Simple Will- Complex Problems: Will Drafter Does Not Help In Case of Undue Influence

The problem with a Simple Will is that it is simple.  Simple means quick, easy, and, of course, inexpensive.  But, as with all professional services, one gets what one pays for.

Attorneys typically spend little time crafting or supporting simple and inexpensive documents, meaning that the documents are often not worth the paper that they are written on.  Consider the following case, too, when using self-help document creation like on-line services such as legalzoom, where there may be no attorney involved in preparing and executing a legal document.

A New York trial court recently determined that an incapacitated woman was unduly influenced by her agent under a power of attorney, disregarding the testimony of the attorney who drafted a Will for the woman, because the attorney spent little time with the woman and failed to even determine her knowledge of her estate. Matter of Mitchell (N.Y. Sup. Ct., No. 100163/14, June 3, 2016).

Mary Mitchell appointed Gary Shadoian as her attorney-in-fact under a general power of attorney, and health care proxy.   Mary Mitchell, a municipal employee, was entitled to free legal services under a Legal Plan provided by her employer.   Mary Mitchell may have initiated the process of preparing a Will, but after poor follow-up,  Mr. Shadoian contacted the attorney on Ms. Mitchell's behalf to complete the Will. The attorney had one conversation with Ms. Mitchell over the phone and met her once in person. The attorney allowed Mr. Shadoian to be present when Ms. Mitchell executed her will even though Mr. Shadoian was a beneficiary of the will.

After Ms. Mitchell was repeatedly hospitalized, the court appointed guardians for her. The guardians filed suit against Mr. Shadoian, arguing that he unduly influenced Ms. Mitchell. At the trial, the attorney who drafted the will for Ms. Mitchell testified on behalf of Mr. Shadoian that he did not know Ms. Mitchell was incapacitated, but the attorney admitted that he had not made even simple inquiries about her knowledge of her estate.

Mr. Shadoian testified that he and Ms. Mitchell were not romantic, and not social friends, but as a co-worker, he had over time become her caregiver.  Ms. Mitchell was not close to her sisters or other family members, as they admitted, although they testified against Mr. Shadoian that Ms. Mitchell had never given gifts to anyone, never contributed to or been a member of any social organizations, and was a spendthrift unlikely to give anyone gifts or leave her estate to anyone.  

Mr. Shadoian testified that he would drive to Ms. Mitchell's apartment after work nearly every night, and telephone records reflecting scores of telephone conversations between the two were introduced into evidence. For example, between February 17, 2011 and March 16, 2011, more than 60 telephone calls between the IP and George Shadoian were reflected in cell phone records  He testified regarding the actions and efforts he made on Ms. Mitchell's behalf.  By all accounts, Mr. Shadoian was her most intimate and longest existing contact. Those testifying against Mr. Shadoian suggested that his efforts to involve himself in her life were equally successful in discouraging or preventing others from taking an active interest in her care.

The attorney was Mr. Shadoian's only other witness.

The New York Supreme Court ruled that Mr. Shadoian exercised undue influence over Ms. Mitchell. The court determined that Mr. Shadoian's testimony was not credible, and that the testimony of the attorney that prepared Ms. Mitchell's Will "was too threadbare to carry much weight." The court was critical that the attorney "failed to make even elementary inquiries as to the actual size of the estate, her medical condition, her social and familial history. Contrary to usual practice, he allowed an unrelated person, designated as beneficiary, to orchestrate the completion and execution of the will."

The testimony of the person who should have been able to testify competently and independently regarding Ms. Mills wishes and competency was dismissed.  The free Simple Will was unforceable.  Simple.

Income-Only Trust Upheld Notwithstanding Trustee Power to Purchase Annuity

The Massachusetts Court of Appeals recently ruled that the state Medicaid agency erred when it determined that the assets in an irrevocable income-only trust were countable because, in the agency's opinion, the trustee's ability to purchase an annuity with trust assets allowed the trustee to distribute trust principal to the beneficiary.  Heyn v. Director of the Office of Medicaid (Mass. App. Ct., No. 15-P-166, April 15, 2016).

Everlenna Roche transferred her home into an irrevocable income-only trust in 2003.  In 2011, Ms. Roche moved to a nursing home and began receiving Medicaid benefits.  Two years later, the Office of Medicaid terminated Ms. Roche's benefits after determining that the assets of the trust should be considered a countable resource.  Although the trust allowed the trustee to distribute only trust income, not principal, to Ms. Roche, the Office of Medicaid took the position that the trustee's ability to purchase an annuity with trust funds, in effect, allowed the trustee to distribute to Ms. Roche the principal used to purchase the annuity, rendering the trust countable.

