Discussion about Uniform Probate Code relating to Medicaid MassHealth

Cohen & Oalican, LLP; Medicaid, MassHealth and Elderlaw Attorneys in Boston, Andover, Raynham.

Welcome to the Uniform Probate Code cont'd

Court Documents

Medical Certificate

Since July, 2008 (almost a year before the implementation of the UPC,) the probate courts have been using more detailed medical certificates. This is an important change, as the Medical certificate is often the only evidence presented regarding the individual’s impairments. In the past, doctors provided little helpful information with the old certificate form. The new form now requires that the physician state why a limited or full guardianship is appropriate. Among other information, doctors must now provide: clinical diagnosis; detailed description of cognitive and emotional functioning; detailing every day functioning and the level of care required.

It is important to note, that in most instances the doctor will need to complete two medical certificates. A first certificate must be filed in court along with the petition to start the legal proceeding. In addition, because the certificate has to be dated withing thirty days of the court hearing, and because its next to impossible to get into court within 30 days of filing the court documents, a second certificate will be necessary. ( The doctor will need to see the patient again and complete the form right before the court hearing.)

Finally, the certificate now assumes that the individual should attend the hearing and if they can’t the doctor has to explain why. Although the new medical certificate form will enable judges to better craft a limited appointment that specifically suits the individuals needs, this comes at a cost, literally and figuratively. Physicians have always been reluctant to spend much time with these forms. Now many physicians are charging large fees to complete medical certificates (and as described below often two certificates are required) and this places an additional burden on families.

Petitions

Under the new law, in many proceedings two petitions need to be filed. There is a separate petition seeking appointment of guardian to make medical decisions and another petition seeking appointment of a conservator of the property.

Now the patient and any interested person may now petition for guardianship. Previously, the patient was not allowed to petition for their own guardianship.

The new petitions for guardianship and conservatorship require those seeking appointment to provide additional information to the court. You must now make the court aware whether there is a representative payee, health care proxy or durable power of attorney in place (attaching copies of the documents if they exist). Also the court wants to know who has been taking care of the individual for the last sixty days.

Lastly, the new petitions include a request for the authority to admit to a nursing home. This is an important new requirement for guardians. However, if a health care proxy is in place they still have authority to admit to a nursing home.

This series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer