Revision 15-4; Effective December 1, 2015

 

D-4100 Fiduciary Agents

Revision 09-4; Effective December 1, 2009

 

 

D-4110 Texas Administrative Code Rules

Revision 09-4; Effective December 1, 2009

 

§358.327. Transactions Involving Agents.

(a) An action by a fiduciary agent is the same as an action by the person for whom the fiduciary agent acts.

(1) An asset held by a fiduciary agent for another person is not a countable asset to the fiduciary agent.

(2) An asset held by a fiduciary agent for another person is a countable asset to the person for whom the fiduciary agent acts, unless otherwise excludable.

(b) A person's resources are available if the resources are being managed by a legal guardian, representative payee, power of attorney, or fiduciary agent. If, however, a court denies a guardian or fiduciary agent access to the person's resources, the resources are not considered available to the person.

(1) If a person's guardianship papers do not show that a legal guardian is prohibited access, and if the court has not subsequently ruled a prohibition, the resources are considered available.

(2) A guardian's routine need to petition the court for permission to dispose of a person's resources is not a prohibition.

(3) When the court rules on a petition to dispose of a person's resources, resources are considered available only to the extent to which the court has made the resources available for the person's benefit.

 

D-4120 Transactions Involving Agents

Revision 15-4; Effective December 1, 2015

 

Agents act on the person's behalf to sign applications and redetermination packets. When a guardianship exists, only that person can act on the person's behalf to sign applications and redetermination forms.

Guardian of the estate. Under Section 1151.101 and 1151.151 of the Texas Estates Code, it is the duty of the guardian of the estate to take care of and manage the estate as a prudent person would manage the person's own property. The guardian of the estate collects all debts, rentals or claims due to the ward, enforces all obligations in favor of the ward, and brings and defends suits by or against the ward. Only the guardian of the estate can deal with resources.

Guardian of the person. Under Section 1151.051 of the Texas Estates Code, the guardian of the person has the:

  • right to have physical possession of the ward;
  • right to establish the ward's legal domicile;
  • duty of care, control and protection of the ward;
  • duty to provide the ward with clothing, food, medical care and shelter; and
  • power to consent to medical, psychiatric and surgical treatment other than the in-patient psychiatric commitment of the ward.

For HHSC purposes, the guardian of the person can sign documents, represent the person at hearings, and deal with small amounts of money. The guardian of the person is like other authorized representatives in that they have the authority to protect the interests of the ward.

Under Section 1151.004 of the Texas Estates Code, a court may appoint the same person to be both guardian of the estate and guardian of the person. If there are two guardians, one of the estate and one of the person, then the eligibility specialist must examine the court orders establishing the guardianships to decide which is the most appropriate to represent the person with HHSC.

A person's resources are available to him if they are being managed by a legal guardian, representative payee, power of attorney or fiduciary agent. If, however, a court denies a guardian or agent access to the resources, HHSC does not consider the resources available to the person.

If a person's guardianship papers do not show that the legal guardian is prohibited access, and if a court has not subsequently ruled a prohibition, the person's resources are considered available. A guardian's routine need to petition the court for permission to dispose of a person's resources is not a prohibition. When the court rules on a petition to dispose of a person's resources, resources are considered available only to the extent to which the court has made them available for the person's benefit.

If a legal guardian exists, obtain a copy of the guardianship or power of attorney document. Identify a fiduciary relationship by the way in which a resource is styled. A bank account established in two names connected by "for" or "by" indicates a fiduciary relationship. Another indication is an account established in two names with the designation of "representative payee" next to one of the names, or an account with the designation "special."

 

D-4121 Examples

Revision 15-4; Effective December 1, 2015

 

  • A person has resources valued at $1,300, which are being managed by his son. The son claims that as the power-of-attorney, he is the only one who has access to the funds.

    Because a power-of-attorney is given voluntarily, and management of the resources is with the person's consent and for his benefit, this person's resources are available to him.
  • Another person's parents used their own funds to purchase a certificate of deposit (CD) for him. The CD was issued as "Person's Name, by Parents' Names, Joint Representative Payees."

