Legal Guardianship – What is it?
Legal guardianship is a legal process intended to care for a child, or for a disabled adult who cannot care for themselves. It is intended to ensure the protection and well-being of the individual. A court appoints a guardian in guardianship cases. That person may be a non-family member, or, in some cases, a parent.
A guardian of the person holds one of the two types of guardianship. That’s the type of guardianship most commonly used by California courts in cases where there is a minor or disabled adult who needs care. A guardian of the estate manages the financial aspects of the ward’s life, such as benefits and money. In many jurisdictions, the same person may serve as both the guardian of the person and of the estate.
When a guardian is appointed for a child, the court will give the other parent legal notice and allow an ordered period of time to respond. In the meantime, the prospective guardian may be given custody of the child by the court . After the transition period is over, the court issues a ruling. If corroborated with positive evaluations by qualified professionals, the guardian request is usually granted.
Under California probate laws, a guardian petition can be filed if the appointing family member is unable to care for the child because of incarceration, hospitalization, addiction problems, mental health issues or other incapacitating conditions. A court-appointed probate judge makes the final decision.
In addition to a family member filing a guardianship petition, the county department of social services may also file the request. These cases are filed to remove a child from harmful conditions in the home. Such removal can be from a parent, other relatives or others in the home. The protective party filing the petition must be able to demonstrate the child needs protection, such as in cases where physical, sexual or emotional abuse is present.
Who Pays for Health Insurance?
When a legal guardianship is established, the child becomes dependent on the legal guardian for many of their needs – including health insurance coverage. This responsibility can be particularly challenging for those who are new to guardianship. Fortunately, there are several options for health insurance coverage that can accommodate a guardianship situation. This blog post will outline some of the most common sources of coverage for young adults in legal guardianship and what you need to know about them.
In addition to court-appointed guardians, foster parents are also responsible for obtaining health insurance coverage for those within their care. Due to this insurance coverage, youth in foster care and youths aging out of foster care are also likely to fall under the broader scope of this blog entry. Within our state, a variety of health insurance options can fall under the purview of the Guardianship Assistance Program (GAP), which is managed by the North Carolina Division of Social Services and which ensures that youth in foster care or youth aging out of foster care have access to health insurance coverage.
These programs are typically used as secondary source coverage in addition to the primary source of insurance, if applicable. For instance, suppose a youth has private insurance through a parent’s employer. In this situation, the parent’s insurance serves as the primary source of coverage. GAP acts as a secondary source of coverage, supplementing the primary source of coverage.
While maintaining continuity of coverage is important, those who have just begun their role as a legal guardianship should set aside time to consider the coverage that is applicable to their situation. For instance, many guardians choose between coverage through Medicaid or the Health Insurance Marketplace. To ensure you choose the right coverage for your situation, familiarize yourself with the options listed below.
Medicaid is primarily used as the primary source of coverage for those in North Carolina who receive federal financial aid (Foster Care) or Title IV-E adoption subsidy/guardianship subsidy. If you or your child previously received a Medicaid card, this card should have automatically transferred into the coverage provided through the Guardianship Assistance Program (GAP). Shortly after adjudicating guardianship, you should reach out to your Guardian ad Litem (GAL) program and inquire about your next steps to obtain Medicaid coverage through this program. Your GAL program can reach out to your county’s Department of Social Services to inquire about the status of your insurance application.
If you are not working towards federal financial aid – Foster Care – or a Title IV-E adoption subsidy/guardianship subsidy, then coverage through the Health Insurance Marketplace (HIM) will be your best insurance option. If you have never heard of HIM, this insurance marketplace was created through the Affordable Care Act (ACA) in an effort to broaden the scope of available coverage for families and individuals. Due to the reforms provided through ACA, the HIM allows those in your position to obtain affordable health insurance coverage.
HIM
Get assistance with premiums (may be free) no matter the amount of money you or your child make.
The application is only open during a set period of time from November 1 through December 15.
Premiums vary based on the level of coverage you choose: Bronze, Silver, Gold, and Platinum.
Medicaid Expansion
Provides coverage at very low or no premiums.
Controversial since there is no federal aid to support it.
States have the final say whether Medicaid will be expanded.
Medicaid works in conjunction with the Health Insurance Marketplace.
Under NA, the amount of financial assistance provided to citizens is dependant on whether one refuses Medicaid (expansion).
If one refuses Medicaid, they are leaving federal funds on the table which would be used to provide them with Affordable Care Act standard of care.
North Carolina has not adopted Medicaid expansion legislation as of this writing.
