Adult Children Sue Live In Caregiver and Get Crucified by the Court

By Fredrick P. Niemann, Esq. of Hanlon Niemann, a Freehold, NJ Elder Care Attorney

This case is heartbreaking. I know there are always two sides, but if the facts of this case are accurately reported, I agree with the outcome. Frank was 69 and Marilyn was 61 when they decided to move in together, in 1984. Frank’s wife had died the year before, while Marilyn’s husband had died many years earlier.

They lived happily together for 25 years, and shared almost everything. Frank and Marilyn had many get-togethers with their children and grandchildren. But they mostly kept their finances separate.

Early in 2008, Frank’s doctor diagnosed him with dementia. By the end of the year, Frank became incontinent and was unable to perform routine daily tasks. The story unfolds below.

Marilyn was taking care of Frank round-the-clock; dressing, bathing, and feeding him. Even after Frank became physically and verbally abusive, Marilyn continued as his sole caretaker, saying she didn’t mind because she “loved him and because he needed me, and I needed him even as he was. I was happy to be with him.”

After one year of caregiving, though, Marilyn had a stroke that left her with a mild speech impediment and difficulty swallowing. She and Frank’s children agreed that she couldn’t continue to care for Frank at home, so they selected a care facility for him that specialized in dementia patients.

Marilyn visited Frank every day, sitting with him in the common room. The facility director remembered how they were always holding each other “very close” and that Frank would “light up” when Marilyn was there.

Marilyn also took Frank out of the facility every day for several hours to visit the beach and other outdoor spots. Those who witnessed the couple saw how Frank “loved” the outdoor trips, and that “he beamed” and “was so appreciative. Sometimes Frank would not recognize Marilyn, but he would say: “I know her. I love her.”

Family relationships take a turn for the worse

Late in 2009, Frank’s daughter obtained letters from two doctors that certified Frank’s incapacity. The daughter then took over the management of Frank’s finances under the authority that Frank had given her in a Power of Attorney (POA), and as successor Trustee of a trust that Frank had set up.

The daughter discovered that Frank had transferred a $100,000 Schwab investment account to Marilyn. Marilyn also told the daughter how Frank had decided several years earlier to make Marilyn the beneficiary of a Bank CD account, and that she was using the interest to fund a joint bank account she had with Frank.

The daughter shut down the joint bank accounts and credit cards, and told the care facility to stop allowing Marilyn to visit her father.

After the facility director said she wouldn’t prevent Frank from visiting with Marilyn, the daughter moved her father out of the facility and tried to take care of him in her home. That lasted for five weeks, until the daughter couldn’t handle the care. Frank was then launched on a series of unsuccessful placements including involuntary transfer to a psychiatric hospital ward, and another Alzheimer’s facility.

The ultimate breakdown: adult children sue Marilyn for abuse

During the months when Frank was being moved around to different facilities, Marilyn tried to contact the daughter. Marilyn left notes at the daughter’s home telling her that she was “heartbroken;” “needed to see him;” “wanted to see him;” “was concerned for him;” was “desperate to see him;” and “was lost . . . without him.” Marilyn left clothing and mementos that she thought Frank might enjoy, but the daughter “put a block on her phone” and never responded.

Instead, the daughter and her siblings sued Marilyn, claiming undue influence, financial elder abuse, fraud and breach of fiduciary duty.

As the court case moved on, Frank died in a hospital. The daughter decided not to tell Marilyn about Frank’s funeral. Marilyn never knew there was a funeral for Frank until one of her neighbors told her, weeks later.

Hoping to fend off the fraud and abuse accusations against her, Marilyn’s defense attorneys filed a counterclaim in court against the siblings: intentional infliction of emotional distress.

Frank’s children had alleged Marilyn took $800,000 from their father, but by the end of the trial, their attorney admitted that Marilyn received only $100,000 of their father’s money. During his closing argument, the childrens’ counsel focused on the $100,000 that Frank did transfer from the Schwab account, arguing that Marilyn “used undue influence to obtain the $100,000 from Frank. That’s it. That’s the whole case.”

Therefore, he argued, the children couldn’t be liable for intentional infliction of emotional distress because they were “trying to protect Frank” and “concerned about what would happen if Marilyn . . . was allowed to take Frank out of the facility, potentially to a bank, or even see him and give him other documents to sign. So were they acting to protect Frank? Were they or were they working to protect themselves. . . .”

Surprise ending: jury tells Frank’s children to pay Marilyn

But the jury did go further. They answered “yes” to questions of whether the daughter’s behavior harmed Marilyn:

  • Was the daughter’s conduct a substantial factor in causing Marilyn’s severe emotional distress? Yes.
  • Has Marilyn proved by clear and convincing evidence that the daughter acted with malice, oppression, or fraud? Yes.

