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Nursing Home May Sue On Surety Bond For Nonpayment

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When J. Michael Cantore, Jr., was appointed as conservator of the person and estate of Diana Kosminer, he was required to post a bond to help ensure that he would handle her finances properly. The purpose of a “surety” bond (the type usually required of conservators) is to protect the ward; if the conservator misspends money, or invests imprudently, or even steals from the ward, the bonding company will reimburse the ward for any loss and then pursue the conservator for recovery. That way the ward does not bear the loss for the conservator’s mistakes.

In 1989 (two years after the conservatorship was established) Ms. Kosminer moved into a nursing home. She would live in the home for the remaining six years of her life and, as it turned out, the $160,000 in her estate when she entered the facility would not be enough to pay for her care for the entire time.

From the very start Mr. Cantore tried to avoid using Ms. Kosminer’s money for her care. He made no payments to the nursing home, but instead made an application (eight months after her admission to the home) to have the state Medicaid agency pay for her care. That application was denied because Mr. Cantore did not provide the information the state required; if he had completed the application Ms. Kosminer would presumably have been denied because she had too much money to qualify for assistance.

Mr. Cantore tried twice more, unsuccessfully, to get Ms. Kosminer qualified for Medicaid benefits. In 1992, after the nursing home had cared for Ms. Kosminer for almost three years without payment, Mr. Cantore liquidated Ms. Kosminer’s assets and successfully qualified her for Medicaid.

Although Ms. Kosminer was not actually injured by Mr. Cantore’s failure to act properly, the nursing home filed a lawsuit against the conservatorship bond. The facility argued that Mr. Cantore had a duty to use Ms. Kosminer’s money for her care and then, when it ran out, to make a timely and complete Medicaid application. Had that been done, said the nursing home, they would not have lost $63,000 on her care.

The Connecticut courts initially threw the nursing home’s claim out of court because, the court ruled, a third party can not make a claim against the surety bond. The bond, according to that argument, is intended to protect the ward and not the ward’s creditors.

The Connecticut Supreme Court disagreed. It reinstated the lawsuit against the bonding company and ruled that Mr. Cantore had a duty to handle Ms. Kosminer’s finances in a timely and appropriate manner. If the nursing home can show that Mr. Kosminer failed in that duty, it can collect on the conservator’s bond. Jewish Home for the Elderly of Fairfield County v. Cantore, August 14, 2001.

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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.