GeriLaw | Robert Fleming, Tucson elder law attorney, and colleagues

REDUCING A MEDICAID LIEN by Thomas D. Begley, Jr., Esquire

                There are three ways to reduce a Medicaid lien.  These strategies can be used separately or in combination.

 

            •           Procurement Costs.  Under New Jersey law,[1] where a Medicaid recipient settles a case against a third party, the Medicaid lien can be reduced by attorneys’ fees and costs and expenses.  Many lawyers simply ask for and receive a one-third or 25% reduction, depending on the engagement letter with the plaintiff.  Expenses should always be included in the reduction.  The procurement costs are based on a pro rata share.  If the attorney’s fee is 33-1/3% and the costs and expenses are 10%, the total procurement cost should be 43%.

 

            •           Ahlborn.  The second way to reduce a Medicaid lien is through the application of an Ahlborn argument.[2]  The Supreme Court discussed the Federal Anti-Lien Statute[3] prohibiting liens against the property of an individual prior to his death on account of medical assistance paid.  The court held that based on this statute, a state is prevented from attaching the past non-medical portion of the settlement.  In the Ahlborn case, it was determined that the plaintiff received only one-sixth of the overall damages so that the right of the State of Arkansas was limited to one-sixth of the past medical claim.  In order to determine the pro rata share to which the state is entitled, it is necessary to establish the reasonable value of the case.  In the Ahlborn case, this was accomplished by a stipulation with the State Medicaid Agency.  It is unlikely that will happen again.  The stipulation could possibly be made by the defendant, but it would have to be a bona fide stipulation.  A common method of arriving at the full value is to obtain a report from an expert witness, or finally a court order may be necessary.  If the case is to be resolved by a settlement prior to trial and the State Medicaid Agency is unwilling to agree on a satisfactory reduction, it may be necessary to give notice to Medicaid and have the court enter the order.

 

            •           Collateral Source Rule.  A third argument that could be made to reduce the Medicaid lien is the Collateral Source Rule.  If a state has a Collateral Source Rule, such as exists in New Jersey,[4] a Medicaid lien may not apply.  Under the New Jersey statute, if a plaintiff receives or entitled to receive benefits for injuries allegedly incurred from any other source other than a joint tortfeasor, the benefit shall be disclosed to the court and the amount thereof which duplicates any benefit contained in the award shall be deducted from any award recovered by the plaintiff.  The purpose of this type of statute is to avoid double recovery and reduce insurance costs.  The statute prevents insured plaintiffs from seeking payment for costs for which they have already been compensated.  In an interesting case,[5] the plaintiff sought to enforce an ERISA lien against a personal injury settlement.  The defendant argued that the money held in escrow could not be the specific funds that belong to the plaintiff ERISA plan, because the personal injury victim never came into possession of such funds as a matter of law.  The personal injury plaintiff claimed that property recovered in New Jersey is not money on which the ERISA plan has an equitable claim.  The personal injury victim took the position that the plan must pursue the tortfeasor itself.  The court acknowledged that it must dismiss the claim, if the beneficiary never received such money in the tort action for medical benefits.  "If state law prohibits a plaintiff's claim for medical benefits paid by his or her own insurance, there would be nothing to which Rhodia could attach its equitable lien or constructive trust and the court could not grant relief."

  

Thomas D. Begley, Jr., CELA

Begley, Begley & Bookbinder, PC

ATTORNEYS AT LAW

 

COMMITTED TO EXCELLENCE

Specializing in Elder & Disability Law

    

www.begleylawyer.com

 

(800) 533-7227

 

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[1] N.J.S.A. 30-4D-7.1(b).

[2] Arkansas Department of Health and Human Services v. Ahlborn, 126 S. Ct. 1752 (2006).

[3] 42 U.S.C. §1396p(a)(1).

[4] N.J.S.A. 39:6A-1 et seq.

[5] Rhodia v. Bollinger, 2008 WL 800502 (DNJ) (March 20, 2008).

