A  Bloomberg news report recently explained that a last minute Bush administration new regulation designating state inspectors, and Medicare and Medicaid contractors as federal employees, that affects approximately 16,000 nursing facilities nationwide, is forcing plaintiffs with potential personal injury actions against nursing homes to take painstaking efforts to obtain information regarding injuries and abuse.

Federal employees are groups usually protected from providing information to either side in private litigation and litigants may need to seek court orders to get vital discovery information. Eric M. Carlson, an attorney with the National Senior Citizens Law Center, said efforts are already in the works to overturn the late-term regulation issued by  Bush.

However, the California Department of Public Health has already adopted a policy to implement the new federal rule.

Government inspectors have the right to go into nursing homes and investigate, and they learn things that residents and families otherwise could or would never find out.

The new regulation prevents these state inspectors from becoming involved in private lawsuits implicating facilities in the federal assistance program unless they have prior approval by the head of the Health and Human Services Department.

The regulation was put into place under the ridiculous guise of promoting efficiency by these newly designated federal employees in their everyday tasks.

Requests for these employees to participate in private cases “diverts employees from their federal survey, certification and enforcement responsibilities,” the Bush administration said in a supporting document. “The cumulative effect of these requests can impede these activities.”

In my opinion this is unmitigated nonsense!!  Preventing inspectors to reveal the records of their nursing home inspections prevents families from obtaining information regarding injuries suffered by their parents or family members!

The judge overseeing the probate of the hotelier Leona Helmsley’s will has ruled that, contrary to her wishes, the billions of dollars that will flow into the charitable trust she created do not have to be spent solely for the care and welfare of dogs.

Experts in trusts and estates had warned that Mrs. Helmsley’s order that her fortune be spent promoting canine well-being may not have been legally binding. The two-page “mission statement” that contained her instructions also gave the trustees discretion in spending the money, and it was never incorporated into her will or the trust documents.

A spokesman for the trustees, said they planned to begin making grants from the trust next month in such areas as health care, medical research, human services, education and various other areas.

Over the years, bequests made for the purposes of furthering animal welfare generally have a hard time surviving the probate process.

However, in California pets are no longer treated like any other piece of property. California probate law provides that a trust for the care of a designated domestic or pet animal may be performed by the trustee for the life of the animal.

With the adoption of this code, setting up a trust to care for pets became a recognized estate planning technique. This law enables pets to become the beneficiaries of your will or trust.

Pet trusts are typically of two types: a testamentary trust which is designed to provide care after your death, and living trusts which provides care when you still living but no longer able to care for your animal. Living trusts can be useful if you are incapacitated or living in an assisted-living facility.
 
You actually have a number of options in planning for your pet. The first is to contact a pet retirement home and fully fund your pet’s care while you are still living.

Another plan would be to skip the trust altogether and donate your estate to a local animal care sanctuary with the stipulation that your pet receive care for the remainder of its life.

I have drafted plans that limit the size of the bequest to something on the order of a few thousand dollars per year for each year of the pet’s remaining lifespan. 

If you have multiple pets, one way to address the challenge of keeping them together and cared for in the manner of your choosing is to include real estate as part of the trust. The designated caretaker lives rent-free as long as he or she cares for the animals.

Remember, pet care is expensive. A pet trust will give your relatives or other caretaker the means to provide for your animals in a manner consistent with your wishes. To fund such desires, some people have designated their pets as the beneficiaries of substantial life insurance policies.

James D. Perry

The New York Times ran a story this week on bill collectors who call relatives of the dear departed asking  if they want to settle the balance on a credit card or bank loan, or perhaps make that final cable tv bill or cellphone payment for the deceased person.

The next of kin on the other end of the line often have no legal obligation to assume the debt of a spouse, sibling or parent. But they often pay for it anyway.

Dead people are the newest frontier in debt collecting, and one of the healthiest parts of the industry. Improved database technology is making it easier to discover when estates are opened in the country’s 3,000 probate courts, giving collectors an opportunity to file timely claims.

The law varies from state to state. In California, survivors are generally not required to pay a dead relative’s bills from their own assets. In theory, however, collection agencies could go after any property inherited from the deceased.

Sentiment also plays a large role, the agencies say. Some relatives are loyal to the credit card or bank in question. Some feel a strong sense of morality, that all debts should be paid. Most of all, people feel they are honoring the wishes of their loved ones.

It is likely that most of those who pay a dead relative’s debts are unaware they may have no legal obligation.

I think collections from the next of kin of deceased persons should be better regulated. I doubt survivors are told up front that they are under no legal obligation to pay the debt.

My recommendation:  Unsecured creditors who want to seek payment for deceased persons’ debts should be required at beginning of call, to state that the survivor has no personal obligation to pay debt.  They should also be required to state the only legal recourse the creditor has is against the debtor’s estate.  

In my Orange County Probate practice I have seen many instances of family members paying bills for a deceased person from their own funds.  Think twice before you do this.  If there is a probate estate pending, notice is given to all creditors - they have 120 days to file a claim after the notice. If a creditor fails to file the claim with the court, the claim is barred.  

If your in doubt about a collection claim against a deceased relative, call a probate attorney.   

James D. Perry