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HomeMy WebLinkAbout08-09-06 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT IN RE: CONSTANCE M. MEREDITH A/K/A CONSTANCE G. MEREDITH, AN ALLEGED INCAPACITATED PERSON Docket No. 06-0294 PETITION TO TRANSFER REAL ESTATE AND NOW comes Petitioner, William J. Meredith, by and through his attorney, Marielle F. Hazen, and files this Petition to transfer real estate and in support hereof avers as follows: 1. By Court Order dated June 12, 2006, William J. Meredith was appointed Plenary Guardian of the Estate of Constance M. Meredith, a/kJa Constance G. Meredith. Constance M. Meredith was adjudicated to be incapacitated and unable to manage her financial affairs. A true and correct copy of the Order is attached hereto as Exhibit "A." 2. Petitioner, William J. Meredith, is the spouse of 51 years of Constance M. Meredith, and resides at 165 Linn Drive, Carlisle, Pennsylvania, 17013. 3. Constance M. Meredith and William J. Meredith have two children: William R. Meredith (son), of 404 Pine Grove Road, Gardeners, Pennsylvania, 17324, and Stephen D. Meredith (son), of 104 West Green Street, 3rd Floor, Mechanicsburg, Pennsylvania, 17055. 4. William J. Meredith and Constance M. Meredith hold an interest irl f_eal prop~Jty .1 .~-, as tenants by the entireties. The property is located at 165 Linn Drive, Carlisle, PeunSylvarila, I J \i:J 17013 (hereinafter referred to as "the residence"), and is William J. Meredith's primary residence. C.J co ~. 5. Constance M. Meredith has been diagnosed with Paranoid Schizophrenia and Organic Brain Syndrome, and has been adjudicated a totally incapacitated individual with regard to management of her financial resources. She is currently a patient at the Danville State Hospital, 200 State Hospital Drive, Danville, Pennsylvania, 17821, and is expected to remain in a psychiatric hospital or nursing care facility for the rest of her life. 6. Constance M. Meredith is currently paying $651.00 per day for her care. She is likely to deplete her assets and qualify for Medical Assistance to pay for her care at the Danville State Hospital within the next few months. 7. William J. Meredith desires to have the residence transferred into his sole ownership. This transfer would serve to protect the residence for him. 8. William J. Meredith also needs to transfer the couple's remaining assets into his sole ownership when their assets have been depleted to a level that would allow Constance M. Meredith to qualify for Medical Assistance. 9. Pennsylvania statute provides that transfers for less than fair consideration do not result in an ineligibility period when the transfer is made between spouses (attached as Exhibit "B" is a copy of 55 Pa. C.S.A. ~ 178.101). 10. Constance M. Meredith's countable resources cannot exceed $8,000.00 in order for her to be eligible for Medical Assistance. Attached as Exhibit "c" is a copy of a blank Notice fonn from the Department of Public Welfare. This form is sent upon determination of eligibility for Medical Assistance to advise that all assets exceeding $8,000.00 must be removed from the nursing home spouse's name or Medical Assistance eligibility will be terminated. 11. Pursuant to the Probate Estate and Fiduciary Code 20 P A C.S.A. 95536 (b) (2), the Court may substitute its judgment for that of the incapacitated person and authorize estate planning for the benefit of the incapacitated person or the incapacitated person's family. 2 WHEREFORE, Petitioner requests this Honorable Court to enter an Order, pursuant to the Probate Estates and Fiduciary Code 20 PA C.S.A. ~5536 (b) (2), authorizing William J. Meredith, as Guardian of the estate of Constance M. Meredith, alk/a Constance G. Meredith, to sign a Deed transferring Constance Meredith's interest in that real property located at 165 Linn Drive, Carlisle, Pennsylvania, 17013 to her spouse, William J. Meredith, and authorize the transfer of the remaining marital assets to the sole ownership of William J. Meredith so Constance M. Meredith can qualify for Medical Assistance benefits to pay for her care at the Danville State Hospital or another care facility. Respectfully submitted, Date: y" 'J.