 Written by Jill Roamer J.D.
As a senior ages, they may no longer be able to look after their own affairs. This could be their medical affairs, financial affairs, or both. Hopefully, the senior planned early and had the appropriate powers of attorney in place. These documents allow another to act on the senior’s behalf in the event they are unable to do so. If a senior did not plan and have the appropriate documents in place, then a guardianship or conservatorship may be necessary. Both entail a court process. In a guardianship, the court would grant someone, termed a guardian, to be in charge of the senior’s person. This means monitoring their day-to-day health, making doctor’s appointments, administering medication, and ensuring the senior has proper hygiene. A conservatorship means the court appoints a conservator to be in charge of the senior’s finances. In both cases, the senior would be termed a ward. A guardian and conservator must act in the ward’s best interests. Oftentimes, a court might name the same person, say, a family member, as both guardian and conservator. In other cases, the guardian and conservator may be different people. And if there are no appropriate friends or family to be appointed, a professional may be appointed. While the professional must still act in the senior’s best interests, can a lawsuit be brought against the professional if they were acting in accordance with their duties as guardian? This issue was recently litigated in Massachusetts. In this case, we have Kathleen who had dementia and became unable to take care of herself. Her son, Francis, lived with her and was supposed to be caring for her. After reports surfaced that Kathleen was being neglected and financially exploited by Francis, a court got involved. The court appointed attorney Cherilyn to act as Kathleen’s conservator. Kathleen’s other son, Kevin, was named as her guardian. Kathleen owned a three-family home but was residing in a nursing home. Kevin came up with a plan to rent out the second and third floors of Kathleen’s home and to have Kathleen reside on the bottom level and receive around-the-clock care via Medicaid. Before that could happen, Francis must leave the premises due to his misconduct towards Kathleen. Cherilyn attempted to evict Francis from Kathleen’s home, to no avail. Cherilyn motioned the court to get permission to evict Francis and sell the home. Both motions were granted and both tasks were eventually accomplished. Kathleen died a few years later, and her estate was required to reimburse Medicaid for any expenditures made for Kathleen’s care. Kevin filed a Complaint against Cherilyn for breach of fiduciary duty, malpractice, conversion, and fraud. The trial court ruled in favor of Cherilyn, stating that the claims alleged were “paper-thin” and that Cherilyn, as a court-appointed conservator, had quasi-judicial immunity if she was acting within the scope of her duties. Kevin appealed and the Judicial Supreme Court took on the case. In analyzing judicial immunity, the court quoted several cases as stating “A judge is entitled to judicial immunity and therefore is exempt from liability to an action for any judgment or decision rendered in the exercise of jurisdiction vested in him [or her] by law." Immunity would only be denied if the judge acted in “clear absence of all jurisdiction”. The court went on to explain that such immunity was not only limited to judges, but also extends to folks who perform quasi-judicial functions. For example, immunity could be extended to court-appointed psychiatrists, court clerks, guardians ad litem, and personal representatives of an estate. In deciding if one is entitled to quasi-judicial immunity, the court looks to the function of that person and how close their actions are associated with the judicial process. However, immunity does not apply if the person is acting outside the scope of their duties. In this case, the court ruled that Cherilyn, as conservator and acting under a court order, was entitled to quasi-judicial immunity. The court stated that a conservator was like an arm of the court and was integral to the judicial process. Importantly, the opinion clarified that if a conservator is acting in accordance with a judge’s order, then the conservator has quasi-judicial immunity as to those actions. However, if the conservator’s actions are not sanctioned by a court order, then those actions are being taken as a fiduciary of the ward and the conservator may be personally liable. Our goal at the Nickerson Law Office is to ensure that trusted family or friends can be named conservators rather then the court. Contact our office today to learn more about how we can help for your families future.
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 Written by Jill Roamer J.D.
Federal law prohibits a nursing home from requiring that past-due expenses be paid as a condition for a resident to be admitted to or continue to stay at a facility. But what if someone volunteers such payment? This issue was recently litigated in the Commonwealth of Kentucky Court of Appeals. In this case, Erma was in a nursing home and filed for Medicaid benefits about 6 months after her arrival. Erma’s application was approved and Medicaid paid 3-months retroactive benefits to the nursing home. During her private-pay tenure, Erma had accrued a balance of about $35,000. Erma’s daughter, Christy, executed a promissory note to the nursing home that promised to pay for this balance. Christy made one payment under the note and then defaulted. The nursing home filed suit against her for payment. Christy argued that the nursing home could have sought payment from Medicaid. The trial court ruled in favor of the nursing home and Christy appealed. We now have this case out of the appeals court. In her appellate brief, Christy raised new arguments. The appeals court allowed the introduction of new arguments, under the palpable error review rule. “A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.” Christy’s new argument was that the promissory note was illegal under the Nursing Home Reform Act and other federal regulations. Such laws state that a nursing home cannot require a third-party guarantee of payment as a condition for a resident to be admitted to or continue to reside in a nursing home. Christy claimed that the nursing home’s bookkeeping department brought her in to sign the promissory note but she testified that she signed it voluntarily. Interestingly, while other states have precedent that allows a voluntary payment of the past due amounts owed without incurring a violation of federal statutes, Kentucky had no precedent on the matter before the instant ruling. Other states’ precedents ruled that if the federal government had intended on forbidding third-party guarantee payments, they would have explicitly done so. However, the federal laws do not ban the payments in their entirety, but only if the payments are a condition on the resident staying at the nursing home. The Kentucky appeals court here jumped on the bandwagon with other states and ruled in favor of the nursing home. Christy executed the promissory note voluntarily so it wasn’t predicated as a condition before Erma was allowed to stay at the facility. As a result, Christy was on the hook for the amount of the note. It's unfortunate that a lot of families have had to deal with red tape situations like these. Our law office has been able to help families navigate an estate plan around medicare and medicaid. If you want to learn more, don't be afraid to contact our office for more information. |
AuthorJeffrey C. Nickerson - Estate Planning Attorney - My Passion is Special Needs Planning! Archives
December 2021
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