| RECENT COURT
DECISIONS
Correri
Decision Followed in Article 78 Proceeding: NAMI Permitted
to be Deposited into Third Party SNT
In
this Article 78 proceeding in the Nassau County Supreme
Court, petitioner appealed an ALJ decision which determined
that a Medicaid A\R could not deposit the NAMI into
a third party SNT for her disabled daughter. An article
81 guardian was appointed for the A\R and the Judgment
in the guardianship proceeding specifically authorized
the guardian to deposit the petitioner’s income
to “...the SNT for the benefit of Stephanie
Kaiser, an adult disabled child ...” of petitioner.
The Court in the Article 78 proceeding reversed the
ALJ’s decision. DOH argued that Correri was
an eligibility case that determined that the NAMI
need not be budgeted if the NAMI was contributed to
a third party sole benefit SNT (the “SNT”).
DOH argued that this case was different citing 18
NYCRR §360-4.9 having to do with including all
available income after eligibility is determined.
Thus, while the NAMI could be contributed to the SNT
for purposes of eligibility, it could not thereafter
be contributed to the SNT under the provisions of
18 NYCRR § 360-4.9 according to DOH. The court
rejected this argument.
Kaiser
v. DOH, July 24, 2006, Index No. 4668-06
http://decisions.courts.state.ny.us/10jd/nassau/decisions/index/index_new/
palmieri/2006jul/004668-06.pdf
Court
Permits Recovery Against Refusing Community Spouse
Nassau
County DSS instituted an action against a refusing
Community Spouse (CS) to recover benefits provided
to the Institutionalized Spouse. The recovery was
sought under an implied contract theory. The refusing
CS had resources in excess of the CSRA and income
in excess of the MMMNA for the year in which the application
was made. The CS argued that she would be subject
to a hardship if she needed to pay for her husband’s
care and that the resources came from her family and
were not marital assets.
The
court indicated that undue hardship is not a defense
in this proceeding and should have been asserted at
the administrative level driving the application process;
that the distinction between separate assets and marital
assets have no place in the Medicaid context; that
no proof was offered to show that discovery demands
were made; and that computer print outs are competent
forms of evidence under CPLR 4518 (a). Recovery against
the CS was allowed.
Clement
v. Meager, 11747-05, 2006 NY Slip Op 51588, August
14, 2006
http://decisions.courts.state.ny.us/10jd/nassau/decisions/index/index_new/
austin/2006aug/011747-05.pdf
Supervising
Judge Has Limited Authority to Change Order Issued
by Court Appointing Guardian
Under
MHL §81.32 (b), the reports of guardians are
to be examined by a supervising judge or an appointee
of the court. That supervising judge or appointee
has certain powers under that Section. In this proceeding,
the supervising judge was held to have exceeded his
authority because he ordered a change in the compensation
of the guardian awarded by the court, altered the
guardian’s authority to pay professional fees,
and directed of the need to file a bond. See MHL §81.32
for the powers that a supervising judge has in the
process of reviewing reports and accountings submitted
by guardians.
In
the Matter of William J. J., 2004-11107, 2005-01867,
2005-03646
2006 NY Slip Op 6285; 2006 N.Y. App Div. Lexis 10327
http://www.nycourts.gov/reporter/3dseries/2006/2006_06285.htm
Trustees
Not Barred From Making Unitrust Election Even though
They Also Were Remaindermen of Testamentary Trust
The
question before the Westchester County Surrogate was
whether the trustees, who were remaindermen of a testamentary
trust, could retroactively apply unitrust treatment
under EPTL § 11-2.4. The decedent’s will
created a trust to pay income to his wife for life,
remainder to his children. Two of his children became
successor trustees on the death of their uncle. In
March 2003, the trustees elected to convert the trust
to a unitrust and sought to have the unitrust election
made retroactive to the effective date of the statute,
which was January 1, 2002. As a result, the amount
paid to the widow was reduced by more than 50%. The
court held that the trustees were not barred from
making the election because they were also remainder
beneficiaries and that the election could be made
retroactively. The court remanded to the Surrogate’s
Court for a careful review of the fairness of the
election and the application of all factors applicable
to the making of the election, including those set
forth in the statute.
