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A Little More Than Kin (another Sunday morning detour)


Hamlet said of his uncle who murdered his father and married his mother, that he is “a little more than kin, and less than kind.” In typical Shakespearian creativity, he captures the sense of something that is in between two things.

So it is today with pets. They are, in many cases, a little more than a thing we own, but a little less than another family member (although at times that is even a matter of debate).  In working with elders, one becomes particularly aware of the incredibly close bonds that can exist between person and pet.  For many elders, their pet is the last and most meaningful source of companionship and love.

Along the same lines, in the last decade, Michigan has joined the majority of states that allow people to set up trusts for their pets that survive them.  And it is certainly true in my practice that pet friendly charities are among the most common charities selected by people who leave portions of their estate to charity.

But the hot topic in pet law is: What happens when pets are injured by the bad acts or the negligence of others?

Certainly if your child is maimed or killed, there is the prospect of significant recovery through a civil lawsuit. And the damages you can recover can be based on the emotional pain you suffered by knowing or seeing your child hurt, and if they die, by the loss of their company.  But that is not the same for pets.  Rather pets are categorized as possessions.  So, from the legal perspective, the law would treat the death of a pet the same as the destruction of a car or couch.  The law makes you “whole” by giving you the money that it would take to replace that possession – and nothing for the emotional hardship you suffer as a result of the loss.

But there is a tension in the law. As discussed in this article (click here), and efforts are afoot to change the way pets are categorized.

While it may seem outrageous, to those who love their pets, that they cannot be compensated for the loss of, or injury to, their pet except to the extent of the replacement cost, one also has to consider what it would mean to change that rule – and where it would end. What about favored trees…. what about a family heirloom bracelet …if emotional damages can become recovered for the loss of anything that gets broken or destroyed, how will courts measure the harm?  Will everyone in a car accident claim they loved their car so much it hurts to see it injured?  While that may be an extreme, and while the law certainly could be modified to carve out an exception for domesticated animals without opening the door to other types of possessions, there are rational reasons that such damages are not currently available.

In today’s society, pets are something more – and something less. How this tension in the law is ultimately resolved should be interesting.

Roush II: The Plot Thickens

A little drama is stewing in the elder law world.

I wrote about the Roush case when it came out. Click here to read that post appropriately titled “This Could Get Interesting.”

Since then, the matter has been taken up by the Michigan Supreme Court. And the MSC requested that the Elder Law Section of the State Bar file a brief setting forth what they believe the correct result should be.  That was done.

Awkward. Now some of the very same Section Council members who voted for the brief to be submitted (or at least chose not to vote against it as it was unanimously approved), are wondering if they made a mistake – as other advocates in the aging community are suggesting that the position taken in the Section’s brief interprets the controlling law in a way that is less than stridently protective of individual rights.

No Man’s Land. The issue  – and it’s an important one – comes about because Michigan’s patient advocate designation (“PAD”) law has long been recognized as unique (surprising even) in its express direction that a person can revoke their PAD even if they lack capacity to make their own medical decisions.  That is, even after two doctors have triggered the patient advocate’s authority by certifying that the patient lacks the ability to understand the implications of their own medical treatment decisions, that patient may nonetheless revoke the authority of the patient advocate.  The question in Roush is:  So what then?  What happens during the period after a person who has been deemed unable to make their own decisions revokes the PAD – and before a Court can appoint a guardian (or at least decide if one is needed)?  Is the person to be given all their natural rights to accept or reject medical care, as any competent person would have?  Or are their rights frozen until a Court decides who is in charge – themselves or someone else?  What’s a hospital (or in this case, nursing home) to do?

Many advocates would say the rights of that individual are restored in full. But the Elder Law Section’s position, as argued in the brief, is that those rights are not restored until a Court says so.

The Section’s brief was prepared by our very capable colleague Jim Steward and his colleague Angela Hentkowski (a very excellent lawyer in her own right). Click here to read the brief.

