Rule 23-103-10.1 - Treatment of Conservatorships Prior to 03/01/1987A. 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.23 Miss. Code. R. § 103-10.1
42 CFR §435.601(b) (Rev 1994); CMS Transmittal 64, State Medicaid Manual §3257-3259.