LONG-DISTANCE CAREGIVERS RECEIVE HELP

Living in a different city or state, miles from aging parents, can be difficult. Keeping in touch by telephone and making long trips to help parents or aging relatives with their needs can be time-consuming and not nearly as effective as being available full-time in person.

 

According to a report by the Alzheimer's Association of Los Angeles and Riverside, California, there are approximately 3.3 million long-distance caregivers in this country with an average distance of 480 miles from the people they assist. The report also states that 15 million days are missed from work each year because of long distance care giving. Seven million Americans provide 80% of the care to ailing family members, and the number of long-distance caregivers will double over the next 15 years.

The long-distance caregiver is a new role that is thrust upon children and younger family members. Families used to live closer together, with children residing and working near their parents. But nowadays family members are more distant from each other. Society, today, is recognizing this. Some caregiver services have tweaked their programs to work as liaisons between long-distance caregivers, senior loved ones, and local medical professionals.

 

Professional care managers, also known as geriatric care managers, elder care managers or aging care managers, represent a growing trend to help full time, employed family caregivers provide care for loved ones. Care managers are expert in assisting caregivers, friends or family members find government-paid and private resources to help with long-term care decisions.

 

They are professionals who are trained to evaluate and recommend care for the aged. A care manager might be a nurse, social worker, psychologist, or gerontologist who specializes in assessing the abilities and needs of the elderly. Care manger professionals are also becoming extremely popular as the caretaker liaison between long-distance family members and their aging loved ones.

 

The most important thing is to find a geriatric care manager where your loved one lives. This geriatric care manager will have knowledge of all the services in the area and can be your eyes and ears.

 

The following is a partial list of what a care manager or geriatric care manager might do:

• Assess the level and type of care needed and develop a care plan.
• Take steps to start the care plan and keep it functioning.
• Make sure care is in a safe and disability friendly environment.
• Resolve family conflicts and other issues with long-term care.
• Become an advocate for the care recipient and the caregiver.
• Manage care for a loved one for out-of-town families.
• Conduct ongoing assessments to implement changes in care.
• Oversee and direct care provided at home.
• Coordinate the efforts of key support systems.
• Provide personal counseling.
• Arrange for services of legal and financial advisors.
• Provide placement in assisted living facilities or nursing homes.
• Monitor the care received in a nursing home or in assisted living.
• Assist with the monitoring of medications.
• Find appropriate solutions to avoid a crisis.
• Coordinate medical appointments and medical information.
• Provide transportation to medical appointments.
• Assist families in positive decision making.
• Develop care plans for older loved ones not now needing care.

 Services offered will depend on the educational and professional background of the care manager, but most are qualified to cover items in the list above or can recommend a professional who can. Fees may vary. There is often an initial consultation fee that is followed by hourly fees for services. Health insurance usually does not cover these fees, but long-term care insurance might.

 

When you take into account the time absent from work and time to find the right care resources for your loved ones, along with the cost of travel expenses to monitor their care, you will probably concur that using a caregiver is money well spent. Add to this the stress of handling your own life circumstances combined with being a caregiver, and you will probably wonder how you could have ever done without the care manager.

 

Andrew Hook

Oast & Hook

www.oasthook.com

 

Ethical Wills and Legacy Letters

A recent Investment News article by Kathleen M. Rehl discussed the value of parents leaving “legacy letters’ for their children and grandchildren to share after the parents are gone.  Traditional estate planning is important for everyone, but many people want to focus on more than just property or financial assets.  A legacy letter or ethical will is a good addition to an estate plan.

The author described the letter her mother had written shortly before her death.  “Please know how important you are to me and how much I love you.  Life has been such a fascinating and interesting adventure with you, my family, being a big part of this journey.”  She wrote about her values, lessons life taught her, and her love for each member of the family.  Ms. Rehl says that “[w]hat she experienced during her 84 years of life was much more valuable than the material stuff she left behind.”

Barry K Baines is the author of “Ethical Wills: Putting Your Values On Paper,” and his website is www.ethicalwill.com.  The website includes samples of ethical wills, written by people at various stages of their lives.  Theses transition times may include marriage, the birth of a child or grandchild, change of career, retirement, death of a spouse, health challenges or the end of life.  People may find that writing these legacy letters can help manage these transition stages better. 

