Thanks to enhanced regulation and inspection, nursing home negligence does not happen as much as it did in the past. However, it still does occur. One recent case dealt with a nursing home in Philadelphia, in the case of Williams v. Willow Terrace. The Pennsylvania Superior Court (No 14-1254), last July of 2014, upheld a verdict of $2, 901,602 against the nursing home for wrongful death, medical expenses and punitive damages for outrageous conduct.
Mr. Williams, a patient, was supposed to be turned every two hours due to his bed sores, but there were up to 33 eight hour shifts in one month in which, because of under-staffing, he was ignored.The failure to treat his pressure ulcers ultimately caused his death. The final verdict against the nursing home, consisting of both damages for negligence and punitive damages for outrageous conduct against a senior, was upheld on appeal.
After the verdict the family issued a statement: “The family hopes that the corporations that own and operate nursing
homes and medical facilities in southeastern Pennsylvania and beyond
take notice of this verdict, and operate their facilities the right way
so that other people are not harmed.”
The defendant in this case was affiliated with a large medical center in Philadelphia. The take home message is that if you have a friend or relative in a nursing home, you need an Advance Medical Directive which places one person in charge, and that person needs to view the charts and medical records often.This is a service provided to our clients using the Nurse Practitioner affiliated with our firm, or a geriatric care manager or health care advocate can also be of assistance in matters such as this.
Stay well until the next post.
Bob Gasparro, Esq.
robert.gasparro@lifespanlegal.com
(484) 451-6612
Tuesday, September 16, 2014
WestChester County, PA Woman Gets Relief After the Court Sorts Out Her Husband's Letters
Pennsylvania has minimal requirements for creating a will. While these modest requirements were intended to protect consumers, on occasion they have the opposite effect. The law, contained in Title 20 Pennsylvania Code, Section 2502, states that the only requirement for making a will, is that the testator sign at the end of the document. The reason most lawyers have the testator sign before two witnesses is because of different laws governing the steps necessary to have a will accepted for probate by the local Register of Wills.
Section 3132 of Title 20 states that, before the Register of Will will accept the document for probate, all wills must be proved by the oath or affirmation of two witnesses to the testator's signature. Most lawyers figure it is easier to have the two witnesses present at the time the will is signed, rather than delay probate until two witnesses can be found after the death of the testator. If the decedent lives many years past his or her life expectancy there may not be many people around who can vouch for his or her signature. There are many other provisions of the law, not relevant here, dealing with acknowledgments before a notary (self proving wills), what happens if a will is destroyed or lost, and many other intricacies of interest mainly to lawyers. For purposes of our discussion here, we only need to know that a testator signs at the end of the will.
These simple laws made a big difference in the estate of Jeffrey K. Basner, who died on June 7, 2012, while a resident of West Grove, Chester County, Pennsylvania. On July 7, 1995, Mr. Basner drafted a simple document which stated that at the time of his death he left all of his "worldly possessions" to his mother Ellen. But during an inventory of his possessions after his death, another document was found which stated "at the time of my death, the house goes to Sally Munro." That latter document was not even dated. Sally Munro was the maiden name of the decedent's wife. So the question became, who received what from Jeffrey Basner? Did his mother or his wife receive his estate?
This issue went before the Courts in Chester County, PA a few weeks ago.The court recognized that the law does not require even a date on the will, but they were able to prove the document leaving things to his wife was drafted after the original will in 1995. But was that document leaving everything to his wife a second will? After taking testimony and conducting an examination, the court decided that the second document was a codicil (a minor modification to the original will) and that Mr. Basner's mother received all of his estate except for the house he owned on Sunnyside Rd, and the house went to his wife.
It might seem that justice has been served, but Mr. Basner's frugality probably did more harm than good. The cost of filing the court case in Chester County, at the time of this writing in 2014, starts at $173. The hourly fee for an attorney to try the case usually amounts to between $250 and $450. the money the beneficiaries spent in court over his documents came from their bequest, and they may lose even more if one or both parties appeal to the Pennsylvania Superior Court. Our office drafts a simple will, power of attorney and advance medical directive for $480. and dozens other law firms charge around the same. If someone in your family does not have a will, and you might be a beneficiary, you might want to nudge them toward seeing a lawyer to have it done right.
Stay well until the next post.
Bob Gasparro, Esq.
robert.gasparro@lifespanlegal.com
(484) 451-6612
Section 3132 of Title 20 states that, before the Register of Will will accept the document for probate, all wills must be proved by the oath or affirmation of two witnesses to the testator's signature. Most lawyers figure it is easier to have the two witnesses present at the time the will is signed, rather than delay probate until two witnesses can be found after the death of the testator. If the decedent lives many years past his or her life expectancy there may not be many people around who can vouch for his or her signature. There are many other provisions of the law, not relevant here, dealing with acknowledgments before a notary (self proving wills), what happens if a will is destroyed or lost, and many other intricacies of interest mainly to lawyers. For purposes of our discussion here, we only need to know that a testator signs at the end of the will.
These simple laws made a big difference in the estate of Jeffrey K. Basner, who died on June 7, 2012, while a resident of West Grove, Chester County, Pennsylvania. On July 7, 1995, Mr. Basner drafted a simple document which stated that at the time of his death he left all of his "worldly possessions" to his mother Ellen. But during an inventory of his possessions after his death, another document was found which stated "at the time of my death, the house goes to Sally Munro." That latter document was not even dated. Sally Munro was the maiden name of the decedent's wife. So the question became, who received what from Jeffrey Basner? Did his mother or his wife receive his estate?
