A few years ago, you went to a lawyer who prepared an estate plan for you.  You signed a couple of advanced directives known as a living will and an appointment of health care representative.  Time passed and in 2018, you became pregnant. Then you learned that in that year the Connecticut General Assembly amended the statutes that govern advanced directives.  Does this amendment impact your advanced directives in light of your pregnancy?  Here is what you need to know.

First, a little background.  If you had a living will in place prior to October 1, 2018, then a doctor was legally obligated to follow your instructions if you were in a terminal condition or permanently unconscious.  That meant that the doctor had to allow you to die and not keep you alive through life support systems.  But what if you were pregnant?  Connecticut along with many states across the country did not apply this law if a woman was pregnant.  In other words, if you were pregnant and either in a terminal condition or permanently unconscious, the doctor would have to keep you alive.  So in that situation, a doctor could refuse to remove life support.

The problem this poses is that allowing a state to disregard a living will in the event of a pregnancy could conflict with a woman’s constitutional rights under federal law.  Why?  Because the U.S. Supreme Court decided that a woman has the right to decide whether she wants to have children and the Court has also decided that everyone has the right to direct their own medical care.  

To address this situation, the Connecticut Legislature enacted Public Act 18-11, which became effective on October 1, 2018.  This public act amended two statutes.  The first is Connecticut General Statute Section 19a-575, which talks about the statutory form for a living will.  This statute contains language that says if a woman’s condition is deemed to be terminal or if it is determined that she will be permanently unconscious, she must be allowed to die and not be kept alive through life support systems.  In addition, it now says that if a woman is in that situation and she is pregnant, her living will can allow her to accept life support if her doctor or advanced practice registered nurse (hereinafter “APRN”) believes that doing so would allow her fetus to reach a live birth.  In the alternative, the statute also permits a woman in that situation to simply have her living will apply, without any modifications. Thus, she would not be administered any life support regardless of whether a doctor or APRN believes that providing that to her would allow her fetus to reach a live birth.

The new public act also amended Connecticut General Statute Section 19a-575a, which sets forth the combined statutory form for the appointment of a health care representative and living will.  The combined form allows a woman to appoint a health care representative as well as set forth her wishes regarding treatment if she is in a terminal condition or permanently unconscious.  If a woman’s attending physician or APRN determines that she is unable to understand and appreciate the nature and consequences of health care decisions (which includes the decision to provide, withhold or withdraw life support), her health care representative can advocate for her decision under the living will.  In other words, the law now says that if a woman’s condition is deemed to be terminal and she is pregnant, her health care representative can advocate for her decision to accept life support if her doctor or APRN believes that doing so would allow her fetus to reach a live birth.  In the alternative, the new statute permits a woman’s health care representative to allow her living will to apply without any modifications, so that she will not be administered any life support regardless of whether a doctor or APRN believes that providing that to her would allow her fetus to reach a live birth.

The takeaway from this new legislation is that if you are a woman and there is a possibility that you could become pregnant, you should state in your living will and or the combined form, either one of the following: (a) whether you do not want life support administered to you under any circumstances; or (b) whether you wish to receive life support if a doctor or APRN determines that administering life support to you would enable your fetus to reach a live birth.  In Connecticut, this choice now belongs to all women as of October 1, 2018.  In addition, whatever you choose to do, it is imperative that you select a health care representative who will advocate for you and enforce your written wishes, if you are ever in this unique situation.

If you are a woman of child-bearing age and have thought about creating advanced directives for yourself, you should be aware of the recent changes in the law and how they might affect you.  As well, if you have any questions about those changes, feel free to contact the estate planning attorneys at Cipparone & Zaccaro. We can help to create a clear and understandable estate plan for you by taking the time to explain the changes in the law and crafting advanced directives that accurately reflect your wishes.  

On October 1, 2018, a new law became effective as it applies to certain advanced directives.  The change gives advanced practice registered nurses the authority to perform certain functions that could previously only be performed by physicians.

What Is an Advanced Practice Registered Nurse (APRN)?

Public Act 18-168 (“the Act”) defines an advanced practice registered nurse (a/k/a APRN) to mean an advanced practice registered nurse licensed under Connecticut law who is selected by or assigned to a patient and has the primary responsibility for the treatment and care of that patient.  

What Are the Changes to the Connecticut Law?