Ms. Rehl says that writing a legacy letter not only helps loved ones by communicating the meaning of the author’s life, but is a gift for the writer.  “In reflecting upon the past and recording thoughts on paper, writers learn about themselves, ponder what they stand for and have the opportunity to articulate that which is closest to their hearts.”  People can write their initial letter and keep it updated each year.

Attorneys who may want to add legacy letters or ethical wills to their estate planning practice may want to write his or her own letter first.  This can help them understand the process and provide some guidance to the clients.

Andrew Hook
Oast & Hook
www.oasthook.com 

Life Estate and Medicaid

The basic rule for Medicaid eligibility is that an applicant, whether single or married, must have no more than $2,000 in countable resources in the applicant’s name. Countable resources generally include all bank accounts, stocks, bonds, life insurance, certain prepaid burial arrangements, and most real property.

A life estate in real property conveys to an individual certain property rights for the duration of this individual’s or someone else’s life.  Prior to August 2008, the Virginia Medicaid State Plan did not treat a life estate in real property as a countable resource, and the ownership of a life estate did not affect Medicaid eligibility.  This policy changed in September 2008, and was announced in Broadcast 5451.  Effective August 28, 2008, life estates created after that date were considered countable resources.  If the applicant or recipient lived in the home in which he or she owned the life estate, the life estate would be exempt.  If the recipient or applicant did not live in the property, then the life estate would not be exempt, unless the property was occupied by a spouse or dependent child, or the applicant or recipient was using reasonable efforts to sell the property interest.  The result of this policy change was that the eligibility for Medicaid became more restrictive.

The American Recovery and Reinvestment Act of 2009 (ARRA or Stimulus Bill) provides increased federal funding for Medicaid programs.  In order for a state to receive these increased funds, the Medicaid eligibility standards, methodologies or procedures under the Medicaid State Plan can be no more restrictive than the eligibility standards, methodologies or procedures that were in effect as of July 1, 2008.  States with Medicaid State Plans that are more restrictive now than they were on July 1, 2008, will not qualify for the increased amount of federal funding.  The new Virginia Medicaid policy regarding life estates was a more restrictive eligibility standard than was in existence on July 1, 2008.  Therefore, in order for the Commonwealth of Virginia to qualify for the increased federal funding, the new life estate policy needed to be changed.  On May 15, 2009, in Transmittal # 91, the life estate policy was rescinded.  As a result, the policy that is applied to a life estate now varies depending on the date that the life estate was created:

• Life estates created prior to August 28, 2008, are not counted as resources (except when determining eligibility for Qualified Working Disabled Individuals (QWID)).
• Life estates created on or after August 28, 2008, but before February 24, 2009, are to be treated in the same manner as real property, including the application of real property exclusions, if any.
• Life estates created on or after February 24, 2009, are not counted as resources (except when determining eligibility for QWDI).
• The transfer of a life estate must be evaluated under the asset transfer policy regardless of whether or not the life estate was counted or excluded as a resource.

The Medicaid eligibility rules are complex, and applicants and their families can easily make errors that will result in denied or delayed eligibility.  The attorneys at Oast & Hook can assist seniors in qualifying for Medicaid, while preserving assets and income for the senior’s community spouse, dependent children, children with disabilities, or other family members.

Andrew H. Hook
Oast & Hook
www.oasthook.com

Stimulus Payments for Seniors and Persons with Disabilities

The American Recovery and Reinvestment Act of 2009 (ARRA or Stimulus Bill) includes a one-time payment of $250 to anyone who received any kind of Social Security benefit, including retirement, survivors and disability benefits, Railroad Retirement or Veterans Administration (VA) disability compensation or pension benefits during November 2008, December 2008, or January 2009.  Most people who receive Supplemental Security Income (SSI) will also receive the one-time payment; however, persons in nursing homes who receive a monthly SSI benefit of $30 will not receive the payment.  Most payments will go out this month and all should be received by June 4, 2009.  Children receiving Social Security benefits who are under the age of 18 (or 19 if still in high school), will not be eligible for the payment; however, adult children who receive disability payment on a parent’s record will receive a payment.  Additionally, children who receive SSI will receive a payment.

Eligible recipients will receive a notice regarding the payment.  The payment will go to the recipient using the same means as the regular benefit.  For example, if the usual monthly benefit is directly deposited to a bank account, the one-time payment will also be directly deposited.  If the usual payment arrives by mail, the extra payment will be mailed as well.

If a person is in a nursing home, and the usual monthly benefit is sent to the nursing home, then the one-time payment will be sent to the nursing home as well.  According to ARRA, the nursing home must set aside the $250 payment for the nursing home resident to use as the resident sees fit.  The law specifically states that “The entire payment shall be used only for the benefit of the individual who is entitled to the payment.”   The nursing home is not permitted to keep the funds and apply them toward the resident’s nursing home costs.  The Centers for Medicare and Medicaid Services (CMS) has advised nursing home surveyors about the one-time payment and residents’ rights to the payment.

The one-time payment will not count as income for federal, state or local benefits.  The amount is also excluded as a resource in the month in which it is received, and for the following nine months without being taken into account for purposes of determining eligibility for Medicaid.  If the funds are not spent by the end of the ten month period, then the remaining funds will be counted as a resource.  The payment will not count as earnings for Social Security disability benefits. Additionally, the payment also will not count as gross income for income tax purposes.

If an eligible Social Security recipient does not receive the one-time payment by June 4, 2009, then the recipient can phone the Social Security toll-free number at 1-800-772-1213.  A word of warning to eligible recipients: If anyone phones or e-mails you asking for personal information to process your payment, do not provide the caller with this information.  If you are unsure about the identity of someone claiming to be a representative of the Social Security Administration, then phone 1-800-772-1213 to verify the call.  You may report suspicious activity involving Social Security programs and operations to the Social Security Fraud Hotline at www.socialsecurity.gov.oig/hotline, or call 1-800-269-0271.

To find out more about the one-time payment, you can contact the following agencies:

For Social Security or SSI recipients, visit www.socialsecurity.gov.

For Railroad Retirement recipients, visit the Railroad Retirement Board (RRB) at www.rrb.gov or call 1-877-772-5772.  You will receive your one-time payment from RRB; you do not have to do anything in order to receive your payment.

For VA benefit recipients, visit www.va.gov or contact your local VA facility for more information.  You will receive your payment from the VA, and you do not have to do anything in order to receive your payment.

Andrew H. Hook
Oast & Hook.
www.oasthook.com

Powers of Attorney and Fiduciary Duty

A recent Faquier County, Virginia, Circuit Court case illustrates the need for specific provisions in durable powers of attorney.

In Mountjoy v. Smith (Case No. CL8-300, February 26, 2009), the matter came before the court upon cross-motions for summary judgment.  Mr. Smith’s executrix alleged that his wife, Evelyn Smith (now deceased), breached the fiduciary duty owed Mr. Smith under a power of attorney executed by Mr. Smith.  The court issued an opinion in which it addressed the threshold question of the validity of the durable power of attorney (DPOA).

Mr. & Mrs. Smith were married in 1946 and remained married until their deaths.  In May, 2006, Mr. Smith executed a DPOA naming Mrs. Smith as his agent.  The DPOA did not include specific authority for the agent to create a trust, although the DPOA did have several paragraphs granting other specific powers.  The DPOA also included two paragraphs with general grants of authority.  Mr. Smith never directed Mrs. Smith to make an estate plan for him; however, Mrs. Smith arranged for two separate trust documents to be prepared, one for her, and one for Mr. Smith.  Mrs. Smith executed both trust documents without her husband’s knowledge.  The trusts were not mirror images of each other; the estate plan included transferring real properties into the trusts, changing the ownership of the properties from tenants by the entireties into tenants in common.  Mr. Smith was unaware of these actions until two months after Mrs. Smith’s death; he then executed a document revoking the trust in his name that Mrs. Smith had established.  Mr. Smith, through counsel, made a demand for alleged entitlements existing through Mrs. Smith’s trust.