- J l..t' &1} li~~:~ Marlelle F. zen, Esquire Attorney ID No. 68003 2000 Linglestown Road, Suite 202 Harrisburg, Pennsylvania 17110 (717)540-4332 Attorney for Petitioner 3 VERIFICATION I verify that the statements made in this Petition are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. .MJ A...e,P~~ ~/YI 0( WILLIAM J. M DITH 4 /} IN RE: CONSTANCE M. MEREDITH : IN THE COURT OF COMMON PLEAS alkJa CONSTANCE G. MEREDITH: OF CUMBERLAND COUNTY, : PENNS~ VANIA : ORPHANS' COURT DIVISION JUll 8 2llfI6 if' I An alleged incapacitated person : NO. 06-0294 On the Petition of WILLIAM J. MEREDITH AMENDED FINAL ORDER OF COURT APPOINTING PLENARY GUARDIAN AND NOW, this ~() ~ day of ~ , 2006, upon Petition by the Guardian in this matter and a finding that Constance M. Meredith and Constance G. Meredith are the same person, it is hereby ordered, adjudged and decreed that Constance M. Meredith should be referred to as Constance M. Meredith, also known as Constance G. Meredith, and the caption in this matter is amended accordingly. The Guardian shall have all of the authorities outlined in the original Order dated June 12, 2006. Said Order is attached hereto and made a part hereof as if set forth in full. c;~~,: -~ J. .j;~; ~Jjjj() ~:JJ\,J;~l(~<)~;~~ Exhibit" A" A TRUE COPY FROM RECO,~C In l:;tor~:~)~~r~~';;~ ,: ,~e~;~I:.:'C of saia c.ourt at i,Ai. "biO, ;~,(~(r7.tJ This day of .1~'"(-rrPA ~~ ~_ ____ ~___ 7/-'-1L --Clerk of the. un..A'ici: 'is ;"";00..; JI ('~ . ~~i,--'" i .ry"l n::-:, l(~l .' J . " /n JJ . ~ e trr~)- L f) .j' t,; , U ,(. :,(j n ~/ ir'0 q~'n7 ~ ," ..II ..1,,;..1(. COpy IN RE: CONSTANCE M. MEREDITH : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYL VANIA : ORPHANS' COURT DIVISION An alleged incapacitated person : NO. 06-0294 On the Petition of WILLIAM J. MEREDITH FINAL ORDER OF COURT APPOINTING PLENARY GUARDIAN AND NOW, this '2~dayof J\..U'-lL- , 2006, a hearing in this case having been . held on June 12, 2006 at 2:30 p.m., and it appearing to the Court that CONSTANCE M. MEREDITH was served with a Citation and Notice of this hearing on May 17,2006, and the Court finds that the physical or mental condition of CONSTANCE M. MEREDITH would be harmed by her presence at hearing, and further finds from the testimony: 1. That CONSTANCE M. MEREDITH suffers from Paranoid Schizophrenia and Organic Brain Syndrome, conditions which impair her capacity to receive and evaluate information effectively and to make and communicate decisions concerning her management of financial affairs or to meet essential requirements for her physical health and safety. 2. That there are insufficient supports available to assist CONSTANCE M. MEREDITH in such decisions and that there exists no other less restrictive alternative mechanism for decision- making. 3. That based on the incapacity of CONSTANCE M. MEREDITH to receive and evaluate information and to make or communicate decisions, a plenary Guardian of the Person and plenary Guardian of the Estate are required on a permanent basis. NOW, THEREFORE, based on the clear and convincing evidence supporting the foregoing findings it is ORDERED, ADJUDGED and DECREED that CONSTANCE M. MEREDITH be and is hereby adjudged an incapacitated person, and WILLIAM J. MEREDITH is appointed Plenary Permanent Guardian of the Person and Estate of CONSTANCE M. MEREDITH. As Plenary Permanent Guardian of the person, WILLIAM J. MEREDITH has the authority to access all CONSTANCE M. MEREDITH's medical records, including but not limited to psychiatric .records. Further, as Guardian of the person, WILLIAM J. MEREDITH shall have