• Troyer & Good, PC

FAQs for Guardians During COVID-19 Part 4: Protecting Finances and Safety Precautions

During the COVID-19 pandemic, many who are acting as guardians have important questions as to how the pandemic impacts their responsibilities. An FAQ list has been put together to address these questions. While the list is not all inclusive, it contains answers to some of the commonly asked questions from guardians during this pandemic.

This FAQ list, copied verbatim below, comes from a collaboration between the National Guardianship Association, the American Bar Association Commission on Law and Aging, and the National Center for State Courts.

This is the fourt part in a series taken from the FAQ list provided. Part 3 addresses frequently asked questions under these topics: "Protecting the Finances of My Clients or Loved One" and "Safety Precautions."

You can read part 1 discussing frequently asked questions under these topics: "Contact with My Clients or Loved One," "Access to My Clients or Loved One in Nursing Homes," and "Access to My Clients or Loved One in Residential Group Settings and Hospitals."

You can read part 2 discussing frequently asked questions under these topics: "Protections and Services for My Clients or Loved One in the Community" and "Access to Courts."

You can read part 3 discussing frequently asked questions under these topics: "Protecting the Finances of My Clients or Loved One" and "Safety Precautions."Protecting the Rights and Well-Being of My Clients or Loved One" and "Protecting the Medical Decisions for My Clients or Loved One."

Protecting My Clients’ or Loved One’s Finances

What are my duties as guardian of the estate concerning COVID-19 economic programs for my client or loved one?

As the guardian of an estate, you have a duty to take all steps reasonably necessary to obtain all public and insurance benefits for which the person may be eligible. Ensure that you submit all applications for such benefit packages promptly if you believe that your client or loved one qualifies. One new federal benefit is the Economic Impact Payment (“stimulus check”). The National Consumer Law Center answers many questions concerning who is entitled to the stimulus benefit, the amount of payments, when checks are to be paid, and the ability of creditors to garnish the funds.

In addition to these programs, certain financial institutions offer short-term debt relief. The Consumer Financial Protection Bureau has detailed information on seeking forbearance on making mortgage payments or paying rent for a limited time. As guardian of the estate, you have an obligation to take reasonable steps to request forbearance on his or her behalf.

What are my duties as guardian of the estate in planning for the financial impact of COVID-19?

You have a duty to develop and implement a financial plan for your client or loved one which corresponds with the person’s care plan and meets his or her needs. If a separate guardian of the person has been appointed, you should be in close communication and work together to budget and pay for extraordinary care costs which might be caused by COVID-19.

What are my duties as guardian of the estate concerning my client’s investments?

We are living in financially difficult times with historic levels of unemployment and damage to many sectors of our economy. COVID-19 has caused significant disruption in financial markets globally and large declines in the value of investment portfolios for millions of investors.

As guardian of an estate, you are not expected to safeguard the person’s investments from all losses, but you need to take reasonably necessary steps to protect the person’s property. Current global economic uncertainty requires increased vigilance. You must continue to monitor the investments of your client or loved one carefully. Consult with his or her investment advisor to conduct a review to make sure the investments remain suitable for the person’s current needs and investment goals.

Be sure also to review your appointment order and your state laws to determine whether you are restricted from making changes to the portfolio. If a review shows an unsuitable investment plan, you should consider getting competent professional advice, getting any necessary court approval, and restructuring the person’s investments. Document all discussions and correspondence with the investment advisor.

The CARES Act waives required minimum distributions (RMDs) from retirement savings accounts for 2020. This means individuals aged 70-1/2 and older may skip the 2020 distribution, avoiding withdrawing from their pre-tax retirement portfolio when the market is down and giving their account balance time to recover. Individuals ages 70-1/2 or older do not have to take RMDs until after they reach age 72. This new age requirement to start taking RMDs was imposed by the SECURE Act. Those born before July 1, 1949, are still subject to the old rule of age 70-1/2. [You can read more about the SECURE Act here or schedule an appointment to discuss estate planning strategies to protect your assets.]

What are my duties as guardian of the estate for handling the stimulus payment?

As guardian of the estate, after taking steps to be sure the individual receives the stimulus payment if he or she qualifies, you should manage the payment according to fiduciary standards and NGA Standard #17. Talk with the person about how he or she wants to use the funds, and give priority to his or her goals, needs, and preferences. Consider the current wishes, past practices, and evidence of past choices. If substantial harm would result from the choice, or if there is no reliable evidence of a likely choice, consider the person’s best interests.

What if I am guardian of the person and there is no guardian of the estate?

Talk with the person about how he or she wants to use the funds, and recognize his or her goals, needs, and preferences. If you have concerns about use of the funds, consult the court order appointing you to see if the court granted any authority for the management of funds that are too small to require a guardian of the estate. Consult your state guardianship law for any provisions allowing a guardian of the person to receive funds payable to the individual and use the funds for the person’s care and support. Absent such provisions, follow the individual’s wishes, but if necessary, check with the court as to who has decision-making authority.

How should a representative payee handle the stimulus payment?

