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Cruver v. Mitchell, 289 Ga. App. 145 (2008)

In Cruver v. Mitchell, Medicaid had paid many of Mitchell’s expenses until shortly before the hearing. Appellants, however, had decided to stop her benefits and “just pay for [the expenses] out of pocket,” using money from Mitchell’s bank accounts. Appellants explained that they removed their mother from the Medicaid program so that the State would not seek recovery of her Medicaid expenses by taking possession of her real property.

Appellants apparently feared that, once Mitchell died, the State would make a claim against her estate to recover the Medicaid payments pursuant to OCGA § 49-4-147.1 (a), which establishes an estate recovery program. The program became effective in May 2006, and the statutory framework permits recovery of medical assistance payments made on or after May 3, 2006. See OCGA § 49-4-147.1 (b). Seeking to avoid such a recovery, appellants opted Mitchell out of Medicaid before the program’s effective date. They planned to sell some of Mitchell’s property to a relative to generate income for Mitchell, while keeping the property “in the family.”

At the hearing, the probate court and Mitchell’s court-appointed lawyer expressed concern about appellants’ opt-out decision, questioning whether the decision served Mitchell’s best interest and whether, without the guaranteed Medicaid payments, Mitchell would have enough money to meet her needs. Mitchell’s lawyer also queried whether appellants recognized the various tax consequences of their decision. Agreeing, the Court appointed a county conservator.

We find no abuse here. The evidence showed that appellants opted Mitchell out of Medicaid benefits in order to avoid the estate recovery program. They planned to sell Mitchell’s property to a family member to generate income for her, but presented no testimony or other evidence that, from a financial and tax perspective, showed such a decision was wise or that Mitchell would have sufficient future funds without the Medicaid payments. Moreover, the probate court found that, as heirs-apparent of Mitchell’s estate, appellants, who admittedly sought to protect their mother’s property from the recovery program, had a conflict of interest in the matter. Under these circumstances, the probate court properly exercised its discretion in concluding that the appointment of a neutral, professional conservator would best serve Mitchell’s interests. See In re Moses, supra, 273 Ga. App. at 504 (1).

Note: This decision does not bode well for the substituted judgment rule in Georgia.

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