With respect to a living will (which is one type of advanced directive), the Act amends Section 19a-575 as follows:

"If the time comes when I am incapacitated to the point when I can no longer actively take part in decisions for my own life and am unable to direct my physician or advanced practice registered nurse as to my own medical care, I wish this statement to stand as a testament of my wishes.  I request that if my condition is deemed terminal or if it is determined that I will be permanently unconscious, I be allowed to die and not be kept alive through life support systems.  By terminal condition, I mean that I have an incurable or irreversible medical condition which, without the administration of life support systems, will – in the opinion of my attending physician or advanced practice registered nurse – result in death within a relatively short time."

The Act also amends Section 19a-577 of the Connecticut General Statutes with respect to an appointment of health care representative (which is another type of advanced directive). The Appointment of Health Care Representative form now reads as follows:

"I appoint [Name] to be my health care representative.  If my attending physician or advanced practice registered nurse determines that I am unable to understand and appreciate the nature and consequences of health care decisions and to reach and communicate an informed decision regarding treatment, my health care representative is authorized to (1) accept or refuse any treatment, service or procedure used to diagnose or treat my physical or mental condition and (2) make the decision to provide, withhold or withdraw life support systems."

What These Changes Mean for Terminally Ill Patients

So in the context of a living will, the APRN now has the power under the law to render an opinion about whether someone’s terminal condition will result in death within a relatively short period of time, if they don’t receive life support.  Similarly, in the context of an appointment of health care representative, the APRN now has the power under the law to make a determination as to whether someone understands and appreciates the nature and consequences of making health care decisions for themselves and whether they can also make an informed decision and communicate it to a doctor or an APRN.  Thus, the change in the law now gives the APRN – in addition to a doctor – the authority to do things that previously were reserved only for physicians.

Some folk might disagree with giving APRN’s the same kind of power as doctors but one thing is clear: it is now the law in the State of Connecticut.  If you have questions about how or whether Connecticut’s modified advanced directive statute applies to you, contact the estate planning attorneys at Cipparone & Zaccaro. We help to create clear and understandable estate plans for people by taking the time to explain the law and how it might apply to you.  

Many older Americans do not have the financial resources to pay for long term care in an assisted living or memory care facility. With the average cost of nursing home care in Connecticut costing about $156,000 per year, and in-home care averaging over $27,000 per year, you can see how a family’s financial resources can be quickly drained.

If you or a family member finds yourself in the difficult position where you need to figure out how you’re going to pay for long term care, Medicaid is often the inevitable answer. To qualify for Medicaid (also known as Title 19), you must meet both the asset and income eligibility rules. Each year brings a new set of important numbers for Medicaid in Connecticut.

What these Medicaid numbers enable you to do is to figure out:

• How much money and assets the community spouse can keep while still allowing the institutionalized spouse to qualify for Medicaid
• The dollar value of the counted assets the institutionalized spouse can have
• The average cost of a nursing home used to calculate penalties for gifts during the Look Back Period
• How much assets you can have to qualify for in-home care
• Asset limits to qualify for Medicare savings programs which help pay for Medicare premiums

The chart below shows you the specific numbers you need to figure out how much assets you can have and still qualify for Medicaid. You can also find a printer friendly version of the CT Medicaid Numbers for 2019 here.

The new figures will only have meaning, however, if you understand how they work.  In a previous post on Medicaid eligibility numbers, we included a detailed example showing how the calculations are made.

UPDATED CONNECTICUT MEDICAID NUMBERS FOR 2019

January 1st of each year brings changes to several key Medicaid figures, which are adjusted for inflation. Below are the Connecticut Medicaid (also known as Title XIX and Husky) figures that apply as of January 1, 2019:

Lafayette executed a will in 1997 leaving his musical instruments and equipment to a friend.  He left the rest of his estate to his brother, James.  

In 2004, Jim established - in Connecticut Superior Court - that Lafayette was his father.  Lafayette had no knowledge that Jim was his son until it was established in court. Once paternity was established, the Court ordered Lafayette to pay child support for Jim because Jim had not yet reached 18.  

Then Lafayette died in 2007. One month after he died, Jim filed an application to administer his father’s estate with the Windsor Probate Court.  Jim did not know that his father executed a will in 1997, so he filed an application for an intestate estate.  One week later, Lafayette’s brother - James - filed the 1997 will and an application to administer his brother’s estate as a testate estate.  

Does Lafayette’s failure to provide for Jim in his 1997 will exclude Jim from his father’s estate?  That was the same issue presented to a Connecticut Probate Court in 2007 in the case of The Estate of Lynch.  

