In Bizzare Case Before PA Supreme Court, Beneficiaries Sue the Register of Wills

Consider the case of Andre Leonti, a man who died Fayette County PA without a will. The hospital refused to release his body to his lifelong  friend, Cheryl Keefer, until she produced evidence of her authority to administer his estate. She had no luck with the Fayette County Register of Wills, who would not appoint her administrator because she could not establish that she was next of kin. So she next petitioned to the Orphans Court to be appointed administrator of the estate so she could arrange a funeral and burial for her friend, and use money from his estate to pay for the service. Although Cheryl held a power of attorney for Mr. Leonti, that expired upon his death. The court ordered the Register of Wills to appoint her administrator of the Andre’s estate and ordered the hospital to release the body to her for burial. Andre’s estate was worth about $ 242,000.  Normally the Register of Wills would require Ms. Keefer to post a bond before administering the estate, but the court order did not mention any bond requirements.

 As often happens, a distant cousin of the decedent living in Texas became aware of his possible inheritance, so he sought to have Cheryl Keefer removed as administrator and the estate, and he appointed in her place. Ms. Keefer not only refused to turn over the assets, but she also disappeared. Undaunted by this setback, the distant cousin sued the Register of Wills for failing to obtain the bond. 

Normally a government employee is exempt from suit under the doctrine of “governmental immunity,” and the Register of Wills of Fayette County thought so, too. The Pennsylvania Supreme Court held otherwise and stated that the Register of Wills of Fayette County might be liable because of a special Pennsylvania statute governing when the Register of Wills must require a bond, and they sent the case back down to the lower court for more fact finding. 

If you are appointed to administer an estate, do you need to obtain a bond? Would you qualify for a bond? Most wills contain a boilerplate provision stating the executor (also known as the “personal representative”) need not file a bond.  It is there because of  a Pennsylvania Law, similar to the laws of other states,which direct the Register of Wills to obtain a bond from a personal representative, unless waived in the will. The law, contained in Title 20 Pa. C.S.A. Section 3171 to 3175,  is too complicated to discuss in detail, but in most cases, an out of state personal representative must obtain a bond before they can administer an estate. Since they will control the checkbook, and have access to all of the funds of the estate, the bond is intended to secure faithful performance of their duties.  A bond can usually be obtained from an insurance company and most attorneys who do estate work, such as our firm, have access to companies who issue bonds. 

The case brings up a more fundamental question for anyone who drafts a will. Should you require that the representative obtain a bond? It is not impossible to purchase a bond, and it may protect your heirs. It would be pointless if the person you appoint as your personal representative is also your sole beneficiary, but it would make sense if your personal representative is a personal friend, yet not an heir of your estate. 

Without a will, there is no choice in the decision at all, and the laws stated above control. Was Cheryl Keefer a close friend of the decedent who was shortchanged because the decedent did not leave a will? She was appointed his agent under his power of attorney, and she seemed to be the only person interested in arranging decedent’s funeral, since his relatives only stepped forward when they found there was money to be claimed. Or, was she a neighbor who saw an opportunity to convince the decedent to appoint her agent under his power of attorney, and later pocket the decedent’s money by opening up an estate in his name and getting appointed administrator? We do not know enough to decide either wasy, but the case illustrates the importance of having a will.  

Have you ever had experience with getting a bond? If so, comment below.

Stay will until the next post.

Bob Gasparro

Man Goes to Court to Prove He Is Alive-- Loses His Case

What happened in this case was the decedent, Donald Eugene Miller Jr. of Ohio, disappeared leaving a wife and kids behind. He also failed to pay any of his court ordered support, leaving the wife and children destitute.

Miller had been "last reported in Arcadia"  his home town, in 1986. He testified that he had lost his job, decided to look elsewhere for work, and then it just "kind of went further than I ever expected it to." (I.e., Florida.) After he'd been missing for eight years, his ex-wife asked for the death decree under Ohio Revised Code section 2121.01 et seq, so their children could get Social Security death benefits. Judge Davis agreed. According to the report, Miller returned to Ohio in 2005, whereupon his parents informed him that he was dead. He's apparently been okay with that for some time, but told the court and Judge Davis that he would like to be alive again now, so he can get his Social Security card and driver's license back.

The Ohio statute that defines how to establish a person is dead states that the finding can be reversed if the person is found to be alive within three years after the decision. There is a major problem with this law, but the problem is with the Ohio legislature who drafted the law rather than the judge who rendered the decision which everyone is laughing about. Courts are bound to follow the law, even if the statute is flawed or even absurd (something which happens more than you might imagine).

As a member of the Social Security bar,  I've represented widows whose husbands disappeared, leaving the wife to establish death in order to receive widows benefits. The last case dealt with a widow receiving disability benefits. If she were able to prove her husband’s death, she could obtain access to better medical care under Medicare, than Medicaid. She could also obtain benefits from Social Security rather than welfare, drawing from her husband’s earnings record. However, we had to establish a death in Africa following his visit there for employment. It was not easy to prove the case, and it entailed visits to the consulate in Washington D.C., and contacting people in other continents, most of whom spoke different languages. Not every country issues a death certificate nor keeps as accurate records as we do in this country. We are very fortunate to have tools like Skype and “Google translate”, but these are relatively recent innovations. Even with the innovations, an attorney and/or investigator needs to methodically build the case. 

