Posts Tagged ‘Guardian’

How to Make Health Care Decisions for Someone Else

JULY 28, 2014 VOLUME 21 NUMBER 27

Maybe you’ve been named guardian (of the person) for a family member, colleague, or friend. Maybe you’ve been listed in a health care power of attorney. Maybe you’re a family member with authority to make health care decisions (Arizona, like a number of other states, permits family members or others to make most health care decisions in at least some cases). How you got there is not the point, at least not for today. Today’s question: how do you go about making decisions for someone else when you have been given the power — and responsibility — to do so?

For centuries the American common law (and its English predecessor) focused on the “best interest” of someone who was no longer able to make their own decisions. It was not until relatively recently that the concept of “substituted judgment” began to seep into legal discussions. Today the latter notion drives health care decision-making in Arizona. That is also true in most (perhaps all) of the other states in the U.S. It may also be true in other countries, but that is beyond our scope today. In Arizona, at least, it is clear: “substituted judgment” is the legal standard for health care decisions.

But what does that mean? One early description suggested that a person making decisions for someone else should try “to reach the decision that the incapacitated person would make if he or she were able to choose.” That means that the decision-maker should try to substitute the patient’s decision for his or her own, not the other way around. In other words, the guardian/agent/surrogate should first try to figure out what the patient/principal would want in the circumstances.

Let’s simplify some of the language, just to keep things from bogging down in legalisms. Let’s use “principal” for the person signing a power of attorney, or subject to a guardianship, or (however they got there) presently incapable of making decisions. The person making the decision, signing the hospital’s forms, choosing a facility, or whatever — we’ll call him or her the “surrogate”.

So now you’re the surrogate, and you’re trying to figure out what you should consider when making your decisions. Here’s a list (probably not comprehensive — look at the comments to see if anyone has suggested other good ideas) of things you might look to:

  • Did the principal sign any documents? A living will, for instance, might give some insight into the principal’s wishes. There are plenty of other documents that might be useful, though — from worksheets filled out at a seminar on advance directives to letters to family members to descriptions of other patient’s circumstances.
  • Did you have any conversations with your principal? Maybe you talked about other patients in the news, and how your principal felt about their stories. Be careful here — we remember one client who adamantly said she didn’t want to “go through what Terri Schiavo did.” It wasn’t until we followed up with the client that we figured out that she meant that she thought it was terrible that the legal system allowed Ms. Schiavo to die. We had assumed that she meant she wouldn’t have wanted to be kept alive, but that was the exact opposite of her meaning.
  • Did anyone else have conversations with your principal? Ask family, friends, co-workers and others who might have discussed health care issues with the principal while they were still capable of forming a decision.
  • Ask your principal. Is he or she able to talk at all? Then ask for direction. That doesn’t mean you have to follow whatever a now-demented patient says he or she wants — the principal might simply respond affirmatively to almost every question, making the answer depend on how you ask. But just because you’ve been given responsibility for the decision it does not follow that your principal’s opinion is no longer relevant.
  • Consider your principal’s life history. Was he or she particularly religious, or irreligious? Do you know what family members would prefer (and whether your principal would be more likely to agree with or oppose the family)? Did other family members or acquaintances go through similar circumstances, and is your principal’s response helpful to you while making this decision?
  • Talk to the medical team. What seems like a major decision might not seem so significant after you’ve discussed the risks and burdens associated with a given procedure (or decision to forego a procedure).

Arizona law is clear on what happens next. If you can’t figure out what your principal would want, then you move from applying “substituted judgment” principles to determining the “best interests” of your principal. But that doesn’t necessarily mean that you have to approve treatment.

  • Weigh the “burdens” of treatment against the benefits. Is a proposed operation painful, dangerous, or uncertain? Or might it alleviate pain, make your principal more comfortable, or increase the odds of recovery?
  • Strive for consensus. You are supposed to be figuring out what your principal would want, but the input of family, friends and the medical community is worth considering in an attempt to avoid infighting, undercutting and acrimony. Your principal’s care might not be best-served by having a difficult situation made more tense.
  • As a last resort, consider submitting difficult choices to the courts for resolution. That gives everyone a chance to air their positions in a formal setting, and focuses the questions on the principal’s wishes — and care. But it is time-consuming and expensive, and should not be invoked unless there is real difficulty in making the correct decision.

