Ambiguous Drafting can Cause Expensive Litigation

What’s the meaning of a sentence in a Trust or a Will? once the ink is dry on the paper, the document is expected to “speak for itself” without the need to hunt for external evidence to understand the meaning of the words. A recent case called In the Trust of Roger S. Linn, decided by the Nebraska Supreme Court, illustrates the problems caused by ambiguous drafting.

Roger Linn had established a trust for benefit of his wife Shirley, and his children were the remainder beneficiaries. At a certain point after his death, Shirley moved to an assisted living facility. The Trust document required  the Trustees to pay all income to Shirley, but distribution of principal was within the Trustee’s sole discretion. The trust document specified in Article V.10(f) that the trustees had to pay “any obligations that the Donor’s spouse may incur in acquiring assisted living or nursing home care.” The Trustees paid the down payments and move-in fees to “acquire” the apartment within the assisted living facility, but they refused to pay for the ongoing monthly costs for Shirley to live there. That led to this litigation. Each side argued that the Trust was unambiguous and supported their position. The Trial court (District Court) found that the Trust was clear – unambiguous — and that it did not obligate the Trustees to pay for the ongoing costs. The Supreme Court ruled that the language was actually unclear – ambiguous — and remanded for a trial to determine the intent of Mr. Linn.

Similar cases have occurred in New Jersey, and the standards are similar – the Court looks first to the express words of the document read in conjunction with the document as a whole to arrive at their natural meaning, and seeks to determine the intention of the Trust’s creator in that manner first, before turning to extrinsic evidence. There is a state statute about this — N.J.S.A. 3B:3–33.1(b), which says that the trust’s language and statutory rules of construction control “unless the probable intent of such settlor or of such individual, as indicated by the trust or by such governing instrument and relevant circumstances, is contrary.”  A recent New Jersey case with this problem was In re the Trust of Violet Nelson (2018).  However, as with all litigation, it’s expensive for everyone involved.

Sometimes it’s necessary to draft the language with many more words or sentences to achieve clarity. Always, the draft should be reviewed from the perspective of someone reading it years down the road when all that one can depend on is the words themselves. Will the plain intention be clear? That’s the test of a well-written document.

Careful planning can avoid a crisis. Call us for advice and assistance with preparing your estate and trust plans ……… 732-382-6070

 

Tips on designing a guardianship plan

What are the responsibilities of a Guardian of the person and property of an incapacitated individual? The Guardian is expected to fulfill a broad array of obligations, since the Guardian is responsible to arrange for and oversee the financial and personal well-being of the person under guardianship. Each individual is unique, with her or her own preferences, likes and dislikes, and cultural experiences. In some cases, the Guardian is very familiar with the individual. In other cases, it’s all new and some investigation may be required to learn about the unique attributes of the individual. And of course an individual’s interests and needs will typically change over time.

New Jersey’s guardianship statute on this subject can be found at N.J.S.A. 3B:12-57 and there are other statutes surrounding it in the Probate Code.  Among other things, the Guardian needs to arrange for “the care, comfort and maintenance and, whenever appropriate, the education and training of the ward;”  must “develop a plan of supportive services for the needs of the ward and a plan to obtain supportive services;” and must take all measures required to attain eligibility for programs and benefits, to pursue assets that are owed to the ward, and to apply the available sums in the ward’s benefit.

To develop a plan,  create a budget. The budget needs to include every single recurring cost in a typical month or quarter. Determine the recurring sources of income and apply for benefits that are available. It may be necessary to apply for Social Security Disability or retirement income, SSI, employer’s disability pension, or to file a claim for any available long-term care insurance.  Do an assessment of whether the individual can stay in their current residence or if a different residence — or health care facility — would be more appropriate. Is in-home care needed? This becomes part of the budget. Is nursing home care required? It’s important to investigate the availability of Medicaid benefits. Are their unpaid bills or unfiled taxes? Start to tackle all of that and bring things up to date.

For a ward in the community, start investigating the social supports that can add meaning to that person’s life. Does the person enjoy attending religious services? See what needs to be done to bring the person to weekly services and have a companion there for assistance.  Perhaps the person can be enrolled in recreational activity at the local “Y” or senior center. Map out a plan of activity for an in-home caregiver to do — this might include reading aloud, exercise, outdoor walking excursions, movies, particular types of menus or trips to beloved eateries.

By putting together a thoughtful plan of activity to help the individual stay engaged in his or her cultural and social life, a Guardian can support the sense of well-being, happiness and security of the person under guardianship. In this way, the Guardian  can fulfill his or her legal obligation to “give due regard to the preferences of the ward, if known to the guardian or otherwise ascertainable upon reasonable inquiry. ”

Call us for legal advice in carrying out your responsibilities as a Guardian ….. 732-382-6070

Burden to provide all verifications sits with Medicaid applicant

The Medicaid application process for MLTSS services in nursing homes, assisted living facilities or in the community requires a tremendous amount of documentation. Numerous documents pertaining to personal status, income, and finances must be produced. Filing an incomplete application increases the risk of a denial. Failing to produce the required documentation frequently leads to denials, as the courts in New Jersey have held again and again that the responsibility to produce proof of eligibility rests with the applicant and not with the agency which is processing the application. Of course, the notice of what’s missing actually needs to be delivered to the person who is filing the application, but upon receipt, one must “jump” since the time given to reply is typically really short.