the power and authority to serve as personal representative for all purposes of the Health Insurance Portability and Accountability Act of 1996, (Pub.L.l 04-191), 45 CFR Sections 160 through 164 ("HIP AA"). The Guardian shall be considered the personal representative for CONSTANCE M. MEREDITH's heath care disclosures under the federal HIP AA regulations and shall have full authority to review CONSTANCE M. MEREDITH's medical records and to execute releases of confidential information from medical providers and insurers or other third party payors. As Guardian of the Estate, WILLIAM J. MEREDITH shall have the authority to make distributions from principal for the payment of care expenses, and all medical needs. In addition, WILLIAM J. MEREDITH shall have the authority to make distributions from principal for legal fees and the taxes, utilities, and insurance for any real property owned by CONSTANCE M. MEREDITH. An Inventory must be filed within ninety (90) days. A report by the Guardian shall be filed within 12 months and annually thereafter. 1 ~> L0Cl\\t~ ct . Bond in the ftfB8W1t of shall be posted- by the GuardIan. CONSTANCE M. MEREDITH, an incapacitated person, has the right to appeal this Order of Court by filing exceptions within ten (10) days of this date or to petition this Court for a review hearing to modify or terminate the guardianship herein established. If CONSTANCE M. MEREDITH was not present at this hearing on appointment of Guardian, then Petitioner shall serve upon and read to CONSTANCE M. MEREDITH the Statement of Rights, a copy of which is attached to this Order as Exhibit "A", and file proof of such service with this Court within ten days. BY THE COURT: \5\ r lwcv--Jf.~Jo, J. () ;-..:) t'......:} ':-..:--':'1 l..:,;-.... ~.\h ..... ~ ~ (".) /"'-, A TRUE COpy FROM RECORD In Testimony wherof, I hereunto set my hand and the seal of said Court at Carlisle, PA Th~JL~aY~ ~ .\ AttMrh ~~U,Lu: "-" Cieri<. of the Orphans Court ) ~ Cumbel1and County.. . ( i~~~~ ,--'~ (:$ iP' ~ (>.J ! r-, l:J -. .:: (~ ) ";:-:J : ) - '--1 '--=; ", ., IN RE: CONSTANCE M. MEREDITH : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYL VANIA : ORPHANS' COURT DMSION An alleged incapacitated person : NO. 06~0294 On the Petition of WILLIAM J. MEREDITH STATEMENT OF RIGHTS UPON APPOINTMENT OF A GUARDIAN AN ORDER HAS BEEN ENTERED WHEREBY YOU HA VE BEEN ADJUDICATED AN INCAPACITATED PERSON AND UNABLE TO CARE FOR YOURSELF AND/OR MANAGE YOUR PERSONAL AFFAIRS. YOU HAVE THE RIGHT TO FILE EXCEPTIONS TO THE COURT'S DECISION WITHIN TEN (10) DAYS OF THE DATE OF THE COURT'S ORDER. IF YOU FAIL TO FILE EXCEPTIONS, THE ORDER WILL BECOME FINAL. IN THE EVENT THA T YOU FILE EXCEPTIONS AND THEY ARE DENIED, YOU HAVE A RIGHT TO FILE AN APPEAL TO THE SUPERIOR COURT WITHIN THIRTY (30) DAYS OF THE DATE OF THE DENIAL OF THE EXCEPTIONS. IN ADDITION, YOU MAY PETITION THE COURT AT ANY FUTURE TIME TO MODIFY OR TO TERMINATE THE GUARDIANSHIP IF THERE IS A CHANGE IN YOUR CAPACITY OR IF YOUR GUARDIAN FAILS TO PERFORM HIS/HER DUTIES IN ACCORDANCE WITH THE COURT'S ORDER. IF YOU WISH TO APPEAL THE ORDER OR TO PETITION THE COURT TO MODIFY OR TERMINATE THE GUARDIANSHIP, YOU HA VE THE RIGHT TO BE REPRESENTED BY AN ATTORNEY. IF YOU DO NOT HAVE AN ATTORNEY, THE COURT MAY APPOINT ONE TO REPRESENT YOU. IF YOU CANNOT AFFORD AN ATTORNEY, THE SERVICES OF AN ATTORNEY WHOM THE COURT MAY APPOINT FOR YOU MAYBE PROVIDED AT NO COST TO YOU. Exhibit "A" ,055 Pa. Code ~ 178.104. Disposition of assets and fair consideration provisions for transf... Page 1 of 4 ~ 178.104. Disposition of assets and fair consideration provisions for transfers on or after July 30, 1994. (a) If assets are disposed of on or after July 30, 1994, ~ ~ 178.105 and 178.106 (relating to presumption of disposition of assets to qualify for MA for transfers on or after July 30, 1994; and reestablishment ofMA eligibility after transfers