It is a challenge to make health care decisions for someone else. It is also a terrific gift to the principal to accept the responsibility and discharge it carefully and well. Another day we’ll write about how you can make that job easier when you’re the principal rather than the surrogate. In the meantime, take the surrogate’s job seriously, and do your best to substitute your principal’s decisions for those you might make for yourself.

 

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Should a Guardian Follow the Wishes of Her Ward?

We read about an interesting Washington case recently.  Raven v. DSHS, a Washington Supreme Court decision handed down on July 18, 2013, indirectly dealt with a guardian’s duty to consider the known wishes of the subject of the guardianship. If the evidence is clear that the ward would not want to be institutionalized, for instance, is it elder abuse for the guardian to keep her ward at home past the time when the state’s Adult Protective Services workers think she should be placed in a nursing home?

It’s an interesting question, and more than just academic. You can read one analysis of the case, and the facts giving rise to the case, at the newsletter/blog of Washington lawyer John S. Palmer. We hope and expect to hear more from Mr. Palmer in the future.

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Some Thoughts About Guardianship and Conservatorship in Arizona

NOVEMBER 14, 2011 VOLUME 18 NUMBER 39
Let’s talk about guardianship and conservatorship proceedings. Before we do, though, let’s remember a couple of important principles:

  1. We only know about Arizona guardianship or conservatorship. Well, OK — we might know a thing or two about other states’ rules and procedures — but we only practice in Arizona. Our observations are not universally applicable. They may not even be universally applicable inside Arizona’s borders.
  2. As always, we simply can’t give specific case-based legal advice here, and you should not rely on this newsletter (or anything you read online or in books) to resolve your case. This is big-picture stuff. We can and do write about how the system works, what the rules look like, and what you might expect if you are involved in a guardianship and/or conservatorship matter in Arizona. Don’t expect to print out our articles, take them to court and argue with the judge, though. She won’t appreciate it, and neither will we. Plus it won’t work. Get good legal advice.
  3. One thing we’ve learned from years of law practice: people think they understand their own cases, but they get blinded to the nuances (or maybe they aren’t told everything about the contrary evidence or opinions) and tend to overgeneralize. We don’t think that means they are stupid, or liars — they are just trying to put the best face on their case, and that’s human nature. But it also means that if you say “aha — he hit the nail on the head and that’s exactly what my worthless brother is trying to do” we’d be likely to tell you (if we were your lawyer): “slow down. It’s not that clear.”
  4. We have written a lot about guardianship and conservatorship. Here’s one of our better (and most comprehensive) articles, a White Paper on guardianship and conservatorship. But it’s a difficult and confusing topic, with lots of information — and misinformation — out there.

Disclaimers aside, let’s talk about guardianship and conservatorship. Let’s start with some definitions of terms.

In Arizona, the word “guardianship” is applied to the court proceedings instituted to acquire legal control over another human beings’ person. In general terms, a guardian is authorized by the court to make placement and health care decisions for that other human being. Not every state uses the same word. Not every state has the same process to get a guardian (or whatever they call the office) appointed. But every state does have some kind of court proceeding in which a person can be appointed to manage the health care and living arrangements of another person.

In Arizona, the word “conservatorship” is applied to the court proceedings instituted to acquire legal control over another human beings’ finances. A conservator usually is authorized by the court to handle checking accounts, real estate, brokerage accounts, businesses, vehicles, horses, airplanes, family photographs, oil and gas leases — you name it. Just to keep the confusion level high, not every state calls this type of court-appointed person a conservator — some, in fact, call them guardians. But in Arizona, the person managing property and finances is a conservator.

