Posts Tagged ‘Geriatric Care Manager’

New York Judge Takes Bank, Lawyer to Task Over Special Needs Trust

MARCH 9, 2013 VOLUME 20 NUMBER 10
We don’t very often focus on trial court decisions, and especially not in cases from outside Arizona. Trial judges are often very dedicated and bright, and their opinions may be eloquent and well-reasoned, but they do not establish precedent we can describe for our readers. Once in a while we come across a trial court opinion that speaks to our area of law practice, however, and we want to share it with you.

Such a case comes to us from now-retired New York Surrogate’s Court Judge Kristin Booth Glen. Surrogate’s Court is similar to Arizona’s probate court — it is where trusts, estates and guardianships are handled. Judge Glen handled a particularly challenging estate and trust, and wrote an opinion detailing the history of the case on her last day in office.

The case involved a guardianship of a profoundly developmentally disabled adult named Mark (his full name is not given in the judge’s opinion). Mark was 16 when his adoptive mother Marie died in 2005. Mark was then living in a group home, where Marie had placed him after she learned that she was terminally ill.

Marie’s living trust (which, as an aside, was apparently never funded) divided her assets between Mark and his brother. Mark’s share was to be held in a special needs trust, with JP Morgan Chase Bank and Marie’s lawyer acting as co-trustees. Her pour-over will left everything to the trust; in the probate proceeding initiated after her death, the total estate was described as just short of $12 million. Probate-related costs and expenses reduced that by almost a million dollars, and another $3.5 million was paid in estate taxes. Inexplicably, Mark’s one-half share of the remaining $8 million was reported as $1,420,343.29.

A year after Marie’s death, her lawyer sought appointment as Mark’s guardian. For reasons not explained in the written decision, no hearing was held for almost a year. When the attorney appeared before the judge, he told her that he was fulfilling a death-bed promise he had made to his former client, but that he had not actually seen Mark in more than ten years. He had not visited the facility where Mark was living, and he had not asked the staff whether Mark had any unmet needs. In the almost three years he had been co-trustee of the trust for Mark, not a penny had been spent on him.

Judge Glen ordered the lawyer and the bank to explain themselves — to file an accounting in the trust detailing income and expenditures. She also suggested that they ought to find someone to evaluate Mark and his needs, and to figure out whether there were things the trust could provide for his benefit. A professional care manager was eventually hired (though it inexplicably took a year before she was sent to visit Mark), and a program of providing for Mark’s needs finally began. Meanwhile, Marie’s considerable estate had sat idly, paying only administrative expenses, for almost five years after her death.

The judge’s written opinion details all that history, and the gradual improvement in Mark’s life and care over the two-year period since the care manager began visits and recommendations. It also leaves little doubt about the judge’s frustration at not getting sufficient information to determine how the estate shrank from $12 million to the $1.5 million (or so) in Mark’s trust, or how much had been paid to the bank or the lawyer in probate fees and trust administration fees. It laid out a few next steps to guide her successor after her own retirement. It did not resolve any potential or actual challenges to the fees charged by the bank or lawyer, but it clearly signaled her likely intention to reduce fees and potentially order return of some fees already collected. In the Matter of the Accounting by JP Morgan Chase Bank, N.A., v. Marie H., December 31, 2012.

Though this written opinion is from a trial court rather than a court of appeals, it is worth looking at and considering. Though it is a New York case, it speaks to judges, trustees, beneficiaries and families in other states, as well. It lays out a disturbing history of inattention to the needs of a severely disabled man even though there apparently were funds available for his benefit. It tells trustees that:

  • inaction can be as bad as affirmative misbehavior.
  • it can be helpful to bring in a professional care manager to assess needs and make recommendations.
  • the courts can initiate reviews on their own, even if no complaint has been filed, when it becomes apparent that oversight is needed.
  • beneficiaries who are unable to protect themselves need special protection.

What happens next? We really don’t know — though the three months the judge gave for a more detailed accounting and action plan will expire at the end of this month. It will be interesting to see what Judge Glen’s successor does with this case, and how her written decision affects professional trustees and lawyers in New York and elsewhere. We’ll let you know as we see updated information.

Meanwhile, we hope that Mark continues to see benefits from his mother’s trust. It sounds like he has made a lot of progress with a little protection, oversight and professional care recommendations.

 

Home Care Suggestions From A National Elder Law Expert

JUNE 17, 2002 VOLUME 9, NUMBER 51

North Hollywood, California, elder law attorney Stuart Zimring knows what his clients want. “In my Elder Law practice,” he writes, “I have found that when I ask my clients (or their families) what they want more than anything, the answer is frequently ‘I want to stay at home. I don’t want to have to go to a nursing home or other kind of facility.’” Elder Law Issues asked Zimring, a nationally recognized authority on placement concerns, to provide some guidance for our subscribers and readers. Here is what Zimring wrote:

“Our senior population is fiercely independent and self-reliant. They (and we, their children, the baby boomers who will be ‘them’ in not too many years) value independence, the ability to go and do what we want when we want.

“But reality can impose boundaries on this independence. Whether it is physical limitations such as arthritis that make it difficult to grasp or manipulate cooking utensils, mental limitations such as short term memory lapses that cause us to forget that we were putting up a pot of tea, the reality of the aging process makes it desirable, if not imperative, for many of us to obtain assistance at home if we are going to continue to age in place.

