority.

6. Durable Power of Attorney

a. A durable power of attorney is a document by which an individual grants authority to (an) other individual(s) to serve as his attorney-in-fact to act on his behalf in legal and financial matters.

b. It must be executed when the individual granting the POA is fully competent, and it remains valid after incompetence occurs.

c. It must be registered with the Register of Deeds with a copy provided for the Clerk of the Court for accounting purposes.

d. The date of execution of the document must predate the onset of incompetence.

7. General or Limited Power of Attorney

a. A general or limited power of attorney authorizes one or more persons to act in the absence of the person granting it.

b. It ends if the individual becomes incompetent.

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(V.)

C. Policy Rules

1. Otherwise countable and available/accessible resources, held solely or jointly by an allegedly incompetent a/r, are exempt prior to a formal declaration of incompetency if:

a. A written statement as described in V.D.1.c., from a knowledgeable source supports the allegation of incompetence, and

b. The a/r is allegedly incompetent for a period of at least 30 consecutive days or until his death, and

NOTE: If applicant has not yet been incompetent for 30 days hold the application for the 30-day period.

c. The resources cannot be accessed on behalf of the a/r because:

(1) He has no legal representative/guardian/durable POA, or

(2) His legal representative/guardian/durable POA is unable, fails or refuses to act to make the resources available.

2. Incompetency for Medicaid eligibility purposes may be:

a. Alleged by someone who is in a position to know, as indicated in V.D.1.b., or

b. Formally declared by a North Carolina court.

3. Incompetency may be alleged at any time including, but not limited to:

a. During the application/redetermination processing time, or

b. When an a/r receives new resources, or

c. When unreported resources are discovered, or

d. When a change in situation causes a previously exempt resource to become countable, or

e. When the value of a resource increases; or

f. When the a/r’s medical condition changes.

4. Exclude otherwise countable resources of an allegedly incompetent individual if a representative has not been previously established who is legally authorized to act on the incompetent individual’s behalf in legal matters, including accessing his resources.

5. For purposes of Medicaid eligibility, a formal judgment of incompetence is not required if the a/r has previously executed a valid durable power of attorney and his attorney-in-fact is able and willing to act in the a/r’s behalf.

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(V.C.5.)

a. Resources held by the incompetent a/r with a valid durable POA are considered available and countable.

b. If the durable POA is unable or unwilling or otherwise fails or refuses to act on the a/r’s behalf to make the resources available, the resources are unavailable, but a legal guardian of the estate must be established for the a/r. See V.D.1.and 4., for procedures.

6. When the a/r has been formally declared incompetent by a North Carolina court and a guardian of the estate has been appointed by the court, resources are available under certain conditions described in procedures below.

D. Procedures

1. Alleged Incompetence

Inform the family member or representative of an a/r who may not be competent, including a public agency acting on the a/r’s behalf, that:

a. Otherwise countable resources may be exempt for a certain period of time if the a/r is alleged to be incompetent for a period of 30 consecutive days or until his death, and

(1) The a/r does not have someone legally authorized to act on his behalf to access his resources, or

(2) His legal representative/guardian/durable POA is unable, fails or refuses to act to make the resources available,

NOTE: The individual must have been allegedly incompetent for at least 30 consecutive days or have died before resources may be exempt.

And

b. The alleged incompetence is supported by the written statement, or testimony at a competency hearing, by one of the following:

(1) A physician, or

(2) A nurse, social worker, or psychologist, and

c. The statement/testimony includes:

(1) An explanation of the reasons the a/r is believed to be incompetent, such as medical conditions or diagnoses, and

(2) The approximate onset of the alleged incompetence, and

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(V.D.1.c.)

(3) Ending date of alleged incompetence, if the person has improved, and

(4) The basis for the knowledge or opinion of the individual alleging the incompetence.

2. Exclude Resources

Exclude all resources, beginning with the first month for which assistance is requested:

a. For all months that the evidence as defined in V.D. clearly shows the a/r was incompetent, or

b. Until one of the following occurs:

(1) A North Carolina court rules that the a/r is incompetent and appoints a guardian of the estate or general guardian, or

(2) The court rules that the a/r is not incompetent, or

(3) The court dismisses the case because of the death or recovery of the a/r.

3. Requirement to Formally Establish Incompetence

Inform the a/r's family or representative that steps must be taken to establish the a/r's incompetence formally in a North Carolina court.

If the a/r’s representative states that he is willing and able to act on the a/r’s behalf, explain that:

a. All documents and petitions necessary to have the a/r formally declared incompetent must be filed with a North Carolina court in order to have a guardian of the estate or general guardian appointed by the court, and

b. The necessary legal documents must be filed with the court within 30 calendar days of the latter of:

(1) The date of application for Medicaid, or

(2) The discovery of a previously unreported resource or receipt of a new resource in an ongoing case.

4. Referral for Guardianship Services

Refer the case to the county dss director’s designee in the services unit at any point that the a/r’s representative:

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(V.D.4.)

a. Requests guardianship services, or

b. If the family or representative pursues guardianship, but only guardian of person is appointed, or

c. Is offered and accepts the assistance of the dss in filing the necessary legal documents,

or

d. States that he is unwilling or unable to file the necessary documents, or

e. Refuses to participate or cooperate in the court proceedings required to make the resources available to the a/r, or

f. Fails to take the necessary steps outlined in V.D.3., within 30 calendar days of contact by the IMC regarding his responsibilities.

NOTE: The county is to always pursue general guardian or guardian of the estate.

5. No Ruling of Incompetence

Count resources at the beginning of the next month if:

a. The court finds that the a/r is not incompetent, or

b. The court dismisses the case because of the death or recovery of the a/r, or

c. The services unit determines that guardianship is not the appropriate alternative to meet the a/r’s needs.

(1) Document the period of alleged incompetence, beginning and ending dates or date of death, as indicated in V.D.1.c., or

(2) Document that prior to the date of a finding of competence the a/r’s medical condition substantially improved.

6. Incompetence Is Established by the Court

When a formal declaration of incompetence has been determined by a North Carolina court and a general guardian or guardian of the estate appointed, regard the resources as follows:

Count liquid resources and personal property resources beginning with the first day of the month immediately following the month in which the legal guardian is appointed.

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(V.D.)

7. Failure of Legal Guardian to Act

a. If a legal guardian fails to access resources for the a/r’s use within 30 calendar days of appointment, make a referral to the county director’s designee.

b. The county director’s designee must:

(1) Determine if the guardian is acting in the a/r’s best interests, and

(2) Inform the IMC either that the present guardian is acting in the a/r’s best interests or that a new guardian must be appointed.

c. The director’s designee must make a referral to the Clerk of Court for intervention if he determines that the a/r’s interests are not being served or are questionable.

d. Continue to exclude the resources until the Clerk of Court acts to appoint a new guardian.

e. Count the resources as described in V.D.2., if the director’s designee determines that the a/r’s best interests are being served or if the Clerk of Court appoints a new guardian.

8. Documentation

a. File copies of the durable power of attorney and/or order of guardianship in the a/r’s case record.

b. File copies of documents to show that all required steps have been taken to establish formal guardianship and that the guardian has taken the necessary actions to make the a/r’s resources available.

9. Computation of Countable Resources

a. Exclude all resources for any month or portion of a month for which assistance is requested and there is documentation that the a/r is not competent to access his resources.

b. Count all resources to the a/r either because he has recovered sufficiently to access his resources himself or because of the appointment of a legal guardian of the estate who has authority to access his resources, beginning with the first day of the month following his recovery or the appointment of a legal guardian.