Neither guardians nor conservators are “powers of attorney.” In point of fact, powers of attorney are pieces of paper, not people at all. But now we quibble. The person named to manage your property and/or your person in a power of attorney is properly called your “agent” or your “attorney-in-fact.” A guardian or conservator is neither an agent nor an attorney-in-fact. They usually have authority over agents and attorneys-in-fact, though it may require separate court action to make that clear, and it may be possible for the court to determine that the agent (or attorney-in-fact, if you prefer hyphenated names) still has authority even after appointment of a guardian and/or conservator.

Who can have a guardian appointed? Someone who is incapacitated. Their incapacity can be based on their age (minors — those under age 18 — are automatically incapacitated under Arizona law unless they are “emancipated”) or their circumstances. Generally speaking, parents are the natural guardians of their minor children, so they do not need to go to court to secure guardianship. The same is not true for any class of adults. So if your 18-year-old child has a lifelong disability that makes him unable to make responsible decisions, you do not automatically shift from being his natural guardian at 17 to being his legal guardian at 18. A court proceeding is necessary. Same thing if your husband or wife becomes incapacitated — you may need court proceedings to become guardian (if there is no power of attorney and there are things that need to be taken care of). “Incapacity” for adults requires a court showing of (a) a mental, medical or other condition that (b) affects the ability of the person to make and communicate responsible personal decisions and (c) makes it difficult or impossible for them to provide their own food and shelter without assistance. It is also necessary to show that (d) the appointment of a guardian will actually help accomplish that goal.

Appointment of a conservator is based on similar, but slightly different, grounds. First, minority is always considered a legally disabling condition, but parents are not the natural conservators of their children in the way that they are natural guardians. That means if a minor child comes into money, even if they live with both parents and all are harmonious and responsible, there is no way to manage that money without going through the conservatorship process. If an adult becomes unable to manage their money in order to prevent its waste or dissipation, they may have a conservator appointed, as well. Frankly, the definition of when a conservator can be appointed is a great deal less precise than that for guardianships, which can sometimes lead to problems.

An important reality for family members and friends to understand: if a guardianship and/or conservatorship proceeding is initiated, the court has been invoked and will not later simply step aside to let concerned — even appropriately concerned — family members take over. Once the courts are involved, they tend to stay involved.

That means that the cost of securing guardianship and conservatorship can be high. In Arizona, a lawyer is automatically appointed to represent the person who is alleged to be in need of a guardian or conservator. A medical report is required. A court-appointed investigator must go to the residence, conduct an investigation and file a report. There are significant court costs involved. Plus the process is complicated enough that the petitioner is almost always going to hire an attorney. That attorney’s bill is likely to approach half the total cost of getting the guardianship or conservatorship set up.

Much has been written, spoken and broadcast in recent years about the high cost of guardianship and conservatorship. The natural tendency of the system has been to make it more difficult to get guardians and conservators appointed, and to require them to provide more information, more frequently. Though that may be a positive development, it has the (presumably unintended) effect of making the process not only more difficult, but also more expensive.

So — guardianship and conservatorship can be difficult, expensive, even ineffective. Not always, of course, but there is a possibility and it proves to be the case too often. What can beleaguered family members do?

Most lawyers practicing in the field spend the first portion of any contact with a new client talking about how to avoid guardianship and conservatorship proceedings. Did your family member sign a health care power of attorney, a financial power of attorney, a living will, a living trust? Are there other ways to get done what needs to be done? What bad things will happen if we (that is, the family and the lawyers acting together) simply do not file a guardianship or conservatorship proceeding, even if one is warranted? Are there ways to get agreement from all the family members in advance, in order to hold down legal costs?

One important concern, at least in the case of adult guardianship and conservatorship: we will ultimately need to be able to prove that your family member has a medical, mental, emotional or other problem that prevents them from making their own personal or financial decisions. We will need medical evidence. Have you spoken with your family member’s physician, or psychologist, or other member of their treatment team? Can you get a letter from that person describing diagnosis, prognosis and any functional limitations? Without that, we may not be able to proceed. With that in hand, though, the process may be significantly streamlined.

