In re Guardianship and Conservatorship of Blunt, A4-04-119.
| Citation | 358 F.Supp.2d 882 |
| Decision Date | 15 February 2005 |
| Docket Number | No. A4-04-119.,A4-04-119. |
| Parties | In the Matter of the GUARDIANSHIP AND and CONSERVATORSHIP OF Edwin BLUNT, an incapacitated person. |
| Court | United States District Courts. 8th Circuit. United States District Court of North Dakota |
Peter Haroldson Furuseth, Williston, ND, for Plaintiff.
Shon Hastings, U.S. Attorney's Office, Fargo, ND, for Defendant.
This case was commenced by the filing of a petition in state district court for Williams County North Dakota on behalf of Edwin Blunt ["Blunt"], an incapacitated veteran, by his guardian and conservator Grant P. Archer ["Petitioner"]. The petition, which is dated August 10, 2004, alleges that the United States Department of Veteran's Affairs ["VA"], an agency of the United States, unlawfully stopped direct depositing Blunt's VA benefits into a fiduciary account established by Petitioner. While not named as parties, there is no question that the petition seeks affirmative relief from the VA or its Secretary ["Secretary"]. The petition requests court intervention and "enforcement" and was served upon the VA along with a notice scheduling a hearing for September 30, 2004.1
Prior to the scheduled hearing, the United States removed the petition to this court. On October 29, 2004, this court denied Petitioner's motion for remand concluding the court has jurisdiction over the removed petition. Subsequently, upon consent of the parties, the case was referred to the undersigned to conduct all further proceedings.
A short bench trial was held on the petition on January 19, 2005. Attorney Peter H. Furseth appeared for Petitioner. Assistant United States Attorney Shon Hastings appeared for the VA. The trial consisted of the testimony of three witnesses and the introduction of a handful of exhibits.
Petitioner is the Public Administrator for Williams County, North Dakota. As Public Administrator, he provides fiduciary assistance, such as acting as a conservator or guardian. Petitioner has served as the Public Administrator for Williams County since 1989.
Petitioner is the court-appointed conservator and guardian for Edwin Blunt, a mentally incapacitated veteran. Petitioner was appointed Blunt's conservator and guardian by the state district court for Williams County, North Dakota in late 2002. Shortly after his appointment, Petitioner moved Blunt out of his home in Williston, North Dakota and into the Eastern Montana Veterans Home at Glendive, Montana. The Eastern Montana Veterans Home ["Veterans Home"] is a private, not-for-profit residential nursing facility that serves veterans and their spouses.
Soon after his appointment, Petitioner established a fiduciary account into which Blunt's VA benefits were direct deposited. Petitioner used the VA benefit money, along with Blunt's social security benefit money ["SSN benefits"], to pay for Blunt's care at the Veterans Home.
For most of the period of time that Blunt has been at the Veterans Home, the monthly cost for his care has exceeded his available resources, which primarily has been limited to his monthly VA and SSN benefits. When this has occurred, Blunt has become eligible for Medicaid for so long as the total amount of his available resources during any month has not exceeded $2000. When Blunt is eligible for Medicaid, Blunt normally is required to pay the Veterans Home what he receives in VA and SSN benefits, less Petitioner's 5% administration fees. When the Veterans Home receives the money, $90 per month is set aside in an account at the Veterans Home for Blunt's personal use. The remainder is applied to the cost of his monthly care with Medicaid reimbursing the Veterans Home for the difference (less a monthly payment that the VA makes directly to the nursing home) based upon a daily "Medicaid rate" that is somewhat lower than the daily "private pay" rate.
After Blunt first became Medicaid eligible, there have been two occasions when he has not qualified for Medicaid because his combined resources exceeded the eligibility threshold. The first time was for several months in early 2004. The exact reason for his ineligibility at that time is not entirely clear, but it appears to have been the combined result of an accumulation of monthly VA and SSN benefit money with a several month hiatus in Petitioner not making Blunt's monthly payments to the Veterans Home because of billing issues. The second time was later in 2004 after Blunt received a one-time reimbursement for past VA benefits that resulted from a retroactive increase in benefits. Currently, Blunt is on "private pay" status with the Veterans Home. However, he will again become Medicaid eligible once the residual from this one-time payment has been exhausted to pay for his care at the Veterans Home since each month a portion of the one-time payment is being consumed for his monthly care.
Initially, for reasons that are not entirely clear, the VA was unaware that Petitioner was administering Blunt's VA benefits and that Blunt had been placed in the Veterans Home. At some point, during a discussion with North Dakota VA personnel about other veterans under his care, Petitioner advised he was also administering Blunt's estate, including Blunt's VA benefits, but that he had not yet been officially designated by the VA as the authorized payee. Petitioner advised the North Dakota VA personnel he was uncomfortable about this situation and was told by the VA personnel that they would take care of it. During or about the same time, Kate Porter, who works in the business office for the Veterans Home, questioned VA personnel as to why Blunt had not qualified for a larger VA pension and was advised by VA personnel that they did not show Blunt in their system as being in a nursing home. An application for increased benefits was then submitted to the VA on Blunt's behalf. Whether it was the result of Petitioner's contact with VA personnel or Kate Porter's contact questioning the amount of Blunt's benefits, or both, the VA's Fiduciary and Field Examination Unit in North Dakota requested in April 2004 that a field examination and report be prepared for Blunt.