made on or after July 30, 1994) and this section apply to an institutionalized individual who is applying for or receiving MA for NFC as defined in ~ 178.2 (relating to definitions), including services in an ICF/MR, or a level of care in an institution equivalent to NFC, or home or community-based services furnished under a Title XIX waiver and the individual or the individual's spouse transfers assets for less than FMV. (b) An institutionalized individual who disposes of assets for less than FMV on or after the look back date in subsection (c) is ineligible for MA for NFC which includes the services set forth in subsection (a). A transfer of assets by the community spouse to a person other than the institutionalized spouse is treated and affects the eligibility of the institutionalized spouse the same as a transfer by the institutionalized spouse. (c) The look-back date shall be 36 months from the date on which the individual is both institutionalized and has applied for MA, except in the case of payments from a trust, or portions of a trust, as described in ~ 178.7(e)(1)(iii) and (2)(ii) (relating to treatment of trust amounts for all categories of MA for trusts established on or after July 30, 1994) which are considered assets disposed of for less than FMV by the individual. In this instance, the look- back date shall be 60 months. (d) The number of months of ineligibility for the institutionalized individual who disposes of assets for less than FMV shall be equal to the total cumulative UV of all assets transferred by the individual or the individual's spouse on or after the look-back date divided by the average monthly cost to a private patient ofNFC in effect in the Commonwealth at the time of application. (e) An individual will not be ineligible for payment for NFC if: (1) The assets were the resident property and title to the home was transferred to: (i) The spouse of the individual. (ii) The individual's child who is under 21 years of age, or blind or permanently and totally disabled as determined under ~ 140.81 (relating to deductions from earned income), or is blind or disabled based on SSI criteria as specified in 42 U.S.C.A. S 1382c(a)(3). (iii) A sibling of the individual who has an equity interest in the home and who resided in the individual's home for at least 1 year immediately before the date the individual became an institutionalized individual. (iv) A son or daughter of the individual, other than a child described in subparagraph Exhibit "B" http://www.pacode.comlsecure/data/05 5/chapt html 8/2/2006 .055 Pa. Code ~ 178.104. Disposition of assets and fair consideration provisions for transf... Page 2 of 4 (ii), who resided in the individual's home for at least 2 years immediately before the date the individual became an institutionalized individual and who provided care to the individual which permitted the individual to reside at home rather than in an institution or facility . (2) The assets were transferred to one of the following: (i) The individual's spouse or to another for the sole benefit of the individual's spouse. (ii) To another for the sole benefit of the individual's spouse, from the individual's spouse. (iii) The individual's child described in paragraph (1 )(ii), or to a trust, including one described in ~ 178.7(f), established solely for the benefit of the individual's child. (iv) A trust, including a trust described in ~ 178.7(f), established solely for the benefit of an individual under 65 years of age who is disabled based on SSI criteria as specified in 42 U.S.C.A. ~ 1382c(a)(3). (3) The individual, the individual's spouse or someone else acting on behalf of the individual can show that one of the following applies: (i) The individual intended to dispose of the assets either at FMV or for other valuable consideration. (ii) The assets were transferred exclusively for a purpose other than