This issue went before the Courts in Chester County, PA a few weeks ago.The court recognized that the law does not require even a date on the will, but they were able to prove the document leaving things to his wife was drafted after the original will in 1995. But was that document leaving everything to his wife a second will? After taking testimony and conducting an examination, the court decided that the second document was a codicil (a minor modification to the original will) and that Mr. Basner's mother received all of his estate except for the house he owned on Sunnyside Rd, and the house went to his wife.
It might seem that justice has been served, but Mr. Basner's frugality probably did more harm than good. The cost of filing the court case in Chester County, at the time of this writing in 2014, starts at $173. The hourly fee for an attorney to try the case usually amounts to between $250 and $450. the money the beneficiaries spent in court over his documents came from their bequest, and they may lose even more if one or both parties appeal to the Pennsylvania Superior Court. Our office drafts a simple will, power of attorney and advance medical directive for $480. and dozens other law firms charge around the same. If someone in your family does not have a will, and you might be a beneficiary, you might want to nudge them toward seeing a lawyer to have it done right.
Stay well until the next post.
Bob Gasparro, Esq.
robert.gasparro@lifespanlegal.com
(484) 451-6612
United States Supreme Court Asked To Strike Down Pennsylvania's Funeral Laws.
Two weeks ago, at the Jenkins Memorial Law Library, I taught a course about the laws surrounding death and burial. One topic of interest to the lawyers and judges who enrolled in the course, because of the Constitutional issues involved, was the controversy surrounding Pennsylvania's Funeral Laws. Our laws are in a state of flux following a suit brought by a contingent of funeral directors who are now asking the United States Supreme Court to find them so anti-competitive and protectionist, that they are unconstitutional. On the other hand, the State Board of Funeral Directors and the Commonwealth are trying to defend the laws.
This disagreement started when a York County, PA funeral director named Ernie Heffner challenged some of the state's laws, as well as the actions of the Board of Funeral Directors. Hefner was later joined by consumer groups such as the Funeral Consumers Alliance and the Institute for Justice. He brought suit in federal court where the judge found the Pennsylvania laws, passed in 1952, outdated and patently unconstitutional.
Some of the contested Pennsylvania laws are:
*Every funeral home must have an embalming room, including those funeral homes that engage exclusively in cremations or green funerals, neither of which use embalming fluid.
* The Pennsylvania board is given the authority to inspect funeral homes with no advance warning, and without a warrant.
* Funeral homes are banned from offering food of any kind although there is no proof of any safety concerns. The funeral directors who brought the suit felt that offering some light refreshments might be appropriate to any gathering of family and friends.
* Funeral homes must be named after the current or former funeral director operating them, despite the fact similar rules in other professions have been ruled unconstitutional.
*A wife of a deceased funeral director may continue to operate the funeral home even though she does not hold a license, but that exception does not apply to any other person.
Following defeat in the lower court, the state board appealed to the Third Circuit Court of Appeals who reversed. The Third Circuit agreed that the laws are outdated, but that alone did not make them unconstitutional, with one exception. They struck down the law mandating the funeral home must be named after one of the owners. They correctly held that state law does not in any way serve to protect the public. After all, Ernie Madoff operated under the insignia of his own name, but nevertheless cheated many of his customers. And so, in the months ahead we may see funeral homes with names such as "Happy Ending Funeral Services" or any derivation thereof.
Undaunted by the loss in the Third Circuit, the original plaintiffs have filed a writ of Certiori with the United States Supreme Court and is asking them to weigh in on the issue. The U.S. Supreme Court is not obligated to take every case that is filed with them, and we will see if they take on the Pennsylvania case or allow the antiquated laws to stand.
Stay well until the next post,
Bob Gasparo, Esq.
robert.gasparro@lifespanlegal.com
(484) 451-6612
This disagreement started when a York County, PA funeral director named Ernie Heffner challenged some of the state's laws, as well as the actions of the Board of Funeral Directors. Hefner was later joined by consumer groups such as the Funeral Consumers Alliance and the Institute for Justice. He brought suit in federal court where the judge found the Pennsylvania laws, passed in 1952, outdated and patently unconstitutional.
Some of the contested Pennsylvania laws are:
*Every funeral home must have an embalming room, including those funeral homes that engage exclusively in cremations or green funerals, neither of which use embalming fluid.
* The Pennsylvania board is given the authority to inspect funeral homes with no advance warning, and without a warrant.
* Funeral homes are banned from offering food of any kind although there is no proof of any safety concerns. The funeral directors who brought the suit felt that offering some light refreshments might be appropriate to any gathering of family and friends.
* Funeral homes must be named after the current or former funeral director operating them, despite the fact similar rules in other professions have been ruled unconstitutional.
*A wife of a deceased funeral director may continue to operate the funeral home even though she does not hold a license, but that exception does not apply to any other person.
Following defeat in the lower court, the state board appealed to the Third Circuit Court of Appeals who reversed. The Third Circuit agreed that the laws are outdated, but that alone did not make them unconstitutional, with one exception. They struck down the law mandating the funeral home must be named after one of the owners. They correctly held that state law does not in any way serve to protect the public. After all, Ernie Madoff operated under the insignia of his own name, but nevertheless cheated many of his customers. And so, in the months ahead we may see funeral homes with names such as "Happy Ending Funeral Services" or any derivation thereof.
Undaunted by the loss in the Third Circuit, the original plaintiffs have filed a writ of Certiori with the United States Supreme Court and is asking them to weigh in on the issue. The U.S. Supreme Court is not obligated to take every case that is filed with them, and we will see if they take on the Pennsylvania case or allow the antiquated laws to stand.
Stay well until the next post,
Bob Gasparo, Esq.
robert.gasparro@lifespanlegal.com
(484) 451-6612
Monday, August 11, 2014
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
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