Nursing Home Admissions Contract and Power of Attorney

Maryland nursing homes make use of two alternative model form nursing home admissions contracts approved by the Maryland Department of Health. These are the model Financial Agent’s Resident Agreement and the model Resident’s Agreement.

Maryland also has a power of attorney statute which includes form powers of attorney, among the provisions of which empower an agent under power of attorney to act for the principal to enter into contracts on behalf of the principal.

In light of the two factors addressed above, it is within the realm of possibility and legally permissible for an adult child of a person entering a nursing home who is acting as the agent under a power of attorney created by the parent entering the nursing home to execute a Resident’s agreement on behalf of the parent.

Nevertheless, when a parent enters a nursing home, the nursing home usually presents to such agent under a power of attorney the Financial Agent’s Resident Agreement to secure admission to the nursing home. Often this is done after the parent actually enters the nursing home.

William M. Gatesman strongly advises clients not to have their their agents under power of attorney sign the Financial Agent’s Resident Agreement, but rather, to sign, as agent under power of attorney, the Resident Agreement. Nevertheless, some nursing homes will refuse to provide such Resident Agreement to the agent to sign.

The problem with the Financial Agent’s Resident Agreement is that, technically, it is not legally the act of the agent under power of attorney binding the parent to a contract. Rather, it is a contract that binds the agent under power of attorney, typically an adult child of the person entering the nursing home, to a contract, making the agent legally and financially responsible to take certain actions not otherwise mandated by the agency relationship arising out of a power of attorney.

Indeed, the typical nursing home Financial Agent’s Resident Agreement contains a laundry list of matters for which the person signing the agreement binds themselves to the risk of suffering fines and civil money penalties of up to $10,000, and some of these provisions might be triggered when events occur that are not in the direct control of the agent signing the Financial Agent’s Resident Agreement.

Moreover, while the law offers opportunities for an agent under a power of attorney to facilitate and fulfill the estate plan of the person entering the nursing home by engaging in asset preservation planning strategies to facilitate Medicaid eligibility while still preserving assets, if an agent engages in such planning after signing a Financial Agent’s Resident Agreement, then such person will have made themselves subject to at least one of the circumstances that gives rise to such $10,000 penalties addressed in the foregoing paragraph, not to mention other potential personal liability.

In cases where the person entering the nursing home does not have a power of attorney, the Financial Agent’s Resident Agreement contains provisions that allow for an adult child of the person entering the nursing home to sign such agreement and to bind such child to the provisions of such agreement even if such adult child does not hold a power of attorney from the parent. The same issues addressed above pertain to any such adult child who signs a Financial Agent’s Resident Agreement.

William M. Gatesman urges any person involved in the admission of a parent or other loved one into a nursing home, if such person is asked to sign an admissions agreement with the nursing home on behalf of such person, to obtain competent legal advice before signing such agreement.

Indeed, Mr. Gatesman, has advised numerous clients not to sign the Financial Agent’s Resident Agreement, or to do so only after it has been modified by Mr. Gatesman to protect the person signing such contract.

William M. Gatesman stands ready to assist clients in the legal processes relating to nursing home admissions, including addressing the questions relating to which is the appropriate nursing home admissions contract to sign and how to protect the person signing such contract from the risk of personal liability.

Ageism and the Right to Drive

A client called me recently to report that the Maryland Department of Motor Vehicles had suspended his license for medical reasons. The MVA notice was deficient in that it did not give particular details as to the reason for the suspension.

Only later did we learn that a physician who my client had visited only once sent in a one line report stating that the client had dementia and memory issues and should not be allowed to drive.

We appealed the MVA license suspension and, in support of our appeal, we submitted letters from my client’s doctor who has a five year history with the client and a psyschiatrist who has a 13 year history with the client, both of whom opined that the client, while he did experience mild dementia, was not so impaired as to be unable to drive safely.

We won that appeal and my client’s right to drive has been restored.

This case reveals that ageism may play a role in some doctors’ perceptions of an older person, and may color the doctor’s judgments about a patient’s abilities.

Fortunately, the law provides a remedy for persons whose right to drive is improperly denied due to the rash actions of those who do not take into account all of the factors impacting a patient’s ability to drive. In a word, the law enables older people to combat ageism.

William M. Gatesman assists seniors and their family members in addressing legal issues that impact them. If you encounter such a problem, you may call Mr. Gatesman at 301-260-0095 to learn whether there is a solution available to you.

Supported Decision Making

NOTICE: Maryland law has changed since I wrote the article beneath the box below. To read about Maryland’s new Supported Decision Making Law, you may click on the title in bold text in the box below.

