When a Mere Guardianship is Not Enough

Father, who had been enjoying late middle age, had a brain aneurysm and now is in a permanent coma. Unfortunately, he did not have a power of attorney or advance directive, so his adult son could not access his bank account, in which he had $20,000. He has no other assets. Father’s hospital and nursing home bills now exceed $300,000.

Son applied for Medicaid for his father but was denied benefits because Medicaid will not be allowed if Father has more than $2,500. Unfortunately, without a power of attorney, no one has the authority to spend the funds in Father’s bank account so that he can get Medicaid benefits.

I filed a guardianship petition in which Son is seeking to be appointed guardian of the person and property of Father. At the court hearing, I requested that the Court make a finding of fact that no one had access to Father’s bank account, and make a legal ruling that, as a consequence the funds in such bank account were not an available resource for Medicaid eligibility purposes.

I asked the court to take judicial notice of a particular provision in the Medicaid rules, that is, asked the court to consider the rule without having to put on a formal proof process to show that the rule exists. The Judge accepted my request, however, the Judge asked me why that was necessary.

The Judge reasoned that once Son is appointed guardian, he could get access to the funds in Father’s bank account, prepay Father’s funeral and pay the balance of the funds to the nursing home. After making such payments, son could reapply for Medicaid, and Medicaid would be approved because Father then would have less than $2,500.

I agreed with the Judge’s analysis; however, I pointed out to her that such reasoning only addresses half of the problem — that is, Medicaid eligibility for future months. The reason I wanted a ruling from the Judge that the $20,000 was an unavailable resource (pointing out that there was language in the Medicaid regulations to support such treatment) is that the previously filed Medicaid application had been denied and such denial was based upon a determination that the $20,000 was an available resource. That denial of Medicaid benefits meant that Medicaid was not willing to pay the outstanding $300,000 medical bill.

Therefore, if the judge did not make the ruling I had requested, then Father would be left with $300,000 in unpaid medical expenses. Upon hearing that, the judge again reviewed the Medicaid rules I had presented to her, and after a few minutes stated that she saw the merit to my argument.

In the end, Son was appointed guardian for his Father, and the Court ruled that the $20,000 had been an unavailable, and hence exempt resource for Medicaid purposes, thereby paving the way for Son to appeal the denial of Medicaid benefits. Better yet, with that court order in hand, I instructed Son to request that the Medicaid caseworker rescind her denial of benefits thereby making a Medicaid appeal unnecessary. On the strength of that court order, Medicaid benefits have been granted to pay the entire $300,000 outstanding balance as well as Father’s future medical costs.

As this case shows, just having the Son appointed guardian for Father would not have gone far enough in resolving this family’s difficulties.


William M. Gatesman is well versed in tax law, estate planning, guardianship law, Medicaid law, fiduciary law, and numerous other related areas. He was able to bring this broad level of experience to bear to bring about a positive outcome in today’s guardianship case, the story of which is related above.