Don’t Put My Mom on the Street

As an elder law attorney, I frequently meet with individuals who have an elderly family member who needs long-term care, such as care in a nursing home.  Oftentimes, the elderly individual has been slipping either physically or mentally, or both, for some time, but a sudden event, such as a slip and fall, forces her limitations to the fore.  The elder is in the hospital or a rehabilitation center, and her family members are wondering how to care for her.

My mother currently requires long-term care.  Like many elderly individuals, she has been failing for the past two years, and now, the care she needs is more than my father can provide at home.  My mother never wanted to live in a nursing home.  “Just shoot me,” she would say.  Hundreds of my clients have expressed the same sentiment to me.

But as I tell clients, “You never know.  The care you need may be more than your family can handle, and many times people just don’t pass quietly in their sleep.”  Life isn’t like a light switch.  It doesn’t just turn on and off.

When we are young, every day we grow stronger and become more and more self sufficient, but the process takes years.  Similarly, when we are old, we become less and less self sufficient, and the process takes many years.  It’s sad, but it’s true.

Going through the experience of arranging for the long-term care of a family member allows me to experience firsthand what my clients talk to me about.  It’s bad enough to see a loved one require long-term care, but on top of that, the process of arranging for the loved one’s care can be quite frightening.

For instance, like most people, my mom went to the hospital and was then discharged to a rehabilitation center.  The goal of her rehab was to get her up and walking again, so she could be somewhat self sufficient when she went home.  Given her age and her health, the rehab doesn’t seem to be achieving its goal, so she probably will have to stay at the nursing home.

After being at the nursing home for rehab for two weeks, the facility called and told our family that my mother was going to be discharged from the facility in several days and that my family should make arrangements for her care at home.  Now, being an elder law attorney, this statement didn’t concern me at all.

Unlike most of my clients, I know that a “rehabilitation center” is a nursing home.  Part of the facility is dedicated to rehab and part is dedicated to long-term care, but in most facilities, all of the beds in the facility are designated as Medicaid long-term care beds.  I also know that a facility cannot discharge a patient unless the discharge is safe, meaning that there is proper care arranged for the patient at home that is appropriate for that patient’s needs.

What these facts mean for facilities, in short, is that nursing facilities are stuck with a patient once the patient enters the facility.  The facility cannot get rid of the patient.  I was told that I would have to “fill out an application,” as if the facility would have to agree to accept my mother and if they didn’t, then we’d have to take her home.  Of course, I know that the facility already has accepted my mother.

I could easily see though how the manner in which the facility’s staff speaks and phrases their statements that a family member who lacks knowledge about how things work would be scared to death.  Not only are they dealing with the grief associated with a family member who requires care, but they also are led to believe that their family member will be out on the street.  I’m not worried about my mom living on the streets, and you shouldn’t be worried about your mother living there either.

The Devil Is in the Details

The Superior Court of New Jersey, Appellate Division, recently decided a case that almost seems comical, but the parties in the case probably aren’t laughing.

Jack Murray engaged the services of William E. Spiegle III, Esq., to draft his last will and testament.  Mr. Murray left the entirety of his estate to family members or to trusts for the benefit of family members.

Two months after signing his last will and testament, Mr. Murray went to a bank in Florida.  He asked the bank representative to name a trust as the beneficiary of one of his bank accounts.  The bank representative dissuaded Mr. Murray from naming the trust as the beneficiary of the bank account because Mr. Murray did not have a copy of the trust document with him.   Instead, Mr. Murray named “William Spiegle Atty” as the designated beneficiary of the bank account.

At the time of Mr. Murray’s death, the Florida bank account held approximately $143,000, which was roughly one-third the value of Mr. Murray’s entire estate.

Mr. Spiegel wrote a letter to the executor of Mr. Murray’s estate essentially saying that he had no idea why Mr. Murray had named him as the designated beneficiary of the account, but he could only conclude that Mr. Murray wanted him to have the money.  Mr. Murray and Mr. Spiegel did not have a relationship outside their attorney-client relationship, and they had not communicated with one another between the time Mr. Murray signed his last will and testament and when he opened the bank account naming Mr. Spiegel as the designated beneficiary.

As a general principle, it is unethical for an attorney to draft a Will for a client through which the client names the attorney as a beneficiary of the estate.  In other words, if a client came into my office and told me he wanted to name me as a beneficiary of his estate, I could not draft that Will.  (For the record, and unfortunately, that has never happened to me, but if it did, I couldn’t draft the Will.)

In this case, Mr. Spiegel did not draft a Will that named him as a beneficiary.  Instead, for some reason, Mr. Murray asked his bank to name Mr. Spiegel as the beneficiary of a bank account that  he owned.  That reason seems rather plain to me, and it seemed rather plain to the trial court and appellate division.

