In re Keri (Continued)

Important Cases

In re Keri

(Continued)

III.

[7] In this case, we find that petitioner’s proposed Medicaid spend-down plan meets the Trott criteria and should be approved. It is undisputed that the first criterion of Trott is satisfied because Keri suffers from irreversible dementia. “[H]er restoration to *64 competency is virtually nonexistent.” Trott, supra,118 N.J.Super. at 442-43, 288 A. 2d 303. Richard’s spend-down plan is designed to provide adequate funding for his mother’s nursing home care during the triggered period of Medicaid ineligibility and therefore meets the second criterion of Trott. The testimony indicates that Keri needs care twenty-four hours a day and that Richard was concerned about locating an appropriate facility for her. The trial court found that placement in a nursing home was necessary. Because both state and federal law prevent a Medicaid approved facility from transferring a patient based on a change in pay status, we should not anticipate that when Medicaid assumes Keri’s financial obligations, the quality of her care will suffer. 42 U.S.C.A. § 1396r(c)(4)(A); 42 C.F.R. § 483.12 (c)(1); N.J.S.A. 26:2H-12.8j, -12.8p.

Further, New Jersey statutes do not distinguish nursing homes that participate in Medicaid or Medicare from those that do not. N.J.S.A. 30:13-5. Regardless of the source of her payment, in a nursing home Keri will

[h]ave the right to a safe and decent living environment and considerate and respectful care that recognizes [her] dignity and individuality …, including the right to expect and receive appropriate assessment, management and treatment of pain as an integral component of [her] care consistent with sound nursing and medical practices.

[N.J.S.A. 30:13-5j.]

Federal law is no less demanding; Medicaid funding is conditioned on nursing home compliance with federal standards for dignified care. 42 U.S.C.A. § 1395i-3; 42 U.S.C.A. 1396r ; see also 42 C.F.R. §§ 483.1 to 483.100 (specifying requirements for states and long-term care facilities).^FN5

FN5. We are informed by amicus curiae, New Jersey Chapter of National Academy of Elder Law Attorneys, that New Jersey has 358 nursing homes, 320 of which participate in the Medicaid Program.

The third criterion of Trott, supra, that the donees of petitioner’s spend-down plan “constitute the natural objects of the bounty of the incompetent,” unquestionably is met. *65118 N.J.Super. at 443, 288 A. 2d 303. Richard and Charles are Keri’s sons, and her will leaves her estate in equal parts to them. See also N.J.S.A. 3B:12-62 (in exercising powers over ward’s estate, court or guardian must “take into account any known estate plan of the ward, including his [or her] will”). And, the proposed **918transfer of assets “will benefit and advantage the estate of the incompetent,” as required by the fourthTrott criterion. Trott, supra, 118 N.J.Super. at 443, 288 A. 2d 303; see also N.J.S.A. 3B:12-49 (granting powers over ward’s estate “for the benefit of the ward, his dependents and members of his household”). Assuming Keri nets $170,000 from the sale of her house, the plan proposes to preserve $92,000 of those proceeds for her sons to share. If Keri spends the remainder of her life in a nursing home without selling her house, the state would be authorized to impose a lien for Medicaid cost reimbursement and Richard and Charles likely would get nothing. 42 U.S.C.A. § 1396p(a)(1)(B). If Keri sold the house without transferring her assets, then her entire financial investment would be paid out in less than three years for nursing home costs, and, again, Richard and Charles likely would get nothing. Under petitioner’s plan, Keri could preserve approximately $46,000 from the proceeds of the sale of her home for each of her sons, the beneficiaries of her will.

