MATTER OF SCHNEIDER, 325932 (6-12-2007)
2007 NY Slip Op 51185(U)
In the Matter of the Estate of Leon Schneider, Deceased.
325932.
Surrogate's Court,
Nassau County.
Decided June 12, 2007.
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing
court.]
Epstein Becker & Green, New York, NY, (Attorney for Petitioner).
H. William Hodges, Esq., Rockville Centre, NY, (Guardian Ad Litem).
Nassau County Department of Social Services, Uniondale, NY.,
(Attorney
for Respondent).
JOHN B. RIORDAN, J.
This is a proceeding brought by Beth Schneider, the executor of the
estate of her father, Leon Schneider, to determine the validity of a
claim made by the Nassau County Department of Social Services against
the estate for public assistance rendered to Zeena Schneider, Leon's
wife, from June 10, 1996 to October 3, 2002, while Leon was still
alive.
Leon and Zeena had two children, Beth Schneider and Marc Schneider,
who is mentally retarded. On August 11, 1972, Leon was shot four times
in what Beth described as a "bungled mob" assassination attempt.
According to newspaper articles, the gunman mistook Leon and three
others for the mobsters he intended to kill. Leon suffered serious
injuries that left him unable to work for the remainder of his life. He
began receiving Social Security disability benefits in January 1976
and,
according to Beth, also received a Worker's Compensation award.
Zeena was diagnosed with Alzheimer's Disease in 1992. On December 22,
1995, Leon, as attorney-in-fact for Zeena, executed an "Assignment to
Petition the Court for Support Pursuant to 18 NYCRR 360-3.2." It states
that, in consideration of the medical assistance and care provided and
to be provided to Zeena by the New York State and Nassau County
Departments of Social Services, Zeena assigned to the Nassau County
Department of Social Services (DSS) "so much of [her] right, title and
interest to petition the court for support from my legally responsible
spouse." Leon, as Zeena's spouse, executed a "Declaration of the
Legally
Responsible Relative" on January 4, 1996. It states, "I, Leon
Schneider,
declare that I refuse to make my income and/or resources available for
the cost of necessary medical care and services for the Medicaid
applicant/recipient listed above."
Zeena began receiving Medicaid on June 10, 1996 when she was placed
in
a nursing home. The record before the court includes a "Medical
Assistance Institutionalized Spouse Budget Worksheet," which was signed
on March 11, 1997 by a representative of DSS. The worksheet bears the
date of March 12, 1997 and lists the date of application as April 18,
1996. According to the worksheet, Leon had $ 268,048 in excess
resources
and $ 157.80 in excess monthly income above the amounts allowed under
the rules and regulations applicable at that time.
Leon predeceased Zeena. He died on October 3, 2002. By prior decision
(Dec. No. 951, January 13, 2003), the guardian ad litem appointed by
the
court to represent Zeena's interest in the probate proceeding in Leon's
estate was directed to exercise the right of election on her behalf, as
the surviving spouse, as the failure to exercise it would have resulted
in Zeena's non-eligibility for Medicaid.
Zeena died on December 3, 2003. The guardian ad litem had not yet
exercised the right
Page 2
of election on Zeena's behalf and, the right being personal, with
certain statutory exceptions, to the surviving spouse, was extinguished
upon her death (EPTL 5-1.1-A [c] [3].) A personal representative has
not
been appointed for her estate.
On or about June 9, 2003, DSS filed the subject claim for $
386,382.77
for public assistance provided to Zeena from June 10, 1996 to October
3,
2002, claiming preferred creditor status pursuant to Social Services
Law
§ 104 (1); the claim was rejected by the estate on September 5, 2003.
Leon's will was admitted to probate by decree of this court on
February 24, 2004. The will created a supplemental needs trust for
Zeena
to be funded with Leon's residuary estate. Upon Zeena's death, her
supplemental needs trust was to be distributed in accordance with the
terms of Leon's will, which contained bequests to Marc of $ 15,000 in a
supplemental needs trust, $ 15,000 outright to a niece, $ 5,000 to
Putnam ARC, and the rest to Beth.
