CHAPTER 5: MANAGING INCAPACITY5.1 INTRODUCTION
5.2 PLACEHOLDER ONLY
5.201 In General
5.202 Presumption of Capacity
5.203 Mental Ability
5.204 Defining Capacity
5.205 Causes of Incapacity
5.206 Undue Influence
5.207 Attorney Assessment
5.208 Medical Evaluation
5.209 Four Basic Legally Relevant Criteria
5.210 Level of Evaluation
5.3 LAST WILL AND TESTAMENT
5.201 Testamentary Capacity
5.302 Incapacitated Adult with Testamentary Capacity
5.303 Unnatural Dispositions
5.304 Testator’s Free Will
5.305 Proponent’s Burden of Proof
5.306 Undue Influence
5.4 PROTECTION OF INCAPACITATED PERSONS
5.401 Financial Exploitation—Criminal Offense
5.402 Reporting Abuse, Neglect, or Exploitation
5.403 Obtaining Attorney Fees When Protecting
Incapacitated Individuals from Fraud
5.5 POWER OF ATTORNEY
5.501 The Virginia Uniform Power of Attorney Act
5.502 Governing Law
5.503 Creation
5.504 Capacity
5.505 Effectiveness of a POA
5.506 Possession of the POA
5.507 Durability
5.508 Agent
5.509 Federal Agency Requirements for POAs
5.510 Recordation
5.511 Letter of Instruction Interpreting Distribution Powers
5.512 Litigation
5.513 Liability for Breach of Duty
5.514 Reimbursement and Compensation of the Agent
5.515 Third-Party Acceptance of and Reliance upon a POA
5.516 Agent’s Resignation
5.517 Termination of the POA
5.518 Agent’s Certification
5.6 ADVANCE MEDICAL DIRECTIVE
5.601 In General
5.602 Terms Used in the Act
5.603 Individual Rights Not Limited
5.604 Capacity Determinations
5.605 Certification of Incapacity
5.606 Recertification of Incapacity
5.607 Communication-Related Disabilities
5.608 Notice to Patient and Agent
5.609 Restoration to Capacity
5.610 Creation of an AMD
5.611 End-of-Life Decisions
5.612 Medical Power of Attorney
5.613 Oral AMD
5.614 Agent’s Standard of Care
5.615 Patient Protest
5.616 Working with the Physician
5.617 Protected Health Information
5.618 Virginia Health Records Act
5.619 Incorporation of a Letter of Instruction or
Memorandum
5.620 Life Insurance
5.621 Advance Health Care Directive Registry
5.622 Court Intervention
5.623 Statutory AMD Form
5.624 Revocation of an AMD
5.625 Health Care Decision-Making if an AMD Is
Inadequate, Incomplete, or Absent
5.7 DURABLE DO NOT RESUSCITATE ORDER
5.8 PHYSICIAN ORDERS FOR SCOPE OF
TREATMENT (POST)
5.9 TRUSTS
5.901 Definitions and Background
5.902 Requirements for Trust Creation
5.903 Benefits of Trusts in Incapacity Planning
5.904 Drawbacks of Trusts in Incapacity Planning
5.10 GUARDIANSHIPS AND CONSERVATORSHIPS
5.1001 In General
5.1002 Definitions
5.1003 Petition Against a Minor
5.1004 Venue
5.1005 Jurisdiction Generally
5.1006 Continuing Jurisdiction
5.1007 Court’s Discretion to Decline Jurisdiction
5.1008 The Petition
5.1009 Guardian ad Litem
5.1010 Notice of Hearing
5.1011 Answer
5.1012 Evaluation Report
5.1013 Court Hearing
5.1014 Filing Fees and Court Costs
5.1015 Order of Appointment
5.1016 Qualification of Guardian and Conservator
5.1017 Duties and Authority of Guardian
5.1018 Duties and Authority of Conservator
5.1019 Termination of Conservatorship
5.1020 Petition to Expand the Appointment of a Guardian
or Conservator
5.1021 Petition to Modify or Terminate the Appointment
of a Guardian or Conservator
5.1022 Additional Issues
5.11 ALTERNATIVES TO GUARDIANSHIPS AND
CONSERVATORSHIPS
5.1101 In General
5.1102 Limited Guardianships
5.1103 When Conservator or Guardian Need Not Be
Appointed
5.1104 Joint Tenancy
5.1105 Payment of Federal Benefits