Finally, the fifth Trott criterion is satisfied because there is no evidence in the record indicating that Keri would have disapproved petitioner’s proposed spend-down plan. The Appellate Division focused on Keri’s preference to stay in her house, a preference that conflicted with petitioner’s proposed plan. But, if Keri could not live in her house without twenty-four hour care, as the trial court found, then she would have to pay for around-the-clock nursing. The result is a veritable “Catch-22”-without selling her house, Keri does not have the funds to maintain in-home care for more than a short period.^FN6 Moreover, because of *66 her dementia Keri had become difficult at best, suggesting that in-home care would not be feasible. The question, then, is whether substantial evidence indicates that Keri would have disapproved petitioner’s Medicaid planning proposal in those unfortunate circumstances. There simply is nothing in the record to suggest that disapproval.

FN6. As noted earlier, supra at 54 n. 1,853 A.2d at 911 n. 1, the record is unclear whether Keri has more than $16,000 in other assets. In any event, those other assets are limited and would not cover in-home care for very long.

We therefore find that petitioner’s spend-down plan represents a decision that his mother “might have been expected to make,”>N.J.S.A. >3B:12-58, and satisfies both the applicable statutes and the Trottcriteria.

IV.

The Public Guardian for the Elderly takes the position that a child-beneficiary who serves as a guardian should not be permitted to propose a Medicaid spend-down plan for his or her ward because to do so would be a clear conflict of interest. He claims that here petitioner “is violating his fiduciary duty to his mother by self-dealing through medicaid planning.” The Appellate Division accepted that position, stating:

Unlike the situation involving spouses, there is a greater likelihood of conflict of interest when the gift-beneficiaries are children. As [a] Florida court observed …: “Courts must make room for the possibility that some children may try to pressure vulnerable parents into divesting themselves of assets so that the estate is not depleted by the costs of nursing home care.”

[Keri, supra, 356 N.J.Super. at 179, 811 A. 2d 942 (quoting Rainey v. Guardianship of Mackey, 773 So.2d 118, 122 (Fla.Dist.Ct.App.2000) ).]

There is a fundamental problem with the approach taken by the Public Guardian and the court below. As in this case, the **919 natural objects of a ward’s bounty often are the same persons likely to be chosen by the courts as guardians, i.e., children, spouses, close friends or relatives. N.J.S.A. 3B:12-25 directs the Superior Court to appoint “the spouse, if the spouse is living with the incompetent as man and wife at the time the incompetency arose, or … his heirs.” The very statute establishing the Office of the Public Guardian for Elderly Adults declares that the Public Guardian’s services may be needed “where there are no willing and responsible*67 family members or friends to serve as guardian.”N.J.S.A.. 52:27G-21 ; see also. N.J.S.A.. 52:27G-26 (using similar language). Disqualifying those individuals from receipt of asset transfers on conflict of interest grounds prevents the use of substituted judgment in the majority of cases because, if not disabled, incompetent persons most likely would transfer their assets to their guardians. In the circumstances presented, we find that adherence to the requirements of N.J.S.A. 3B:12-36 to -64, informed by the Trott criteria, should provide adequate protection against self-dealing by a beneficiary/guardian.

Out of an abundance of caution, the Appellate Division also held that “[a]bsent extraordinary circumstances, a court faced with an application of this nature should appoint the Public Guardian to represent the incompetent” pursuant to the Public Guardian For Elderly Adults Act (the Act), N.J.S.A.52:27G-20 to -31. Keri, supra, 356 N.J.Super. at 180, 811 A. 2d 942. In ordering a remand, the panel directed the trial court to seek intervention by the Public Guardian on Keri’s behalf, primarily out of a “concern[ ] about whether [her] interests [were] being protected.” Ibid. (internal citations omitted).

First, we take note of the Public Guardian’s opposition to mandatory participation by his office in these matters. He points out that the primary purpose of the Act is to provide guardianship for incompetent elderly adults who do not have private persons willing to serve in that capacity. N.J.S.A. 52:27G-21. Although the Act arguably leaves open participation by the Public Guardian in a non-guardian role,^FN7he argues that the courts must not impose *68 a burden on his office that would take significant resources away from its important primary function as specified by the Legislature.