Matter
of Heller, 6 N.Y. 3d 649 (2006)
http://www.nycourts.gov/ctapps/decisions/may06/52opn06.pdf
DSS
Gives Up The Battle
DSS
has advised its local districts that because of an
“adverse decision” of the United States
Supreme Court in Arkansas v. Ahlborn, 547
U.S. , 126 S. Ct. 1752, LEXIS 3455, recovery of SSL
§ 104-b liens from third party tort feasors is
to be limited to that portion of the award allocated
to past medical expenses. Recall that in Calvanese,
93 N.Y.2d 111, 699 N.Y.S. 2d 479 (1999), the New York
Court of Appeals decided that under the assignment
language in 42 USC 1396k(b) all of the proceeds of
a settlement of a personal injury action were to be
paid to Medicaid in satisfaction of the recipient’s
reimbursement obligation. Arkansas had a statute which
required reimbursement from the entire settlement-meaning
the reimbursement was not limited to that portion
of the award relating to medical expenses incurred.
DSS had adopted the rationale in Calvanese and now has issued GIS 06 MA/022 (9-14-06) to reflect
the US Supreme Court’s opinion regarding the
limited scope of the federal statute and thus will,
in the future, limit recovery to that portion of an
award allocated to past medical expenses only. Food
for thought: Is there a ground to seek reimbursement
in pre Ahlborn situations where DSS acted
beyond the scope of Ahlborn?
Does a Guardian Under SCPA § 1750 Have the Right
to Terminate Life Sustaining Medical Care for a Mentally
Retarded Person?
A
mother sought to be appointed by the New York County
Surrogate as guardian for her 26-year old mentally
retarded female daughter. The mother’s petition
sought authority to make decisions concerning life
sustaining treatment for her disabled daughter. The
Surrogate granted the relief requested in the petition
and the decision was appealed to the First Department.
The daughter, through Mental Hygiene Legal Service,
argued in the main that the statute under which the
appointment was made (SCPA § 1750-b) violates
the Equal Protection and Due Process Clauses of the
United States Constitution. The First Department affirmed
the Surrogate’s decision. The First Department
opined as follows: Due process was granted because
a hearing was held and parties were afforded the right
to present evidence. The protections afforded by the
Equal Protection Clause were not denied because the
state has an interest in protecting its most vulnerable
citizens and has the right to treat incompetent people
differently than a competent person. Equal Protection
applies only to people who are similarly situated,
and since this ward lacked capacity, the state is
entitled to treat people with a lack of capacity different
from people who have capacity. See NY Slip Op 06628,
New York State Law Reporting Bureau, September 21,
2006.
http://www.nycourts.gov/reporter/3dseries/2006/2006_06628.htm
____________________
The Family Law Committee of the Elder Law Section,
is working on a survey to ascertain as to whether
Guardianship Judges will permit an Incapacitated Person
(IP) to be a Plaintiff or a Defendant in a divorce
action. The survey is being limited to the counties
listed below.
The
Committee is attempting to find out what criteria
are used by the Judges in each county. Thus far, the
Committee has the following counties covered, with
the persons in charge of interviewing the Judges and
Law Secetaries:
(1)
Suffolk County - Rita Eredics
(2) Greene & Columbia County - Andrea Lowenthal
(3) Nassau County - Jacqueline S. Carway
(4) Monroe County - Marcia Boyd
(5) Westchester County - Rita K. Gilbert
If
any readers would be willing to assist in Kings County,
Queens County, and Staten Island, the Committee would
be most appreciative. Please contact Committee Chair
Rita K. Gilbert at the address below:
Rita
K. Gilbert, Esq.
Hyman and Gilbert
1843 Palmer Avenue
Larchmont, NY 10538
(914) 833-5297
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