Production of the Elder Law Section Communications Committee Howard
S. Krooks, Section Chair
Steven Rondos, Committee Chair
Dean Bress, Committee Vice-Chair
of the Elder Law Section:
our pleasure to advise you of the formation of a new committee
of the Elder Law Section, the Communications Committee. Section
Chair, Howard S. Krooks, formed the Communications Committee
to create an e-newsletter advising Section members of recent
developments in the law, proposed legislation, Elder Law Section
Committee activities, and pending actions across the State
that may be of importance to all members of the Section.
the first Elder Law eNews we are sending to our members. The
newsletter will be sent out on a regular basis either in the
form of an e-mail blast or in writing for those members without
an e-mail address.
to compile the eNews, we need your help. Kindly forward your
comments and contributions to us on a going-forward basis
so that we may incorporate them into future eNews. A brief
summary of your topic will be helpful. Please fax or email
your comments and contributions to any of the following members
of the Communications Committee:
T. Rondos, Esq.
Chair, Communications Committee
Fax: (718) 833-6340
S. Bress, Esq.
Vice-Chair, Communications Committee
Fax: (914) 428-5663
UPHOLDS SPOUSAL REFUSAL
District Court for the District of Connecticut has upheld
the right of a community spouse to assert spousal refusal
where the institutionalized spouse assigned his support rights
to the state. A community spouse moved for summary judgment
requiring the State of Connecticut to declare her institutionalized
husband eligible for Medicaid notwithstanding the fact that
she had resources in excess of the CSRA. Resources in excess
of the CSRA are considered available to pay for the cost of
care. Yet, under 42 USC 1396r-5(c)(3), eligibility may not
be denied when an institutionalized spouse has assigned to
the State rights of support from the community spouse. Connecticut
argued that in Connecticut there is no statutory authority
for assigning support rights and that the power of attorney
used to effectuate the assignment did not confer sufficient
power on the attorney in fact. The District Court dismissed
the state's arguments and granted summary judgment for the
community spouse thereby upholding the right of spousal refusal
in the State of Connecticut. Morenz v. Wilson-Coker,
(D. Conn., Civ. Act. No. 3:04 cv 216, June 10, 2004.
case was litigated by Section member Rene H. Reixach of Rochester,
AGENT DESIGNATED IN A NEW YORK HEALTH CARE PROXY IS ENTITLED
TO HOSPITAL MEDICAL RECORDS UNDER HIPAA.
who was appointed as power of attorney and health care proxy
by her mother, and who was caring for her mother, sought to
obtain medical records from a Long Island hospital. The hospital
refused offering the following reasons: (1) the power of attorney
does not relate to and cannot implicate health care decision
making in New York, (2) the agent designated in a health care
proxy is not a "qualified person" under the New
York Public Health Law which would allow release of such records,
(3) federal regulations control this legal issue unless NY
law is "more stringent" and NY law is not more stringent,
and (4) a request for medical records under federal regulations
must come from the mother herself. The hospital indicated
if records are needed, all that the daughter need do is commence
a guardianship proceeding and obtain such authority from a
court sided with the daughter and specifically referred to
the New York Public Health Law, which states that "Notwithstanding
any law to the contrary, the agent shall have the right to
receive medical information and medical and clinical records
necessary to make informed decisions regarding the principal's
because the hospital did not give appropriate consideration
to an appeal by the daughter or even establish an appropriate
appeal mechanism, the Court, owing to certain procedural matters,
returned the matter for further consideration by the hospital.
If the daughter did not obtain a satisfactory result, she
could again pursue the matter in court. Matter of Mougiannis
v. North Shore-Long Island Jewish Health System, Inc.,
NYLJ May 19, 2004, p.19.
