The long legal battle over the fate of Terri Schiavo cast a much-needed spotlight on the importance of medical direc...Read more
Guardian Should Have Respected Couple
- April 9th, 2003
The person appointed by a court to manage the affairs of an institutionalized Medicaid recipient failed in her role because she did not respect the efforts that the recipient and his wife had made to protect their small savings from being gobbled up by long-term care costs, an appeals court in the State of Washington has ruled. Estate of Sullivan v. Brashear (Wash. Ct. App., Div. I, No. 49266-7-I, March 31, 2003) (unpublished opinion).
In 1980, John and Else Sullivan wrote separate wills giving everything to each other, or to two nieces once they were both gone. When Mr. Sullivan needed long-term care, Mrs. Sullivan sought out an elder law attorney, who advised her to take several planning steps, including transferring title to the couple's mobile home into her name alone, which she did. Mrs. Sullivan died shortly thereafter and Sheila Brashear, a professional guardian, was appointed to be the guardian of Mr. Sullivan.
One of the nieces, who was personal representative of her aunt's estate, asked the court to distribute the proceeds of the mobile home to the estate. The guardian, Ms. Brashear, opposed this and asked that funds from the mobile home be taken from Mrs. Sullivan's estate and given to Mr. Sullivan.
The nieces noted that giving the money to Mr. Sullivan would disqualify him from Medicaid, and they suggested a special needs trust instead. The nieces requested that Ms. Brashear honor the estate planning that had been done by the Sullivans. While this was going on, the Department of Social and Health Services filed a substantial Medicaid lien against Mr. Sullivan's estate.
The nieces sued Ms. Brashear, alleging that as a result of her actions the estates of Else and John Sullivan were substantially damaged. The trial court dismissed the complaint, holding that Ms. Brashear had acted within the scope of her duties as guardian.
The State of Washington Court of Appeals reverses, finding that Ms. Brashear breached her duties to Mr. Sullivan and to his estate. The court finds that Ms. Brashear should have sought court approval before insisting that Mrs. Sullivan's estate be invaded to provide money to Mr. Sullivan, and that she failed to recognize that any money given to Mr. Sullivan would provide no benefit to him since he was a Medicaid recipient. "There were clear allegations that any additional financial interest received by John Sullivan's guardianship estate would only serve to benefit Brashear or the Department of Social and Health Services in direct contravention of the intent of either John or Else," the court writes.
For the full text of this decision, go to: http://www.courts.wa.gov/opinions/?fa=opinions.opindisp&docid=492667MAJ.
For more on guardianship, click here.
Local Elder Law Attorneys in Ashburn, VA
Margaret A. O'Reilly, PC
Margaret A. O’Reilly is an estate planning and elder law attorney with over thirty-five years of legal experience. Attorney O’Reilly graduated from Duke University with a degree in psychology, and received her law degree from Northeastern University School of Law in Boston, Massachusetts. For over 15 y...
Hammond and Associates, LLC, Elder Law, Estate Planning, Wills, Trusts, Probate
For Jeffrey Hammond, the practice of Elder Law is personal. Jeff’s many years of experience in law and in business did not prepare him for the crisis he faced in 2005 and 2006 when his father suffered a stroke and both of his parents suffered from dementia and other medical problems. At that time, Jeff began an i...
Felinton Elder Law & Estate Planning Centers
Mindy Felinton concentrates in the areas of Medicaid planning, Veterans' Benefits, asset protection, nursing home planning, elder law, wills, estate planning, trusts, living wills, powers of attorney, probate administration and trust administration and began her legal career 30 years ago as an Assistant State Attorney...