Supported Decision Making is a new concept gaining favor in the community of people working to better the lives of people with disabilities. There is no formal process or formal legal recognition of Supported Decision Making in Maryland and it is a developing area of law in only a few states and other jurisdictions. The District of Columbia, for example, does give some recognition to Supported Decision Making in its statutory law.

Supported Decision Making typically would involve a person with limited personal capacity agreeing and communicating to other parties that such person wishes to have another trusted individual involved with communications with third parties such as banks, medical care providers, and so on, and that such person wishes to obtain the trusted individual’s input and guidance. Nevertheless, the person with limited capacity retains the right to make all her decisions.

Supported Decision Making often is implemented by means of a Supported Decision Making agreement or other legal document memorializing the relationship between individuals that could be presented to third parties for the purpose of enabling the trusted person to be involved with communications between the third party and the person of limited capacity. Such document serves the purpose of notifying third parties of the trusted person’s advisory role and can be used to open doors to enable the trusted person to participate in conferences which usually are attended only by the person of limited capacity and the third party. In states such as Maryland in which Supported Decision Making is not formally recognized in the law, the efficacy of such Supported Decision Making document is hard to predict, and any use of such tool in Maryland would be based upon a contractual relationship between the parties rather than upon specific statutory law.

A power of attorney, unlike the supported decision making agreement, establishes a legal relationship recognized under state law in which the person of limited capacity empowers the trusted individual to act in her place, as her agent. An agent under power of attorney (i.e. the trusted person) always is subsidiary and subservient to the principal (the person with limited capacity). With a power of attorney, the agent typically would be able to act alone even if the principal is not present or not personally involved in the interactions with the third party. Power of Attorney has been recognized by the law for a very long time and there would be no question as to the validity of the relationship of the principal and the agent.

A Supported Decision Making arrangement may be beneficial in some circumstances to provide a person with limited capacity a greater sense of autonomy and control while still enabling the trusted individual to be involved with her affairs and it could open doors to allow the trusted individual to be involved in situations in which privacy laws or other restrictions otherwise may keep the trusted individual on the sidelines. The person with limited capacity may desire to appoint the trusted person as her agent under power of attorney, as well, so that if the person with limited capacity became unable to manage her affairs, then the trusted person would have the authority to act on her behalf.

William M. Gatesman stands ready to assist clients who may have heard about Supported Decision Making and would like to learn more about it or who think that Supported Decision Making is a tool they may wish to employ in their estate planning.

Degrees of Relationship

Have you ever referred to someone as being your “second cousin?” Would you be surprised if you may have gotten the relationship wrong? Posted below is the Nolan Chart of Relationships and Degrees of Kindred. This chart, while it is interesting from a familial relationship point of view, also provides legally significant information that is important in some instances when administering a decedent’s estate.

Saving a Charitable Bequest

A charitable organization approached me recently because a Maryland resident left a large bequest in her Will to the organization, but the language in the Will limited the gift to be used by a certain class of persons served by the charitable organization.

Unfortunately, over time, the organization that was to receive the bequest had discovered that there are so few of the types of people the bequest was intended to benefit that the organization had been directing its resources to assist others who suffered similar disabilities, just not the particular disability identified in the bequest under the Will.

Fortunately, Maryland law allows the recipient of such a bequest to obtain a Court Order expanding the scope of the Will so that the intended recipient of the bequest is able to use the gifted funds in furtherance of its charitable purposes.

William Gatesman was able to file a pleading with the Circuit Court and obtain a court order without the necessity of a court hearing, thereby enabling the charitable organization to make effective use of the bequest and fulfilling the deceased person’s charitable intentions.

The Gatesman Law Office stands ready to resolve problems that may arise in the administration of the estate of a deceased person in an efficient and economical manner.

Client Meetings and Social Distancing

In a time of crisis, people may wonder how they can address urgent legal needs with the least risk to themselves when governments are calling for avoiding large gatherings of people and other forms of “social distancing.”

For years, William M. Gatesman has given people the opportunity to engage in free initial consultations by means of telephone conferences and email exchanges. People have welcomed these methods, some because they are busy and appreciate the convenience of such meetings, others because they have found that some lawyers insist on high-cost meetings just to get the ball rolling, and still others for any number of other reasons.

In addition, William Gatesman has worked with clients by sending draft documents by mail or email, or both, and has addressed client questions and concerns by telephone and email. Video conference also may be used to facilitate the representation.

Often, Mr. Gatesman will wrap up the engagement with a single meeting with the client, once the preliminary matters have been addressed in the manner discussed in the paragraphs above, and sometimes, if necessary, there will be multiple additional meetings, but only if those are needed to meet the client’s needs. Some engagements, however, may be completed entirely through remote communications.

