Adult Medicaid Manual MA-2230: FINANCIAL RESOURCES
1. Resources owned by or in which the a/r or person financially responsible for the a/r has a legal interest are not available to the a/r if:
a. He is 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/POA who does not act to make the resources available.
(VI.A.)
2. If an a/r does not have resources that exceed the resource limit, 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.
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 VI.D.1.b.(2), below, from a knowledgeable source supports the allegation of incompetence, and
b. 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 VI.D.1.a.(2), below, or
b. Formally declared by a North Carolina court.
3. Incompetency may be alleged:
a. At the application interview, 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.
(VI.B.)
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. See definition in C. below.
a. Resources held by the incompetent a/r with a valid durable POA are considered available and countable.
b. If the 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 VI.D.1. and 4., below, 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.
A general guardianship, 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.
A court may appoint a guardian of the person to take care of an individual's personal needs. The guardian of the person does not have authority to access resources of the individual.
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 matters.
b. It must be executed when the individual granting the POA is fully competent, and it remains valid after incompetence occurs.
(VI.C.3.)
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.
4. 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.
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:
(1) The a/r is alleged to be incompetent, and
(2) The a/r does not have someone legally authorized to act on his behalf to access his resources, and
b. The alleged incompetence must be supported by one of the following:
(1) A physician's certification, or
(2) A written statement from a source such as a nurse, social worker, psychologist, relative, friend, or others with knowledge of the the a/r's condition. The statement must include:
(a) An explanation of the reasons the a/r is believed to be incompetent, such as medical conditions or diagnoses, and
(b) The approximate onset of the alleged incompetence, and
(c) Ending date of alleged incompetence, if the person has improved, and
(d) The basis for the knowledge or opinion of the individual alleging the incompetence.
(VI.D.)
Exclude all resources, beginning with the first month for which assistance is requested:
a. For all months that the evidence as defined in VI.D.1.b.(2), above, clearly shows that the a/r was incompetent, and
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
(2) The court rules that the a/r is competent, or
(3) The court fails to rule 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 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:
a. Requests guardianship services, or
b. Is offered and accepts the assistance of the dss in filing the necessary legal documents, or
c. States that he is unwilling or unable to file the necessary documents, or
(VI.D.4.)
d. Refuses to participate or cooperate in the court proceedings required to make the resources available to the a/r, or
e. Fails to take the necessary steps outlined in VI.D.3., above, within 30 calendar days of contact by the IMC regarding his responsibilities.
Count resources at the beginning of the next month if:
a. The court finds that the a/r is competent, or
b. There is no ruling because of the death or recovery of the a/r, or
c. The services unit determines that a guardian is not needed because the a/r does not meet the definition of incompetence by their guardianship policy.
(1) Document the period of alleged incompetence, beginning and ending dates or date of death, as indicated in VI.D.1.b.(2), above, 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:
a. 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.
b. Count real property resources only after the Court has given final approval for sale of the property.
(1) Inform the guardian that he must petition the Clerk of Court for approval to dispose of or convert the real property resource.
(2) Count the value of the real property resource on the first day of the month immediately following the month in which the Court issues an "Order Confirming Sale", unless the guardian has taken steps to exclude it by making it income-producing.
(VI.D.6.b.)
(3) The "Order Confirming Sale" is a document issued to the guardian authorizing final sale of the property and must be signed by the Clerk of Court and a Superior Court Judge. It is only issued after a sales contract has been executed and no further bids have been received during a period of time allowed by the Court.
7. Failure of Legal Guardian to Act
a. If a legal guardian fails to access liquid resources or fails to begin the process to access real property 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 VI.D.2.b., above, 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.
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.
(VI.D.9.)
b. Count all resources that are available 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.