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RECENT
COURT DECISIONS
FAMILY
COURT INCREASES MMMNA BASED UPON EXCEPTIONAL CIRCUMSTANCES
STANDARD
This
decision explores circumstances which might give rise to extraordinary
circumstances warranting an increase in the MMMNA for a community
spouse. The community spouse was responsible for payment of
the entire mortgage and debt service, maintenance and insurance
expenses on the marital home which she and her institutionalized
husband jointly purchased. Mortgage payments increased the
equity she and her husband had in the residence. The community
spouse also has personal medical and dental expenses and prescription
medications which totaled approximately $300.00 per month.
Additionally, she spent approximately $100.00 per month to
purchase necessary and incidental personal items for her husband,
including Depends undergarments and replacement clothing,
neither of which are provided to patients by the nursing home,
and delinquent monthly $329 tax payments due to the IRS and
NYS. The community spouse also incurred large expenses associated
with her automobile, including a monthly loan payment of $530.00
and insurance premium payments of $259.00 per month. She made
daily trips to visit her husband at the nursing home. While
public transportation was available, it was impractical since
this particular community spouse was elderly and would need
to endure a lengthy trip to visit her husband. The community
spouse had monthly income of $2,799.55 when the MMMNA was
$2,267. Thus the Family Court of Queens County found that
there were exceptional circumstances warranting an increase
in the MMMNA and an award of the institutionalized spouse's
monthly income of $1,284 and affirmed the decision of the
Magistrate.
In the matter of Bertha — 2004 NY Slip Op 50918U,
4 Misc. 3d 1017A; 2004 N.Y. Misc.
LEXIS 1248.
MONEY
"LOANED" TO MOTHER DEEMED TO BE AVAILABLE RESOURCES
FOR MEDICAID ELIGIBILITY PURPOSES
While
this decision involved a matter of administrative law, to
wit, whether there was substantial evidence on the record
as a whole to support the decision of the Erie County Department
of Social Services, a review of the arguments raises other
issues. Here we have children giving funds to their mother
to help pay her medical bills. The application for Medicaid
was denied because of excess resources-that is, the mother
had received gifts from her children and therefore had available
funds with which to pay her medical expenses. The daughters
argued that the monies given to their mother were given as
a loan and not a gift. The record, which is unavailable to
review, had, according to the court, enough evidence to support
the decision of the administrative agency that the funds given
to the mother were gifts and, therefore, she was correctly
determined to be ineligible for Medicaid due to excess resources.
Suppose
the funds were in fact loans given by the children. Should
the result be different? Say a person borrowed funds from
a bank, and that during the period for which Medicaid was
sought used those funds to pay for medical care. Does a bona
fide obligation to repay a debt (assuming a bona fide debt)
reduce available resources to net available resources? Some
may argue for an offset to arrive at "Net Available Resources"
under 18 NYCRR 360-4.6(b), but there appears to be no such
resource offset.Barbara
Faber, as executor of the last will and testament of Mary
A. Keefe, deceased, petitioner, v. Deborah Merrifield, Commissioner,
Erie County Department of Social Services, Antonia C. Novello,
Commissioner, New York State Department of Health, and Mark
Lacivita, Director of Administration, Office of Administrative
Hearings, New York State Office of Temporary and Disability
Assistance, Respondents. Supreme Court Of New York, Appellate
Division, Fourth Department, 782
N.Y.S.2d 495; 2004 N.Y. App. Div. LEXIS 11329.
REFORMATION
OF TRUSTS NOT ALLOWED TO PROTECT FUNDS FOR THE BENFIT OF DISABLED
BENEFICIARIES
This was
a case where trustees of two independent inter vivos trusts
brought an application before the New York County Surrogate's
Court to reform the trusts. The trusts, created prior to the
statutory authorization for supplemental needs trusts as is
contained in EPTL 7-1.12, provided benefits to certain disabled
family members.
One trust
required income to be paid to a disabled beneficiary which
then made that beneficiary ineligible for Medi-cal in California
and yet the income that was available was insufficient to
pay for the beneficiary's care. Reformation of that trust
was sought so that the trust income could be transferred to
a trust created by the disabled beneficiary's father. The
father's trust was a third party SNT and the Surrogate was
not unmindful of the fact that upon the death of the disabled
beneficiary, the trust property would pass to others free
of any claim for reimbursement by Medi-cal.