Beth commenced the instant proceeding on December 1, 2005, asking the
court to determine that DSS's claim is invalid and should be
disallowed.
The petition alleges that Leon's gross taxable estate is approximately
$
566,000 and the net probate estate is approximately $ 350,625. Along
with the petition, Beth filed an affidavit, sworn to on November 1,
2005, in which she states, but supplies no proof, that Leon
"continuously made the monthly spousal income contributions requested
by
the Department of Social Services." On the return date of the citation,
DSS failed to appear or interpose any objection to the relief
requested.
By order dated April 21, 2006, the court appointed a guardian ad
litem
to protect Marc's[fn1] interests in this proceeding. The guardian ad
litem filed his report on May 15, 2006, at which time DSS was in
default. In the report, the guardian ad litem states that Marc is
"woefully disabled" and "functions at the level of a two-year old
infant." The guardian ad litem also states that "if the claim is upheld
no beneficiary, including my ward, Marc Schneider, who is permanently
disabled, will receive any benefit under the will." The guardian ad
litem concludes that the claim should be denied.
DSS filed its verified answer to the
after the court issued Dec. No. 405 on
thirty
days from the date of the decision and
that the claim is valid under a theory
it and Leon.
petition on September 14, 2006,
August 16, 2006 giving DSS
order to do so. The DSS asserts
of an "implied contract" between
After the petitioner and DSS submitted memoranda of law, the matter
was submitted for decision.
DISCUSSION
The petitioner asserts that the claim against the estate is invalid
on
the following grounds: (1) both federal and New York State law preclude
the recovery of properly paid medical assistance, except in certain
circumstances not applicable in this case; (2) DSS cannot recover
against the estate of a Medicaid recipient's spouse; (3) DSS cannot
recover against the estate of a Medicaid recipient's predeceased
spouse;
(4) recovery of a claim is prohibited where the Medicaid recipient is
survived by a permanently disabled child; (5) DSS failed to meet its
burden of proving "sufficient ability" on Leon's part at the time
Medicaid assistance was rendered to
Page 3
Zeena; and (6) the claim is barred by the equitable defense of laches.
DSS counters that the claim is properly recoverable from Leon's estate.
Briefly, Medicaid is a "co-operative Federal-State program operated
under State direction, but subject to Federal statutory and regulatory
guidelines" (Scarpuzza v Blum, 73 AD2d 237, 241-242 [2d Dept 1980]).
Enacted by Congress in 1965, Medicaid "was intended to provide partial
federal funding of the cost of providing medical care to the
disadvantaged" (id. at 241). States are not required to participate in
the Medicaid program; however, if a state participates, it is required
by federal law to enact a "statutory plan detailing the extent of
coverage and comporting with Federal law" (id. at 242). The numerous
required provisions of a state Medicaid plan are governed by
42 USC § 1396a (a). State programs are required to comply with
42 USC § 1396p
"with respect to liens, adjustments and recoveries of medical
assistance
correctly paid" (42 USC § 1396a [a] [18]). Section 1396p (b) (1)
permits
a state to recover for medical assistance properly paid only in limited
circumstances:
(A) In the case of an individual described in subsection (a)(1)(B) of
this section, the State shall seek adjustment or recovery from the
individual's estate or upon sale of the property subject to a lien
imposed on account of medical assistance paid on behalf of the
individual.
(B) In the case of an individual who was 55 years of age or older
when
the individual received such medical assistance, the State shall seek
adjustment or recovery from the individual's estate, but only for
medical assistance consisting of
(i) nursing facility services, home and community-based services, and
related hospital and prescription drug services, or
(ii) at the option of the State, any items or services under the
State plan (42 USC § 1396p [b] [1] [A] & [B]).
