The following was reported in the NAELA news:
A former Murrieta (CA) funeral director accused of targeting the elderly in a pre-paid funeral scam was convicted today of grand theft and financial elder abuse, authorities said. Lee Ann Wyskiver, 58, faces up to six years in prison at her sentencing scheduled for April 30, said prosecutor Cormac Kehoe. Because Wyskiver suffers from health problems she was not taken into custody after the verdict was read this afternoon in a Riverside courtroom, Kehoe said. The jury found Wyskiver guilty of three counts each of grand theft and financial elder abuse after about a day of deliberating. Wyskiver was arrested in 2007 at her Escondido home on suspicion of pocketing some $20,000 in premiums for pre-paid burial insurance between 1998 and 2004 while she was owner of Valley Funeral Home. Investigators said they identified nearly 20 potential victims but Wyskiver was charged with defrauding three elderly people. Prosecutors allege Wyskiver had her clients complete insurance application forms but failed to submit them and kept the payments.
Cases such as this illustrate the importance of dealing with someone you know and trust. While planning one's funeral is an important part of planning one's estate, you are not limited to dealing with funeral homes. Such planning can be done through a funeral trust, using advisors that you already know and trust to help plan your estate. If we can help you with planning your estate through a funeral trust, please call for an appointment.
Prior to filing an application for Medicaid, my client, Jo Carol Alford, filed a petition in Chancery Court to increase the CSRA and the MMMNA pursuant to 42 U.S.C. § 1396r-5. Her husband suffered from multiple sclerosis, and residency in a nursing home would have been immanent had he lived. The uncontroverted evidence at the hearing showed that, due to her young age, the default CSRA limit of $109,560 was inadequate to provide for Jo Carol's support for the remainder of her life. The Department argued that the trial court lacked jurisdiction to increase the default allowances for community spouses until Mrs. Alford exhausted her administrative remedies. The Chancery court found that it had authority to grant separate maintenance via a QDRO (conveying $400,000 in retirement assets) under state law, but that it did not have authority to grant relief under 42 USC Section 1396r-5, as I argued to the court. Mrs. Alford appealed, but while the appeal was pending, Mr. Alford died. The state argued that his death rendered the issue moot, but the Court found that it nonetheless had jurisdiction because the issue involved a matter affecting an important public interest that was likely to arise again. After examining other cases from Tennessee, New Jersey, D.C., Arkansas and Missouri, as well as Mississippi law, the court concluded that under Mississippi law, where an administrative remedy exists "relief must be sought by exhausting this remedy before the courts will act." Accordingly, directly opposite to the findings of courts in Tennessee and New Jersey, and rendering moot specific language found in the Federal law, the Supreme Court agreed with the trial court that 42 USC Section 1396r-5 did not create a separate basis for trial court jurisdiction to increase the Medicaid default allowances for community spouses.
Sadly, this case means that young Mississippi residents with seriously ill spouses like Mrs. Alford, who are faced with the difficult decision of forced impoverishment in order to obtain medical care that their spouse requires, or failing to get the help that their spouse requires in order to protect themselves, will be forced to take drastic measures to protect themselves. The decision eliminates altogether a remedy that Federal law gives those spouses, because Medicaid admittedly takes the position that increases in the allowances are never allowed - under any circumstance. Their own manual does not even give their administrative hearing officers authority to grant the relief that the Supreme Court says claimants must first ask them for before taking the matter to real judge. No spouse will be willing to risk an appeal of such a matter through the Medicaid administrative hearing level, which can take as long as a year, and then to a court of law that may take as long as another year, all the while having to privately pay for their spouses' care. The practical effect of this decision will be to force such spouses to take drastic steps to protect themselves and their spouse, including precisely the aggressive type of Medicaid planning permitted by Federal and state law but which Medicaid criticizes as an abuse of the system, or sadly in the most extreme of cases, obtaining a Medicaid induced divorce. If you find yourself in such a circumstance, our firm is skilled in such aggressive planning and I be happy to discuss your case with you. Please feel free to call for an appointment.
The Mississippi Supreme Court recently issued an opinion emphasizing the importance of strict adherence to legal formalities when executing wills. In the case of In re: Griffith, the court upheld a trial court's strike of the will as invalid because the 2 witnesses to the document testified at trial that they did not realize he was a "will" they were witnessing. Specifically, they did not deny that it was their signature, or even that they signed it under oath, but instead state only that they thought they were signing a power of attorney. The Mississippi Supreme Court specifically looked at the issue of whether a witness to a will was required to know it was a "will"that they were witnessing, or whether the act of witnessing a non-incapacitated individual signing something was sufficient. The court, looking at both the strict language of the wills statute, together with conflicting decisions in Mississippi law dating back nearly 100 years, concluded that the witnesses' knowledge of what they were witnessing is a prerequisite to the validity of a will. Specifically, the court held:
"We find that Mississippi Code Section 91-5-1 requires that attesting witnesses to a will know the purpose of their attestation, even when the testator signs the will in their presence. As noted in our prior cases, either formal or constructive publication will ensure that this knowledge is imparted to the attesting witnesses."
This case illustrates the importance of strict adherence to formalities when executing wills. Here, the individual testator went to the trouble of drafting a will, which in all ways was apparently a valid instrument under Mississippi law, and further went to the trouble of not only having the document witnessed by the required 2 witnesses, but also had those witnesses signatures notarized, which was a statement under oath that the witnesses acknowledged that the instrument was declared to be a will, and was signed by the testate or in their presence. Nonetheless, despite following all of these formalities, and in the absence of any evidence reported in the case that the testate or lacked capacity to execute a will, the Mississippi Supreme Court struck down an otherwise valid instrument strictly on technical grounds that the witnesses' oral testimony was that they didn't know it was a will that they were witnessing.
One must wonder if the result would have been the same had the instruments been witnessed at a lawyer's office instead of the bank. While the decision does not explicitly state this was a "do-it-yourself" will, the fact that the document was witnessed and notarized at a bank leads one to that conclusion. More frequently than not, the challenges that we seek to these "do-it-yourself" documents is not the language of the documents themselves, which are almost always adequate, but rather the failure to follow a simple formality, such as in this case. The testator in this case may have well saved $500 or more by self drafting his will, and exchanged that savings for invalidating his entire last wishes for how his estate would be handled. The end result in this case was an equal distribution of his estate to his children under Mississippi's intestacy laws. In his will, he expressed a desire to favor certain individuals over others, but those desires will now be completely moot. Most would concede that such a trade-off is no bargain.