to qualify for MA. (iii) The assets transferred for less than FMV were returned to the individual. (4) The Commonwealth determines that denial of eligibility would cause undue hardship as defined in 9 178.2. (f) If an asset is held by an individual in common with other persons in joint tenancy, tenancy in common or a similar arrangement, the asset or the affected portion of the asset shall be considered to be transferred by the individual when an action is taken, either by the individual or by another person, that reduces or eliminates the individual's ownership or control of the asset. (g) If a transfer by the individual's spouse results in a period of ineligibility for MA, the Commonwealth will apportion the period of ineligibility or any portion of the period between the individual and the individual's spouse if the spouse otherwise becomes eligible for MA for NFC. (h) During the period of ineligibility for MA payment for NFC, the nursing facility or other provider may charge the private pay rate. Authority The provisions of this 9 178.104 issued under sections 201(2) and 403(b) of the Public Welfare Code (62 P. S. 9 9 201(2) and 403(b)). http://www.pacode.comfsecure/datal055/chapterI78/s178.1 04.html 8/2/2006 ,055 Pa. Code S 178.104. Disposition of assets and fair consideration provisions for transf... Page 3 of 4 Source The provisions of this S 178.104 adopted December 23, 1994, effective December 24, 1994, and apply retroactively to July 30, 1994,24 Pa.B. 6423. Notes of Decisions Burden of Proof This regulation squarely places the burden on the applicant to establish that he or she "intended" to dispose of the assets for fair market value or for other valuable consideration, or that the assets were transferred "exclusively" for a purpose other than to qualify for Medical Assistance. Ptashkin v. Department of Public Welfare, 731 A.2d 238 (Pa. Cmwlth. 1999). Disposition of Assets The Department did not misapply the exception regarding disposition of assets; since at the time of the transfer the applicant and his spouse suffered ailments that could eventually render them in need of nursing home care, and when the only explanation for the transfer of real property to children for $1.00 was to keep the property in the family, the Department determined that the petitioner had failed to satisfy his burden to show that the transfer was made for a purpose other than to qualify for Medical Assistance. Godown v. Department of Public Welfare, 813 A.2d 954 CPa. Cmwlth. 2002). Where a couple converts otherwise countable assets into an irrevocable, actuarially sound commercial annuity for the sole benefit of the community spouse, the annuity is not a countable resource in calculating the CSRA. The transfer may not be used to impose a period of ineligibility. Mertz v. Houston, 155 F. Supp. 2d 415 (E.D. Pa. 2001). Husband's use of funds transferred from his wife, who is a nursing home resident, to purchase an annuity from an irrevocable trust established by the couple's adult daughters was not a permissible spending down of the couple's money, where the purchase of the annuity was for less than fair consideration, was made with the intent to qualify the wife for Medical Assistance, and was contrary to the provisions and intent of the Medicare Catastrophic Coverage Act. Bird v. Department of Public Welfare, 731 A.2d 660 (Pa. Cmwlth. 1999). Fair Consideration The applicant failed to carry her burden of proving her eligibility for Medical Assistance by showing that the disputed funds were transferred for fair market value or exclusively for a purpose other than to qualify for Medical Assistance, where the applicant presented absolutely no evidence other than the promissory notes themselves, and where the Department of Public Welfare presented evidence that it had discovered that the applicant had sold her home and received net proceeds of $28,815, but that she, instead of applying these funds for her nursing home care, transferred them to her adult children in exchange for two promissory notes, and that she is only receiving $48 per month for 9 years until she receives the principal, plus accrued interest, in a lump sum due past her life expectancy. Ptashkin v. Department of Public Welfare, 731 A.2d 238 CPa. Cmwlth. 