New York State began participating in the Medicaid program in 1966
(Matter of Colon, 83 Misc 2d 344, 346 [Sur Ct, Kings County 1975],
citing L 1966, ch 256, § 3, eff April 30, 1966). Sections 363 through
369 of Article 5, title 11 of the Social Services Law govern New York
State's medical assistance implementation. Federal and New York State
law generally prohibit "recovery from the property of the recipient"
(Matter of Craig, 82 NY2d 388, 391 [1993], citing 42 USC § 1396a [a]
[18] and Social Services Law § 369 [2]). Social Services Law § 366 (3)
(a) is of particular significance to the determination of this
proceeding. It states: Medical assistance shall be furnished to
applicants in cases where, although such applicant has a responsible
relative with sufficient income and resources to provide medical
assistance as determined by the regulations of the department, the
income and resources of the responsible relative are not available to
such applicant because of the absence of such relative or the refusal
or
failure of such relative to provide the necessary care and assistance.
In such cases, however, the furnishing of such assistance shall create
an implied contract with such relative, and the cost thereof may be
recovered from such relative in accordance with title six of article
three and other applicable provisions of law (Social Services Law § 366
[3] [a]).
In Matter of Craig (82 NY2d 388 [1993]), the issue before the Court
of
Appeals was
Page 4
whether the Wayne County Department of Social Services was entitled to
reimbursement from the estate of Elizabeth Craig for Medicaid payments
provided to her husband, Norman. In 1983, Norman received Medicaid in
the amount of $ 4,373.79. He died intestate soon after. Wayne County
did
not seek reimbursement from Elizabeth during her lifetime. The Court of
Appeals noted that it was undisputed that she lacked the financial
means
that would have made her a "financially responsible relative" during
the
time her husband was receiving benefits and until her own death
(id. at 390). By way of further background, Elizabeth also received
Medicaid in the amount of $ 10,478 prior to her death in 1989. She died
leaving an estate worth $ 27,348.50, out of which was paid the $ 10,478
claim filed in connection to her care. It was the claim against
Elizabeth's estate for $ 4,373.79 (plus interest since 1983) for
Medicaid provided to Norman that made its way to the Court of Appeals
after the Surrogate's Court and the Appellate Division disallowed the
claim (id. at 390-391).
The Court of Appeals determined that the Wayne County Department of
Social Services was not permitted to require an individual to sell his
home to pay for Medicaid (id. at 391). Thus, the surviving spouse of a
Medicaid recipient is not a responsible relative solely by dint of the
fact that he or she owned a house. However, an exception to the rule is
allowed upon the death of a person who was over fifty-five[fn2] when he
received medical assistance. In that instance, his house can be sold to
recover Medicaid payments properly paid to the recipient
(id.;42 USC § 1396p [b] [1] [B]). The Court of Appeals noted that this
was what was done in order for Wayne County to recover the payments
made
to Elizabeth. But, the Court found that "the exception is qualified and
did not allow Wayne County to reach even farther back for recoupment as
to her predeceased husband's Medicaid payments" (id.).
The Court of Appeals explained that:
"[t]his scheme is set forth in Social Services Law § 369(2), which
incorporates Social Services Law § 366(3). When medical assistance is
furnished to an applicant who has a responsible relative with
sufficient
income and resources to provide medical assistance, the furnishing of
such assistance shall create an implied contract with such relative.
But
a responsible relative' by necessity and statute is determined by the
sufficient ability to pay at the time the expenses are incurred. Social
Services Law § 101 (Liability of relatives to support') only provides
that the spouse or parent of a recipient of public assistance or care
. . . if of sufficient ability, [will] be responsible for the support
of
such person' (§ 101 [1]; emphasis added)" (id. at 391-392).
The Court of Appeals held that Elizabeth's estate was not liable for
the Wayne County Department of Social Services' claim for services
rendered to Norman because Elizabeth did not have sufficient means at
the time Medicaid payments were furnished to Norman (id. at 392). The
Court found that Wayne County's reliance on Social Services Law §
104[fn3] to support its claim
Page 5
against Elizabeth was misplaced, because that "section does not take
the
sufficient means test out of contemporaneous assessment as of the time
the Medicaid payments are made on behalf of a predeceased relative"
(id.). The Court of Appeals concluded that the "assertion of a nunc pro
tunc obligation against the widow's estate is not supportable under
presently governing statutes, regulations and decisional reasoning"
(id. at 390).
