Medicaid Issues in a Guardianship

By November 12, 2015Articles, News
Whitehead law assisted living planning

I. Introduction

It is unknown how many people are under a guardianship in Texas. What is known is that the number of people going into a guardianship is growing as our population ages and more and more people need the guidance and assistance of the Court administrated process. People are living longer, which means more are entering into long term care.

Once a Ward has depleted their resources, the only choice may be long term care and Medicaid.
Under the Texas Probate Code, guardianship is a dependent administration. See Texas Probate Code §774. The guardian may not act without court permission unless authorized by statute. The guardian may take very few actions independently. In essence, the guardian plays “mother may I” with the court.

When resolving conflicts between federal Medicaid laws and policy, state statutes, and Administrative Rules, there is a hierarchy of law in the United States legal system. Within the federal system, the process begins with the U.S. Constitution and follows with federal statutes, administrative regulations and the federal common law. Within the state judicial system, which is always inferior to the federal regulations, the analysis begins with the State Constitution then to state statutes, state administrative regulations, and then the state common law. See Barry E. Carter, Phillip R. Trimble & Allen S. Weiner, International Law 159 (5th ed. 2007).

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