In the decision, the Court noted that there is a long-recognized preference against intestacy in Connecticut.  In other words, when someone executes a will, courts will attempt to honor the testator’s wishes and avoid revoking it or finding that it is invalid.  The Court also analyzed Connecticut General Statutes §§ 45a-257a and 45a-257b, which were amended a year before Lafayette executed his will.  Generally speaking, those statutes allowed certain classes of spouses and children to elect to receive a share of an estate, in situations where they have not otherwise been provided for in a will.  Further, the Connecticut Legislature made this change in order to allow children and spouses to inherit without requiring complete revocation of a will and thereby allow for the remaining unaffected provisions of the will to be admitted to probate.

Under C.G.S. § 45a-257b, a child born or adopted after the execution of a testator’s will receives a share of the estate.  In addition, C.G.S. § 45a-438(b) states that a father, adjudicated to be the father of a child, is considered to be the child’s parent for purposes of intestate succession.  In this case, the Court reasoned that a child for whom paternity is established under § 45a-438 – a so-called “after-discovered” child – is virtually indistinguishable from an after-born or after-adopted child permitted to benefit from the application of § 45a-257b.  Further, the Court stated that permitting a child for whom paternity is established after the execution of a will to share in an estate is consistent with the Connecticut Legislature’s intent and in keeping with notions of equity and fairness.  The Court also stated that children for whom paternity is established after the date of a will’s execution are within the class of children to whom this statute applies.  Thus, a child is entitled to an intestate share of an estate, so long as the date upon which paternity is established is subsequent to the date on which the testator executed his will and so long as the testator did not know of his paternity prior to his signing of the will.

In this case, there was no evidence that Lafayette intended to omit his son from his will.   Lafayette had not provided for Jim outside of the will, such as with a death benefit under a life insurance policy for example.  Based on these facts, the Probate Court found that Jim was entitled to share in his father’s estate under the laws of intestacy and that subject to this finding, the Court also admitted Lafayette’s will for probate.  The Court also found that since Lafayette had no other children, never married and did not provide for Jim’s mother in his will, Jim was found to be the sole heir of Lafayette’s estate.  

This case presents a very unique set of facts. Up until it was decided in 2007, this was a case of first impression.  If you are a child whose paternity was established by the Court or you are a loved one whose husband or father acknowledges that he is the parent of another person whatever his or her age, contact the probate attorneys at Cipparone & Zaccaro. We help guide people through a myriad of estate-related issues and provide people with advice on how to deal with situations like the one presented in this blog.  

On September 18, 2018, the Department of Veterans Affairs (VA) adopted new regulations governing pension benefits, including aid and attendance. The new regulations established a net worth limit for a household of $127,061 effective December 1, 2018. A household includes the veteran, the veteran’s spouse and the veteran’s dependent children living at home.

Net worth includes both countable assets and annual income. Countable assets include stocks, bonds, mutual funds, annuities, retirement plans, real estate, and anything else of value with certain exceptions.  A primary residence with 2 acres or less does not constitute a countable asset. The VA deducts from the value the amount of any lien or mortgage from a commercial lender. If you are not currently residing in the primary residence, the VA does not count it. The proceeds from the sale of a home will not be counted if used to purchase another residence within the same calendar year as the sale. Personal effects such as appliances, family vehicles, and jewelry that are suitable to and consistent with a reasonable mode of life do not count.

Annual income includes payments of any kind from any source that are anticipated during the coming 12 months. Social security benefits, wages, rents, pensions, IRA distributions, interest, dividends, capital gains, business income, and trust income count as income.  Many payments from government sources such as Agent Orange settlements do not count.

Unreimbursed medical expenses reduce income. For example, if a claimant’s countable assets total $115,000 and his annual income is $9,000, the claimant’s assets exceed the net worth limit. However, if the claimant will spend $10,000 on in-home medical care for prescriptions and nursing services, then his net worth is $114,000 and he can apply for veterans pension benefits. Medical expenses include health care provider payments, medications, medical supplies and equipment, medically necessary foods, vitamins and supplements, transportation expenses for medical purposes, health insurance premiums, long-term care insurance premiums, hospital and nursing home charges, and assisted living facility charges including meals and lodging. Home care expenses are also treated as medical expenses if a physician or other qualified medical professional states in writing that the claimant requires health care or custodial care provided by the caregiver.