Obtaining a Ward’s Health Insurance
It is important that a guardian obtains health insurance for his or her ward. While there are a variety of different sources from which to obtain health insurance coverage, securing coverage under the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") is critical. Under HIPPA, a "ward" includes: a person who has been found to be legally incompetent to manage his or her own property or to care for his or her person and whose property or person has been managed or cared for, as the case may be, by a guardian. A "guardian" is a person, association, or corporation appointed by a court to take care of an incompetent person or his or her property, or both.
As a result of HIPAA, a health care provider may not disclose information related to the public benefits program under which the guardianship is assisted to anyone outside of the guardianship or conservatorship (other than to an investigating agency or as required by law) without obtaining the written authorization of the ward. See 45 C.F.R. § 164.512(a)(4). Since obtaining authority to disclose information related to the public benefits program will require extensive work that will only be likely to materialize upon a specific need, it is important to take note of it. Also, many people are interested and concerned about their rights. Those interests are likely to accompany a request for records. Therefore, expect a stiff challenge from the health care facility when you seek authorization to disclosure information of a ward. Inasmuch as a guardian is a personal representative of his or her ward, the guardian has basic duties to: (i) know and follow the privacy practices of the ward’s health care providers; (ii) provide a copy of the privacy practices to the ward; (iii) inform the provider in writing that the guardian is the ward’s personal representative; and (iv) obtain specific written consent to obtain records on the ward’s behalf. Only then can you be assured that you will have access to the ward’s confidential information. If a ward already has health insurance, make sure to notify the insurance provider that you are the ward’s legal guardian. Depending on the insurance policy, you may be able to directly manage and receive updates about the ward’s health care coverage and options you can pursue if your ward’s health care needs were not previously anticipated or addressed.
Health Insurance Rights and Restrictions of a Guardian
The legal right of a guardian to carry out the tasks belonging to the supervised patient must be exercised within the limits of Law, as well as within the limits of their abilities. This is because the guardian’s role is not equivalent to that of the patient. The guardian cannot assume the identity of the supervised patient. The guardian can only manage the interest of the patient, within the scope of the duties of a guardian. Specifically, the rules of the Portuguese Civil Code (C.C.) regarding guardianship are applicable to this situation.
The fact that a guardian has the legal capacity to manage and make decisions for the patient, does not give him the right to carry out financial operations on behalf of the patient’s interest.
In this context, we should start by highlighting the legal limitations set out in the C.C. under article 1736, which foresees that, the guardian principle limit is based on the limitation of the rights of the supervised patient or child. This may include limitations on:
Title III of the C.C. establishes additional limitations arising from the nature of the matter in question, which can only be carried out by certain people. For example, article 233 of the C.C. states that there isn’t and cannot be convened a contract that implicates alienation of the family property, unless the authorization is given by the judge.
We would also like to highlight article 231 of the Portuguese C.C., which foresees that:
The role of the guardian goes beyond the medical aspect of the supervised patient, as it also entails financial management. This means that the guardian must manage all property, rights and business interests of the ward, which according to articles 1738 and 1739 of the C.C., entails:
To this extent, the guardian cannot make any payments without the supervising judge’s authorization, unless swindling or any other fraudulent action is suspected. A scenario such as this would require the intervention of the Inspector of Guardianship, in order to investigate the guardian and/or supervise the patient relationship .
The reference to the concept of onerosity, means that the healthcare insurance contracts negotiated and concluded by the guardian should be evaluated on the basis of rational criteria, not only in terms of what is beneficial for the ward but also in terms of the cost of premiums and the scope of the risks that are covered by the insurance.
Thus, it is the role of the guardian to draw up and conclude health insurance policies on behalf of the ward in an economically rational manner: "to find the best price for a specific risk that can be guaranteed".
To this end, it is of the utmost importance for the guardian to have the assistance of a Health Plan Manager (Gesplan), as well as the support of the health plan representatives in the various medical centers and clinics, so they can provide the guarantee of a simple, quick and efficient service.
Brief mention should be made to the limitation concerning the use of funds, as envisaged in paragraph 4 of article 1751 of the C.C, which limits the guardian’s ability to dispose of any assets that belong to the supervised patient.
In this sense the guardian may promote the acquisition of health plans for his/her ward, but must apply the necessary caution in order not to be subject to a claim under the abovementioned legal disposition.
It is worth noting that a guardian has no right to terminate a healthcare plan that he/she has arranged. Such termination requires the authorization of the supervised patient’s guardian, due to the fact that subscriptions must be contractual in nature and in public interest, requiring judicial authorization.
In this context, the guardian does not have any right to unilaterally and/or arbitrarily terminate a contract signed by him/her and the supervised patient.