While some law firms now are struggling to try to figure out how to meet a client’s needs with less face to face interaction, the Gatesman law office has years of experience in meeting clients’ needs through various forms of communications, including face to face meetings, telephone and email consultations, and other means.

William M. Gatesman stands ready to assist you and your loved ones with your legal needs even where social distancing is the order of the day.

Please feel free to contact Mr. Gatesman by telephone at 301-260-0095, or by email at

Making a Claim in a Decedent’s Estate

When making a claim in a decedent’s estate, may the claimant rely on information provided by the Register of Wills through it’s online website? Or is such reliance risky?

It is important that one who seeks to make a claim in a decedent’s estate do so within 6 months following the decedent’s death, and that the claimant follow all the rules for making such a claim. Unfortunately, there is a risk in relying on the information provided by the online estate docket for a particular estate published by the Registers of Wills in Maryland. A recent case handled by William M. Gatesman illustrates this point.

In that case, the State of Maryland filed a $120,000 claim in a decedent’s estate for Medicaid benefits paid by the State of Maryland for the nursing home costs of the decedent before she died. The rules of court governing such claims require that, if the claim is filed with the Register of Wills, it must also be sent to the Personal Representative of the estate.

In this particular case, however, the Personal Representative never received a copy of the claim, and so, she denied the claim. Maryland petitioned the probate court for allowance of the claim. During the court hearing, evidence was presented that the State of Maryland had relied on the Register of Wills web page which, at the time the claim was made, listed a particular post office box address as the address of the Personal Representative. However, that address was incorrect – apparently the Register of Wills clerk made a typographical error when entering the address on the online docket page.

The question boiled down to this: even though the State of Maryland as claimant did not send a copy of the claim to the Personal Representative at the Personal Representative’s actual address, could the claim nevertheless be valid under the rules governing claims in a decedent’s estate because Maryland sent a copy of the claim to the address of the Personal Representative shown on the Register of Wills web page pertaining to the particular estate? In other words, could the claimant rely on the information set forth on the online estate listing published by the Register of Wills?

The resolution of that question depended on a thorough analysis of the statute and rules applicable to claims in an estate, and to a review of case law regarding statutory requirements of delivery of claims in contexts other than decedent’s estates (there being no law directly on point with respect to such estates). At the probate court hearing, William M. Gatesman was prepared to present such an analysis.

In the end, the probate court ruled that Maryland failed to meet the requirement that it deliver a copy of the claim on the Personal Representative of the estate, and the Personal Representative’s denial of the $120,000 claim was upheld (i.e. Maryland was not allowed to collect on its claim).

What this story reveals is that there are technical requirements a claimant must meet in order for such claimant to collect funds owed to the claimant from a decedent’s estate, and that reliance on information published by the Register of Wills may lead to the claimant losing its opportunity to collect on its claim.

William M. Gatesman stands ready to assist clients, either as claimants in an estate, or as Personal Representatives seeking to defend an estate against claims that are not properly submitted.

Obtaining Estate Information

Any person can obtain information relating to a decedent’s estate in Maryland through an internet search. The Maryland Register of Wills website allows anyone with an internet connection to search for the estate by the decedent’s name or by the name of the Personal Representative or executor of the estate.

The result of such search will be a listing of the estate docket. The docket list will show all documents filed in the estate, including the Will (if any), the petition for probate, the list of interested persons, the Inventory, and the estate administration accounts. One may order copies of any of these documents for a small fee. Some counties even provide for online ordering with online delivery of the documents.

A new feature of this online process allows people to search for claims against the estate, searching either by the decedent’s name or the name of the claimant or creditor of the estate.

This process can provide useful information to any person interested in the estate. While such process of obtaining information regarding decedent’s estates is simple, William M. Gatesman can assist individuals in obtaining information relating to a decedent’s estate if the process seems cumbersome or counter-intuitive.

Medicaid Planning with Augmented Estate

NOTE:  This article was written before the new augmented estate law was passed, and while the main gist of the article, that a married couple can preserve most if not all of their assets, remains true, certain of the points made below regarding the mechanics of how the new law works are different than described below.  To learn more, you may call us at 301-260-0095.

There is a new law in Maryland that, effective October, 2020, will allow a surviving spouse to elect to take a portion of property passing as a consequence of a spouse’s death under an augmented estate formula. What does this mean?

Before the new law, a spouse only could elect to take a portion (one-third or one-half depending on the circumstances) of the estate that passed through probate. Lawyers who assist clients with Medicaid asset preservation planning took advantage of that by assisting couples to preserve all of their assets when one of the married couple needed nursing home care. The plan worked like this (and until October, 2020, will still work like this): If Husband is in a nursing home and Medicaid is paying for all of his care, then Wife could arrange to have all the assets to be titled in her name and pass outside of a probate estate.