Oral arguments are scheduled for March.

Estate Recovery Timing Rule Clarified

The Court of Appeals issued a published opinion in four estate recovery cases that were combined for the purpose of this opinion. Click here to read the opinion.

In each case the following facts were in play:

  • Someone began receiving long term care Medicaid benefits before the State of Michigan started putting language in the Medicaid application that notified applicants that the property in their estate would be subject to recovery under Michigan’s estate recovery program; and before Michigan’s estate recovery laws had received federal approval.
  • At some subsequent date they filed a redetermination application which included language notifying them about the estate recovery program.
  • In July 2011, the federal government approved Michigan’s estate recovery plan.
  • The Medicaid beneficiary died with assets in a probate estate.
  • The State of Michigan filed a claim in the estate seeking recovery for benefits back to July 2010.

In this case the Court of Appeals held that the State is limited to collecting on estate recovery claims to the period after July 1, 2011, the date the COA finds that Michigan’s estate recovery program obtained federal approval.

It is interesting that these exact facts were in play in the In Re Keyes Estate [click on the name to read opinion] which first announced that the estate recovery language in the Medicaid application was sufficient to give notice; and held also that even if the notice language was not provided to the Medicaid beneficiary when they first began receiving assistance, the State was not prohibited from bringing an estate recovery claim against their estate if they subsequently did get written notice. However, and somewhat amazingly, the Keyes case failed to clearly state when the claim would begin – which became the issue in these cases.  This opinion closes that loop.

There are some other interesting issues and dicta in this opinion, including dicta about the ability of the State to pursue estate recovery claims against estates of de minimus value.

It is also interesting to observe that there was a dissenting opinion in this matter. One Judge concludes that the result in these cases is controlled by the Keyes decision, and even if Keyes did not clearly address this issue, this Judge opines that the result should be that the State is not precluded from going back to 2010.

Will the State seek leave to the State Supreme Court?  We’ll see.

For clarification, this is a different issue than the issue addressed in the post immediately prior to this post regarding the hardship waiver and the Ketchum case.  We are still awaiting that opinion.

Ketching Up on Estate Recovery

Tomorrow, Tuesday, is a red letter day in the elder law world. The Court of Appeals will hear oral arguments in the matter of In Re Estate of Ketchum.

Ketchum is the fist case that has gone up to the COA to address that portion of Michigan’s estate recovery law which excludes an amount equal to 50% of the average home value. Specifically, Michigan’s estate recovery law, MCL 400.112g, says:

(3) The department of community health shall seek appropriate changes to the Michigan medicaid state plan and shall apply for any necessary waivers and approvals from the federal centers for medicare and medicaid services to implement the Michigan Medicaid estate recovery program. The department of community health shall seek approval from the federal centers for medicare and medicaid regarding all of the following:

  1. An exemption for the portion of the value of the medical assistance recipient’s homestead that is equal to or less than 50% of the average price of a home in the county in which the medicaid recipient’s homestead is located as of the date of the medical assistance recipient’s death.

This is versus what the subsequently adopted policy actually provides, as set forth in BAM 120, at pages 8-9 [click here to read]. That policy characterizes this exception as a hardship waiver, and establishes almost unachievable thresholds to qualifying.  The policy goes well beyond the plain language of the statute, and essentially eviscerates the protections the legislature presumably intended when it was passed.

Best foot forward. The good news is that attorney David Shaltz of Chalgian and Tripp will be making the oral argument in this case.  Nobody is better qualified to handle this argument, and to explain the law and history that underlies it.  Thanks to Attorney Charlotte Shoup, the attorney who represents the estate, for graciously inviting David to take on this role.

Conclusion. Expect several weeks or months before a decision.  Expect a published decision.  But don’t get your hopes up.  In its recent opinions on Medicaid long term care issues, the Court of Appeals has not been a friendly place.