A court-appointed Guardian has the authority and responsibility to protect the legal rights of the incapacitated person. This post discusses some of those rights.
Medicaid planning and guardianship
Medicaid is a government-funded healthcare program that provides essential coverage to low-asset individuals, including nursing home residents. Medicaid planning involves strategies to legally protect assets and ensure that individuals can qualify for Medicaid benefits while preserving their financial security. Guardianship plays a significant role in Medicaid planning, especially for nursing home residents.
If the individual is incapacitated and lacks the capacity to apply for these benefits. Guardians can file Medicaid applications, and with court approval, can also use planning strategies that can preserve some assets for the ward or the ward’s loved ones.
Nursing home resident’s rights
Nursing home residents have specific rights under federal and state law that must be protected, and Guardians act on behalf of the individual to protect those rights. These rights are essential to ensure that residents receive appropriate care and are being treated with dignity and respect. Here are a few of these rights.
Right to be informed
Residents have the right to be informed about their medical condition, treatment options, and any changes in their care plan. Guardians must ensure that facilities provide them with all necessary information to make informed decisions about the incapacitated person’s health.
Right to privacy
Residents have the right to privacy, including the confidentiality of their medical and personal information. Guardians must protect their ward’s privacy and ensure that personal information is not disclosed without the Guardian’s consent.
Right to refuse treatment
Residents have the right to refuse medical treatment, including medication and procedures. Guardians must try to find out the ward’s wishes and advocate for their right to refuse treatment unless a court determines otherwise.
Right to quality care
Residents have the right to receive quality care that meets their physical, emotional, and social needs. Guardians must monitor the care provided and advocate for improvements when necessary.
Special needs trusts and guardianship
Special needs trusts (SNTs) are particularly valuable in securing the financial future of individuals with disabilities, as they can provide a safety net for essential expenses without disqualifying them from vital support programs. A Court can authorize a Guardian to transfer the individual’s assets to an SNT under certain circumstances.
- First Party Special Needs trusts (SNTs) are legal instruments designed to protect the assets of individuals with disabilities who are under age 65, without jeopardizing their eligibility for government benefits like Medicaid and Supplemental Security Income (SSI). If the individual is incapacitated and never signed a power of attorney, the Court can authorize a Guardian to establish and fund a Special Needs Trust for the ward’s benefit.
- Third Party Special/Supplemental Needs Trusts might be funded by a Guardian whose ward is the parent of a disabled child, again with Court permission.
Guardianship support from Fink Rosner Ershow-Levenberg
We are a full-service elder law firm focused on assisting elderly or disabled individuals. If you believe that your loved one is incapacitated and requires the protection of a Guardianship, meet with one of our attorneys for an in-depth assessment of the circumstances.