As people get older, it can be hard for some to continue to manage their affairs. What happens when your client can no longer make Medicare decisions on their own?
Throughout your career as an insurance agent, you may encounter clients with a power of attorney or in conservatorships. While you can’t make decisions for these clients, you can help point them and their caregivers in the right direction.
Let’s take a look at powers of attorney and conservatorships, how they work with Medicare, and how you should approach sales presentations and enrollments for clients who have delegated decision power to another person.
Powers of Attorney
What is a power of attorney (POA)? It’s a legal document that allows someone to appoint a trusted family member or friend to act on their behalf before they are unable to do so. The person appointed, the attorney, may be able to oversee your client’s insurance accounts, depending on the type of POA. Even though someone else is technically carrying out the tasks for your client, the POA sets the terms.
Here are some different types of POA you may encounter:
- Durable Power of Attorney: Gives financial legal authority over your client, whether they are capable or incapable of making decisions. Legally, even a spouse cannot make Medicare decisions for your client without this.
- Non-Durable Power of Attorney: Financial legal authority over your client ends if they become incapacitated.
- General Power of Attorney: Appointee can act in all situations allowed by local law and be durable or non-durable.
- Springing Power of Attorney: The power only begins once a special condition is met. It remains in effect until your client passes.
- Financial Power of Attorney: Appointee can only act on your client’s behalf regarding certain money and property manners of your client’s choosing.
- Medical Power of Attorney: Allows appointee to make health care decisions on your client’s behalf. This is limited to medical care received.
Since the appointed individual could have to make serious life decisions, they should be a family member or someone your client trusts. Many people add both their spouse and children in the event one is unavailable. The only qualification is a POA can’t be under 18.
Since the appointed individual could have to make serious life decisions, they should be a family member or someone your client trusts.
If your client decides they want to go this route, it’s important to make sure they also know that it’s not a permanent decision. Most states require written notice of revocation, but it is possible to remove someone as your attorney.
What is a conservatorship? This type of legal arrangement happens after an individual unexpectedly becomes incapable of managing their finances or personal life.
In a conservatorship, a conservator is appointed by a court to oversee someone who is incapacitated. A friend, family member, or public official can petition the courts to appoint a conservator. The petition details exactly why the individual is no longer able to make decisions for themselves. Then, a court investigator interviews the proposed conservatee and decides if the need for a conservatorship is justified. If appointed, a conservator can make decisions about the conservatee’s health care, finances, living arrangements, or any other personal matter.
If appointed, a conservator can make decisions about the conservatee’s health care, finances, living arrangements, or any other personal matter.
Generally speaking, a conservatorship can be terminated if the conservatee or another individual successfully petitions the court to have the conservator removed. The 2021 Britney Spears case certainly put the topic of conservatorships in headlines and under some tough scrutiny. However, this type of legal appointment may be beneficial for those in certain circumstances.
Alerting Medicare of a Power of Attorney or Conservatorship
According to the law, Medicare requires the beneficiary’s written consent to disclose their personal medical information to someone else — even a spouse. Your client can provide this consent by filling out and submitting CMS’ Authorization to Disclose Personal Health Information Form. The named representative will then be allowed to discuss your client’s information with Medicare and even elect coverage for your clients.
Upon submitting proper authorization to CMS, the named representative will be allowed to discuss your client’s information with Medicare and even elect coverage for your clients.
It’s important to note that representative payee status is not enough for someone to enroll your client in a plan. Your client will also need to complete separate authorizations for Medicare Advantage, Part D, and Medicare Supplement plans.
Are POAs and Conservatorships Recognized by Medicare?
When it comes to issues regarding Medicare, the POA does not stand alone. Legally, a durable POA is beneficial, because even your client’s partner can’t enroll them in a Medicare Supplement or prescription drug plan without it. On the POA document, it should also be clearly stated that the attorney has the power to enroll the beneficiary in a health insurance plan.
If your client has a conservator, that conservator is legally allowed to manage all of your client’s Medicare needs. All court documents should be sent to Medicare. Even if your client has a conservator or attorney, they still need to complete the Authorization to Disclose Personal Information Form.
Proof of Representation vs. Consent to Release
Since the conservator or POA might want to communicate with and provide information to the Benefits Coordination & Recovery Center (BCRC), they will need proof of representation. This will then allow them to respond to requests, receive a recovery claim, file an appeal, and submit information on the beneficiary’s behalf.
A consent to release on the other hand, only allows the attorney or conservator to receive information but not to act or make decisions for the beneficiary.
If a conservator or an attorney wants to obtain proof of representation, they must provide the proper legal documents that show their status as a conservator or attorney. If the beneficiary is incompetent, it’s important to note that a durable power of attorney is needed.
How to Work with an Attorney or Conservator
Even if your client has an attorney or conservator, you should still be taking all of the same steps as before to make sure they are receiving the right service, care, and coverage available to them. However, the way you go about these steps will likely change.
One of the first steps you should take is making note of the contact information of the attorney or conservator in the client’s Platform record. This will allow you to easily connect with the person responsible for making decisions on your client’s behalf.
Protecting Your Clients
Unfortunately, having a POA or conservatorship can leave individuals susceptible to “help” from those who may not have their best interest in mind. The U.S. Government Accountability Office found hundreds of allegations of abuse by guardians in 45 states and the District of Columbia between 1990 and 2010. Often, the courts may not be able to oversee guardians or communicate effectively. According to the National Center on Elder Abuse, approximately one in 10 Americans over the age of 60 living in a community have experienced elder abuse. They also found that an estimated one in 25 cases are reported to authorities.
Even though a POA and conservatorship are supposed to help your client make decisions, there’s still the potential for physical, mental, emotional, or financial elder abuse. The Spears case brought national attention and changes to conservatorships, but didn’t fix the system completely.
If you are aware or suspect that a client is experiencing abuse, you can file a complaint to your local law enforcement agency or petition the court to respond to the mistreatment. They can then take appropriate action to replace or terminate the conservator or POA.
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You want your clients to be in control of their health, however, maybe they need more assistance than what you can provide. Maybe they have a POA or conservator or would like to plan in case they need one in the future. Understanding their situation and making sure all involved in your client’s health insurance decisions are aware of their options allows for the best enrollment decision now and in the future.
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