Getting guardianship or conservatorship can be expensive, emotionally wrenching, and sometimes even ultimately unsatisfying. Sometimes, however, it is absolutely necessary. We just need to be sure you are prepared for the cost, the procedures, the limitations, and the possibilities in this type of legal proceeding. That’s why you hire a lawyer, after all.

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Does a Guardian Have the Power to File a Divorce Petition? In Some States, Yes

FEBRUARY 28, 2011 VOLUME 18 NUMBER 7
The issue arises with some regularity. A married couple, perhaps in their second marriage. Adult children. One spouse becomes ill — often, but not always, demented. The other spouse, unable to cope, turns the care of the ill spouse over to one of the children. That child figures out that, financially, at least, the ill spouse would be better off divorced. That way, control of the ill spouse’s share of the couple’s property could be managed for the sole benefit of the ill spouse, and care could be assured. But can the guardian file a divorce petition?

In most states, the answer is not clear. A handful of states have explicitly addressed the question, with mixed results. The latest state court to face the issue is the Supreme Court of Vermont.

Catherine and Philip Samis had been married for almost a quarter century when Mrs. Samis began to show signs of dementia. Mr. Samis, a Canadian citizen, withdrew across the border to one of the couple’s homes, taking most of their personal effects with him. Mrs. Samis’ son from a former marriage stepped in, secured a guardianship of his mother’s person and estate (in Arizona we would call it a guardianship and conservatorship), and began overseeing her care.

Mrs. Samis is a U.S. citizen, and would be entitled to Social Security benefits under her first (now deceased) husband’s account if she were not married. Since Mr. Samis is a Canadian citizen, there are no Social Security benefits payable to her while she remains married. Her son decided it would be in her best interest — financially, at least — to get divorced, and to divide the couple’s property so that he could control how her share was spent.

Once a divorce proceeding was filed, however, Mr. Samis objected. He argued that Vermont law did not permit a guardian to petition for divorce on behalf of a ward. As with most states, the Vermont statutes were silent on the subject; there was a single reference in Vermont court rules to guardians signing divorce petitions, but no indication how the Vermont legislature felt about the possibility.

After the divorce court denied Mr. Samis’ objection, granted the divorce, divided the couple’s property and ordered Mr. Samis to make a lump-sum support payment of about $300,000, he appealed. The Vermont Supreme Court was thus faced with determining whether Mrs. Samis’ guardian had the authority to initiate the proceeding in the first place.

Ruling that a guardian’s powers are limited to those spelled out in the guardianship statutes, the state’s high court reversed the divorce court’s orders. The justices considered the holdings in a handful of states, including Arizona, and concluded that most do not permit guardians to file divorces.

The ability to file for divorce is intensely personal, said the justices. The only Vermont precedent that addressed the issue at all, an 1877 Supreme Court case, agreed; in that case, a person who had been placed under a guardianship of the estate (what would be a conservatorship in Arizona) was permitted to file his own divorce proceeding despite the guardianship. Now it is clear that in Vermont, at least, the guardian can not file the divorce petition for a ward who has become incompetent.

What about the other states? The Vermont decision cites several that agree with its holding, including appellate courts in Kentucky, New York and South Carolina. Courts in Massachusetts and New Hampshire have allowed guardians to petition for divorce, but have done so based on specific state statutes. According to the Vermont justices, only two states, Arizona and Washington, have permitted guardians to file for divorce even without the support of statutes clearly authorizing the action. Samis v. Samis, February 18, 2011.

As the Vermont Supreme Court notes, Arizona is one of the minority of states clearly permitting the guardian to file a divorce proceeding, even without express statutory authority. That is the holding of the Arizona Court of Appeals in the 1993 case of Ruvalcaba by Stubblefield v. Ruvalcaba, which we reported on at the time (yes, Virginia, there was an Elder Law Issues in 1993/1994), and which we have since described in more detail for our readers.

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Distinguishing Two Kinds of Special Needs Trusts

AUGUST 23, 2010 VOLUME 17 NUMBER 27
It really is unfortunate that we didn’t see this problem coming. Those of us who pioneered special needs trust planning back in the 1980s should have realized that we were setting up everyone (including ourselves) for confusion. We should have just given the two main kinds of special needs trusts different names. But we didn’t, and now we have to keep explaining.