There are three significant differences between the facts in
Matter of Craig and those before this court. First, in Craig, Elizabeth
was determined to have lacked sufficient means at the time Norman
received Medicaid benefits. Thus, the Court of Appeals concluded that
Wayne County could not recoup the payments from her estate (id. at 390,
392). In the instant case, a contemporaneous assessment was made by
Nassau County DSS that Leon had the requisite excess resources above
the
maximum community spouse[fn4] resource allowance[fn5] and income above
the minimum monthly needs allowance,[fn6] and that Leon had refused to
contribute for Zeena's care (as shown on the Medical Assistance
Institutionalized Spouse Budget Worksheet, annexed as Exhibit 4 to
DSS's
answer).
Beth acknowledges that an implied contract is created between the
Department of Social Security and the spouse of the recipient if the
spouse has sufficient ability to contribute to the recipient's care,
but
refuses to do so. However, she argues that DSS has failed to allege or
prove that there was an implied contract between it and Leon and that
Leon had the "sufficient ability" to pay at the time Zeena was
receiving
Medicaid.
There is no question that Leon refused to contribute his resources
and
income to Zeena's
Page 6
care. His declaration to that effect is attached as Exhibit 3 to DSS's
answer. Further, the Budget Worksheet, which Beth entirely ignores,
shows that Leon had excess income and resources at the time that Zeena
was receiving Medicaid that he could have contributed toward her care.
Thus, the court concludes that an implied contract was created between
Leon and DSS.
The second difference between these two cases is that in Matter of
Craig (82 NY2d 388, 389-390 [1993]), the community spouse postdeceased
the recipient spouse whereas in this proceeding, the community spouse,
Leon, predeceased the recipient spouse, Zeena. Beth argues that this
forecloses any right of recovery DSS may have had against Leon or his
estate. In support of her position, Beth asserts that (1) a "claim
against the estate of a predeceased community spouse while the Medicaid
recipient continues to receive benefits would require forestalling the
closing of the community spouse's estate until the recipient spouse was
also deceased;" and (2) since a claim could not be asserted until after
the recipient's death, the claim amount would continue to accrue and
its
value would only be known at the time of death of the recipient."
For purposes of Medicaid, the community spouse is chargeable with the
recipient spouse's support only until the time of the community
spouse's
death (see Social Service Law § 101 [1] & [2]). Indeed, although Zeena
continued to receive Medicaid until her death on December 3, 2003, the
end date of the claim by DSS is October 3, 2002, the date of Leon's
death. The court can discern no reason why happenstance, that Leon
predeceased rather than post-deceased Zeena, should vitiate the implied
contract between him and DSS. Beth correctly points out that there is
no
New York State authority directly on point.
However, this is not the first time a New York State court has been
faced with the situation where the Department of Social Services has
asserted a claim against the estate of a predeceased community spouse
for Medicaid payments provided, during the community spouse's life, to
the institutionalized spouse. In Matter of Tomeck (29 AD3d 156 [3d Dept
2006], lv granted, 7 NY3d 713 [2006]), the Appellate Division, Third
Department, upheld the Saratoga County Surrogate's denial of the
Department of Social Service's claim against the estate of the
predeceased community spouse on the grounds that no implied contract
existed between community spouse and the Department because the
community spouse did not have sufficient income and resources to
provide
for her institutionalized husband at the time Medicaid payments were
rendered on his behalf (id. at 159, 162). Notably, the fact that the
community spouse died before the institutionalized spouse did not even
enter into the Court's discussion.
The third difference is that, in this proceeding, Leon and Zeena were
survived by a permanently disabled son, Marc, which, Beth argues,
precludes DSS from recovering from Leon's estate. Beth relies on Social
Services Law § 369 (2), which states, in relevant part that "[a]ny such
. . . recovery shall be made only after the death of the individual's
surviving spouse, if any, and only at a time when the individual has no
surviving child who is . . . permanently and totally disabled. . . ."
(Social Services Law § 369 [2] [b] [ii]). Beth also relies on two
cases,
Matter of Burstein (160 Misc 2d 900 [Sur Ct, New York County 1994]) and
Matter of Andrews (234 AD2d 692 [3d Dept 1996]).