Ms. Roche passed away and her estate appealed the Office of Medicaid's decision, but the appeal was rejected at an administrative level and upon review by the Superior Court.  On appeal to the Appeals Court, Ms. Roche's estate argued that state law prohibited the trustee from changing principal payments from the annuity into income and that the returned principal payments from the annuity were required to be retained in the trust. 

The court agreed with Ms. Roche's estate's claim that state law prohibits an allocation of principal to income that would circumvent the trust's prohibition on principal distributions.   The Court also went out of its way to reject two other alternative arguments even though the trial judge did not rely on them: (1) that the ability of the trustee to distribute principal to Ms. Roche’s children made the trust assets countable, and (2) that Ms. Roche’s power under the terms of the trust to direct a substitution of assets made the trust assets countable.  The Court determined that both arguments lacked support in law or logic, as neither would allow for distribution of principal to Ms. Roche which was the only relevant issue.

The Massachusetts Court of Appeals overturned the Office of Medicaid's decision.  The court wrote that:

"[o]ut of each annuity payment, only the investment income portion would be available for distribution to the grantor from the trust; that portion of each payment representing a return of capital would be required by the trust instrument to be retained in the trust.  The income portion available for distribution in such circumstances would be no different in character than interest earned on a certificate of deposit . . . In all events, the trust principal is preserved in the trust, and is not available for distribution to the grantor under the governing provisions of the trust."

.

One in Five SNF Residents Abused By Another Resident

McKnight's reports the results of a new study which reveals that at least one in five seniors living in nursing homes has experienced some sort of resident-on-resident abuse:

Researchers tracked reports of resident-to-resident mistreatment over a one-month period at five urban and five suburban New York nursing homes through resident and staff interviews, observations and incident reports. Of the 2,011 residents included in the study, 407 — or more than 20% — said they had experienced at least one abusive event over the course of the month. The study was released Tuesday in Annals of Internal Medicine [hyperlink added].

The most common forms of resident-on-resident mistreatment were verbal at 9.1% and miscellaneous instances, including invasion of privacy or menacing gestures, at 5.3%. Physical and sexual abuse incidents followed at 5.2% and 0.6%, respectively. 

Factors such as a resident's level of cognitive impairment, whether the residents resided in a dementia unit and higher nurse aide caseload were linked to higher rates of resident-on-resident mistreatment, results showed.

The findings indicate that traditional efforts to curb nursing home abuse may be disproportionately aimed at staff mistreatment instead of resident-on-resident events, researchers noted. 

In an editorial article accompanying the study, XinQi Dong, M.D., Ph.D., with the Rush Institute for Health Aging, pointed out that while further research is needed to develop “evidence-based, culturally appropriate” interventions for resident-on-resident mistreatment, providers and government entities “cannot wait” to advocate for better protections for residents. 

“We must recognize that residents may be both victims and perpetrators of [elder abuse], and avoid blaming victims or resorting to interventions of convenience, such as the use of chemical sedation or physical restraints,” Dong wrote. 

Providers also should look into ways that technology like cameras and data collection can help measure and prevent abuse, Dong added.

Resident on resident abuse has recently made headlines in Kentucky, where a resident of a residential care facility was charged with another resident's murder, in Texas, where a nursing home changed its name in the wake of a resident-on-resident double homicide, in New Hampshire, where a resident suffering from Alzheimer's strangled and killed another during an assault, and in Florida, where a resident died from injuries inflicted by another resident suffering from dementia.  In 2014, a female resident in Georgia strangled and killed her resident roommate, and in 2006, a resident in a Toledo, Ohio, nursing home beat and killed his roommate in a dispute over sleeping arrangements.  

Paramedics Often Obstructed, Provided Insufficient Information On Nursing Home Calls

McKnight's reported recently the results of a new survey which finds that paramedics often receive little direction from nurses or medical records when handling end-of-life situations at nursing homes.  Results published in the Emergency Medical Journal conclude that the lack of direction was heavily associated with a lack of clarity in residents' wishes. Paramedics said records providing residents' end-of-life preferences are uncommon and are typically limited to resuscitation. 

