DaRonco, Matter of
| Decision Date | 18 December 1995 |
| Citation | 638 N.Y.S.2d 275,167 Misc.2d 140 |
| Parties | , 50 Soc.Sec.Rep.Ser. 476 In the Matter of Dianne DaRONCO, Petitioner, for Conversion of a Conservatorship to a Guardianship of the Person and Property of Joseph L. DaRonco, a Previously Adjudicated Incompetent Person. |
| Court | New York Supreme Court |
Keane & Beane, P. C. (Steven A. Schurkman and Donna E. Frasco, of counsel), White Plains, for petitioner.
Dianne DaRonco, the court-appointed conservator of her husband, Joseph L. DaRonco, has petitioned (1) to convert the conservatorship of her husband to a guardianship of the person and property pursuant to Mental Hygiene Law Article 81; (2) to empower her, as guardian, to continue his history of consistent financial support to his wife and his son; and (3) to authorize her to transfer his assets to her as his wife (a) consistent with appropriate estate planning for Medicaid qualification and (b) in furtherance of, and to ensure, his estate plan.
A hearing on this petition was held before the Court at which the presence of Joseph L. DaRonco was and waived at which time various relief was granted. There was no opposition to any aspect of the petition. The Court Evaluator, Jeffrey S. Shumejda, Esq., in his report dated November 3, 1995, supports the granting of the requested relief.
The Court reserved decision, however, on that branch of the petition which sought authorization to transfer assets to the conservator (guardian) wife, etc.
Joseph L. DaRonco is a 56 year old man, the husband of Dianne DaRonco and the father of their one child, Joseph L. DaRonco, II, who is now 15 years old. Mr. DaRonco suffers from irreversible brain damage following complications during surgery to remove an acoustic neuroma. He suffers from spastic paralysis and severe physical and cognitive impairment. There is little or no hope for improvement in his condition.
Mr. DaRonco now resides in the Skyview Nursing Home, Croton-on-Hudson, New York, after transfer on January 31, 1994 from the Head Injury Recovery Center at Hillcrest, Milford, Pennsylvania, where he had been admitted as an inpatient on August 31, 1992. The daily costs of his care are $246.50, which does not include his additional medical costs. These costs are presently paid from funds in the conservatorship (guardianship). Before suffering his disability, Mr. DaRonco was the principal wage earner and source of support of his family, and the family lived in their own home at 2431 Mohansic Avenue, Yorktown Heights, New York, where Mrs. DaRonco and their son still reside.
The estate of Mr. DaRonco at the time he incurred his disability was substantial, as is set forth in the accountings which have been filed. However, Mr. DaRonco's monthly income totals $1,897.00, while the cost of nursing home care alone averages $7,395.50 per month. At this rate, the estate will be depleted in less than seven (7) years. Then, not only will Mr. DaRonco be indigent and supported by Medicaid, but Mrs. DaRonco, who devotes herself to the care of her husband and son, will, along with her son, be destitute as well.
To avoid this economic ruin, Mrs. DaRonco seeks to receive authorization as guardian pursuant to Article 81 of the Mental Hygiene Law, as well as New York case law, to transfer or gift Mr. DaRonco's assets to herself as his spouse. Whereupon, she shall exercise her right of spousal refusal to make those assets available for Mr. DaRonco's support. This will result in Mr. DaRonco's immediate qualification for Medicaid.
This procedure was explained in the decision of Justice Leone in Matter of Parnes (Supreme Court, Kings County, N.Y.L.J., Nov. 2, 1994, p. 32, col 2):
Walter Parnes also seeks such transfer in order for his wife's nursing home costs to be covered by Medicaid. Such an inter-spousal transfer would not result in any Medicaid penalty period, i.e., a period of time which an individual would be forced to wait (depending on the amount transferred) before becoming eligible for Medicaid nursing facility services (see, Social Services Law § 366[5][d][3][ii][A] ). Walter Parnes, however, has assets exceeding the maximum community spouse resource allowance, which currently is $76,660.00 (see, 94-ADM 1 [Feb 1994]. Social Services Law § 366-c(5), in pertinent part, provides:
Notwithstanding this provision, an institutionalized spouse is not rendered ineligible for Medicaid by reason of the community spouse having resources in excess of the community spouse resource allowance if the community spouse exercises his or her right of spousal refusal. The right of spousal refusal is a well established doctrine in Federal and New York State law. Such doctrine was codified in the Federal Medicaid statute, 42 USC § 1396r-5(c)(3), and, in New York State, in Social Services law § 366-c(5)(b), which provides:
"An institutionalized spouse shall not be ineligible for medical assistance by reason of excess resources determined under paragraph (a) of this subdivision, if the institutionalized spouse executes an assignment of support from the community spouse in favor of the social services district and the department or the institutionalized spouse is unable to execute such assignment due to physical or mental impairment or to deny assistance would create an undue hardship, as defined by the commissioner."
The doctrine of spousal refusal is further embodied in New York law by Social Services Law § 366(3)(a), which provides:
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Commissioner of Dept. of Social Services of City of New York v. Spellman
...because he exercised his right of spousal refusal ( § 1396r-5(c)(3); SSL § 366(3)(a), § 366-c(5)(b)). See also Matter of DaRonco, 167 Misc.2d 140, 143, 638 N.Y.S.2d 275 Mr. Spellman moves to dismiss, claiming that the only provision in the Medicaid Act regarding recovery of Medicaid benefit......
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Shah, In re
..."look-back" period is not a factor (see, Social Services Law § 366[d][ii][A]; 42 USC § 1396p[c][B][i]; see also, Matter of DaRonco, 167 Misc.2d 140, 142, 638 N.Y.S.2d 275). Analytically, then, the present case is essentially indistinguishable from Matter of XX. (John) (supra), and we are in......