The issue in Matter of Burstein was whether Social Services Law § 369
precluded the New York County Commissioner of Social Services from
recovering payments for medical
Page 7
assistance paid on behalf of a decedent, who was survived by a
permanently disabled child who did not depend on the decedent for
support (Matter of Burstein, 160 Misc 2d 900, 900-901 [Sur Ct, New York
County 1994]). Relying on the "plain language" of Social Services Law
§ 369 (2), Surrogate Preminger determined that "where a spouse or
disabled child receives a benefit from the estate, the statute should
apply regardless of whether the spouse or disabled child received
financial support during decedent's lifetime, and even if some of
decedent's assets are bequeathed to others" (id. at 902).
In Matter of Andrews (234 AD2d 692 [3d Dept 1996]), the Appellate
Division, Third Department, affirmed the Rensselaer County Surrogate's
order denying the Rensselaer County Commissioner of Social Services's
application for a determination of the validity of a claim it made
against the estate of Lucretia Andrews for Medicaid benefits provided
to
her by the county (id. at 693). Lucretia died intestate, survived by
two
distributees, her children, one of whom was permanently and totally
disabled (id. at 692). The Commissioner sought repayment only from
Lucretia's non-disabled son's distributive share, which would have left
her disabled son's share intact (id. at 693). The Third Department
determined that it "cannot endorse this approach because it runs afoul
of Social Services Law § 366 (3) and § 101 (1), which limit the
responsibility to contribute to the support of a Medicaid recipient to
the recipient's spouse or parent" (id.).
However, Beth fails to consider the Appellate Division, Second
Department case, Matter of Samuelson (110 AD2d 187 [2d Dept 1985]),
wherein that Court reached a different conclusion. In that case, the
Court was faced with the issue of "whether Social Services Law § 369
(1)
(b) bars recovery of correctly paid medical assistance benefits from
the
estate of an individual who was the recipient of medical assistance
while age 65 and older, and which recipient was survived by a legally
blind and totally permanently disabled adult child who was neither a
dependent of the recipient nor a named beneficiary under the
recipient's
last will and testament," a question Surrogate Laurino had answered in
the negative (id. at 187-88)[fn7]. The Second Department affirmed the
Queens County Surrogate Court's decree (id. at 188). The Court
explained
that the Surrogate had recognized that a literal reading of the statute
would have precluded recovery, but had "concluded that the rationale
and
intent of the statutory scheme warranted a contrary result"
(id. at 189).
In its comprehensive decision, the Second Department also recognized
that the literal language of Social Services Law § 369 (1) (b) would
render New York City Department of Social Services' claim
unenforceable,
but, like Surrogate Laurino, concluded that a literal interpretation of
the statute would "contravene and frustrate the legislative objective
sought to be achieved by the statute" (id. at 190-191). The Second
Department examined the legislative history behind Social Services Law
§ 369 (1) (b) and found an intent to comply with the federal enabling
legislation (id. at 191), which it also examined. In so doing, the
Court
found a: "legislative concern for the protection of those individuals
who were financially dependent on the deceased recipient, namely the
recipient's surviving spouse, infant issue, or blind or disabled
Page 8
children. This protection is afforded by the statutory provisions
currently embodied in 42 USC § 1396p (b) (2) (A) and Social Services
Law
§ 369 (1) (b) which seek to insure that the assets of the deceased
recipient's estate, upon which these individuals rely, would not be
depleted by the recoupment of medical assistance benefits. Thus,
contrary to petitioner's position, the triggering factor of the
restrictive recoupment statutes is not the mere existence of a
surviving
spouse, infant issue, or blind or disabled child. Rather, the statute
is
predicated on the assumption that the surviving spouse, infant issue or
blind or disabled child was financially dependent upon the recipient
prior to the latter's death and that the protected individual is
entitled to a share of the deceased recipient's estate. Clearly, it is
this latter group of needy individuals which the restrictive recoupment
provision seeks to protect since the depletion of the assets of the
deceased recipient's estate would be directly detrimental to their
future financial independence and self-care" (id. at 192-193).
Relying also on case law and the fact that, in appropriate
situations,
courts are permitted to "depart[ ] from the literal letter of a statute
in order to sustain the legislative objective of the statutory scheme"
(id. at 191). The Second Department affirmed the Surrogate, concluding
that "[a] contrary result would undoubtedly undermine the purpose of
the
statutory scheme since the only recipient of the $ 28,801.88 windfall
to
the estate would be the petitioner who is not an intended beneficiary
of
the restrictive recoupment provision" (id. at 196-197).
In this proceeding, Leon left $ 15,000, to be placed in a
supplemental
needs trust, to his permanently disabled son, Marc. There is no
evidence
that Marc was financially dependent on Zeena or Leon. Thus, this court
finds, under the authority of Matter of Samuelson (110 AD2d 187 [2d
Dept
1985]), that repayment of DSS's claim is not precluded by Social
Services Law § 369 (1) (b). However, since Leon bequeathed to Marc $
15,000 to be placed in a supplemental needs trust for his benefit, Marc
is to receive that amount prior to the payment of the claim.
Finally, Beth argues that DSS's claim is barred by the equitable
defense of laches. She claims that DSS should have brought suit against
Leon during his lifetime because, having not done so, Leon "reasonably
concluded that because of his unique personal situation the Department
of Social Services had acknowledged by its failure to act that he was
not sufficiently able to contribute to his wife's care during his
lifetime and therefore would not seek financial contribution from him."
Beth asserts that this deprived Leon of the opportunity to show that he
did not have the "sufficient ability to pay for the Medicaid payments
made on behalf of his wife."Beth's assertion is contrary to statute and
case law. The time for DSS to make a determination about whether the
community spouse has "sufficient ability" to contribute is "at the time
the expenses are incurred" (Social Services Law § 101 [1]; Matter of
Craig, 82 NY2d 388, 391-392 [1993]). At the time of the assessment,
Leon
had the opportunity to request a hearing to attempt to establish that
the Medicaid minimum monthly needs allowance was inadequate "based on
exceptional circumstances which result[ed] in significant financial
distress" (Social Services Law § 366-c [8] [a] & [b]). He did not avail
himself of this right, and his estate is foreclosed from arguing now
that he did not have the sufficient ability to contribute his support
to
Zeena. Additionally, repayment of the claim, except to the extent such
money would come from funds designated for Marc, will not injure any
person the recoupment limitations were designed to protect.
Page 9
The court is unpersuaded by Beth's argument that federal law
forecloses payment of the claim from Leon's estate. Beth bases her
assertion on 42 USC § 1396p (b) (1), which limits recovery to the
recipient's estate for medical assistance correctly paid, when the
recipient was over the age of fifty-five at the time he or she was
receiving benefits. In support of her position, Beth has asked the
court
to consider the case of Hines v Department of Public Aid
(358 Ill App 3d 225 [App Ct, Ill 2005])
where the Appellate Court of Illinois determined
that the Department of Public Aid could not recover from the estate of
the recipient's spouse for Medicaid benefits paid to the recipient
(Hines v Department of Public Aid, (358 Ill App 3d 225, 233 [App Ct,
Ill
2005]). The court stated, "Because federal law does not provide an
exception to the general rule prohibiting recovery of medical
assistance
payments that would permit recovery from the estate of the surviving
spouse of the recipient, Illinois law to the contrary exceeds the
authority granted under federal law" (id.).
This court has reviewed the Hines case and finds itself in agreement
with the dissenting justice, who stated that the majority's conclusion
"ignore[s] the federal mandate that the State shall seek adjustment or
recovery of any medical assistance correctly paid on behalf of an
individual' at the appropriate time prescribed by statute"
(id.).
