A Big Thanks Doug Chalgian, one of Michigan’s best elder law litigation attorneys, who commented a court case, LaForest vs. Swiss, that otherwise may have passed unnoticed. More on this thanks later.
Let me relay two stories of a daughter who has a mother in a nursing home..
The court case tells us of a lady in a nursing home. She had six children. One daughter handled all of her affairs. She was Mom’s agent under a power of attorney and the trustee of her trust. Mom went into a nursing home and the daughter hired an elder law attorney to engage in Medicaid planning. She saved virtually everything Mom owned from the nursing home. There were three major asset transfers. In chronological order:
The result of this daughter’s transactions was that she ended up with ALL of Mom’s assets. She claimed that her mother wanted her to have everything. The siblings took her to court and won.
Conclusion: This is clearly the case of a greedy daughter who used her power to get the property of her vulnerable mother.
This court case involves a daughter’s mom who was in a nursing home for 11 years. In all of those years some of her children visited once. Or, perhaps twice. The dutiful daughter, who was also responsible as her agent and trustee, visited her every day of those 11 years. The daughter, hired an attorney to engage in “Medicaid planning.” The attorney concluded that Mom, his client, wanted the dutiful daughter to have her property. One could understand if Mom felt she had been abandoned by her other children. Perhaps she was angry? We don’t know. The court does not say. She had a condo, a car and cash in the bank. These were transferred to the daughter. All of the transactions were allowable under the Medicaid rules. Of course, when Mom died the other children were there looking for their inheritance that the dutiful daughter preserved.
Conclusion: This is clearly the case of greedy children who cannot be bothered to help their mother while she was in a nursing home but have no bother at all helping themselves to “their inheritance.”
There is a relationship between the two daughters. They are the same person.
The court case is the Michigan Court of Appeals decision in LaForest vs. Swiss. It is an unpublished decision that might have otherwise gone unnoticed but for Doug Chalgian’s January 9th blog post Tangled Webs. Doug’s commentary is certainly worth a read and contemplation.
I would like to offer another take on the case. I work in the realm of government benefits, e.g. Medicaid, and not litigation. I am much more likely to see a child helping a parent through the nursing home Medicaid morass than I am to see children who never visit their parent. How does a child follow a parent’s intention? How does an attorney know and effect a clint’s intentions? LaForest gives some guidance in such situations. Here are a couple of pointers:
The take away from LaForest is that the “story” is not enough. The legal procedures to effect the parent/applicant/client’s wishes must be followed lest the law will impose its own solution. I’ll be writing more about those procedures in later posts.
Moral: Do The Right Thing, The Right Way.