The court’s analysis focused on the lack of specific authority in the DPOA for Mrs. Smith to set up an estate plan for Mr. Smith.  Mrs. Smith’s estate argued that the specific powers in the DPOA to negotiate sums of money and enter into contracts, along with the DPOA’s general grants of authority, were sufficient authority for Mrs. Smith’s actions.  The court stated that “The law in Virginia is that a power of attorney will be strictly construed” (citing Bank of Marion v. Spence, 155 Va. 51, 53 (1930) and Horchkiss v. Middlekauf, 96 Va. 649 (1899).)  Mrs. Smith’s executrix suggested that the Commonwealth has softened its stance on this issue in Jones v. Brandt Executrix, 274 Va. 131 (2007).  The court stated that Brandt differed from the case at hand because Mrs. Smith created a trust in which she named herself as beneficiary of the trust if Mr. Smith died first, then changed the form of ownership of properties transferred into the trust.  Mr. Smith was not the beneficiary of the trust she created for herself, if Mrs. Smith died first.  Further, Mrs. Smith concealed her actions from Mr. Smith.  She could have sought her husband’s approval for her actions, but did not.  The court also found that Mr. Smith did not ratify Mrs. Smith’s actions; on the contrary, he terminated the trust Mrs. Smith created for him as soon as he learned of the trust.  The court also found that Mr. Smith’s attempt to protect his property rights by demanding alleged entitlements from Mrs. Smith’s trust did not serve as ratification of her actions.  The court held that Mr. Smith’s trust was void; this also invalidated the conveyance of the real properties to both trusts.

Andrew Hook
Oast & Hook
www.oasthook.com

Is a Guardian Personally Liable for Nursing Home Costs of Ward?

That is the question posed (on narrow facts) in this week's Elder Law Issues article at elder-law.com. The answer in that case -- and probably in most cases raising similar questions -- turned on the language of the admission contract itself.

To start with the result: in Five Star Quality Care v. Lawson, the case described in Elder Law Issues, the Missouri Court of Appeals ruled that the Public Administrator, Bonnie Sue Lawson, would not be personally liable for her ward's nursing home bills. The reason the issue even arose: it took Ms. Lawson over a year to figure out that she would need to get appointed as conservator of her ward's estate (she was already guardian of the person) in order to liquidate two small life insurance policies to get her ward's assets below the eligibility limit. During that time the nursing home incurred over $15,000 of unpaid bills caring for the ward.

The reason Ms. Lawson was not liable turned on the language of the admissions agreement. A general term of the contract (it was in fact included under the heading "General Provisions") required Ms. Lawson to use "due care." Elsewhere, however, the contract dealt specifically with what would happen if a Medicaid application was denied: the agreement required Ms. Lawson to pay all the nursing home costs, but limited that payment to being made "from the Resident's assets."

More generally, a guardian or conservator who signs a nursing home agreement should not be personally liable for the nursing home costs. That result could be different, in particular facts, if:

    1. The signer owed an obligation of support to the nursing home resident that would make the signer liable whether or not they signed the contract (most often this argument will come up when a spouse is institutionalized).

    2. The admissions document clearly indicates that the signer is assuming personal responsibility. The best way to avoid this result is, of course, to read the document before signing. It also helps to sign "as guardian" (or "as conservator" or "as agent under a power of attorney" or whatever fiduciary relationship the signer may have). In fact, it might be even better to sign "as guardian only, and not individually" (with appropriate adjustments for the actual fiduciary relationship, of course). Remember, though, that even if the signer foolishly accepts individual responsibility, that may not be the final word on the subject. There is likely still an argument to be made that the signer received nothing in return for his or her acceptance of the liability.

    3. The fiduciary commits fraud, or breaches his or her fiduciary duty. It is likely that a fiduciary breach would need to be fairly egregious before the fiduciary would be personally liable for the resident's nursing home expenses -- but it is not difficult to image a scenario in which a conservator (or an agent under a power of attorney) might take all the ward's money improperly and leave the nursing home without any source of payment.

