c. Definition of Guardian

Section 1902(xx)(9)(A)(ii)(III) of the Act also separately lists a “guardian,” which is not defined under section 1902(xx) of the Act or defined elsewhere in the Act or CMS regulations. At § 435.554(a), we define “guardian” for purposes of section 1902(xx)(9)(A)(ii)(III) of the Act to mean an adult appointed by a court to care for and make personal decisions on behalf of an individual who cannot care for themselves, which is consistent with the common meaning of the term. [ 49 ]

Because guardianship is governed by State law, we considered how other Federal agencies refer to or define guardianship when developing our definition. The Department of Justice (DOJ) describes guardianship as the appointment by a court of a person or entity to make personal, property decisions, or both for an individual whom the court finds cannot make decisions for themselves. [ 50 ] DOJ also explains that each State has its own set of guardianship laws, and terminology may vary. [ 51 ]

In the definition of “guardian” we establish in § 435.554(a), an individual has the legal status of a “guardian” when the individual is appointed by a court. DOJ's description also refers to personal and/or financial responsibilities. For the definition established at § 435.554(a), we specify that a guardian has been appointed by a court to care for and make personal decisions for an individual who cannot care for themselves. We believe that guardianship as it relates to the responsibility for another person's care, rather than financial responsibilities, is more aligned with the purposes of the exclusion.