There are two different kinds of special needs trusts, and the treatment and effect of any given trust will be very different depending on which kind of trust is involved in each case. Even that statement is misleading: there are actually about six or seven (depending on your definitions) kinds of special needs trusts — but they generally fall into one of two categories. Most (but not all) practitioners use the same language to describe the distinction: a given special needs trust is either a “self-settled” or a “third-party” trust.

Why is the distinction important? Because the rules surrounding the two kinds of trusts are very different. For example, a “self-settled” special needs trust:

  • Must include a provision repaying the state Medicaid agency for the cost of Title XIX (Medicaid) benefits received by the beneficiary upon the death of the beneficiary.
  • May have significant limitations on the kinds of payments the trustee can make; these limitations will vary significantly from state to state.
  • Will likely require some kind of annual accounting to the state Medicaid agency of trust expenditures.
  • May, if the rules are not followed precisely, result in the beneficiary being deemed to have access to trust assets and/or income, and thereby cost the beneficiary his or her Supplemental Security Income and Medicaid eligibility.
  • Will be taxed as if its contents still belonged to the beneficiary — in other words, as what the tax law calls a “grantor” trust.

By contrast, a “third-party” special needs trust usually:

  • May pay for food and shelter for the beneficiary — though such expenditures may result in a reduction in the beneficiary’s Supplemental Security Income payments for one or more months.
  • Can be distributed to other family members, or even charities, upon the death of the primary beneficiary.
  • May be terminated if the beneficiary improves and no longer requires Supplemental Security Income payments or Medicaid eligibility — with the remaining balance being distributed to the beneficiary.
  • Will not have to account (or at least not have to account so closely) to the state Medicaid agency in order to keep the beneficiary eligible.
  • Will be taxed on its own, and at a higher rate than a self-settled trust — though sometimes it will be taxed to the original grantor, and sometimes it will be entitled to slightly favorable treatment as a “Qualified Disability” trust (what is sometimes called a QDisT).

So what is the difference? It is actually easy to distinguish the two kinds of trusts, though even the names can make it seem more complicated. A self-settled trust is established with money or property that once belonged to the beneficiary. That might include a personal injury settlement, an inheritance, or just accumulated wealth. If the beneficiary had the legal right to the unrestrained use of the money — directly or though a conservator (or guardian of the estate) — then the trust is probably a self-settled trust.

It may be clearer to describe a third-party trust. If the money belonged to someone else, and that person established the trust for the benefit of the person with a disability, then the trust will be a third-party trust. Of course, it also has to qualify as a special needs trust; not all third-party trusts include language that is sufficient to gain such treatment (and there is a little variation by state in this regard, too).

So an inheritance might be a third-party special needs trust — if the person leaving the inheritance set it up in an appropriate manner. If not, and the inheritance was left outright to the beneficiary, then the trust set up by a court, conservator (or guardian of the estate) or family member will probably be a self-settled trust.

That leads to an important point: if the trust is established by a court, by a conservator or guardian, or even by the defendant in a personal injury action, it is still a self-settled trust for Social Security and Medicaid purposes. Each of those entities is acting on behalf of the beneficiary, and so their actions are interpreted as if the beneficiary himself (or herself) established the trust.

Since the rules governing these two kinds of trusts are so different, why didn’t we just use different names for them to start with? Good question. Some did: in some states and laws offices, self-settled special needs trusts are called “supplemental benefits” trusts. Unfortunately, the idea didn’t catch on, and sometimes the same term is used to describe third-party trusts instead. Oops.

We collectively apologize for the confusion. In the meantime, note that the literature about special needs trusts sometimes assumes that you know which kind is being described and discussed, and sometimes even mixes up the two types without clearly distinguishing. Pay close attention to anything you read about special needs trusts to make sure you’re getting the right information.

Want to know more? You might want to sign up for our upcoming “Special Needs Trust School” program. We are offering our next session (to live attendees only) on September 15, 2010. You can call Yvette at our offices (520-622-0400) to reserve a seat.

