Virginia Law

A. Patients in the Department of Mental Health, Mental Retardation and Substance Abuse Services (DMHMRSAS) facilities may have applications submitted on their behalf by employees of the DMHMRSAS.

B. The authorized representative of an incapacitated individual shall be the individual's legally appointed guardian or conservator.

C. A competent individual may sign an application on his own behalf or may designate anyone to be his authorized representative to file a Medicaid application on his behalf. If a competent individual wants another person to file a Medicaid application for him, he must designate the authorized representative in a written statement that is signed by the individual applicant. The authorized representative statement is valid for the life of the Medicaid application or until the applicant changes or removes his authorized representative. If the application is approved, the authorized representative statement is valid for any subsequent review and redetermination until the applicant's Medicaid eligibility is cancelled. If the applicant reapplies for Medicaid after Medicaid is cancelled, he must sign the application or provide a new authorized representative statement.

D. When an individual has given power-of-attorney to another person that includes the power to conduct the applicant's business affairs, the attorney-in-fact is considered the applicant's authorized representative.

E. For an individual who has not been determined by a court to be legally incapacitated, but who is reported to be mentally unable to sign his name or to make a mark, an application may be signed under the following circumstances:

1. When it is reported that an individual cannot sign the application and the individual does not have an attorney-in-fact, an authorized representative or a family substitute representative, the individual's inability to sign the application must be verified by a written statement from the individual's physician that the individual is mentally unable to sign and file a Medicaid application because of the individual's diagnosis or condition.

2. If the individual does not have an attorney-in-fact and has not signed a statement authorizing another person or organization to apply for Medicaid on his behalf, the applicant's spouse will be considered to be the individual's authorized representative. If the individual is not married or is estranged from his spouse or his spouse is unable to represent him, the individual's authorized representative shall be a family substitute representative.

3. Treatment of an individual who is unable to sign and who has no authorized representative or family substitute representative:

a. When motion to appoint a guardian or conservator has been filed with the court, but a final determination has not been ordered. When an individual's physician has verified that he is unable to sign the Medicaid application and the individual has no legal representative, a determination of Medicaid eligibility shall not be completed until a guardian or conservator has been appointed. Any application filed on behalf of such individual shall be held in pending status until the appointment of a legal guardian or conservator. The eligibility worker shall mail the legal guardian or conservator a copy of the Medicaid application. The legal guardian or conservator shall have 10 working days after appointment to sign and return the Medicaid application and documentation of the guardian or conservator's appointment. If the application has not been signed by the deadline, eligibility for Medicaid shall be denied.

b. When motion to appoint a guardian or conservator has not been filed with the court. When a motion to appoint a guardian or conservator has not been filed with the court, the eligibility worker shall refer the individual to the Adult Protective Services unit in the local department of social services. The Medicaid application shall be held in pending status until the adult protective services investigation is complete. If the completed adult protective services investigation concludes that guardianship proceedings will not be initiated, the application must be signed by the applicant or the applicant must sign a statement designating an authorized representative. If after 10 working days the application is not signed, eligibility for Medicaid shall be denied.