Let us go back to the case of Donald Eugene Miller, Jr. of Ohio. There was a possibility that if the finding of death were reversed, the widow and children would have to pay back the social security benefits they received.  It did not seem any more likely that Mr. Miller was would pay the child support he owed in the first place. Legally, the judge, because of the flawed statute, could not recognize Mr. Miller as alive. Practically, to find him alive would allow him to profit from his wrongdoing. So the judge ruled against him. What do you think about the case?

Note: Since the time this article was originally written, a reader pointed out that an account also appears in the New York Times, and can be found here.  

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Stay well until the next post.

Bob Gasparro

Bob Gasparro is an Elder Attorney.  He can be reached at Robert.Gasparro@lifespanlegal.com or (484) 297-2050. Comments to this post, and ideas for future posts are welcome. 

Tags, social security, death benefits, social security widow benefits, deceased.

Pennsylvania's Bizarre Assisted Suicide Case Receiving National Attention

Pennsylvania has been making national news following the indictment against a 57 year old Schuylkill County nurse, Barbara Mancini, who allegedly she assisted her 93 year old father, Joseph Yourshaw, to commit suicide. Although Oregon, Washington, Montana, and Vermont have laws permitting assisted suicide, it is still a crime to do so in Pennsylvania. Our Crimes Code Section 2505 define it as a second degree felony (the same as involuntary homicide) if it results in death. The U.S. Supreme Court has already stated there is no such thing as a constitutional right to die, and the state has an overriding interest to protecting its citizens But, the Court said “that a patient has the right to use as much medication as they need, even if it hastens the time of death.” When we draft an advance medical directive in our office, every document contains a clause wherein the drafter may choose to have drugs administered to relieve pain, even if it shortens life. Many clients seem to choose that option but others, including Catholic clients and those who want to be used as a subject to advance medical research, do not. The drug of choice to reduce pain is morphine, It can reduce pain yet may cause death if too much is administered. Hospice workers are excellent at determining the correct dosage. However, it is illegal to increase the dosage for the sole purpose of causing death rather than relieving pain. There have been cases where a medical worker complained about a co-worker giving too high a dose, resulting in criminal prosecution against the worker administering the drug. That is exactly what happened here… the hospice worker found out about the morphine given to the patient by his daughter, and called the police. The police arrested the daughter who allegedly administered the lethal dose, and brought the hospice patient to the hospital to revive him. If convicted of the crime, the maximum penalty for Ms. Mancini is ten years. If this is her first offense, the optional sentencing guidelines call for a sentence between 3 and 9 years. Yet, this is not an open and shut case. The Ms. Mancini, admits that she gave the morphine for her father, but denies it was for the purpose of killing him. Her father was a hospice patient suffering from diabetes. He reportedly stopped taking any medication in 2011 and began to eat a diet that would be expected to worsen uncontrolled diabetes. In January of this year he reportedly told his family he wanted to die. After it was discovered he took the entire vial of morphine, the patient was taken to the hospital and given an antidote for opiate overdoses. He recovered and reportedly raised hell with everyone for reviving him and for picking on his daughter who tried to help. Yet he died four days later. The defendant and her attorney state it’s not plausible that the death was caused by the overdose if he died four days later after becoming conscious again. The standard of proof at a preliminary hearing which took place earlier this month is only whether there is enough evidence to hold the case over for trial. The question is: “if everything the complainant witness says is true, does that constitute a crime?” As you might expect, nearly every case is held over for trial. Only at trial will the judge or jury determine if all the facts alleged are true, and whether there is enough evidence to support them. Normally this case would be tried by the local district attorney. In this case there was a conflict of interest (the nurse may have assisted the D.A.’s office in another matter earlier) and so the D.A. asked the state Attorney General to take over the case. Another interesting fact about this case is the intervention of groups such as “Compassion and Choices” and their effort to organize people to write letters to the Pennsylvania Attorney general to drop the case. I originally posted this story yesterday, but withheld it after a conversation with my wife, a gerontological nurse practitioner who is quite familiar with hospice. She informed me the story may be misleading to readers as everyone else is reporting it. First, she asked, where did the extra morphine that was administered come from? Morphine is a controlled substance and some doctor must have written the prescription. "It is most likely," says my better half, "that the daughter was given the morphine to administer after the hospice nurse left, and she had every right to have it in her possession." Another issue is whether anyone performed an autopsy because the father may have just as likely gone into a coma if he was not treating his diabetes, either before or after the hospital admission. Another issue, it is very rare for a diabetes patient to want to die, it is such an easily controlled illness, so the mental state of the patient is questionable. And finally, it is posible that when the hospital staff realized they had been trying to revive a patient who was on hospice to begin with, they may have simply let him die four days later rather than continue medical interventions. All of these issues will be explored at trial, so stay tuned. Ignoring the bizarre nature of this case, what do you think? Should be change the law to allow assisted suicide in Pennsylvania? Do you think that suicidal wishes are merely symptoms of treatable depression? What would you put in your advance medical directive or living will? Stay well until the next post. Bob Gasparro