Without proper records, paramedics are forced to make decisions based on perceived preferences when a patient is incapable of making a decision.  Differing opinions on how to handle end-of-life situations also were reported to have contributed to paramedics' uncertainty.

Researchers said several paramedics spoke of situations where nursing staffs attempted to influence the paramedics on whether to hospitalize residents. One paramedic mentioned that once he arranged for a patient to be treated at a nursing home and the “staff were unhappy because it meant they had to provide one-to-one care and actually look after someone dying.”

Another paramedic told researchers of a situation where a relative's opposition contributed to a patient being submitted to the hospital against her wishes.  Differing opinions and directives have lead to several deaths, including a 2015 incident in Minnesota, where an unconscious nursing home resident died after her husband told paramedics not to take her to the hospital. Firefighters attempted to resuscitate the resident, and were about to transport her to the hospital when her husband arrived and requested they stop their efforts. The woman was taken back into the nursing home, where she died 20 minutes later, resulting in a police investigation whether the emergency responders met legal requirements when they stopped trying to resuscitate the resident since she did not have a “do not resuscitate” directive. 

Simple Advanced Directives, such as a Living Will, are not enough for patients who are seriously ill of nearing the end of their lives.  Susan Tolle, director of the Oregon Health and Science University Center for Ethics in Health Care agrees, telling Reuter's Health that “[p]atients nearing the end of their lives who wish to set limits on treatments need to turn preferences into action with orders on a POLST,” or Physician Orders for Life Sustaining Treatment.  This is particularly true in Ohio, where Advanced Directives specifically require physician certification of a patient being either permanently unconscious or terminally ill as those terms are defined under Ohio law, in order to permit withholding or withdrawing life sustaining treatment, including CPR.   

"It's important for all nursing homes to clarify residents' preferences regarding resuscitation and intubation,” The Hastings Center research scholar Nancy Berlinger told Reuters. “Even more important: a facilitated discussion of values and goals that can be transcribed into instructions for every employee.”  “It is owed to the patient, the family and to that aide at three o'clock in the morning. It is owed to the paramedic,” Berlinger added.

The survey was conducted by Georgina Murphy-Jones of the London Ambulance Service NHS Trust and Professor Stephen Timmons of the University of Nottingham.

Care Providers for the Disabled Get Reprieve From New Wage Rule

Disability providers are getting extra leeway as the Obama administration moves forward with a new rule that many worried could force service cuts for people with special needs.

The U.S. Department of Labor said this week that it’s finalizing a rule that will require far more American workers to receive extra pay for working over 40 hours per week.

Currently, salaried workers earning at least $23,660 are exempt from overtime pay. Under the new rule, which will take effect Dec. 1, that threshold will double to $47,476 with automatic increases in the future.

But heeding widespread concerns from providers of home and community based services to people with developmental disabilities, the administration is committing to delay enforcement of the new mandate for such providers through March 17, 2019.  The Labor Department said that the non-enforcement period will apply to providers of Medicaid-funded services to people with intellectual or developmental disabilities in residential homes and facilities with 15 or fewer beds.

The special exemption comes after intense lobbying by the American Network of Community Options and Resources, or ANCOR, a trade group that represents over 1,000 private agencies providing disability services across the country.

The group argued that the new rule could prompt service cuts for people with developmental disabilities, because many of the agencies’ workers would be newly eligible for overtime under the rule.  Medicaid payments, however, which account for the agencies’ main source of income have not adjusted to account for the new wage mandate. 

For more information, click here. 

Parents May Be Refused Details of Adult Child's Medical Care

Michelle Andrews, from Kaiser Health News, has penned an excellent article explaining why many adult children should execute health care powers of attorney and a HIPAA release in favor of a parent or parents.  The article, entitled, "Parents May Be Refused Details of Adult Child's Medical Care," was recently reported by Health News from NPR:

When Sean Meyers was in a car accident on a November evening three years ago, he was flown by air ambulance to the emergency department at Inova Fairfax Hospital, in Northern Virginia. With his arm broken in four places, a busted knee and severe bruising to his upper body, Meyers, 29, was admitted to the hospital. Though he was badly hurt, his injuries didn't seem life threatening.

When his car went off the road, Meyers had been on his way to visit his parents, who live nearby in Sterling. They rushed to the hospital that night to wait for news and to be available if Sean or the hospital staff needed anything. But beyond the barest details, no one from the hospital talked with them about their son's condition or care, not that night nor during the next 10 days while he was hospitalized.