The stimulus payment is not an SSA benefit. The payee should discuss with the beneficiary what he or she would like to do with the money, and if needed, assist with developing a plan. An allegation that a payee misused a stimulus payment may prompt SSA to investigate the payee’s handling of the beneficiary’s SSA funds. For more information, including where the IRS will send payments to beneficiaries with payees, see NCLER’s Stimulus Payments and Representative Payees: What You Need to Know.

Can a nursing home or assisted living take a resident’s stimulus check?

NO. Alarmingly, the Federal Trade Commission (FTC) reports that state attorney generals have been investigating reports of facilities trying to take the stimulus payments of residents who receive Medicaid benefits. These facilities are claiming they are entitled to stimulus checks because the person is a Medicaid recipient. This is an illegal claim under federal tax law: the stimulus payments are a tax credit, not a federal benefit like Medicaid, and therefore cannot be seized by the government. CMS has explicitly stated that nursing homes cannot take the funds. For more information on how to report concerns to your state attorney general’s office, file a complaint with the FTC, and links to the relevant sections of the federal tax law, see the FTC’s blog post, “Did a nursing home or assisted living facility take your stimulus check?

Does a stimulus payment count as a resource for the purposes of determining eligibility for Medicaid benefits and other federal programs?

No, this payment does not count a resource or income for twelve months after receipt. In other words, the recipient has twelve months to spend the money before it would place him or her over the asset limit for Medicaid benefits. See IRS Alert: Economic Impact Payments belong to recipient, not nursing homes or care facilities.

Safety Precautions

What steps should I take to make sure I am safe, my staff or employees are safe, and that we are not transmitting any illness to my clients or loved one?

All guardians, whether professional or family guardians, should adhere to the Center for Disease Control (CDC) COVID-19 guidance and recommendations on how to prevent the spread of the virus. You should know the recommended steps to take protect yourself, your client or loved one from any unnecessary exposure, especially if any are in a high risk category. Additionally, you should monitor all services being provided to your client or loved one to be sure he or she is receiving proper care and living in an appropriate and safe setting. Your state and local government may also have additional guidance and restrictions.

Guardians may have further requirements outlined in your state and local court procedures. The National Center for State Courts has an interactive website with links to each state court COVID-19 response. Additionally, the National Guardianship Association has state resources to help guardians.

For guardianship agencies, the CDC developed an Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 to help you respond to COVID issues for your work place. If you are a professional guardian with employees interacting with your client, you should take reasonable steps to ensure your staff does not spread COVID 19 to your client. It’s a good idea to have written protocols for your employees and documentation of how you adhered to those safety precautions. Additionally, the Better Business Bureau has a COVID-19 resource page with a handy two-page business toolkit. These websites are updated frequently, so it is important to check them regularly to protect yourself, employees, clients, and loved ones.

What should I do if my client or loved one shows signs of respiratory illness?

Check the CDC website and know the symptoms of COVID-19, including fever and a cough. If anyone shows signs of illness, keep track of their symptoms and contact their medical provider. If your client or loved one is experiencing trouble breathing, call 911 immediately. Let the operator know your client or loved one may have or is experiencing COVID-19 symptoms and follow their safety instructions.

What should I do if my client or loved one is in a facility with known positive tests?

Familiarize yourself with CDC guidance on nursing homes and long-term care facilities and contact the facility regarding your client’s or loved one’s well-being and the steps you can take to keep informed of her or her well-being. A recent AARP blog, 6 Questions to Ask if Your Loved One is in a Quarantined Facility, provides tips to family caregivers that are also useful for guardians – for example, ask how the staff is cleaning the facility and keeping the risk of infection low. Be sure to provide the facility with up-to-date contact information in case they need to reach you.

What should I do if my client or loved one is hospitalized with a confirmed diagnosis?

Follow CDC guidelines and contact your client or loved one’s medical provider and hospital for updates. You may be able to set up virtual visits. Also, check your state and local court procedures to see if you need to notify the court that your client or loved one is in the hospital.

Review your client’s or loved one’s health insurance to see if there are any updates pertaining to COVID19 patients. AARP has information and resources to help answer questions about Medicare and the Coronavirus.

Lastly, be sure the hospital and health care providers have copies of your client’s or loved one’s advance directives.

Are there any COVID-19 fraud or scams I should know about?

Unfortunately, fraudsters are on the loose, even during the COVID-19 pandemic. From January 1 to June 1, the Federal Trade Commission received 91,808 COVID-19 related reports with people reported losing $59.27 million to these frauds. The top complaints relate to travel, text messages, and a variety of imposters. The AARP Fraud Watch Network created a page to provide resources and information about COVID-19 related fraud and scams. These pages are updated frequently, so check them regularly. You can also sign up for AARP Fraud Watch Network’s free watchdog alerts, check out their scam-tracking map, or call their toll-free fraud helpline at 877-908-3360 if you, your client or a loved one suspect you’ve been a victim.

Source: https://www.guardianship.org/wp-content/uploads/2020/04/FAQ_FINAL_04162020.pdf

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