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Guardian Allowed to Restrict Visitors, Telephone and Mail

NOVEMBER 23, 2009  VOLUME 16, NUMBER 62

Being appointed as guardian for another person can be a daunting challenge. The responsibility is enormous, and most guardians get little or no training other than the “on-the-job” type. The stakes — a human life — are enormous.

What is the proper goal for a guardian? Is it to ensure the safety of the ward? To interfere in the life of the ward as little as possible? To protect the ward’s autonomy and give him or her wide latitude? To carry out the ward’s wishes as expressed before his or her incapacity? In a word, yes — even though all of those goals may conflict with one another. No easy task.

Although the courts are supposed to resolve the tension between these competing goals, in the real (legal) world that often does not happen. Instead, the legal dispute can sometimes devolve into a determination of whether the guardian’s decision is so demonstrably wrong, or so clearly motivated by the guardian’s own hopes and wishes, that the guardian should be removed altogether. Courts are not often good at training and guiding guardians.

Consider the recent Missouri Court of Appeals case of In re Estate of Posey v. Bergin (November 3, 2009), as it brings the conflict into clear relief. The ward in that case had been found to be incapacitated in 2003, based on his serious and long-term alcohol abuse. His daughter had been appointed as his guardian.

As guardian, the daughter decided that her father’s old drinking buddy was not a good influence. She also worried that his sister’s calls agitated him. She had placed her father in a residential setting and restricted his access to alcohol. She also ordered that no one could visit, or even telephone, without her approval, and she monitored his mail.

Her father objected that he should not be so restricted. He maintained that he was no longer incapacitated (he no longer had access to alcohol). He argued that he didn’t need a guardian at all, but that if he did someone else should be appointed.

The probate court disagreed with him, and left his daughter in place as his guardian. The state Court of Appeals upheld that decision. But neither decision was about whether the daughter was a good guardian, or whether she was handling her father’s placement, care and visiting rights appropriately. Instead, the case hinged on whether her behavior was so manifestly wrong that she should be removed as guardian. Both courts ruled that she should not.

In fact, the father had tried to remove his daughter as guardian in an earlier proceeding, as well. When the court denied his 2004 petition, his daughter apparently interpreted that to mean that all of her decisions had been approved by the judicial system.

It is easy for us, at this distance (geographic and emotional), to criticize the guardian’s decisions and the court’s framing of the legal question. Perhaps we could be more constructive by suggesting a few ideas, for the guardian in this case and for guardians generally:

  • The ward’s wishes, even though not necessarily in his own best interests, should be considered. That does not mean that he must be put in charge of his own decisions, but that his personal preferences should be part of the mix. His desire to maintain contact with his sister and with his long-time friends should be recognized, and efforts made to make the contacts constructive.
  • A child acting as guardian for his or her own parents is almost always torn by competing emotions. It is difficult to reverse the usual roles, and for a child to effectively become parent to his or her own parents. That reality should be confronted, and care taken not to let the role-reversal get in the way. Even a well-adusted guardian might benefit from counseling to look closely at the effects of the role reversal.
  • If it is truly necessary to restrict visits and access, it should be a restriction rather than a prohibition. Conversations with the other individuals might be one way to make sure they understand the importance of positive contacts and the need to avoid undermining the ward’s condition and/or recovery. If the guardian finds that he or she is unable to have a reasonable conversation with the other individual’s in the ward’s life, the response should be to look for a suitable intermediary rather than to eliminate or unduly restrict the contact.
  • Safety is important, as is recovery. So is the ward’s happiness and peace of mind. Striking a balance is challenging, but essential.
  • Once a proper balance is found, it will probably require constant adjustment.

Should the Missouri courts have terminated the guardianship, or removed the guardian? Probably not — and in any case the judges at both levels decided that was not the appropriate decision. That does not necessarily mean that the guardian was doing the best job possible, and it would be a mistake to read the Missouri case as supporting the wisdom of restricting a ward’s visitors and outside contacts. The real challenge for the guardian in that case will be to avoid reading the decision as endorsement of all that has transpired, and instead see it as validation of the authority — but not the necessity — of the guardian’s actions. The challenge for guardians everywhere is to balance the competing interests, desires, histories and circumstances in a most difficult job, and to be willing to adapt to new information and changing situations with humanity, grace and flexibility.