APPENDIX 5-1: CAPACITY WORKSHEET FOR LAWYERS
APPENDIX 5-2: FOLSTEIN MINI-MENTAL STATUS
EXAM (MMSE)
APPENDIX 5-3: LEGAL CAPACITY QUESTIONNAIRE
APPENDIX 5-4: GENERAL DURABLE POWER OF ATTORNEY
APPENDIX 5-5: CONSENT TO RELEASE HIPAA-PROTECTED
INFORMATION
APPENDIX 5-6: ADVANCE MEDICAL DIRECTIVE
APPENDIX 5-7: DURABLE DO NOT RESUSCITATE ORDER
APPENDIX 5-8: TRUST PROVISION—CARE OF GRANTOR
IN EVENT OF GRANTOR’S INCAPACITY
APPENDIX 5-9: ADDENDUM FOR PROTECTED IDENTIFYING
INFORMATION
APPENDIX 5-10: PETITION FOR APPOINTMENT OF GUARDIAN
AND CONSERVATOR
APPENDIX 5-11: ORDER APPOINTING GUARDIAN AD LITEM
APPENDIX 5-12: NOTICE TO RESPONDENT OF MOTION
FOR ORDER APPOINTING GUARDIAN AD LITEM
APPENDIX 5-13: NOTICE TO FAMILY OF MOTION FOR
ORDER APPOINTING GUARDIAN AD LITEM
APPENDIX 5-14: CERTIFICATE OF COMPLIANCE WITH
NOTICE REQUIREMENT
APPENDIX 5-15: PHYSICIAN’S EVALUATION REPORT
APPENDIX 5-16: PETITION FOR PROCEEDING IN CIVIL CASE
WITHOUT PAYMENT OF FEES OR COSTS
APPENDIX 5-17: AFFIDAVIT OF INDIGENCE
APPENDIX 5-18: ORDER OF INDIGENCE
APPENDIX 5-19: ORDER APPOINTING GUARDIAN AND
CONSERVATOR
APPENDIX 5-20: REPORT OF GUARDIAN FOR AN
INCAPACITATED PERSON
CHAPTER 6: SPECIAL NEEDS TRUSTS6.1 INTRODUCTION
6.101 In General
6.102 What Is a Special Needs Trust?
6.103 Purposes of Special Needs Trusts
6.104 Uses and Misuses of Special Needs Trusts
6.105 Special Needs Trusts and Malpractice
6.2 PUBLIC BENEFITS OVERVIEW
6.201 In General
6.202 Benefits Not Based on Financial Need
6.203 Benefits Based on Financial Need
6.3 SELF-SETTLED SPECIAL NEEDS TRUSTS
6.301 In General
6.302 Drafting Rules for (d)(4)(A) SNTs
6.303 Other (d)(4)(A) Trust Provisions
6.304 Drafting a (d)(4)(C) SNT
6.305 Alternatives to a Self-Settled Special Needs Trust
6.4 THIRD-PARTY SPECIAL NEEDS TRUSTS
6.401 In General
6.402 Drafting Rules
6.403 Additional Trust Provisions
6.404 Form of Trust
6.405 Interface with Other Aspects of Estate Plan
6.406 Special Needs Trust for Surviving Spouse
6.5 DISTRIBUTIONS AND DISBURSEMENTS FROM
SPECIAL NEEDS TRUSTS
6.501 In General
6.502 Effect of Income and In-Kind Support and
Maintenance on SSI Eligibility
6.503 Medicaid Requirements
6.504 State Requirements and “Decoupling”
6.6 ADMINISTRATION AND TAXATION OF SPECIAL NEEDS
TRUSTS
6.601 In General
6.602 Notification and Reporting Requirements
6.603 Trustee Powers and Duties
6.604 Trust Taxation Issues
6.605 Investment and Management of Trust Assets
6.7 LITIGATION ASPECTS OF ESTABLISHING SPECIAL
NEEDS TRUSTS
6.701 In General
6.702 Establishment Process for Inheritances and Excess
Funds
6.703 Establishment and Administration Process for
Matrimonial Law
6.704 Establishment Process for Personal Injury Claims
6.8 CONCLUSION
6.9 BIBLIOGRAPHY OF SPECIAL NEEDS PLANNING
RESOURCES
APPENDIX 6-1: SELF-SETTLED SPECIAL NEEDS TRUST
APPENDIX 6-2: THIRD-PARTY SPECIAL NEEDS TRUST
APPENDIX 6-3: ATTORNEY CERTIFICATION FOR SURVIVOR
BENEFIT PLAN ANNUITY
CHAPTER 7: MEDICAID PRACTICE7.1 INTRODUCTION
7.101 Medicaid Services Generally
7.102 Funding and Administration of Medicaid
7.103 Sources of Law and Regulation
7.104 Financial Limitations, Standards, and Thresholds
7.2 CATEGORIES OF NEED IN THE ELIGIBILITY
DETERMINATION
7.201 SSI Recipients
7.202 80% Federal Poverty Level (FPL) Applicants
7.203 Medically Needy Applicants
7.3 GENERAL ELIGIBILITY CRITERIA FOR “MEDICALLY
NEEDY” APPLICANTS
7.301 The Evaluation Process
7.302 Marital Status of Applicant
7.4 CITIZENSHIP, IDENTITY, AND RESIDENCY CREDENTIALS
FOR NON-MEDICARE/SSI ENROLLEES