The net worth limit increases each year based on the maximum community spouse resource allowance (CSRA) for the Medicaid program. The CSRA changes in January of every year.  You can find the net worth limit at www.benefits.va.gov/pension/current_rates_veteran_pension.asp  . You calculate the applicant’s net worth as of the date of the application.

The VA also adopted a 3-year lookback period for transfers of assets.  Any transfer of assets within 3 years of applying for benefits will result in a penalty period barring eligibility. Unlike Medicaid, the penalty period begins on the first day of the month that follows the date of the transfer.

Let’s take an example. Assume a claimant had a net worth of $100,000 but gave his children a vacation home worth $260,000 in 2016 (2 years ago). First, calculate the covered asset – the value of the asset subject to the penalty.  The covered asset is $232,939, calculated as follows:  $100,000 + $260,000 - $127,061 net worth limit = $232,939. Second, calculate the monthly penalty divisor by taking the maximum annual pension rate for aid and attendance with one dependent ($26,766 effective 12/1/18) and dividing by 12  = $2,230. Finally, divide the covered asset by the monthly penalty divisor: $232,939 divided by $2,230 = 104 months (rounded). The penalty period exceeds the new 5 year limit (60 months) on VA penalty periods. Thus, the claimant would not be able to apply for veterans benefits for 5 years. In this case, it would be better to just wait until the 3-year lookback period expires (2019) before applying rather than incur a penalty by applying now. 

A transfer includes a sale, gift or exchange of assets for less than fair market value. A transfer also includes the transfer to or purchase of any financial instrument or investment that reduces net worth and would not be in the claimant’s financial interest but for the claimant’s attempt to qualify for VA pension. Only if the claimant establishes that he or she has the ability to liquidate the entire balance of the asset for the claimant’s own benefit will the VA consider the transaction as not a transfer. For example, the funding of a claimant’s Revocable Trust or the purchase of a deferred annuity would not be considered a transfer because the claimant can liquidate the entire balance.  On the other hand, the purchase of an irrevocable, non-assignable immediate annuity or the transfer of real estate to an Irrevocable Grantor Trust will now be considered a transfer. The entire amount transferred to purchase an annuity or an irrevocable trust is considered uncompensated value triggering a penalty.

The VA did carve out an exception for a Special Needs Trust for a disabled child. A child for VA purposes, however, is defined as a person who is not an adult (i.e. in Connecticut, the age of 18). It will be interesting to see if the VA will allow an exception to the definition of a child for the purpose of determining transfers subject to a penalty.

To be eligible for benefits, a veteran’s countable income must not exceed the annual benefit amount.  Countable income reduces the annual benefit dollar for dollar. Effective December 1, 2018, the maximum annual pension rates and eligibility for the 3 pension benefit programs are as follows:

If you are a veteran or the spouse of a deceased veteran and you think you may qualify for VA pension benefits, make an appointment with an elder law attorney at Cipparone & Zaccaro or consult with the Connecticut Department of Veterans Affairs in Norwich.  Thank you for your service to our country.

To qualify for Medicaid, you must meet both the asset and income eligibility rules. In our last blog, we discussed the 2018 Medicaid asset rules.   Now let us review some of the Medicaid income rules. 

To understand the income rules, you will need a little Medicaid background.  A “Community Spouse” is the term used for a healthy spouse of a Medicaid applicant who is living in the community.  The spouse applying for Medicaid is referred to as the “Institutionalized Spouse.”  The income rules vary between Medicaid for a nursing home and Medicaid for home care.  We will start with nursing home Medicaid.

First, the Community Spouse’s income is disregarded.  That is right, the Community Spouse is allowed to keep all the income that is in the Community Spouse’s name.  The income of the Institutionalized Spouse must be spent on the Institutionalized Spouse’s medical expenses including nursing home charges.  The amount the Institutionalized Spouse must pay is referred to as “Applied Income.” There are 2 exceptions to the income of the institutionalized spouse paying the nursing home charges.  One is the $60 per month personal needs allowance. The other exception is Community Spouse Allowance. 