    The CD is an available resource to this person, because the designation indicates that the parents are acting in a fiduciary capacity in controlling funds belonging to him, regardless of the fact that the parents paid the purchase price.
  • A third person recently left the hospital and entered a long-term care facility. She is in a coma, and there are no known living relatives or friends. After the person had a stroke, her landlady looked through the person's papers and found a $600 term life insurance policy and a checkbook showing a balance of $3,840.65. The eligibility specialist verified the bank balance.

    Although court action to appoint a guardian would be necessary to allow disposal of the person's excess funds, the resources are available to her. Until a court judges the person to be incompetent and unable to handle her affairs, the eligibility specialist cannot assume that the court will prohibit an appointed guardian from disposing of any of the funds in the checking account. This person is ineligible because of excess resources.

 

D-4200 Living Arrangements

Revision 09-4; Effective December 1, 2009

 

Whether or not a person is married or has children has some bearing on the treatment of income and resources in determining Medicaid eligibility, both in a community setting or an institutional setting.

If the living arrangement is in a community setting, deeming of income and resources affects the budget.

When the living arrangement is in an institutional setting, spousal impoverishment and dependant allowances may have a bearing on the budget. This chapter focuses on the community setting. Chapter J covers spousal impoverishment policy for institutional settings.

 

D-4210 Deeming

Revision 09-4; Effective December 1, 2009

 

When neither a person's spouse nor child is in an institutional setting, deeming from spouse-to-spouse or parent-to-child applies in household situations. Only those residing in the household are considered part of the household for deeming purposes.

Exceptions to deeming:

  • A person is in an institutional setting, including receiving services through a Home and Community-Based Services waiver program.
  • Spouse-to-spouse and parent-to-child deeming do not apply in situations where a family does not have a residence. For example, if a family lives in a car because they cannot afford shelter, neither spouse-to-spouse nor parent-to-child deeming would apply.
  • A person is not a member of the household if he/she is absent from home for a period that is not a temporary absence (for example, confinement in a public institution). Consider absences due to active duty military assignments as temporary.
  • If a child is born in an institution (for example, a hospital), the child is not a member of the household until the month after the month the child goes home.
  • Deeming does not apply when either an eligible person or an ineligible spouse is in an institutional setting, even when sharing a room.

Deeming does apply in noninstitutional care situations (for example, adult foster care), if the eligible person is living with an ineligible spouse.

 

D-4211 Spouse

Revision 15-4; Effective December 1, 2015

 

For Medicaid purposes, whether two people are married governs whether:

  • couple computation rules apply;
  • spousal or parental deeming applies; and/or
  • spousal impoverishment rules apply.

Note: Someone who is married cannot be a child for Medicaid purposes.

Accept a person's allegation that he or she is married unless:

  • the person would otherwise be considered a child for Medicaid purposes;
  • there is evidence to the contrary; or
  • the allegation could be self-serving.

Normally, for Medicaid purposes, two people are married as of the first moment of the month. If a marital relationship ends by death, divorce or annulment in the same month it began, treat the marriage as if it had never existed. Otherwise, the termination of marriage is effective the month after the month of death, divorce or annulment.

In Texas, there are three ways to terminate a marriage:

  • Void marriages — A determination that the marriage could not have existed because of one of the following legal impediments: the parties married within a prohibited degree of consanguinity (for example, nephew or niece), or at least one party has a previous marriage that has not been resolved. Void marriages do not require a lawsuit, and the marriage may be declared void in a collateral action (for example, contest of will). A legal marriage between parties never existed.
  • Annulments — Also called voidable marriages. Grounds for annulment include, but are not limited to, marrying under the influence of drugs/alcohol, at least one party being incapacitated or the marriage being coerced. Annulments require court action, but under common law, an annulment is retroactive to the date of marriage.
  • Divorce — Requires court action, and the marriage is dissolved effective the date of the divorce decree.