Tools one may use to pass property outside of probate are bank and investment accounts that are designated “Pay on Death,” beneficiary designations, and life estate deeds. Before the new law takes effect next year, property passing by such tools will not be subject to an elective share by a surviving spouse.

That being the case, a husband and wife could set up their estate planning so that, if one them needs nursing home care in a nursing home for which Medicaid is paying the bill, and the spouse at home dies first, all of the couple’s assets could be protected rather than having those assets pass to the spouse in the nursing home causing Medicaid ineligibility.

Under the new augmented estate rules, however, all property held by the spouse at home would be subject to the elective share. Hence, in a case where Husband is in a nursing home and Medicaid is paying for all of his care, if Wife dies first, then it would appear at first blush that she no longer could shelter assets with “Pay on Death” accounts, beneficiary designations, and life estate deeds, because, under an augmented estate law, all of those assets are available for the spouse to elect to receive a portion.

Such is not the case with the Spousal Protection Wills that I have been using to do Medicaid planning for married couples, however. If a married couple employs the Spousal Protection Wills that I recommend, coupled with “Pay on Death” accounts, beneficiary designations, and life estate deeds that direct assets to the trust under the Will of the deceased spouse at home, which Spousal Protection Trust is for the benefit of the Husband in the nursing home in the example discussed above, then, under the new augmented estate law, the spouse in the nursing home only would be able to elect to take 11% of the property.

That being the case, if Husband is in a nursing home, and Husband and Wife own property (including the value of the house) worth $600,000, then, if Wife dies first, only $66,666 would have to be paid to the Husband in the nursing home under the new augmented estate legislation. Indeed, the administrators of the Medicaid program will insist that the spouse in the nursing home elect to take the spousal share or risk losing Medicaid benefits.

In this way, even after October, 2020, a married couple with $600,000 worth of assets, following a Medicaid asset preservation plan facilitated by this office, can preserve $533,334 even if the spouse at home dies before the spouse in the nursing home.

But doing a Medicaid asset preservation plan with this office would not stop at preserving all but 11%. There still are ways to protect all of the assets even under the new augmented estate law. That law provides other levers one could pull to effectively preserve all of the assets, just like a married couple can do now under current law. Those levers include: (i) spousal consent when the plan is put in place, (ii) judicial review under which a court may take into account, among other things, the degree to which the estate planning arrangement provides a benefit to the surviving spouse in the nursing home (which surviving spouse would be the beneficiary of 100% of the assets when using a Spousal Protection Trust), and, (iii) when an agent under a power of attorney or guardian must exercise the spousal election to comply with the Medicaid rules after the spouse at home dies, there is a mechanism by which a court order may be obtained to recognize that the interests of the spouse in the nursing home are much better served when he remains the beneficiary of 100% of the couple’s assets (albeit as beneficiary of a trust) as opposed to taking only 11% of those assets and losing Medicaid benefits for a period of time as a consequence of doing so.

William M. Gatesman has studied the new augmented estate statute well in advance of its October, 2020, effective date, and already is adjusting the estate plans for new clients to prepare for future asset preservation planning.

If you wish to review your estate plan with these thoughts in mind, please call us at 301-260-0095.

Keep Your Eye on the Ball

“Keep your eye on the ball,” and “don’t drop the ball” are two oft used phrases to warn people that bad things can happen if they do not pay attention and take prompt action. Such is the case when someone dies.

I have known of circumstances where a parent died owning real estate, and due to inaction by family members, the property was foreclosed upon by the mortgage lender thereby costing the family more money than was necessary. Indeed, even with distressed properties, with prompt action one may open an estate and sell the property at better terms than what one might recover after a foreclosure.

Another example is from a recent court case. In that case, it did not come to light until years after death that a disabled person’s guardian improperly transferred the disabled person’s house to himself, and the court, by means of an internal oversight, did not take action to protect the disabled person’s property. By the time the heir who was rightfully entitled to inherit such property became aware of the matter, it was too late to recover the asset. Again, prompt action would have resulted in a more favorable outcome.

It is important that you keep your eye on the ball to ensure that proper steps are being taken to administer the affairs of a loved one after that person dies. Even if someone else had been designated to take charge of your loved one’s affairs, if that person has done nothing, then you need to step up to take charge of the situation yourself.

The penalties for inaction can be harsh. Rightful heirs and those intended to inherit a deceased person’s property could lose out on the opportunity to inherit if prompt action is not taken to protect one’s rights.

William Gatesman stands ready to assist clients in taking such prompt action, and is prepared to assist clients to protect their interests even when much time has passed since the death of a loved one.