Two recent cases illustrate the problems that can be encountered from failure to present required verifications for a Medicaid application These are not “published” decisions, so they are not considered to be binding precedent on any other court. But they do illustrate the problems that can arise. In both cases, there was a failure to produce certain documentation, and the court concluded that the individual had the authority to obtain the records had they wanted to do so. One case is RP vs DMAHS  2018    and the other is G.C. vs DMAHS (birth certificate case).

There may be circumstances in which the person filing the application has no authority to get documents. There may be a need to apply for guardianship or to get a court order directing the release of certain records. These are situations in which the person should quickly consult with an elder law attorney to take necessary protective action. The important thing is that the person filing the applicant needs to act — to seek whatever legal remedies might be necessary rather than just throwing up his hands and doing nothing. The pace of denials for “failure to provide verification” seems to be escalating and there may be numerous legal issues in any given application that need an attorney’s attention.

Don’t despair! Call us for help & legal advice with the preparation and filing of your MLTSS Medicaid application ……… 732-382-6070

Designating your representative can prevent a fight over your remains

I have been saying for years that taking the time to put things in order in proper legal documents can save a lot of headache and money in the long run. “Careful planning can prevent a crisis” has been one of my professional mottos for many years now. New Jersey has a statute that allows a person to sign a document that designates a Funeral and Disposition Representative who has authority to make the decisions about final disposition of the body at death. A person can write these instructions in a Last Will and Testament or can sign a separate document and provide it to whoever might need to know. A new court decision called In the Matter of Estate of John Travers Jr. Travers App Div tackles the thorny problem of who is entitled to make those decisions for a person who died without a Will and without any written designation.

John Travers, Jr.,  died without any written instructions concerning his remains. He had no Will. He was single and had no children. His parents survived him, but they were divorced  They disagreed over what should happen — the father believed that his son should be buried, but the mother believed that his remains should be cremated. . The court noted that under the statute, the priority would be given to (1) spouse if any; (2) majority of the adult children if any, and then (3) the surviving parents. However, the statute said nothing about what to do when there is a dispute between the parents, who are the equally-situated next-of-kin.

The Appellate Division decided that the Legislature would want the decision to be as much in accordance with the individual’s preferences as a court could discern . Here, he had failed to make his wishes known, but there was evidence that he had a closer relationship with his father at the time of his death. The Court decided that the father was therefore in a better position to determine what his son’s wishes would be. Another factor that impressed the Court was that the father was likely to be appointed administrator of the estate and would also likely pay for all disposition arrangements himself since his son had few assets.

Family planning is full lifetime planning. Call us for individualized assistance and solutions ……. 732-382-6070

Managing difficult behavior in nursing homes: assessment and interventions

A hot-button issue for nursing home administrators and admissions personnel seems to be “behavior disturbances.” Family members may be encouraged to make alternate arrangements because the facility maintains that it cannot manage the person and the person is “creating a danger for the staff and other residents. ” In advocating for your loved one, there are tools available to help get the administrator to put the brakes on hasty efforts to get the family to relocate the resident.

Appendix B to the State’s Standards for Licensure of Long-Term Care Facilities is a deeply detailed Guideline for the Management of Inappropriate Behavior and Resident-to-Resident Abuse. Removal if the resident is not the first step, and should not be the reflex reaction. Rather, the staff are obligated to go through numerous types of assessments in an effort to pinpoint the cause of the behavior, find strategies that would avoid or prevent the behavior, redirect the resident’s attention,  and otherwise enable the resident to remain in the facility.

This appendix is really worth reading. It provides practical descriptions of what staff need to do to better understand what might be triggering a reaction and what can be done to prevent this. Also, some of the text cautions staff not to provoke a resident and to try to understand the individual and what he or she may be going through.  The staff are required to “determine the resident’s emotional adjustment to the nursing facility, including his/her general attitude, adaptation to surroundings, and change in relationship patterns,” all of which can contribute to a resident being hostile, easily aggravated, verbally abusive to staff, physically pushy, restless or resistant to programming or treatment.

Here are the categories to be assessed, each of which is described in tremendous detail: 1. Sense of initiative/involvement; 2. Unsettled relationships; 3. Past roles and current sense of self. Further elements must be considered to determine a resident’s mood and the reasons for it. All staff are expected to make a record of their observations so that based on all of that data, changes in approach can be designed: 1. sadness or anxiety and the practical causes of same, 2. mood persistent for a week and is resistant to cheering up efforts; 3. behaviors that appear disruptive but in fact may not be so different than other residents, 4. reasons for resistance to care; 5. steps for behavior management program that may include identifying whether the behavior of a different resident is triggering the seemingly disruptive reaction; 6. whether there has been a change in mood over the past 90 days, and 7. whether there has been a overall increase in the “problem behaviors” over the past 90 days.

The staff of skilled nursing facilities are trained professionals working in a setting where unusual behavior is the norm, not the exception. They have many ways to figure out how to address a challenging situation with a resident. By using those skills and getting some insights from the resident or the resident’s support network, situations can be defused and progress can be made. Too often, though, a sense of hysteria arises instead of the calm, deliberate approach that is needed to actually solve the problem. Removal of the resident should be the last resort.Appendix B

 

For legal advocacy and advice regarding nursing home care planning, call us at … 732-382-6070