Mississippi Administrative Code
Title 23 - Division of Medicaid
Part 103 - Resources
Chapter 10 - Conservatorships Prior to 3/1/1987
Rule 23-103-10.1 - Treatment of Conservatorships Prior to 03/01/1987
Universal Citation: MS Code of Rules 23-103-10.1
Current through September 24, 2024
A. Conservators and legal guardians are court appointed and are usually court controlled. These types of legal arrangements are initiated when the competence of an individual is at issue. Technically, a legal guardian is appointed to serve over an individual and the individual's resources, whereas a conservator is appointed only to handle an individual's resources. Regardless of the legal term used, an application or active case involving a conservator or legal guardian is handled as outlined below.
1. In
the absence of evidence to the contrary, conserved liquid and non-liquid
resources held by a guardian or conservator on behalf of a Medicaid applicant
or recipient are countable resources to that client.
a) The fact that the guardian/conservator
manages and controls the funds, (e.g., makes the actual (withdrawals), does not
alter the attribution of the resource to the client. Since the
guardian/conservator legally acts on behalf of the incompetent individual, it
is the same as if the individual is controlling or managing the
resource.
b) "Evidence to the
contrary" that may indicate a client does not have total access to conserved
resources held by a guardian or conservator is a court order which specifies
the disbursement of funds and/or disposal of assets.
1) If the court order or decree specifies the
amount and frequency of funds which may be disbursed or restricts the disposal
of resources, the court's decision in such matters determines the client's
access.
2) However, a "silent"
court order, which does not specify disposition and/or availability of
conserved resources, is not considered evidence to the contrary. Therefore,
conserved funds controlled by a silent court order are considered available to
the client.
2. The fact that a guardian/conservator must
first petition the court in order to dispose of resources or disburse funds
does not constitute "evidence to the contrary".
a) State law requires such a petition in
guardian/conservator cases making petitioning a standard practice.
b) In all cases where petitioning is
required, the conserved resources are considered available to the client unless
or until the court is petitioned and rules as to the availability/disposition
of assets.
c) When a signed and
dated petition is presented as evidence that a court has been petitioned for
disbursement of funds and/or disposal of resources, the petition is sufficient
to exclude the resources in question until the court renders a decision in the
matter.
3. Eligibility
Determinations Involving Conservatorship.
a)
To determine how to handle a case involving a legal guardian or conservator, it
is necessary to obtain a copy of the original decree appointing an individual
as guardian or conservator and any legal documents which may subsequently have
been issued by the court to amend or change the original decree, if any. If a
guardianship or conservatorship is in the process of being established, the
client's resources are considered available until court documents are presented
as outlined below:
1) If the court order
specifies disbursement of funds, any payments made to or on behalf of the
client count as unearned income to the client.
2) If the court order does not specify the
disbursement of any non-liquid resources conserved by the court, consider the
funds as a countable resource.
3)
If the court order specifies that conserved non-liquid resources, such as
property, may be disposed of for the benefit of the client, consider the
property, etc., as a countable resource.
4) If the court order is silent on the
subject of disposal of non-liquid resources, consider the resources countable
unless or until the court is petitioned for disposal.
5) A court order may specify the disbursement
of liquid resources and not mention disposal of any conserved non-liquid
resources or vice versa.
(a) In such a case,
abide by the court's decision regarding the disbursement or disposal issue
specified and count as a resource the unspecified resource.
(i) Example: A conservatorship court order
specifies the release of $100 per month from a savings account with a $5000
balance and fails to mention the disposal of 50 acres of property owned by the
client. The $100 is counted as income while the balance of the account is
excluded as a resource. The property is countable until the court is petitioned
for the purpose of disposing of the property.
6) Court orders that are not specific on the
availability of conserved resources result in the availability of the conserved
resource to the client until the month the court is petitioned for use of the
conserved funds or resources.
(a) A valid
petition will exclude the resource provided the petition requests the court to
rule as to the disposal and/or disbursement of conserved resources. The
exclusion will apply until the court rules in the matter at which time the case
must be reviewed in light of the court decision.
42 CFR §435.601(b) (Rev 1994); CMS Transmittal 64, State Medicaid Manual §3257-3259.
Disclaimer: These regulations may not be the most recent version. Mississippi may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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