In 1997, Supreme Court, New York County, rendered its decision in
Commissioner of the Department of Social Services of the City of New
York v Spellman (173 Misc 2d 979 [Sup Ct, NY County 1997]). The
Department of Social Services relied on an implied contract theory
under
Social Services Law § 366 (3) (a) for its claim against the then-living
community spouse. The issue in Spellman was whether, "under the Social
Services Law, the Department may recover the Medicaid assistance paid
for the care of an institutionalized spouse from the community spouse,
or whether such recovery is barred because there is no analogous
Federal
statutory scheme" (id. at 981). In reviewing the statutory framework of
the title XIX of the Social Security Act, the court pointed out that it
requires a state or local administering agency to "take all reasonable
measures to ascertain the legal liability of third parties . . . to pay
for care and services available under the plan'" (id. at 983, quoting
42 USC § 1396a [a] [25] [A]). The court then analyzed, at length,
whether
federal law preempted state law on this issue (id. at 985) and found
that it did not (id. at 986-989). The court also found that the
Department did not have the authority to bring the action while the
community spouse was alive, but could bring an action after he died
against his estate, "since he had sufficient means during the period
the
medical assistance was rendered" to his wife (id. at 989-990, citing
Matter of Craig, 82 NY2d 388, 393 [1993]). The court determined that
Social Services Law § 366 (3) (a) created an implied contract between
the Department and the community spouse and that Social Services Law
§ 366 (3) (c) "specifically authorizes a proceeding to compel any
responsible relative to contribute to the support of any person
receiving or liable to become in need of medical assistance'"
(id. at 983).Based upon the governing statutes, Matter of Craig
(82 NY2d 388 [1993]) and
its progeny, and Matter of Samuelson (110 AD2d 187 [2d
Dept 1985]), the court finds that Nassau County DSS's claim against
Leon's estate is valid and payable from his net estate, except to the
extent payment of the claim would impinge on the $ 15,000 bequest to
Marc to be placed in a supplemental needs trust.
The guardian ad litem indicated in his report dated May 15, 2006 that
he has spent 4.5 hours representing Marc in this matter. To the extent
the guardian ad litem has spent additional time since then, he is
directed to file an affirmation of legal services within fifteen days
of
the [*10]date of this decision. His fee will be fixed at the foot of
the
decree.
Settle decree on five days' notice. Dated: June 12, 2007
John B. Riordan
Judge of the
Surrogate's Court
The appearance of counsel are as follows:
[fn1] By Amended Decree dated August 16, 2006, the court appointed Beth
and Marcie Agee, a niece of Leon, as the co-guardians of the person and
property of Marc pursuant to SCPA 17-A.
[fn2] At the time that the Court of Appeals decided Craig, the
statutory
age was sixty-five (Matter of Craig, 82 NY2d 388, 391 [1993]).
[fn3] New York Social Services Law § 104 (1) reads as follows:
"A public welfare official may bring action or proceeding against a
person discovered to have real or personal property, or against the
estate or the executors, administrators and successors in interest of a
person who dies leaving real or personal property, if such person, or
any one for whose support he is or was liable, received assistance and
care during the preceding ten years, and shall be entitled to recover
up
to the value of such property the cost of such assistance or care. Any
public assistance or care received by such person shall constitute an
implied contract. No claim of a public welfare official against the
estate or the executors, administrators and successors in interest of a
person who dies leaving real or personal property, shall be barred or
defeated, in whole or in part, by any lack of sufficiency of ability on
the part of such person during the period assistance and care were
received."
[fn4] A community spouse is defined under New York law as the spouse of
an institutionalized spouse (NY Soc. Serv. Law § 366-c [2] [b]).
[fn5] The "community spouse resource allowance" refers to the "highest
amount of resources the community spouse is permitted to own" and still
have the institutionalized spouse qualify for Medicaid (Goldfarb and
Rosenberg, New York Guide to Tax, Estate & Financial Planning for the
Elderly, § 7.02 [4] [2005 ed]).
[fn6] The "minimum monthly maintenance needs allowance" "is the amount
set by regulation that is supposed to be adequate to provide for the
support of the community spouse" (Goldfarb and Rosenberg, New York
Guide
to Tax, Estate & Financial Planning for the Elderly, § 7.02 [3] [2005
ed]).
[fn7] In New York State, effective April 1, 1994, the age was lowered
to
fifty-five (Social Services Law § 369 [2] [b] [i] [B]; Goldfarb and
Rosenberg, New York Guide to Tax, Estate & Financial Planning for the
Elderly, § 8.05 n 2 [2005 ed]).