1999). http://www.pacode.comlsecure/data/055/chapter178/s178.104.html 8/2/2006 055 Pa. Code ~ 178.104. Disposition of assets and fair consideration provisions for transf... Page 4 of 4 Husband's use of money transferred from his wife, who is a nursing home resident, to purchase an annuity for $143,000 that would, over a period of 6 years, should he live that long, reap a return of$144,000, or $600 in interest, but if he died before reaching the end of his purported life expectancy, his estate forfeits any further return on his investment, was not for fair consideration. Bird v. Department of Public Welfare, 731 A.2d 660 (Pa. Cmwlth. 1999). Multiple Transfers Where a Medicaid applicant made three consecutive transfers of $9,000 each, the Department of Public Welfare correctly calculated the period of ineligibility by considering the total of the cumulative uncompensated value of the transferred assets instead of viewing each transfer separately. Heffilfinger v. Department of Public Welfare, 789 A.2d 349 (Pa. Cmwlth.2001). Cross References This section cited in 55 Pa. Code ~ 178.5 (relating to treatment of irrevocable burial reserves for all categories ofMA); 55 Pa. Code ~ 178.7 (relating to treatment of trust amounts for all categories of MA for trusts established on or after July 30, 1994); 55 Pa. Code ~ 178.105 (relating to presumption of disposition of assets to qualify for MA for transfers on or after July 30, 1994); 55 Pa. Code ~ 178.106 (relating to reestablishment of MA eligibility after transfers made on or after July 30, 1994); and 55 Pa. Code ~ 178.175 (relating to presumption of disposition of assets to qualify for MA for transfers on or after July 30, 1994). No part of the information on this site may be reproduced for profit or sold for profit. This material has been drawn directly from the official Pennsylvania Code full text database. Due to the limitations of HTML or differences in display capabilities of different browsers. this version may differ slightly from the official printed version. http://www.pacode.comlsecure/datal055/chapterl78/s178.1 04.html 8/2/2006 CERTIFICATION OF TRANSPER OF RESOURCES TO <:.~:.:;-"" COMMUNITY SPOUSE CASe 100000ACATlON co AEaJI) NO. CAT. 0tST. NM SECTION 303(a) OF niE MEDICARE CATASTROPHIC COVERAGE ACT P.ROVJOES THAi A PERSON IN A NURSING FACIUTf NAY TRANSFER CERTAIN RESOURCES. SUBJECT TO A MAXIMUM uurr SPECFIEO 1N THE ACT. TO A SPOUSE LMNG AT HOUE. I HERESY CERTFY THAT J WIlJ. TRANSFeR RESOURCt:S OWNED BY UE TO MY SPOUSE WITHIN NINETY' (gO) DAYS FROM 1M! DATE B8.0W. 1_ rs - N 1llE .......,.. 1'- '.' I UNDERSTAND THAT A TRANSFER OF RESOURCes. WrrHlN SPECIFIED I.IMITS ESTABL.ISHED BY FEDERAL L.-.W. TO MY SPaJSE UVING AT HOME Will. NOT AFfECT MY ELIGIBIUN FOA MEDICAL ASSISTANCE (MA) BENEFITS FOR NURSING CARE. wrrnESS PERSON IN NURSING FACILITY/REPRESENTATIVE MAIlE- l'UASE PAINT) MoUE (Pl.E.ASE ~M) $lGlU'ME a,.,,," Cfl ~SZ:WATM: ~Ar.;JE DATE tu.TE 11iE SIGNATURES AND AOORESSES OF TWO WrrNESSES ARE REQUIRED. IF: (1) llotE PERSON IN THE NURSING FACtllTY SlGNEO WITH AN (Xj. OR (2) A REPRESENTATIVE SIGNED FOR THE PeRSON IN ~e NURSING FACIU'N. HAM! ,uASE flMlI'rl NAIIE (P\..EA:lE ,..NT1 ~ SlCiNl~ - --.ss AODRGSS IF THIS CERTlFtCATJON IS SIGNED BY A REPRESENTATlVE O~ THE PERSON IN THE NURSING FACILITY, lHE I REPRESEKTA1WE MUST GIVE HIS ADDRESS. Hrs RElATIONSHIP TO lliE PERSON rN THE NURSING FACILITY. AND THE REASON THE P~ON IN THE NURSING FACtUTV OlD NOT SIGN. ~A~ ACCRESS RELJ.'TlC:N5i' N:ASON 440 APPENDIX E - 1 Exhibit "e"