The bottom line: read the nursing home admission agreement before signing it. Have it reviewed by an attorney if you are unsure of what you are agreeing to do. Do not sign without clearly indicating your fiduciary relationship.

Robert B. Fleming
Fleming & Curti, PLC
Tucson, Arizona
www.elder-law.com

DISTRIBUTIONS FROM SELF-SETTLED SPECIAL NEEDS TRUST RELATING TO MEDICAL EXPENSES by Thomas D. Begley, Jr., Esquire

_________________________________________________________________________________

 

 

            One of the most pressing needs for disabled beneficiaries is medical care.

 

Medical Insurance

 

            It is crucial that the disabled beneficiary obtain some form of medical insurance.[1] Options include the following:

 

•           Private Medical Insurance. Typically, the only source of private medical insurance at regular rates is through the parent's coverage with the parent's employer. Parents of such child must make every effort not to lose their jobs.

 

•           COBRA. The Consolidated Omnibus Budget Reconciliation Act of 1996 (COBRA) allows former employees and their dependents to continue the employer's coverage for a limited period of time, commonly 18 months. However, if the employee became disabled within two months of the qualifying event causing him to lose medical insurance coverage, COBRA coverage may be extended for 29 months. If the former employee died, divorced, or became entitled to Medicare, then the employee's dependents are eligible for 36 months of coverage.

 

•           State-Mandated High-Risk Pools. Many states have high-risk pools to cover persons who are uninsurable in the private market. This coverage often tends to be very expensive.

 

•           Medicare. Medicare is only available to persons under 65 if they are disabled and have 20 quarters of coverage. If they receive SSD, then two years after the determination of disability they are entitled to Medicare. Persons receiving Medicare should obtain a Medicare supplement policy. There is usually a very limited open enrollment period to obtain this coverage after which it becomes impossible to obtain because of pre-existing conditions.

 

•           Medicaid. Persons receiving SSI also receive Medicaid. In non-SSI states having a Medically Needy program, persons qualify for Medicaid by spending down their income if income is above a certain amount. Some states have income caps. Other ways of obtaining Medicaid are through state Medicaid waiver programs, including various Kid Care programs available in many states. Eligibility rules vary. A Katie Beckett waiver program is very desirable, because the income and assets of the parent are not deemed to the children. Some states do not call their programs Katie Beckett, which is a specific categorically eligible group of Medicaid recipients, but the effect is the same because those state identify groups of children with disabilities and provide for Medicaid eligibility so the waiver services are available. Slots tend to be extremely limited.

 

Non-Covered Medical Expenses

 

            Typically, Medicaid pays for 100 percent of covered expenses. However, very often, psychological services, certain types of testing and some special therapies are not covered. It is appropriate for a trustee to pay for these non-covered services. It is also appropriate for a trustee to pay for dental care, prescriptions, and podiatrist care.

 

Provider Non-Acceptance

 

            Some providers do not accept Medicaid, because of the low reimbursement rate. It is difficult to find a dentist participating in the program. Some persons with disabilities choose physicians who do not accept Medicaid. It is appropriate for a special needs trust to pay for services from those physicians.

 

Out-of-Pocket

 

            If the person with a disability receives Medicare, rather than Medicaid, there may be copayments, deductibles and payments for services that Medicare does not cover. It is appropriate to pay for those costs from a special needs trust.

 

 

 

 

Thomas D. Begley, Jr., CELA

Begley, Begley & Bookbinder, PC

ATTORNEYS AT LAW

 

COMMITTED TO EXCELLENCE

Specializing in Elder & Disability Law

    

www.begleylawyer.com

 

(800) 533-7227

 

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[1] Roger M. Bernstein, Health Insurance and COBRA Issues Collateral to SNT's and Settlements,

Stetson

University

College

of Law, Special Needs Trusts IV (Oct. 18, 2002).

