Clients who are unable to manage their own affairs and cannot afford needed medical care must balance the ongoing costs of the administration of the guardianship program with the financial eligibility rules of the Medicaid program. They will face greater difficulty in light of a recent Appellate Division, Second Department, opinion1 that reversed an order of the Supreme Court against a Medicaid agency. In the reported case the Supreme Court had ordered Nassau County Medicaid to disregard certain expenses in the calculation of the eligibility of Deanna W. so that there would be sufficient funds to pay for the administration of her guardianship. The Department of Social Services objected and successfully appealed that portion of the order. Medicaid recognizes a distinction in this regard between the initial expenses to bring the proceeding and the cost of maintaining it.

Guardianship Fees

In a proceeding under Mental Hygiene Law §81.01 et seq. alleging that by clear and convincing evidence the alleged incapacitated person is at risk of harm and does not appreciate the nature of that risk, there are costs associated with establishing the guardianship and costs associated with ongoing expenses of the guardianship. The cost of establishing the guardianship will be filing fees; legal fees to the petitioner’s attorney and the court evaluator; transcript fees and bonding fees. The resources of an applicant will be disregarded if there is a pending Medicaid application and the petition contains language requiring the guardian to reimburse Medicaid when appointed.

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