Marilyn had won her counter claim, and the jury rejected all the financial abuse claims brought by Frank’s children!

The jury awarded Marilyn damages totaling $323,700. In December 2014, a California Court of Appeal upheld the verdict for Marilyn. The Judges explained how Frank’s children:

“Knew that Marilyn, who was in her 80’s and had recently suffered a stroke, was emotionally dependent on her caretaking role for Frank and had been his sole caretaker for a lengthy period. They were also aware that Marilyn had no legal or practical ability to interfere with Frank’s finances because the daughter had taken over as successor trustee and all of the financial institutions had been notified of this fact. The evidence also shows that Marilyn communicated to the daughter that she had become emotionally devastated by her inability to see and care for Frank. Further, the conduct of the children was not a momentary lapse, and instead was the product of deliberation and discussion that continued over a nine-month period (from the time the Sisters refused to disclose Frank’s whereabouts through the time of Frank’s funeral).

The Appeals Court decided that the daughter’s role as trustee and attorney-in-fact did not give her the privilege to treat Marilyn as she had. The Court concluded that Marilyn’s “compelling testimony about her devastated condition in not being able to care for Frank in the last months of his life and her humiliation and pain in not being able to say goodbye at his funeral” justified the surprising verdict against the daughter.

To discuss your NJ elder care matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com. Please ask us about our video conferencing consultations if you are unable to come to our office.

 

 

Guardianship Commissions in New Jersey

By Fredrick P. Niemann, Esq. of Hanlon Niemann, a Freehold, NJ Guardianship Attorney

Questions often come up concerning compensation available to a Guardian if appointed by the Superior Court of New Jersey. The following blog discusses the commission schedule which a Guardian is entitled to receive under New Jersey Law.   It is as follows:

(1)     One half (1/2%) percent (.5) on the total value of the corpus each year; corpus is defined as the economic fair market value of all property owned by the incapacitated

(2)     Six (6%) percent of all income received annually; if $100,000.00 of income is received the Executor’s commission is six (6%) percent.

(3)     Upon the termination of the Guardianship caused by restoration to full functioning or death of the Ward; the Guardian is entitled to a two (2%) percent termination commission on the total value of the entirety of the incapacitated estate.

I hope that this helps you get a better idea of the economic compensation scheduled for Guardians who serve in New Jersey.

To discuss your NJ Guardianship matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com. Please ask us about our video conferencing consultations if you are unable to come to our office.

When Can Medicare Stop Paying for Skilled Care and Rehabilitation

By Fredrick P. Niemann, Esq. of Hanlon Niemann, a Freehold, NJ Medicaid Attorney

Often times families and patients are told by representatives of a nursing home or outpatient Medicare provider that Medicare will not pay for continued rehab, therapy or care because the patient is not improving. But is this policy legal? The short answer is no!

The Medicare Policy Manuals have been revised. These changes must be followed in NJ. The revisions have been published by the Centers for Medicare Medicaid Services (CMS). The changes in policy pertain to care in Inpatient Rehabilitation Facilities (IRF), Skilled Nursing Facilities (SNF), Home Health care (HH), and Outpatient Therapies (OPT). Translated, it means nursing homes and outpatient visitations at home and/or health care facilities.

The Transmittal from Medicare announces the new policy revisions as follows:

Abolition of the No Improvement Standard

The “No Improvement Standard” is not to be applied in determining Medicare coverage for maintenance claims that require skilled care. Medicare has long recognized that even in situations where no improvement is possible, skilled care may nevertheless be needed for maintenance purposes (i.e., to prevent or slow a decline in condition).

In truth, this policy is the required legal Medicare standard. Medicare coverage of skilled services is based on the “unique medical condition of the individual beneficiary”); (prohibiting the use of utilization screens or “rules of thumb” to make coverage decisions); 42 C.F.R. § 409.44(b)(3)(iii) (providing that the determination of whether a skilled service is reasonable and necessary “must be based solely upon the beneficiary’s unique condition and individual needs without regard to whether the illness, or injury is acute, chronic, terminal, or expected to last a long time”); 42 C.F.R. §409.32(c) “Even if full recovery or medical improvement is not possible, a patient may need skilled services to prevent further deterioration or preserve current capabilities.”; “Rules of thumb” in the Medicare medical review process are prohibited… Medical denial decisions must be based on a detailed and thorough analysis of the beneficiary’s total condition and individual need for care.

Patients should discuss with their health care providers the Medicare maintenance standard and whether it is applicable to them. Health care providers should apply the maintenance standard and provide medically necessary nursing services or therapy services, or both, to patients who need them to maintain their function, or prevent or slow their decline. Under the maintenance standard articulated in the settlement, the important issue is whether the skilled services of a health care professional are needed, not whether the Medicare beneficiary will “improve.”