The Fiduciary and Field Examination division of the VA administers the VA's Fiduciary Program, which, in part, is charged with responsibility of looking after the welfare of those receiving VA benefits. The VA's Fiduciary Program includes advising beneficiaries of their eligibility for VA and other federal and state benefits, assessing the competency of VA beneficiaries and determining whether they need assistance in managing their benefits, and determining the person or entity who is best suited to be the payee of the beneficiaries' benefits.
The field examination requested by the North Dakota VA Fiduciary and Field Examination Unit was conducted by Montana VA field examiner Colleen Grandy. Her examination included a trip to the Veterans Home on May 21, 2004, during which she visited with Blunt and also with the administrator and the business manager of the Veterans Home. Following her examination and assessment, Grandy recommended that the administrator of the Veterans Home ["Veterans Home Administrator" or "Administrator"] be designated as the payee of Blunt's veteran benefits and that the direct deposit of benefits into the fiduciary account administered by Petitioner be terminated.
The last direct deposit that was made to the fiduciary account administered by Petitioner was on or about June 1, 2004. Thereafter, the VA paid the monthly benefits to the Veterans Home Administrator pursuant to Grandy's recommendation that the Administrator be designated as the payee.
Grandy prepared a form report (exhibit 10) in which she designated the Veterans Home Administrator as the authorized payee of the Veterans Benefits. In making the designation, she checked the box on the form that indicated this was the "INITIAL" designation and not a "SUCCESSOR" designation, which was another option, among others, on the form. Petitioner does not dispute that this determination was the VA's first official designation of an authorized payee for Blunt's benefits after he was determined to be incapacitated by the VA.
Grandy also prepared a two-page written memorandum (exhibit 11) summarizing the results of her investigation and also restating her recommendation regarding who should be the designated payee. This memorandum, which is undated, was apparently finalized after the VA acted upon Grandy's recommendation that the Veterans Home Administrator be designated as the authorized payee. This is because the memorandum references a telephone call that Grandy had with Petitioner during which Petitioner provided Grandy with the balance in Blunt's fiduciary account as of July 19, 2004, which was after the first receipt of the monthly VA benefit funds by the Veterans Home directly from the VA, and during which Petitioner complained about the fact that he had not been designated as the authorized payee of Blunt's VA benefits.
Neither Grandy, nor anyone else at the VA, consulted with Petitioner prior to designating the Veterans Home Administrator as the authorized payee. Petitioner first discovered he had not been designated the authorized payee when the monthly deposits of VA benefits to the fiduciary account administered by him ceased.
In her written memorandum, Grandy, among other things, made the following findings, conclusions, and recommendation:
a. Grandy determined that Blunt lacked the capacity to manage his VA benefits and also stated the following:
The [Veterans Home] staff stated that his guardian/conservator has been very difficult to deal with. They have made numerous calls to him requesting information or funds and he either will not call them back, or he is gruff with them.
b. Grandy discussed her telephone call with Petitioner writing in part:
VA benefits are $1375/mo which are going direct deposit to the Guardian in a North...
To continue reading
Request your trial
-
Rochester-Genesee Regional Transp. v. Hynes-Cherin
...and noting that "no party has contested" the information contained in the evidence); In re Guardianship and Conservatorship of Blunt, 358 F.Supp.2d 882, 893 (D.N.D.2005) ("courts have held that consideration of after-the-fact affidavits or testimony is sometimes necessary for background pur......
-
Judkins v. Veterans Admin.
...Court of Appeals for Veterans Claims." Id. at *1. By contrast, the district court in In re Guardianship and Conservatorship of Edwin Blunt, 358 F.Supp.2d 882 (D.N.D. 2005) (Miller, M.J.), determined that there was subject matter jurisdiction over a challenge to the VA's decision to make vet......
-
Williamson v. Sec'y of Veteran Affairs
...108 S.Ct. 1372, 99 L.Ed.2d 618 (1988) ; Devine v. Cleland , 616 F.2d 1080 (9th Cir.1980) ; In re Guardianship and Conservatorship of Blunt , 358 F.Supp.2d 882 (D.N.D.2005). However, it is the substance of the claims not the style that determines whether a court has jurisdiction as "the stat......
-
Allen v. Shinseki, CIVIL NO.: WDQ-12-0269
...(1963) (internal quotation marks and citations omitted). 17. See, e.g., ECF No. 14 at 1. 18. In re Guardianship & Conservatorship of Blunt, 358 F. Supp. 2d 882 (D.N.D. 2005), is not to the contrary. In Blunt, the court relied on § 702 in exercising subject matter jurisdiction over a veteran......