Grandparents Visitation Rights

The relationship between a grandparent and a grandchild can be one of great joy and importance for both grandparent and youngster. But sometimes an event such as a parent's death, divorce or estrangement can tear families apart, and alter or sever relationships. After such events, the child's parents or guardian may block any further contact with grandparents, who may then take legal steps to maintain contact with the grandchildren they love.

As such situations became increasingly common, in the 1970s state legislatures began enacting “grandparent visitation” statutes to protect the visitation rights of grandparents and other caretakers. Today, all 50 states have some type of grandparent visitation law. These statutes allow grandparents to ask a court to give them the legal right to maintain their relationships with their children's children.  Visitation statutes, however, do not give a grandparent an absolute right to visitation, and the laws vary widely from state to state on crucial details such as who may petition for visitation rights, under what circumstances a grandparent may file such a petition, and on what legal grounds the petition will be granted.

States differ on the extent to which parents have a right to control their children's upbringing. Some states have viewed visitation by grandparents as only a small infringement on the right of a parent to raise a child. These states focus on what is in the “best interest of the child” in making decisions about whether or not to allow grandparents to visit. In these “permissive” states, even unrelated caretakers can often petition for visitation rights, and grandparents can seek visitation even in cases where the family is intact (i.e., there has not been a divorce or a death in the family). In these states, courts may award grandparents visitation rights even if the parents object. Other states are more protective of a parent’s right to decide what is best for the child. These states have “restrictive” visitation statutes, meaning that generally only grandparents, not other caretakers, have visitation rights, and these rights may be pursued only if the child's parents are divorcing, one or both parents have died, or the child was born out of wedlock. In other words, in these states the parents in intact families have the final word on whether or not grandparents are allowed to visit.  Still, the “best interest of the child” is the legal standard in most states for determining whether grandparents should be granted visitation.

There are no firm rules for determining when a court will grant visitation; every case is decided on its own facts and merits. Grandparents, however, can take steps to improve their chances of gaining visitation rights.  In deciding visitation cases, courts often consider the previous relationship between the grandparent and grandchild, and they look favorably on evidence of a consistent and caring relationship. For this reason, a grandparent should try to build a meaningful relationship with a child from the outset. If the child’s parent rejects the grandparent’s efforts to visit, the grandparent should keep a record of the grandparent’s attempted contacts and continue to make a reasonable effort to preserve the relationship with the grandchild, like sending gifts and cards. When it comes time to meet with an attorney, grandparents should have documentary evidence and names of witnesses to support their claim that visitation is in the best interest of the child.

The Virginia Code specifically names grandparents as persons with a “legitimate interest” in custody and visitation cases.  The Virginia Code requires the court to give “primary consideration to the best interests of the child,” and sets a higher standard of proof for persons other than parents, by providing that: “the Court shall give due regard to the primacy of the parent/child relationship but may upon a showing by clear and convincing evidence that the best interests of the child would be served thereby award custody and/or visitation to any other person with a legitimate interest.” The Virginia Code sets out ten factors that the court must consider in determining custody and visitation, and does not give grandparents a legal right to visit a grandchild, but a right to petition for visitation.

In June 1998, the Supreme Court of Virginia, in the decision of Williams v. Williams, denied parental grandparents’ visitation with their granddaughter that was opposed by both of the child’s parents. The court affirmed the decision of the lower court that the right of parents in raising their children is a fundamental right protected by the United States Constitution. The court held that “...before visitation can be ordered over the objection of the child’s parents, a court must find an actual harm to the child’s health or welfare without such visitation. A court reaches consideration of the best interests standard in determining visitation only after it finds harm if visitation is not ordered.”

In May 1999, the Court of Appeals of Virginia, in the decision of Dotson v. Hylton, granted the paternal grandmother visitation with her granddaughter. The visitation was favored by the child’s father, but was objected to her by her mother. The significant difference in facts between the Williams decision and the Dotson decision was that in the Dotson decision one of the parents favored the visitation.  Where both of the living parents of a child object to visitation, the Virginia courts require that a grandparent show actual harm to the child without visitation. This is a restrictive standard.