How to Calculate the Community Spouse Allowance

As with most things related to Medicaid, calculating the Community Spouse Allowance is a complicated procedure.  To begin, we must first add up the Community Spouse’s rent, mortgage, and condo fees (if applicable), real property taxes, and house insurance.  We then add the standard Utility Allowance to this sum.  See below for the latest allowance figures.  From this total, we subtract the standard Shelter Allowance.  This gives us the monthly Excess Shelter Costs of the Community Spouse.  The Excess Shelter Costs are then added to the Minimum Monthly Maintenance Needs Allowance.  This total cannot be higher than the Maximum Monthly Maintenance Needs Allowance.  We then subtract the Community Spouse’s actual income from this figure.  If the result is a positive number, then this is the amount of the Community Spouse Allowance. The Community Spouse Allowance is diverted each month from the Institutionalized Spouse’s income to the Community Spouse.  This in turn reduces the Applied Income paid to the nursing home each month. The State of Connecticut will pay the balance of the nursing home bill.  If the result is a negative number, then there is no Community Spouse Allowance. 

Let us look at an example of how calculating the community spouse allowance works.  John is the Institutionalized Spouse and Margaret is the Community Spouse.  John earns $4,000 per month income from social security and his pension.  Margaret earns $1,000 per month in social security income.  Margaret’s mortgage is $1,000 per month.  Her real estate taxes are $500 per month, and her homeowner’s insurance is $200 per month.  With the average cost of nursing home care in Connecticut reaching $12,851 in 2018, John will need Medicaid coverage to afford this cost.  The following is the calculation of the Community Spouse Allowance:

Because the Tentative Monthly Maintenance Needs Allowance is greater than the maximum Monthly Maintenance Needs Allowance of $3,090, Margaret’s MMNA is only $3,090. From that, we subtract Margaret’s monthly gross income of $1,000 to arrive at her Community Spouse Allowance of $2,090. Because John’s monthly gross income of $4,000 exceeds Margaret’s Community Spouse Allowance of $2,090, Margaret can keep $2,090 of John’s income each month.  That leaves $1,910 per month for John.  John receives his personal needs allowance ($60 as of 7/1/18), pays his Medicare premium of $105.90 and the remaining amount, $1,744.10, is John’s Applied Income that he must pay each month toward his nursing home costs.

If John did not have sufficient income to pay the Community Spouse Allowance, Margaret could seek to keep more of the couple’s assets to generate the income shortfall.  She would need to request a Fair Hearing and present evidence of her need to retain more of the couple’s assets to generate sufficient income.

Now let’s discuss what would happen if John applied for Medicaid to pay for home care instead of nursing home care.  As stated in the table above, the income limit for Medicaid under the Connecticut Home Care Program for Elders is only $2,250 per month.  John’s income exceeds the cap. Consequently, John would not qualify for Medicaid under the Home Care Program unless he diverts the $1,720 of excess income to a Pooled Trust.  For more details on Pooled Trusts, see our blog, "What is a First-Party Special Needs Trust?"

If you would like more information on whether you or a loved one qualify for Medicaid, contact the elder law attorneys at Cipparone & Zaccaro, PC to discuss your situation. Call (860) 442-0150 today.

To qualify for Medicaid (also known as Title 19), you must meet both the asset and income eligibility rules. In a companion blog, we discussed the 2018 Medicaid income rules.   Now let us review the Medicaid asset rules.

First, you will need a little Medicaid background.  A “Community Spouse” is the term used for a healthy spouse of a Medicaid applicant.  The spouse applying for Medicaid is referred to as the “Institutionalized Spouse.”  Certain assets are “excluded assets” when determining Medicaid eligibility.  The rest of the couple’s assets are considered “countable assets.”  When a married person applies for Medicaid, the institutionalized spouse will not qualify until the couple’s combined assets are within certain eligibility limits. The amount the couple must spend to qualify for Title 19 is called “the spend down amount.”

The Institutionalized Spouse only gets to keep $1,600 in assets (Institutionalized Spouse Asset Limit).  However, the Community Spouse can keep the “Community Spouse Protected Amount” (referred to in some states as the “Community Spouse Resource Allowance”). The first two numbers in the chart below help determine the Community Spouse Protected Amount (“CSPA”). 

To determine the CSPA, all of the couple’s countable assets, regardless of which spouse owns the asset, are added up.  This total is then divided in two portions.  One portion is preliminarily allocated to each spouse.  The Community Spouse portion is then measured against the Maximum CSPA and the Minimum CSPA figures.  The Community Spouse portion must fall between the Maximum CSPA and Minimum CSPA.  There are only three possible scenarios.  So, let us look at three scenarios.

