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Conservator Not Liable For Failure To Secure Medicaid Coverage

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J. Michael Cantore, Jr., was appointed as conservator of the person and estate for Diana Kosminer. Shortly after he took responsibility for Ms. Kosminer he arranged for her admission to the Jewish Home for the Elderly of Fairfield County, Inc., a Connecticut nursing home.

Within a year of her admission to the nursing home, Ms. Kosminer was running out of resources. In May of 1990 Mr. Cantore applied for Medicaid’s financial assistance with Ms. Kosminer’s care, but he failed to complete the paperwork necessary to secure eligibility. Eighteen months later, in November, 1991, tried again, but he did not follow through with verification of her assets. Three months after that he applied once more, but the Medicaid agency decided that Ms. Kosminer had too much property to receive benefits.

Five months later Mr. Cantore finally spent Ms. Kosminer’s assets down to the $1,600 level required by Connecticut Medicaid, and applied for (and obtained) Medicaid coverage. For three years (until Ms. Kosminer’s death in 1995), Medicaid subsidized her care.

The nursing home complained about Mr. Cantore’s delay in securing Medicaid eligibility. If he had acted promptly and followed through with the necessary paperwork he could have secured Medicaid assistance shortly after his first application. The result: the nursing home lost $63,000 of income it would have received had Mr. Cantore been a better conservator.

The nursing home filed a complaint against Mr. Cantore with the Connecticut probate court, and asked that his conservatorship bond be charged for the $63,000 shortfall. Both Mr. Cantore and the insurance company which issued his bond objected, arguing that he owed no duty to the nursing home and that Ms. Kosminer actually received excellent care despite his failure to apply for Medicaid in a timely manner.

The Connecticut Court of Appeals threw out the claim by the nursing home, agreeing that Mr. Cantore’s behavior had not harmed Ms. Kosminer. In fact, the court noted, Mr. Cantore had a duty to preserve Ms. Kosminer’s assets, and his failure to spend them more quickly so that she could qualify for Medicaid was not a breach of the duty he owed to her. Since the nursing home had never even threatened to discharge her while her bill was mounting, she had not been injured and the nursing home could not make its claim against Mr. Cantore or his conservatorship bond. Jewish Home for the Elderly of Fairfield County, Inc., v. Cantore, May 30, 2000.

With no Arizona case on point it is difficult to predict how Mr. Cantore would have fared under Arizona law. It seems likely, though, that an Arizona court would agree that Ms. Kosminer was not harmed.

Connecticut does differ from Arizona in two technical aspects: Mr. Cantore’s title would have been “guardian and conservator,” (rather than “conservator of the person and property”) and Ms. Kosminer would have been permitted to retain $2,000 while still qualifying for Medciaid (rather than the $1,600 limit imposed in Connecticut).

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

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Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.