One way to avoid a court battle is to try professional mediation. In mediation, the disputing parties engage the services of a neutral third party to help them hammer out a legally binding agreement that all concerned can live with. The disputing parties can control the process, and they have a chance to explain their perspectives and feelings. In a court, on the other hand, the judge will ultimately make a decision based on laws that may seem unfair to one or both sides.

Andrew Hook
Oast & Hook
www.oasthook.com

Spouses and Undue Influence with Executing a Will

In In re Will of Jones (N.C. Sup. Ct., No. 37A08, Dec. 12, 2008), the decedent, Mr. Jones, executed a will and trust agreement on March 3, 2005, (“March will”) in which he directed that his farming operations and all personal effects be distributed outright to his wife, Mrs. Jones, except for certain cattle which he devised to a friend.  The will also directed that his shares of stock in Carolina Packers Inc., a meat packing business of which Mr. Jones was the president and majority shareholder, be placed in a trust for the benefit of Mrs. Jones for her life and then to three longtime Carolina Packers employees.

Although Mr. Jones had been diagnosed with cancer in 2004, he stayed strong until April 2005, when his health began a steady downhill course.  By late July 2005, Mr. Jones was experiencing pain and confusion, CT scans showed multiple tumors in his brain, and his physicians noted that he was profoundly weak.  In August 2005, Mr. Jones became a “total care” patient and relied heavily on others, especially Mrs. Jones, to assist him with daily living activities.

According to depositions and testimony from Mr. Jones’s longtime friends and acquaintances, Mrs. Jones, who had been married to Mr. Jones for 47 years, thought she should receive more of Mr. Jones’s estate, and she was upset about the contents of the March will.  As Mr. Jones’s health continued to deteriorate, Mrs. Jones repeatedly emphasized to him that everything should be left to her.  She also screened calls to Mr. Jones from his attorney, and she dominated business conversations in which she previously took little part.  By the end of August 2005, Mrs. Jones had convinced Mr. Jones to make another will leaving virtually everything outright to her.  Mrs. Jones then found an attorney to draft this new will, and Mr. Jones executed it on September 1, 2005, (“September will”).

Mr. Jones died on October 11, 2005, and the March will was submitted for probate three days later. Mrs. Jones challenged the March will on the grounds that the September will was valid and expressly revoked all previous wills.  The trial court granted summary judgment to Mrs. Jones, concluding that there was no genuine issue of material fact as to whether Mrs. Jones unduly influenced Mr. Jones with respect to executing the September will, and the trial court found that the September will should control.  The North Carolina Court of Appeals affirmed the decision of the trial court.  This decision was appealed to the North Carolina Supreme Court.

The North Carolina Supreme Court acknowledged that prior will contest cases “demonstrated a strong respect for marriage and suggest that spouses are often accorded special consideration in undue influence cases in light of their close relationship with the testator.”  The Court said that in this case, there still remained the question of whether the wife’s influence was “undue.” The Court then analyzed the seven factors under North Carolina law to determine whether undue influence could have existed in this case.  These factors are: 1) Old age and physical and mental weakness; 2) That the person signing the paper is in the home of the beneficiary and subject to his constant association and supervision; 3) That others have little or no opportunity to see him; 4) That the will is different from and revokes a prior will; 5) That it is made in favor of one with whom there are no ties of blood; 6) That it disinherits the natural objects of his bounty; 7) That the beneficiary has procured its execution.  In analyzing these factors, the Court acknowledged that all seven factors need not be present, and that each factor should be carefully considered in light of the facts of each case.  The Court did not reach any conclusion regarding the allegations, but discussed which evidence related to the seven factors might permit a jury to reasonably infer undue influence.  As a result of its analysis, the North Carolina Supreme Court reversed the decision of the Court of Appeals, holding that there existed genuine issues of material fact related to the issue of undue influence, and that the trial court should have allowed a jury to consider those issues.  The lesson to be learned from this case is that a testator may possibly be unduly influenced not just by children, strangers, or more distant relatives, but also by a spouse. 

Andrew H. Hook
Oast & Hook
www.oasthook.com