The bank representative dissuaded Mr. Murray from naming a trust as the beneficiary of the account because Mr. Murray did not have the trust document with him.  So, Mr. Murray did the next best thing in his mind–he named Mr. Spiegel, in his capacity as an attorney, as the beneficiary of the account.  My guess is, Mr. Murray thought that by doing this the money would find its way into the trusts that Mr. Spiegel had drafted for Mr. Murray.

There is no question that Mr. Murray was mistaken in this belief and that his intentions became muddled by his actions.  The thing with death wishes–such as those found in a Will or carried out through a beneficiary designation–is that the person making the wish is dead.  Mr. Murray isn’t around any longer to tell us what he was thinking.  But I think it is rather clear, and two courts thought it rather clear, that Mr. Murray did not want to leave a third of his estate to the attorney who drafted his Will.

The court rescinded the beneficiary designation, permitting the money to pass through Mr. Murray’s Will to his family.  I wonder how much the estate spent in legal fees to obtain this result.  When making an estate plan, you need to think carefully about the words you use, because you won’t be around to fill in the gaps of your plan.  What seems clear to you may not be as clear to others.

Government Overreach

A recent decision of the Superior Court of New Jersey, Appellate Division, was the source of an interesting discussion among elder law attorneys.  The case is entitled Matter of Rizzo.

Essentially, the facts of the case are these:  The Bergen County Board of Social Services filed an action in the Superior Court of New Jersey to have Fred Rizzo declared to be an incapacitated individual.  Bergen County wanted the Office of the Public Guardian–a government office that will serve as an individual’s guardian under certain circumstances—appointed as Fred Rizzo’s guardian.

Fred Rizzo had a son, Douglas Rizzo.  Fred Rizzo had signed a power of attorney document in favor of his son, Douglas, so Douglas had the ability to make financial decisions for Fred.  Fred Rizzo, Douglas Rizzo, and Douglas Rizzo’s family all resided together in Fred Rizzo’s house.  The house was Fred Rizzo’s only asset.

After Bergen County filed the guardianship action, the court appointed a private attorney to serve as Fred Rizzo’s counsel in the guardianship proceeding.  The appointment of court-appointed counsel for an alleged incapacitated individual in a guardianship proceeding is standard operating procedure.  Typically, court-appointed counsel is paid from the assets of the incapacitated person, but a court rule permits the court to order the payment of court-appointed counsel’s fees as it deems appropriate.  Obviously, this is a vague rule, as it permits a court to order anyone to pay the fees of the court-appointed counsel.

In the Rizzo guardianship, the court specifically found that Douglas Rizzo had not done anything wrong while acting as his father’s power of attorney agent, and ultimately, the court named Douglas Rizzo, not the Office of the Public Guardian, as Fred Rizzo’s guardian.

The court ordered that Fred Rizzo was responsible to pay the fees of his court-appointed counsel; however, the order also provided that if Fred Rizzo’s estate were insufficient to pay the fees of his court-appointed attorney, then Douglas Rizzo would be responsible for the fees of Fred Rizzo’s court-appointed counsel.

Now, this case was the point of discussion among elder law attorneys for several reasons.  First of all, why did the Bergen County Board of Social Services file to have the Office of the Public Guardian appointed as Fred Rizzo’s guardian when Fred Rizzo had, at least, one son, Douglas, and Fred Rizzo had named his son Douglas as his power of attorney agent?  Typically, the Office of the Public Guardian will not serve as an individual’s guardian when the individual has family members who are ready, willing, and able to serve.

In addition, when someone has a power of attorney, they typically do not need a guardian.  Since Fred Rizzo had executed a power of attorney document naming his son, Douglas, as his power of attorney agent, why was a guardianship action even required?  The court specifically found that Douglas had acted properly as Fred Rizzo’s power of attorney agent, so wasn’t the filing of the guardianship action by the county unnecessary?  Given this fact, why weren’t the fees awarded against the county, which appears to have overreacted and caused the Rizzo family money and angst by filing the guardianship action in the first place?

Secondly, since Douglas did not file the guardianship action, since Douglas did not act improperly towards his father, and since Douglas had a power of attorney that permitted him to make decisions for his father, why were the court-appointed attorney’s fees awarded against him?  Think about this:  a government agency files a guardianship action against your father; in the end, the government “loses” its fight to have another government agency appointed as your father’s guardian, and you are required to pay legal fees.  Something doesn’t seem right about that.

What I think happened in this case, putting aside the appropriateness of filing the guardianship action, is that Douglas Rizzo was Fred Rizzo’s only child and Douglas was going to inherit Fred’s house, which was Fred’s only asset, so the court figured that either Fred or Douglas should pay Fred’s legal bills.  The court-appointed lawyer did work for Fred in the case, whether the case should have been filed or not.  But this case does highlight the potential for overreach by the government and it’s something that happens every day in some counties.