Search Articles

Find Attorneys

Guardian Should Have Respected Couple

  • August 24th, 2018

[This article was originally published on April 9, 2003. The links were updated on August 24, 2018.]

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 I, No. 49266-7-I, March 31, 2003) (unpublished opinion).

Local Elder Law Attorneys in Your City

Elder Law Attorney

Firm Name
City, State

Elder Law Attorney

Firm Name
City, State

Elder Law Attorney

Firm Name
City, State

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.

 


Last Modified: 08/24/2018
Learn the secrets of estate planning from an expert
ADVERTISEMENT
Medicaid 101
What Medicaid Covers

In addition to nursing home care, Medicaid may cover home care and some care in an assisted living facility. Coverage in your state may depend on waivers of federal rules.

READ MORE
How to Qualify for Medicaid

To be eligible for Medicaid long-term care, recipients must have limited incomes and no more than $2,000 (in most states). Special rules apply for the home and other assets.

READ MORE
Medicaid’s Protections for Spouses

Spouses of Medicaid nursing home residents have special protections to keep them from becoming impoverished.

READ MORE
What Medicaid Covers

In addition to nursing home care, Medicaid may cover home care and some care in an assisted living facility. Coverage in your state may depend on waivers of federal rules.

READ MORE
How to Qualify for Medicaid

To be eligible for Medicaid long-term care, recipients must have limited incomes and no more than $2,000 (in most states). Special rules apply for the home and other assets.

READ MORE
Medicaid’s Protections for Spouses

Spouses of Medicaid nursing home residents have special protections to keep them from becoming impoverished.

READ MORE
Medicaid Planning Strategies

Careful planning for potentially devastating long-term care costs can help protect your estate, whether for your spouse or for your children.

READ MORE
Estate Recovery: Can Medicaid Take My House After I’m Gone?

If steps aren't taken to protect the Medicaid recipient's house from the state’s attempts to recover benefits paid, the house may need to be sold.

READ MORE
Help Qualifying and Paying for Medicaid, Or Avoiding Nursing Home Care

There are ways to handle excess income or assets and still qualify for Medicaid long-term care, and programs that deliver care at home rather than in a nursing home.

READ MORE
Are Adult Children Responsible for Their Parents’ Care?

Most states have laws on the books making adult children responsible if their parents can't afford to take care of themselves.

READ MORE
Applying for Medicaid

Applying for Medicaid is a highly technical and complex process, and bad advice can actually make it more difficult to qualify for benefits.

READ MORE
Alternatives to Medicaid

Medicare's coverage of nursing home care is quite limited. For those who can afford it and who can qualify for coverage, long-term care insurance is the best alternative to Medicaid.

READ MORE
ElderLaw 101
Estate Planning

Distinguish the key concepts in estate planning, including the will, the trust, probate, the power of attorney, and how to avoid estate taxes.

READ MORE
Grandchildren

Learn about grandparents’ visitation rights and how to avoid tax and public benefit issues when making gifts to grandchildren.

READ MORE
Guardianship/Conservatorship

Understand when and how a court appoints a guardian or conservator for an adult who becomes incapacitated, and how to avoid guardianship.

READ MORE
Health Care Decisions

We need to plan for the possibility that we will become unable to make our own medical decisions. This may take the form of a health care proxy, a medical directive, a living will, or a combination of these.

READ MORE
Estate Planning

Distinguish the key concepts in estate planning, including the will, the trust, probate, the power of attorney, and how to avoid estate taxes.

READ MORE
Grandchildren

Learn about grandparents’ visitation rights and how to avoid tax and public benefit issues when making gifts to grandchildren.

READ MORE
Guardianship/Conservatorship

Understand when and how a court appoints a guardian or conservator for an adult who becomes incapacitated, and how to avoid guardianship.

READ MORE
Health Care Decisions

We need to plan for the possibility that we will become unable to make our own medical decisions. This may take the form of a health care proxy, a medical directive, a living will, or a combination of these.

READ MORE
Long-Term Care Insurance

Understand the ins and outs of insurance to cover the high cost of nursing home care, including when to buy it, how much to buy, and which spouse should get the coverage.

READ MORE
Medicare

Learn who qualifies for Medicare, what the program covers, all about Medicare Advantage, and how to supplement Medicare’s coverage.

READ MORE
Retirement Planning

We explain the five phases of retirement planning, the difference between a 401(k) and an IRA, types of investments, asset diversification, the required minimum distribution rules, and more.

READ MORE
Senior Living

Find out how to choose a nursing home or assisted living facility, when to fight a discharge, the rights of nursing home residents, all about reverse mortgages, and more.

READ MORE
Social Security

Get a solid grounding in Social Security, including who is eligible, how to apply, spousal benefits, the taxation of benefits, how work affects payments, and SSDI and SSI.

READ MORE
Special Needs Planning

Learn how a special needs trust can preserve assets for a person with disabilities without jeopardizing Medicaid and SSI, and how to plan for when caregivers are gone.

READ MORE
Veterans Benefits

Explore benefits for older veterans, including the VA’s disability pension benefit, aid and attendance, and long-term care coverage for veterans and surviving spouses.

READ MORE