FN7. The Public Guardian

[m]ay intervene in any guardianship or conservatorship proceeding involving a ward, by appropriate motion by the court, if the public guardian or the court deems the intervention to be justified because an appointed guardian or conservator is not fulfilling his duties, the estate is subject to disproportionate waste because of the costs of the guardianship or conservatorship, or the best interests of the ward require intervention.

[N.J.S.A. 52:27G-25h.]

This provision does not limit expressly the powers and responsibilities of the Public Guardian to guardianship services.

We observe in respect of this issue that safeguards already exist, apart from the constraints of law, for dealing with possible conflicts of interest in such cases. When a court orders a hearing on an application for guardianship, Rule 4:86-4(b) requires the appointment of counsel for the alleged incompetent. Appointed counsel must

1) personally interview the alleged incompetent; 2) make inquiry of persons having knowledge of the alleged incompetent’s circumstances, his or her physical and mental state and his or her property; [and] 3) make reasonable inquiry to locate any will, powers of attorney, or health care directives previously executed by the alleged incompetent or to discover any interests the alleged incompetent may have as beneficiary of a will or trust.

**920 [R. 4:86-4(b).]

Counsel also must file a report with the court, “making recommendations concerning the … issue of incompetency,” and “stat[ing] whether the alleged incompetent has expressed dispositional preferences.” Ibid. Moreover, our court rules provide that “where special circumstances come to the attention of the court by formal motion or otherwise, a guardian ad litem may, in addition to counsel, be appointed to evaluate the best interests of the alleged incompetent and to present that evaluation to the court.” R. 4:86-4(d) (emphasis added). In light of those safeguards, we do not find it necessary for the Public Guardian to be involved in this ^FN8 or any other like matter. We nonetheless accept the Public Guardian’s offer to intervene when extraordinary circumstances exist and the expertise of that office would be helpful. In such cases, *69 the trial courts may wish to call on the Public Guardian to participate as needed.

FN8. Counsel appointed by the trial court in this case interviewed Keri and complied with the other requirements of Rule 4:86-4(b), although he did not offer evidence and declined to cross-examine petitioner. As the Appellate Division acknowledged, he “supported [petitioner’s] application in all respects.” Keri, supra, 356 N.J.Super. at 172, 811 A. 2d 942.

Finally, the Appellate Division’s characterization of Medicaid spend-down plans requires a response from this Court. The panel described such plans as follows:

Putting euphemisms to one side, the plan, if followed by a competent person, is nothing other than self-imposed impoverishment to obtain, at taxpayers’ expense, benefits intended for the truly needy.

[Keri, supra, 356 N.J.Super. at 174, 811 A. 2d 942.]

Yet, the panel also acknowledged:Nonetheless, a competent individual may engage in such planning…. The question for us to resolve is whether it should be permitted by a guardian for the benefit of an incompetent’s self-sufficient, adult children.

[Id. at 175, 811 A.2d 942.]

[8] As amicus curiae Legal Services and the New Jersey State Bar Association point out, Medicaid planning is legally permissible under federal and state Medicaid law. Notwithstanding the Appellate Division’s laudable purpose to preserve public monies for those who are in need, Congress has carefully defined and circumscribed Medicaid planning, as has the State of New Jersey. By its actions, Congress has set the public policy for this program and although some might choose a different course, the law has not. Few would suggest that it is improper for taxpayers to maximize their deductions under our tax laws to preserve income for themselves and their families-even though they are, by their actions, reducing the amount of money available to government for its public purposes. So long as the law allows competent persons to engage in Medicaid planning, incompetent persons, through their guardians, should have the same right, subject to the legal constraints laid out herein.

V.

The judgment of the Appellate Division is reversed, and the matter is remanded to the trial court for the entry of an order consistent with this opinion.

*70 For reversal and remandment -Chief Justice PORITZ and Justices VERNIERO, LaVECCHIA, ZAZZALI, ALBIN and WALLACE -6.

Opposed -None.