For example, this type of measure can only be decided by a judge in a situation where the supervised patient is not complying with the medical determinations related to his/her clinical treatment plan. In this case, the guardian must refer the issue to the Inspector of Guardianship who will be responsible for making the decision.
Health Insurance Disputes – When are They Necessary?
As a legal guardian, you may encounter various disputes with health insurance companies regarding coverage denials, claim payments, and other matters. In these cases, the first step is to contact the health insurance provider directly to attempt to resolve the issue. This could involve reviewing the terms of the policy, clarifying benefits, and assessing the reason for the dispute.
One common problem may be that the insurance company denies a claim. In this case, gather relevant documentation such as the claim, policy provisions, and any letters or communications from the insurer that explain the denial. Write an appeal letter to the insurer, explaining why the claim should be paid based on the policy terms. Provide copies of supporting documents with your appeal, and request that the claim be reconsidered.
However, insurance companies are required to have a formal appeals process, so they reject appeals regularly. If an insurance company denies an appeal, the denial should indicate the next steps in the process. If your appeal is denied as "untimely," ask the policyholder/ward when they received and submitted the claim. Keep copies of all correspondence with the policyholder/ward, the insurer, and any medical providers.
If the insurance company continues to deny a legitimate claim, it may be time to contact an experienced insurance dispute attorney. They can help you understand your legal options and what steps to take to move forward.
Impact of a Change in Guardianship on Health Insurance
Changes in legal guardianship can have a significant impact on health care coverage for children. Particularly in cases where a guardian has served for a significant time, terminated the guardianship or transitioned to another guardian, the child’s ongoing health care coverage may be affected.
In most states, insurance policies that have an insured parent as the policyholder must provide for replacement of the policyholder with a legal guardian. Where a legal guardianship terminates, a child’s health care coverage generally will continue on a short-term basis, but will be terminated when the policyholder dies. In such a situation, the health plan administrator may give the legal guardian time to secure an alternative insurance, thereby allowing the child sufficient time to find alternate coverage.
Many guardianships transfer under state laws as quasijudicial entities that only allow a guardian to receive insurance information for purposes of administering claims for benefits. In this situation, while the guardian is entitled to receive the information necessary to access benefits paid under insurance plans, this jurisdictional authority generally will cease when the guardianship is transferred to a new guardian. For health plans that require guardians to be listed as a plan participant, a new application for plan participation will be necessary to list the new guardian as a plan participant.
In some situations, particularly where the benefit plan is administered by a third-party administrator, guardianship may not be recognized as sufficient to enable the immediate replacement of a terminated parent as a plan participant. While some plans will permit a step-parent or new guardian to promptly replace a previously participating policyholder, all such plans will not recognize any person as a substitute policyholder with the legal authority to make health care decisions without its express permission. In such situations, the parent’s death will end the child’s eligibility to receive benefits under the plan.
Some plans impose stringent rules on the timing of the guardian’s death or incapacity in relation to the age at which the child no longer is an eligible dependent. If a participant has lost or becomes disabled , his or her dependents generally will continue to receive benefits until the age at which they would otherwise cease to be an eligible dependent. If a policyholder dies before the child would have otherwise ceased to be an eligible dependent, the death itself will not be sufficient to terminate eligibility if an extension period is permitted by the plan’s terms. Some plans will recognize the legal guardian as an eligible replacement policyholder only if the guardian legally adopts the dependent, while others will offer further extension period of time to allow such adoptions to occur.
Other plans will permit the spouse of a deceased parent to replace the parent as a plan participant with the understanding that it will be necessary to legally adopt the child to continue coverage. Such plans may require notification of the parent’s death within a certain time period in order to maintain a right to later file claims for benefits. In some situations, failure to file such a notice will itself terminate such ongoing right of coverage.
Additional complications may arise if the guardian of a child for whom benefits are sought resides outside the plan’s coverage area. In most states, coverage should be extended where an employee would reasonably expect that the coverage would continue in the event of the employee’s death, such as in the context of sourcing bills for a child who resides outside of the health plan’s service area or jurisdiction. This may be complicated in the case of a stepchild, if the plan does not recognize the stepchild as an eligible dependent. This is particularly true where the child was adopted by the stepparent after birth, and objectives of the adoption were known and disclosed to the insurer. Because the insurer’s attorney will have access to all documentation maintained by the corporation, it is likely that the employer’s purpose in listing a stepchild as an eligible dependent can be explained. However, if the plan applies a geographical limitation to its benefit eligibility for family members, the child might not be covered at the same level as a biological child even if he or she is otherwise adopted as a family member.
While changes in legal guardianship can affect a child’s health care coverage, understanding the provisions of the plan and taking prompt action where necessary can minimize any unintended gaps in coverage.