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Guardian Not Personally Liable For Alleged Lack of “Due Care”

APRIL 27, 2009  VOLUME 16, NUMBER 38

Who has the obligation to get a proper Medicaid application filed for someone in a nursing home? Can the nursing home resident’s children, spouse, guardian or conservator be forced to pay for care after the patient’s money has run out but before the state Medicaid agency receives the application paperwork in proper order?

The usual answer to that question is a simple “no.” There are exceptions — a spouse may have an obligation of support, for instance, or a child may have separately promised the nursing home that the bills will be covered. The way this question most frequently comes up, though, is when a guardian or a child (and they may sometimes be the same person, though in today’s illustration the guardian was a public agency) has signed the facility’s admission documents but has not followed through with getting Medicaid eligibility established promptly.

That was essentially what happened with Eloise Selby, who resided at Arbor View Healthcare and Rehabilitation Center in St. Joseph, Missouri. Bonnie Sue Lawson, who was the Buchanan County Public Administrator, was appointed as Ms. Selby’s guardian in 2004. A Medicaid application was already pending, but the agency did not have the paperwork necessary to determine the value of two small life insurance policies owned by Ms. Selby. Her new guardian promised to get the missing forms filed.

A month later, with no paperwork in sight, the Medicaid agency denied coverage. A second application filed a month after that included the missing forms, but Ms. Selby was again denied benefits — this time because the value of the two policies exceeded the maximum permissible amount. Yet another month later, another application was filed — and denied for the same reason.

The essential problem with the application became clear at that point: someone would need to cash in the policies, and Ms. Lawson was guardian of the person but not conservator of Ms. Selby’s estate. A conservatorship proceeding was filed, the funds collected, and the final, successful Medicaid application filed a year after the initial involvement of the Public Administrator’s office.

The nursing home then sued the guardian for the fees (and legal costs) it had not collected from Ms. Selby while the failed Medicaid applications were pending. The home’s argument: while Ms. Lawson would not be personally liable for her ward’s nursing home costs in most cases, in this case she had failed to use “due care” in fulfilling her duties.

The trial court agreed, and entered a judgment in favor of the nursing home (and against the Public Administrator) for $16,779.65 — the difference between what the nursing home had collected from Ms. Selby’s income and what it would have collected. The judge also assessed attorney’s fees and costs of $6,597.00 against the Public Administrator.

The Missouri Court of Appeals disagreed, and reversed the finding in favor of the nursing home. In  the appellate court’s analysis, Ms. Lawson’s liability for Ms. Selby’s debts was limited to the money in Ms. Selby’s name. Although the admission contract included specific language requiring the Public Administrator to use “due care,” it also included a provision that dealt directly with the possibility of Medicaid eligibility denial. That more specific section limited the facility’s rights to receiving payment from Ms. Selby’s funds; the court agreed with Ms. Lawson that the specific section controlled over the more general provision. Five Star Quality Care v. Lawson, April 7, 2009.

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Wrong Advice From Eligibility Worker Leads to Loss of Home

APRIL 25, 2005  VOLUME 12, NUMBER 43

The Medicaid worker was helpful, seemed to understand the question and knew the answer. The applicant’s guardian/conservator asked the right question. Unfortunately, the worker’s answer was just plain wrong. When the guardian/conservator relied on that wrong information, he lost out—and lost the Medicaid recipient’s home after her death.

Richard Knori was his grandmother’s guardian (of the person) and conservator (of the estate) because she could not handle her own affairs. He knew that he would have to place her in a nursing facility of some kind, and so he contacted the local Medicaid office about assistance with the cost of her care. Eligibility worker Hazel Staley assured Mr. Knori that his grandmother could qualify for Medicaid while retaining her home, and that the state would not take the home after her death.