"All the time he was there, the hospital staff was very curt with us," says Sam Meyers, Sean's dad. "We couldn't understand why we were being ignored."

After leaving the hospital, Sean moved into his parents' spare bedroom temporarily to continue his recovery. About a week later, he was in their kitchen one evening with his girlfriend when suddenly he collapsed. He was rushed to the nearest hospital, where he died. An autopsy revealed that he had several blood clots as well as an enlarged heart.

For Sean's parents, the results were particularly wrenching because there's a history of blood clots on his mother's side of the family. How much did the hospital staff know?

"It might have saved his life if they'd talked to us," Sam Meyers says. 

 A spokeswoman for Inova Fairfax says, "We cannot comment on specific patients or cases." But she noted that information about a patient's care can be shared in a number of circumstances.

These days when people think about patient privacy problems, it's usually because someone's medical record has been breached and information has been released without his consent. But issues can also arise when patient information isn't shared with family and friends, either because medical staff decides to withhold it or patients themselves choose to restrict who can receive information about their care.

The federal Health Insurance Portability and Accountability Act of 1996 — HIPAA — established rules to protect the privacy of patients' health information while setting standards for hospitals, doctors, insurers and others sharing health care information.

Stepped-up enforcement in recent years and increased penalties for improper disclosure of patient information under HIPAA may lead hospitals and others to err on the side of caution, says Jane Hyatt Thorpe, an associate professor at George Washington University's department of health policy and an expert on patient privacy.

"For a provider who's uncertain about what information a provider may or may not be able to share, the easiest and safest route is to say no," Thorpe says.

Go here to read the remainder of the article.

In Ohio a Medicaid Lien Can Be Placed Against a Life Estate to Real Property Even After the Death of the Medicaid Recipient

An Ohio appeals court recently ruled that a deceased Medicaid recipient's life estate does not extinguish at death for the purposes of Medicaid estate recovery. Accordingly, the state may place a lien on the property after the death of the life tenant. Phillips v. McCarthy (Ohio Ct. App., 12th Dist., No. CA2015-08-01, May 16, 2016).

Lawrence Hesse transferred ownership in his farm to his three daughters, retaining a life estate for himself. Mr. Hesse later moved to a nursing home and received Medicaid benefits for one year before he died. After his death, the state filed a lien on the property for Medicaid benefits paid on Mr. Hesse's behalf.

Mr. Hesse's daughters filed a quiet title action against the state, arguing that because Mr. Hesse's life estate extinguished when Mr. Hesse died, the state could not assert a lien against the property after his death. The trial court granted summary judgment to the state, and Mr. Hesse's daughters appealed.

The Ohio Court of Appeals affirmed, holding that the state could place a lien on the property after Mr. Hesse died. According to the court, with regard to Medicaid estate recovery "a life estate interest held by a Medicaid recipient does not extinguish upon his or her death. Rather, for purposes of Medicaid recovery, a life estate interest endures post mortem and represents a quantifiable asset which the state may encumber by virtue of a properly filed lien."

Although this holding might seem irrational, it was the obvious intent of House Bill 66 passed in 2005.  I wrote about the effects of this "seemingly" innocuous change in the law over eleven years ago:

The new law also expands the State’s rights to place liens on property. As part of the State Budget bill passed on June 30, 2005, the State of Ohio now has authority to place a lien on the assets of the Medicaid recipient or the recipient's spouse...The liens, which are being placed on these properties, are akin to the "Liens for the Aged" process which was in place in many states in the 1950s and 1960. These laws were ultimately rejected by courts on various constitutional grounds. There is no guarantee that a challenge to the current law will meet with similar success. More importantly, for every family that challenges these liens, other families will simply repay the state, or the spouse will sell the family home which may result in insufficient funds to continue living independently. 

The new law also turns upside-down traditional property rights. Traditionally, right and title to property held jointly with a right of survivorship or pursuant to a transfer on death designation [or conveyed subject to a life estate] vested in the survivor (or beneficiary as the case may be) at the time of death. This “vesting” is apparently thought to create a hardship for the state, since it could undermine its lien rights. As a result, in order to prevent the vesting at death, the statute actually redefines death as follows:

• “Time of death” shall not be construed to mean a time after which a legal title or interest in real or personal property or other asset may pass by survivorship or other operation of law due to the death of the decedent or terminate by reason of the decedent's death.” See O.R.C.§5111.11 (A)(5).