CMS has issued a Fact Sheet outlining the “new policy”. You can use this fact sheet now as evidence that skilled maintenance services are coverable for skilled nursing facility care, outpatient therapy, and home health care.

For people needing assistance with appeals, the Center for Medicare Advocacy has self-help materials available. This information can help individuals understand proper coverage rules and learn how to contest Medicare denials for outpatient, home health, or skilled nursing facility care.

To discuss your NJ Medicaid, Medicare and Elder Care matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com. Please ask us about our video conferencing consultations if you are unable to come to our office.

Program of All-inclusive Care for the Elderly (PACE)

By Fredrick P. Niemann, Esq. of Hanlon Niemann, a Freehold, NJ Elder Care Attorney

What is PACE?

PACE stands for Program of All-inclusive Care for the Elderly. It is an innovative Medicare program that provides individuals age 55 and older comprehensive medical and social services provided by a team of professionals in a community-based center and in their homes, helping program participants delay or avoid long-term nursing home care. The PACE center serves as the hub for medical care, rehabilitation, social activities and dining.

Eligibility to participate in PACE

To participate, an individual must be 55 years of age or older, require nursing home level of care but be able to live safely in the community at time of enrollment with the services of PACE.

What services are provided through PACE?

PACE provides all the services covered by Medicare and Medicaid, without the limitations normally imposed by these programs. It also provides any other services deemed necessary by the team that allows participants to remain in the community. Services provided by PACE include, but are not limited to, primary care (including doctor, dental and nursing services), prescription drugs, adult day health care, home and personal care services, nutrition services, and hospital and nursing home care if and when needed. Transportation to and from the center and all off-site medical appointments is also provided.

Who pays for PACE?

PACE agencies receive Medicare and Medicaid funds each month to ensure participant care, whether services are provided in the home, community or in a nursing home setting.

To discuss your NJ elder care matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com. Please ask us about our video conferencing consultations if you are unable to come to our office.

Reverse Mortgage: Useful Retiree Tool or Bad Move?

By Fredrick P. Niemann, Esq., a NJ Elder Care Attorney

I think reverse mortgages can be a very useful tool for some clients and their families.  Here’s an article that I recently reviewed which gives you a simple snapshot of the product and how it works.

CNBC Article

If you have any questions regarding a reverse mortgage, please contact Fredrick P. Niemann, Esq., NJ Elder Care Attorney, toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.

 

Have You Ever Heard of a Medicare Medical Savings Account (MSA)?

By Fredrick P. Niemann, Esq. of Hanlon Niemann, a Freehold, NJ Elder Care Attorney

Take a look at this link I found which addresses medical savings accounts.  It’s the first article I have seen recently on the subject.

Costs in MSA Plans

To discuss your NJ Medicaid matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com. Please ask us about our video conferencing consultations if you are unable to come to our office.

 

 

Here’s Why You May Never End Up in a Nursing Home

Here is an interesting article entitled “There aren’t enough nursing-home beds to meet demand”, written by Dan McGrath, co-founder of Jester Financial Technology.

Click here to read the article

To speak to an elder care attorney, please contact Fredrick P. Niemann, Esq. toll-free at 855-376-5291 or email him at fniemann@hnlawfirm.com.

 

Beware of Pennsylvania’s Parental Responsibility Law

By Fredrick P. Niemann, Esq. of Hanlon Niemann, a Freehold, NJ Elder Care Attorney

Several times I am questioned whether a child has a legal obligation to support their parents particularly if the parents require long term care. I have routinely answered the question in the negative because New Jersey does not have any existing policies or procedures that compel an adult emancipated child to pay the nursing home/assisted living or other long term care expenses of their parent. While there are laws on the books which seemingly impose such an obligation, in fact, they have never been enforced and are not a real concern.

However, in the last several years, I have become aware of several cases decided in Pennsylvania which have imposed financial responsibility upon the adult children of an aging parent for the costs of long term care. One recent decision Eori vs. Eori is particularly disturbing in light of the fact that long term care costs cannot only bankrupt an aging individual but also their adult children particularly who have their own expenses as well as retirement and other recurring needs.

The purpose of this blog is to alert anyone and everyone who either has a parent residing in Pennsylvania or contemplates moving to Pennsylvania that such a move can result in an unforeseen and significant financial liability.

Filial responsibility law (translated means children responsible for the expenses of their indigent parents) is a troubling and profound issue.   I will continue to monitor other cases similar to this in the event that the scope of these decisions seems to be increasing.

To discuss your elder care matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com. Please ask us about our video conferencing consultations if you are unable to come to our office.

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