Scenario #1:  Below the Minimum CSPA - If Couple has $40,000 in countable assets, then CSPA = $24,720

$40,000 ÷ 2 = $20,000
$20,000 falls below the CSPA Minimum of $24,720.  Therefore, the Community Spouse gets to keep more than ½ of the couple’s countable assets.  The Community Spouse gets to keep the CSPA Minimum of $24,720.  The Institutionalized Spouse gets to keep $1,600.  The spend down amount is $13,680 [$40,000 – ($24,720 + $1,600)]

Scenario #2:  In-between the Minimum CSPA and Maximum CSPA- Couple has $100,000 in countable assets, then CSPA = $50,000

$100,000 ÷ 2 = $50,000
$50,000 falls between the CSPA Minimum of $24,720 and the CSPA Maximum of $123,600.  Therefore, the Community Spouse gets to keep $50,000 of the couple’s combined countable assets.  The Institutionalized Spouse gets to keep $1,600.  The spend down amount is $48,400 [$100,000 – ($50,000 + $1,600)]

Scenario #3:  Above the Maximum CSPA - Couple has $300,000 in countable assets, then CSPA = $123,600

$300,000 ÷ 2 = $150,000
$150,000 falls above the CSPA Maximum of $123,600.  Therefore, the Community Spouse only gets to keep $123,600 of the couple’s combined countable assets. The Institutionalized Spouse gets to keep $1,600.  The spend down amount is $174,800 [$300,000 – ($123,600 + $1,600)]

The balance of the couple’s countable assets must be spent down or converted into excluded assets to achieve Medicaid eligibility (unless the CSPA is increased through a showing of need at a Fair Hearing). The process of reducing countable assets to within eligibility limits is often referred to as an asset “Spend Down” See our blog entitled What is a Medicaid Spend Down for how to spend down to qualify for Medicaid.

If you would like more information on whether you or a loved one qualify for Medicaid, contact the elder law attorneys at Cipparone & Zaccaro, PC to discuss your situation. Call (860) 442-0150 today.

It’s important to choose the right people to carry out your intent under a will.  Your will appoints an executor who is the person you’ve chosen to wind up your estate at your death.  You may also appoint a trustee under a will or a trustee under a Revocable Trust. A Trustee manages assets for a beneficiary of your property.  Often, the executor and the trustee can be the same person but it doesn’t have to be that way.   You can name two different people to serve in those capacities.  What happens if you make the wrong choice and the person you’ve chosen is unable to perform his duties as your fiduciary?  Consider this scenario.

Many years ago, Harold created a will with a testamentary trust.  Harold was a hard worker and managed to accumulate several assets during his life, most of which were tied up in real estate.  Harold went to the lawyer that his father used when he was alive.  That lawyer created a will and the will had a testamentary trust provision under which Harold appointed his son (a truck driver by trade) as trustee over the remainder of Harold’s estate.  The trust was for the benefit of Harold’s wife, Barbara.  Harold then died and whatever he owned was now placed in this testamentary trust.  The probate court then appointed Harold’s son, Frank, as the trustee of this trust, as was Harold’s wish under the will.  Unfortunately, Barbara was old, frail and bed-ridden when Harold died and she also suffered from severe dementia.  Thus, she was unable to act as a check and balance over the testamentary trust that her husband created for her.  As for Frank, he was relatively unsophisticated and relied on the lawyer who drafted the will, to guide him through his responsibilities.

One year after the probate court appointed Frank, a periodic accounting was due to the court.  Since Frank was not a lawyer, he had no idea regarding what the court expected of him.  So he went to the lawyer who created the will and asked him for help in putting that together.  Unfortunately for Frank, the lawyer never drafted the periodic account and Frank received a notice from the court, reminding him that the account was now overdue.  Strike one.  In that notice, the court established a new deadline for receipt of the periodic account and told Frank that if it did not receive the account by that deadline, Frank risked being removed as the trustee.  The second deadline came and went and when Frank asked his lawyer about the status of the periodic account, the lawyer hastily put one together, had Frank sign it as trustee and then submitted it to the court.  The court was not pleased with the accounting, as it was tardy and it was fraught with errors and omissions.  The court sent Frank another notice, setting a new deadline and this time, advised Frank that if it did not receive an accurate periodic account, Frank would be removed as trustee.  Strike two.  Frank was in an awkward position.  He knew he had to answer to the court but he was also trying to honor his father’s wish, by putting his trust in the very lawyer who drafted his father’s will.  Unfortunately, Frank missed the third deadline and once again, his lawyer hastily drafted a new periodic account - riddled with mistakes – and filed it two weeks after the deadline.  The court was left with no choice but to remove Frank as the trustee.