So, for the purposes of the State of Ohio, a person does not "die" upon physical demise, and property interests that traditionally "vested" in and to another person upon death never really vest so long as the State also has an interest in the property.  

I have for more than a decade encouraged clients to adopt modern and more effective property transfers utilizing irrevocable trusts.  "I told you so," rings hollow and ominous given the consequences for Ohioans that want to pass to their heirs the assets they have worked so hard to protect.  

Hospice Owner Accused of Instructing Nurses to Kill Patients by Overdose

McKnight's reports that the owner of a Texas hospice company has come under fire for allegedly encouraging employees to overdose patients and hasten their death in order to avoid the federal reimbursement cap for hospice stays.

Brad Harris, 34, owner of Novus Health Care Services Inc., allegedly told a nurse to overdose three patients on drugs such as morphine, and instructed another employee to give a patient four times the maximum dose allowed, according to an FBI affidavit obtained by a Dallas television station. In another instance, Harris texted an employee of the Frisco, TX-based company “you need to make this patient go bye-bye.”

The FBI affidavit was written in February, but not publicly released until this week. No charges have been filed against Harris or Novus as of press time, and Harris remains free. The FBI declined to comment on the investigation, the Dallas Morning News reported.

The affidavit also accuses Harris of telling other healthcare executives that he sought out “patients who would die within 24 hours,” and of making comments like “if this f— would just die.” While at least one employee refused to comply with Harris' instructions, it's unclear if any patients were harmed.

The FBI's affidavit says Harris was motivated to find patients whose hospice stays were forecasted to be short, or even speed up patients' deaths, in order to skirt the payment caps placed on hospice care by Medicare and Medicaid.

Another employee said Harris would frequently decide which patients would be moved to and from home care, despite not being medically certified; Harris is an accountant by trade. Harris would have employees sign transfer papers with the names of doctors employed by the company, according to the affidavit.

"If a patient was on hospice care for too long, Harris would direct the patient be moved back to home health, irrespective of whether the patient needed continued hospice care,” the affidavit reads.

Horrific. 

Senior Supplements Safety-Survey Suggests More Than 15% of Seniors Taking Potentially Fatal Combinations of Prescriptions and Over-the-counter Supplements and Medications

Emily Mongan, Staff Writer for McKnight's, citing a recent study, warns that one in six seniors are ingesting prescription or over-the-counter drugs and dietary supplements, with potentially deadly results

Researchers at the University of Illinois at Chicago interviewed thousands of seniors in 2005 and 2011. They found more than 15% of seniors took potentially fatal combinations of prescription medications, over-the-counter drugs and supplements in 2011, compared to 8.4% in 2005.

The study also found the number of older adults taking at least five prescription drugs increased more than 30% over the six years. Use of over-the-counter medication among seniors dipped slightly from 44% to 38%, while the use of dietary supplements increased from 52% to 64%.

The growing use of multiple prescription drugs and supplements brings a “hidden, and increasing, risk of potentially deadly drug interactions” in seniors, lead researcher Dimo Qato told HealthDay.

Many of the dangerous interactions involved heart drugs and dietary supplements, like omega-3 fish oil, which are more widely used today than they were five years ago, Qato said. Other drugs, including some blood thinners, heart drugs and tranquilizers, may be negatively impacted by supplements like St. John's wort, which is often taken for depression.

Results of the study were published online in JAMA Internal Medicine.

Hospice Patients in SNFs Less Likely to be Visited by Professional Staff the Last Two Days of Life

Medicare patients who received hospice care in a nursing home setting were less likely to be visited by professional staff in the last two days of life, according to a new study.  The study, published online in JAMA Internal Medicine, found that 16.5% of hospice patients in nursing homes had no visits from professional hospice staff in the last two days of life, compared to 10.6% of patients not in nursing homes.  Smaller hospice programs, and those based in nursing homes, were less likely to provide visits in the last two days of life, the study found. 

 Researchers also noted differences in visits based on patient characteristics. Close to 15% of black patients had no visits on their last two days, compared to 12% of white patients. One in five patients who died on a Sunday also did not have a visit from professional hospice staff in their last two days of life.

The authors noted that their study did not take into account the severity of the symptoms of the hospice patients, or family preferences for visits. The results still pinpoint disparities in hospice care, researchers said, which is especially relevant as the Centers for Medicare and  Medicare Services evaluates reforms.

Source: McKnight's.