Persons with void marriages or who have obtained a court annulment of their marriages are treated as though they were always individuals. In the instance of a divorce, persons are considered married through the end of the calendar month in which the divorce is issued.

For spouse-to-spouse deeming purposes, consider the following in the budget:

  • the eligible individual; and
  • the spouse; or
  • any of the couple's children (or children of either member of the couple).

 

D-4212 Child

Revision 09-4; Effective December 1, 2009

 

A child is someone who is neither married nor the head of a household, and is:

  • under age 18; or
  • under age 22 and a student.

Eligible child for deeming purposes. For deeming purposes, an eligible child is a natural or adopted child under age 18 who lives in a household with one or both parents, is not married and is eligible for Medicaid.

Deeming to such an eligible child no longer applies beginning the month following the month the child attains age 18.

A person attains a particular age on the day preceding the anniversary of his/her birth. Deeming applies in the month of attainment of age 18 regardless of whether an application filed that month is filed before or after the day of attainment.

Ineligible child for deeming purposes. For deeming purposes, an ineligible child must:

  • be either a natural or adopted child of:
    • an eligible person or the eligible person's spouse; or
    • an ineligible parent or the ineligible parent's spouse;
  • live in the same household with an eligible person;
  • not be married; and
  • be either:
    • under age 18; or
    • under age 22 and a student.

Verification and Documentation Guidelines

  • Verify an eligible child's date of birth and document the file. Accept the allegation of an ineligible child's age, absent evidence to the contrary.
  • Accept a person's statement that a parent-child relationship exists.
  • If a child under age 18 alleges to have no earnings, accept the allegation of student status. If an eligible or ineligible child under age 18 (or a student child age 18 to 22) alleges student status and earnings, verify school attendance and document.
  • Document an eligible child's income and verify when necessary following general income rules for an eligible person.
  • If any ineligible children in the household have income, and the ineligible spouse or parent has income that is subject to deeming, verify and document the ineligible child's income. However, if the alleged income exceeds the amount of the ineligible child allocation (that is, no ineligible child allocation applies for that ineligible child), document the allegation, but do not verify the income unless the income would be subject to the student child earned income exclusion. Accept an allegation when any ineligible child living in the household has no income.

 

D-4213 Parent

Revision 09-4; Effective December 1, 2009

 

A parent whose income and resources are subject to deeming is one who lives in the same household with an eligible child and is:

  • a natural or adoptive parent of the child; or
  • the spouse of the natural or adoptive parent (“stepparent”) who lives in the same household as the natural or adoptive parent.

Deeming applies from a parent to a child when they live together in the same household, except in a Home and Community-Based Services waiver situation. Deem a parent's income and resources to an eligible child beginning the month:

  • after the month the child comes home to live with the parent(s) (for example, the month following the month the child comes home from the hospital);
  • of birth if a child is born in the parent's home;
  • after the month of adoption (the month of adoption is the month the adoption becomes final); or
  • after the month of a parent’s marriage (that is, when a natural or adoptive parent marries) or the month after the month a parent begins living in a “holding out” relationship.

Generally, the same deeming rules that apply to a parent also apply to the spouse of a parent (a stepparent).

Exceptions: Do not deem the income or resources of a stepparent living with an eligible child if the natural or adoptive parent:

  • is deceased;
  • is divorced from the stepparent; or
  • has permanently left the household.

Treat any absence by a natural or adoptive parent as permanent unless it is considered a temporary absence, such as military duty.

For parent-to-child deeming purposes, consider the following in the budget:

  • the eligible child;
  • the eligible child's parent(s); and
  • other children of the parents.

Note: A person whose parental rights have been terminated due to adoption no longer meets the definition of “parent” for Medicaid purposes. This remains true even if the adopted child later lives in the same household with the former parent.

Refer cases involving adopted Native American children who return to the household of a former parent to your regional attorney. The parent-child relationship in these cases is governed by tribal law and likely requires further legal interpretation.