CMS Pub. 100-04, ch. 29, § 270.1.7

If at any time after the execution of a valid appointment or nondurable power of attorney the beneficiary

becomes incapacitated and is unable to manage his/her affairs, the appointment becomes invalid. The

MAC shall resolve who has legal authority to act on behalf of the beneficiary before disclosing any further

information pursuant to the appointment or nondurable power of attorney.

If the beneficiary has executed a durable power of attorney that authorizes the designated person to conduct

the beneficiary’s affairs, or to make financial decisions on behalf of the beneficiary, the representation does

not become invalid upon the beneficiary’s subsequent incapacitation.

NOTE: Some durable powers of attorney do not become effective until and unless such an incapacitation

occurs.

The death of a party terminates the authority of the appointed representative. However, if an appeal is in

progress and another individual or entity may be entitled to receive or obligated to make payment for the

items or services that are the subject of the appeal, the appointment remains in effect for the duration of the

appeal. See also, §270.3 for MSP specific limitations or additional requirements.

If the beneficiary is deceased, the legal representative of the estate may file an appeal. In the absence of a

legal representative, any person who has assumed responsibility for settling the decedent’s estate may file

the appeal. In these situations, the MAC shall obtain proof that the person has assumed responsibility for

settling the decedent’s estate (e.g., a will or probate court document). What is acceptable as legal

documentation may vary according to State law. The MAC shall notify the person filing the appeal about

the documentation needed to s how the person is either the legal representative of the estate or the person

who has assumed responsibility for settling the decedent's estate and describe the types of documentation

needed. Allow at least 14 calendar days for the documentation to be submitted. If, at the end of the time

allowed, the documentation needed is not submitted, dismiss the request. If the appellant submits the

documentation after the allotted time, the MAC considers good cause for late filing. In such instances, the

MAC documents the file to show the basis for that person’s filing the appeal.

MACs shall follow state law when determining proper parties to initial determinations and appeals. Legal

representatives of deceased beneficiaries can be proper parties to initial determinations and appeals. In order

to verify that the requester is the proper representative, MACs shall be aware of the current state laws in

their jurisdictions and shall accept any documentation acceptable by the appropriate state. The

documentation must be sufficient to verify that the individual making the request is a proper and valid

representative for purposes of initial determinations and appeals under 42 CFR Part 405. Examples of

proper documentation based on state law include, but are not necessarily limited to:

• Probate court documents (such as, letters of administration or letters of testamentary to an

executor named in the deceased beneficiary’s will).

• The deceased beneficiary’s will naming the executor.

• Appointment of Representative document (CMS-1696 form or other similar document).

• An instrument executed by a beneficiary that confers representative authority in accordance with

state law (for example, health care proxy appointment, Power of Attorney form, or Durable

Power of Attorney form).

• Representative appointment made by a court of law on behalf of a deceased beneficiary that has

not named an executor to handle his or her estate.

Examples of insufficient documentation include:

• Claims against the decedent’s estate without an authorized representative listed.

• Any unsigned writing conferring authority on the party to act as a legal representative.

• The beneficiary’s certificate of death.