Mr. Knori did apply for Medicaid for his grandmother, and she was picked up by the program in April, 1995. By the time of her death in 2001 she had received $259,446.38 in Medicaid assistance. After her death, Mr. Knori moved to probate her estate and dispose of her home, the only significant asset she had been allowed to retain.

The Medicaid agency promptly made a claim against the estate for the value of its services—effectively demanding her home or the entire proceeds from any sale. Mr. Knori objected, pointing out that he had relied on the misinformation he had gotten from Ms. Staley. He maintained that the state should be bound by what he had been told (what in the law is called “equitable estoppel”).

The Wyoming Supreme Court disagreed. Although the state high court did not condone the Medicaid worker’s mistake, it held that Mr. Knori had not shown “affirmative misconduct” on the part of the eligibility worker. In the absence of such a showing, Mr. Knori could not rely on what he had been told by a state employee. Knori v. State Department of Health, Office of Medicaid, April 14, 2005.

What might Mr. Knori have done differently if he had gotten accurate information? He might have been able to sell the home, apply a portion of the proceeds to his grandmother’s nursing home care and use the rest for care needs that would not be provided by Medicaid. He might even (with court approval) have been able to make a gift to family members—especially if any one of them suffered from a disability. He could have purchased an interest in the home himself (again with court approval) in a manner that preserved it after his grandmother’s death.

The moral: you rely on government workers for an explanation of Medicaid and other complicated programs at your own peril. No matter how helpful, friendly and well-informed they are, it makes sense to seek complete information.

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Combative Alzheimer’s Patient Not Liable for Injuries to Nurse

APRIL 19, 2004 VOLUME 11, NUMBER 42

Edmund Gernannt suffered from dementia of the Alzheimer’s type. Confusion and agitation sometimes combined in Mr. Gernannt to make him combative. While most Alzheimer’s patients can be easily redirected and ultimately calmed, Mr. Gernannt’s aggressive tendencies got him committed to the county hospital in Bergen Pines, New Jersey. It was there that he assaulted one of the facility’s nurses.

Mary Berberian, the head nurse on the long-term care ward of the geriatric psychiatric hospital, was on duty on November 11, 1997. She had over twenty years of experience working with demented patients, and she knew Mr. Gernannt’s tendency to lash out at staff members. When Mr. Gernannt pushed open the fire escape door and set off an alarm, she rushed to head him off and return him to the unit.

Another nurse was also on the scene, but Mr. Gernannt began hitting her when she tried to escort him back to the unit. Ms. Berberian then extended her hand to try to coax Mr. Gernannt back into his room, but he responded by first pulling her forward, then shoving her back. As a result, the nurse fell and broke her hip.

Ms. Berberian sued Mr. Gernannt for her injuries. She also named Mr. Gernannt’s guardian, alleging that the guardian should not have authorized transfer of Mr. Gernannt to the unit without physical restraints, and the physician in charge of Mr. Gernannt’s care.

The trial court dismissed the lawsuits against the guardian and the physician, but the jury considered whether Mr. Gernannt’s estate (he died before trial) should pay Ms. Berberian’s damages. The court instructed the jury that it could find the estate liable only if it decided that Mr. Gernannt’s behavior fell below the standard that might be expected of a “reasonably prudent person who has Alzheimer’s dementia.”

The jury found that Mr. Gernannt’s estate should not be liable for damages, and Nurse Berberian appealed. The first appellate court agreed that the trial judge had set the correct standard for the jury to apply, and so the nurse appealed again.

The New Jersey Supreme Court agreed that Ms. Berberian should not recover from Mr. Gernannt’s estate, but on a different theory. According to the state’s highest court Mr. Gernannt owed no duty of care to the professionals assigned to care for him. That result was mandated, said the justices, by the very fact that Mr. Gernannt was involuntarily committed to a treatment facility because of his well-known combative tendencies. Nurse Berberian accepted the risk of injury by choosing her profession, not unlike a fireman’s choice to work in a hazardous field. Berberian v. Gernannt, April 6, 2004.

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