7.401 Proof of Identity and Citizenship
7.402 Virginia Residency Requirement
7.5 AGE, BLINDNESS, OR DISABILITY REQUIREMENT
7.501 “Aged”
7.502 “Blind”
7.503 “Disabled”
7.6 INSTITUTIONAL STATUS REQUIREMENT
7.601 Virginia Auxiliary Grant Program for Assisted
Living Residents
7.602 Institutional Status Defined
7.603 Pre-admission Screening for Institutional Status
7.7 INCOME ELIGIBILITY AND “SPENDDOWN”
7.701 Income Test for Initial Eligibility
7.702 Medicaid Spenddown
7.8 POST-ELIGIBILITY INCOME DEDUCTIONS
7.801 Determining “Patient Pay”
7.802 Deductions from Patient’s Income
7.803 Patient Pay for Married LTC Recipients
7.804 Spousal Monthly Maintenance Allowance
7.805 Dependent Family Member Allowance
7.9 CONTRIBUTIONS FROM THE COMMUNITY SPOUSE
7.10 “COUNTABLE” AND EXEMPT RESOURCES
7.1001 Countable Resources
7.1002 Exempt (Excluded) Resources
7.11 COMMUNITY SPOUSE RESOURCES RULES
7.1101 Purpose of the CSPRA
7.1102 Calculating the CSPRA
7.1103 Resource Eligibility Dates
7.12 TRANSFER OF ASSETS OR RESOURCES
7.1201 Purpose of Transfer Limitations
7.1202 Attempts to Impose Criminal Liability for Prohibited
Transfers
7.1203 Meaning of “Transfer”
7.1204 Limited Reach of Transfer Rule
7.1205 “Penalty Period” for Prohibited Transfers
7.1206 Imputed Transfers of Assets
7.1207 Transfers by Spouses
7.1208 Exempt Transfers
7.1209 “Undue Hardship” Exemption from Transfer Penalty
7.1210 The “Look-Back” Period for Transfers
7.13 MEDICAID PLANNING STRATEGIES
7.1301 Planning for Initial Eligibility
7.1302 Suggested Dispositions of Excess Resources
7.1303 Conversions to Cover a Period of Ineligibility Because
of Asset Transfers
7.1304 Transfers That Precede Institutionalization
7.1305 Divorce Following Transfer of Assets to Community
Spouse
7.1306 Purchase of EE or I United States Savings Bonds
7.14 MEDICAID RECOVERY FROM TRANSFEREES
7.15 ESTATE RECOVERY
7.16 MEDICAID RECIPIENTS AS ESTATE BENEFICIARIES
7.17 THE MEDICAID APPLICATION
7.1701 The Application Form
7.1702 Authorized Representative of Applicant
7.1703 Processing the Application
7.1704 Retroactive Coverage
7.1705 Required Information and Verification
7.1706 Notice of Action
7.1707 Right of Appeal
7.18 APPEALS
7.1801 Right to and Basis of Appeal
7.1802 Policies and General Procedures
7.1803 Notification Requirements
7.1804 Appeal Validation and Agency Appeal Summary
7.1805 Fair Hearing Procedure
7.1806 Continuation of Medicaid Coverage During Appeal
and Remand
7.1807 Informal Review Through Local Agency Conference
7.1808 Appeal of Administrative Decision to Circuit Court
7.19 MEDICAID COMMUNITY-BASED CARE WAIVERS
7.1901 Background
7.1902 The Virginia Waiver Programs
7.1903 Funding
7.1904 Qualification for Services
7.1905 Access to Services
7.1906 Elderly or Disabled with Consumer-Direction
Waiver (EDCD)
7.1907 CBC Waiver Spenddown
7.20 THE PACE PROGRAM IN VIRGINIA
7.2001 Introduction
7.2002 Availability in Virginia
7.2003 Organizational Requirements
7.2004 PACE Services Offered
APPENDIX 7-1: MEDICAID APPLICATION FORM
APPENDIX 7-2: ASSET TRANSFER UNDUE HARDSHIP CLAIM
FORM
APPENDIX 7-3: WAIVER OF ELECTIVE SHARES IN SPOUSES’
ESTATES
APPENDIX 7-4: BURIAL FUND DESIGNATION FORM
APPENDIX 7-5: INTENT TO TRANSFER ASSETS TO THE
COMMUNITY SPOUSE
APPENDIX 7-6: CHECKLIST OF NEEDED VERIFICATIONS
APPENDIX 7-7: NOTICE OF ACTION ON MEDICAID
AND FAMIS
APPENDIX 7-8: ADVANCE NOTICE OF PROPOSED ACTION
APPENDIX 7-9: NOTICE OF APPEAL FROM DENIAL OF
BENEFITS
TABLE OF AUTHORITIES
INDEX