Connecticut General Statutes § 45a-242(a) states that the probate court may – on its own motion – remove any fiduciary if (1) the fiduciary becomes incapable of executing his trust, neglects to perform his duties or wastes the estate, (2) there is a lack of cooperation among co-fiduciaries that substantially impairs the estate, (3) the fiduciary is unfit or unwilling to perform or he persistently fails to administer the estate effectively or (4) there is a substantial change of circumstances, removal is requested by the beneficiaries or the court determines that removal is in the best interests of the beneficiaries and there is a suitable replacement available.  The probate court will appoint a suitable person to act as a successor fiduciary, in place of the person being removed.

In this case, the court removed Frank as trustee and appointed an experienced estate attorney to act in the capacity as successor trustee.  That person then marshaled the assets of the testamentary trust and was able to provide the probate court with an accurate periodic account. The new probate attorney protected the trust estate and the beneficiaries’ interests in that estate.

This story demonstrates how important it is to choose the right person to act in the best interests of your estate, as well as in the best interests of your loved ones.  It also illustrates how important it is to choose a competent lawyer to help you, not only with your estate plan but also with the administration of your estate after you’re gone.  If you have questions about making a will, creating a trust, choosing a fiduciary, or preparing an accounting, please contact the experienced estate planning attorneys at Cipparone & Zaccaro, PC.  We’d be happy to help you.

In 1993, Suzanne executed a will that left 50% of her estate to her son – Dan – and 50% to her granddaughter, Nicole.  Suzanne began to suffer from hallucinations in 1995.  Approximately one year later, Suzanne executed a power of attorney authorizing Nicole to handle her real estate transactions.  At the time, Suzanne owned a home in New London.  Everyone knew that she was executing this power of attorney in favor of her granddaughter.

A couple of days after she executed it, Suzanne was admitted to the hospital with hallucinations.  While at the hospital, a doctor diagnosed her with mild senile dementia.  Several months later, Nicole sold Suzanne’s home for $150,000 and purchased a condominium in Waterford for $100,000.  Title to the condominium was in the name of Suzanne and Nicole’s mother (Darcy) as joint tenants with rights of survivorship.  Suzanne remained in the condominium until her death five years later.

After Suzanne’s death, Darcy became the sole owner of the condominium. Dan sued Darcy as well as Nicole.  In that lawsuit, he asked the court to impose a constructive trust on the condominium and any cash left over from the sale of Suzanne’s home in New London. Dan claimed that Darcy and Nicole intended to deprive Suzanne’s estate of its principal asset (the house in New London) and as a result, he lost out on his 50% interest in his mother’s estate.  At the heart of Dan’s claim was that Suzanne lacked the mental capacity to knowingly execute her power of attorney.

At trial, several witnesses testified to Suzanne’s mental capacity.  One of the witnesses was the doctor who treated her when she was admitted to the hospital.  That doctor testified that after Suzanne was admitted, he diagnosed her with mild dementia.  Also, after reviewing her medical records, the doctor testified that in his opinion, she suffered from moderate stage Alzheimer’s Disease.  Nevertheless, he also testified that Suzanne’s situation was fluid and that she could be lucid at times.  Finally, the court considered the records of the visiting health care providers who rendered care to Suzanne in the months leading up to her admission to the hospital.  Those records indicated that Suzanne experienced occasional hallucinations and moments of confusion.

In deciding Dan’s case, the court cited to another case for the proposition that there is a presumption of sanity in the performance of legal acts.  The court then stated that the medical evidence offered by Dan fell short of overcoming this presumption and concluded that he failed to prove his mother was incapable of executing her power of attorney.  Since the court found that Suzanne had the capacity to execute her power of attorney, that meant that Nicole was properly authorized to sell the home in New London and purchase the condominium in Waterford.

The issue of capacity is one that comes up in my practice over and over again.  The burden of proving a lack of capacity is onerous and difficult.  Every case stands on its own facts.  Ultimately, a court must determine whether someone has the capacity to execute a legal document and this determination is done with the understanding that there is a presumption in favor of capacity.  At Cipparone & Zaccaro, PC, we have a good deal of experience handling disputes over the use of a power of attorney.  If you have questions related to capacity, please don’t hesitate to give us a call.  We’d be happy to analyze the facts of your case and advise you according to the law.