POWER OF ATTORNEY AND HEALTH CARE PROXY DOES NOT ALLOW THE
AGENT TO DETERMINE THE RESIDENCE OF THE PRINCIPAL.
was appointed as POA and HCP by her mother. Son brought an
Article 81 proceeding for the appointment of a guardian. Daughter
moved for summary judgment requesting that she be permitted
to determine the residence of the mother and that the petition
for guardianship should be dismissed since the use of the
POA and HCP was the least restrictive means available. The
Court determined that neither the POA nor the HCP allowed
the agent to choose the place of residence. Matter of Julia
C., NYLJ, May 15, 2004, p.20.
FEWER PEOPLE SIGNING WILLS THESE DAYS?
to a survey of Martindale-Hubbell, in 2004 only 42% of adults
had a Will. This is down from 47% in 2000. Why? Well, it could
be that people believe that the estate tax exemption's increase
to $1.5 million is a reason not to worry. It could also be
that more people are using revocable trusts as the chief testamentary
disposition instrument. The reasons cited are anecdotal. See
the Wall Street Journal, June 10, 2004, p.D2.
TORTFEASOR WHO CAUSES THE DEATH OF A GRANTOR OF A QUALIFIED
PERSONAL RESIDENCE TRUST BEFORE THE END OF THE TRUST TERM
IS ANSWERABLE IN DAMAGES FOR THE LOST TAX BENEFITS.
Del Broccolo v. Torres, defendant caused the death
of the plaintiff. The issue was whether defendant is liable
for the lost tax benefits associated with the premature termination
of the Qualified Personal Residence Trust some eight years
before its scheduled termination. In general, tax benefits
planning is speculative and could vary over time. Here, however,
there was nothing that was speculative and there was nothing
except premature death which would negate the tax benefits.
Thus the court notably held that the lost tax benefits are
an appropriate consideration for the trier of facts. See NYLJ,
June 24, 2004, p.20, c.1.
DEPARTMENT RULES THAT ARTICLE 81 APPLIES TO INCAPACITATED
court refused to execute an order to show cause commencing
an Article 81 proceeding for an incapacitated infant. Instead,
the lower court wrote a decision stating that petitioners
should commence an action under Article 17 of the SCPA. The
first department directed the lower court to conduct the hearing,
holding that actions brought under article 81 of the
Mental Hygiene Law may be brought on behalf of infants.
In re Rojas, 2004 N.Y. App. Div. LEXIS 6657.
ON A DISABILITY TRUST MAY BE PAID BEFORE MEDICAID IS REIMBURSED.
Court of Colorado ruled that upon termination of a (d)(4)A
Disability Trust, the trustee may use the corpus of the trust
to pay state and federal taxes before Medicaid is reimbursed.
Stell v. Boulder County DSS (Co., No 03sc511, June 14,
CRITERIA FOR CONTRACTORS NOT SUBJECT TO RULE MAKING REQUIREMENTS.
Court of Appeals for the Ninth Circuit ruled that the criteria
Medicare gives to its contractors to make local coverage decisions
are interpretive rules that are not subject to the formal
rule making requirements of the Medicare or administrative
procedures acts. Eringer v. Thompson (9th Cir., No
03-16408, June 10, 2004).
OF AN ELDER LAW IN NEW YORK STATE.
Senator Martin Golden has sponsored a bill, No. S6047, which
will establish Chapter 35-A of the Consolidated Law as Elder
Law. While the measure does not create a new statute, it moves
certain agencies and programs to the new Elder Law such as
the State Office for the Aging, contracts with Greenthumb
Environmental Beautification, program for elderly pharmaceutical
insurance coverage (EPIC), and police services to the elderly.
The intent is that by establishing an Elder Law in New York
State, it would provide a new level of focus on issues affecting
seniors. The bill has passed both houses of the Legislature
and awaits signature by Governor Pataki.
Executive Committee Meeting at Mohegan Sun
NYSBA Elder Law Section Executive Committee Meeting at Mohegan
Sun is open to Section members (on a space-available basis).
The meeting will be held on August 5, 2004 at 10:45 a.m. in
the Abenaki Meeting Room. Please contact Lisa Bataille, Section
Liaison, at (518) 487-5681, if you are interested in attending.