The other
situation involved three trusts which were about to be terminated
due to the death of the prior income interest. The termination
would result in a disabled grandchild obtaining a portion
of the property (amounting to $900,000) in the three trusts.
Even though the trusts by their terms were to terminate, reformation
was sought with respect to the funds distributable to the
disabled person so that the trusts would continue as third
party SNTs and upon the death of the disabled beneficiary
the trust property would be distributed to others.
Based
on the intent of the grantors, Surrogate Preminger would not
reform a trust since reformation is intended to be employed
to correct an error or mistake. There was no error or mistake
here since the Grantors' intents were being adhered to. The
Surrogate did say however that the court would entertain an
application to create a self-settled SNT with, of course,
a payback. In the Matter of the Trust
u/a SYLVIA U. RUBIN, dated December 28, 1972, 4536/76,
Surrogates Court of New York, New York County, 4 Misc. 3d
634; 781 N.Y.S.2d 421; 2004 N.Y. Misc. LEXIS 958, June 7,
2004.
NO
EVIDENCE OF UNDUE INFLUENCE FOUND IN FATHER/DAUGHTER RELATIONSHIP
The decision
deals with the all too common problem of one parent leaving
assets having a greater value to one child than to the other(s).
Here a father, whose wife predeceased him, requested that
his daughter move in with him because he was alone. The daughter
and her family did so. The daughter then provided care to
the father who requested that his daughter take him to an
attorney to change his will. The father not only left the
family home entirely to his daughter but also conveyed a remainder
interest to the daughter while the father retained a life
estate.
The son
suggested undue influence, duress, and constructive fraud
growing out of a confidential relationship. The court, after
reviewing numerous arguments made by the son, distinguished
between a father-daughter relationship and a confidential
relationship with an unrelated third party. The court also
found that there was no evidence of undue influence, duress
or fraud and issued a judgment in favor of the daughter. The
decision is instructive owing to the many arguments advanced
regarding what one party considers evidence of undue influence.
Michael G. Connelly, Plaintiff, v. Maureen T. Connelly, Defendant,
10537/03,
Supreme Court of New York, Kings County, 2004 NY Slip Op 50961U;
4 Misc. 3d 1019A; 2004 N.Y. Misc. LEXIS 1319, August 2, 2004,
Decided.
ANNUAL
ACCOUNTING NOT REQUIRED IN COURT-APPROVED SUPPLEMENTAL NEEDS
TRUST, NOT WITHSTANDING MEDICAID REQUEST FOR SAME
An application
was made before the Suffolk County Surrogate seeking the creation
of a self-settled SNT. DSS requested that the court require
annual accountings. Surrogate Czygier, as he has stated in
the past, indicated that annual accountings are unnecessary
in that the interests of the remainderman (DSS) are protected
by the regulations applicable to self-settled SNTs appearing
at 18 NYCRR 360-4.5 and the requirement of a trustee to post
a bond-which the Surrogate required in this case. Moreover
because DSS could petition the court to require an accounting
at any time, there was no need for further protection in the
form of mandatory annual accountings. Matter
of Kevin Pete Kaidirmaoglou, NYLJ November 5, 2004, Friday,
page 28.
FAMILY
LAW COMMITTEE ACTIVITIES
Rita Gilbert,
the chair of the Family Law Committee, attended a Kincare
Conference sponsored by AARP in November. The purpose of the
conference was to produce a basis for legislation to support
greater grandparent involvement in the care of a grandchild.
LONG
TERM CARE REFORM COMMITTEE
The
Long Term Care Reform Committee (Lou Pierro, Chair; Robert
Kurre, Vice-Chair) is nearing completion of its Long Term
Care Reform Report.
This
report will serve as a basis for discussion and represent
the Section's position with respect to important policy issues
once the legislative session regarding Governor Pataki's 2005-2006
budget bill commences.
COMMUNICATIONS
COMMITTEE
We
are happy to report that Gary Bashian of White Plains, New
York has joined the Communications Committee and will be contributing
to the production of the Elder Law eNews. |
Elder Law eNews