“But where can we find this assistance? How do we make sure the persons we choose are honest and capable? What are our obligations to them as employers? How do we pay for these services?

What Kind of Help Do You Need?

“The threshold question before looking for assistance is to determine exactly what kind of assistance is required. It may ‘only’ be housekeeping once or twice a week. Or meal preparation once a day. Or transportation. Or companionship. Seniors with more serious needs may need assistance with some (but not all) of the ‘activities of daily living’ such as bathing, dressing, toileting, eating, medicating and/or ambulating. Obviously, someone who requires assistance with most of these ‘ADLs’ requires a significantly higher level of care than someone who just needs help keeping the house clean.

“The point here is that the senior (and her family) may not be in a position to objectively assess what services are necessary. Thus, the first step may be to retain the services of an experienced Geriatric Care Manager to do an assessment and recommendation of what is required. Various local aging organizations provide these services. They can be located through the state agency responsible for aging issues [in Arizona, the Department of Economic Security’s Aging and Adult Administration, at www.de.state.az.us/links/aaa/]. Also, the National Geriatric Care Managers Association website (www.caremanager.org) can be used to locate professionals in the area.

“Once the level of assistance has been ascertained, the next step is to locate the right person. Simply put, there are two ways to do this: Work through an agency, or employ the person yourself. There are pros and cons to both approaches.

“Again, to put it simply, there are two kinds of agencies that can be utilized. The first, an ‘employment’ agency, will generally pre-screen candidates, acting as an initial filter for you. Some are better than others. With respect to services to the senior population, some social service agencies perform services like this (in the Los Angeles area, Jewish Family Service of Los Angeles has its A+ Total Care division which screens prospective aides, gives them some training on an ongoing basis, and then matches its people to meet the senior’s criteria). Domestic agencies may do minimal training and screening, but basically they are simply going to refer a number of potential candidates to the senior, leaving the hiring decision to the senior or her family. These agencies charge a fee for their service, usually calculated as a percentage of the salary of the employee.

“The other kind of agency actually furnishes the aide. He or she is an employee of the agency. The hiring process is similar, in that a number of candidates will be sent out for interviews and the senior allowed to choose the one she wants. However, in this scenario the aide remains an employee of the agency rather than of the senior.

How to Find Assistance

“Another source is ‘word of mouth.’ It is trite but often true that everyone ‘knows someone.’ It pays to talk to friends in the community, church or synagogue members, senior center participants and other social groups. Unfortunately, as we move through this continuum called ‘aging’ our needs change. Someone’s father may now be in a nursing home and the aide who assisted him at home for several years may now be looking for work. These kinds of referrals (whether they are of individuals or agencies) are often the best.

“Speaking of referrals: always, always, always get references and do not hesitate to talk to all of them!

“One of the most frequently asked questions is ‘should I hire the aide myself or pay the agency?’ The simple answer in my opinion is that if it is economically feasible, let the agency be the employer. It is more expensive (some-times a little, sometimes a lot) but there are a number of advantages. The biggest advantage: if the aide doesn’t show up for work, it is the agency’s responsibility, not yours, to see that someone is there. Taxes, worker’s compensation insurance, all the minutiae of being an employer are someone else’s problem. But one generally pays for this luxury.

“Unfortunately, there is very little government assistance in most states for non-skilled or custodial care. Medicare will provide some home health assistance in certain circumstances on an intermittent, non-recurring basis, but not full time. Medicaid assistance [managed in Arizona by ALTCS—the Arizona Long Term Care System] may be available for services related to ‘activities of daily living,’ or ADLs, but again on a limited basis. However, this kind of assistance, usually referred to as Home and Community Based Services (HCBS) or In Home Supportive Services (IHSS), is usually limited to low income families such as those receiving SSI and, unfortunately, may provide only minimal financial assistance at best. The Department of Veterans Affairs provides a range of home health benefits for eligible veterans, especially those who are combat veterans and who are disabled (whether or not the disability is service related).

“Older long term care insurance policies (the first generation of ‘nursing home’ policies) generally did not provide any residential care benefits. However, today’s policies frequently include various kinds of in-home benefits such as respite care, homemaker services, adult day care coverage and the like. Benefits are usually tied to the number of ADLs that are adversely impacted.

“When looking into the availability of governmental or insurance benefits, the senior and/or her family should never assume that benefits are not available. It is always better to ask, apply for benefits and then, if denied, ask ‘why?’ Where appropriate, an elder law attorney should be consulted. It may well be that when pushed, the local agency or insurance carrier may reconsider its initial denial.

“The specter of losing one’s independence is frightening and depressing. Effectively utilizing aides and assistance can facilitate our aging in place, maintaining our independence and dignity. The costs involved (including the cost of competent legal advice) are usually a small price to pay.”

Mr. Zimring’s advice and suggestions are entirely relevant to securing and monitoring home care outside his own Los Angeles, California, area. Elder Law Issues thanks Mr. Zimring for sharing his expertise with our readers in Arizona, California and around the country.

©2017 Fleming & Curti, PLC