PETITION OF ESTATE OF THEA BRAITERMAN (New Hampshire Department of Health and Human Services)
Argued: May 11, 2016
of Health and Human Services
Braiterman Law Offices, of Concord (David J. Braiterman on
the brief and orally), for the petitioner.
A. Foster, attorney general (Megan A. Yaple, attorney, on the
brief and orally), for the New Hampshire Department of Health
and Human Services.
petitioner, the Estate of Thea Braiterman, filed a petition
for writ of certiorari challenging a final decision of the
Administrative Appeals Unit (AAU) of the New Hampshire
Department of Health and Human Services (DHHS), that upheld
the determination that the applicant, Thea Braiterman, was
ineligible for Medicaid-Old Age Assistance (Medicaid-OAA)
benefits because her assets exceeded the eligibility
threshold. See Sup. Ct. R. 11; see also 42
U.S.C. § 1396p(h)(1) (2012) (explaining that, for the
purpose of determining Medicaid eligibility, the term
"'assets'" includes "all income and
resources of the individual and of the individual's
spouse"). On appeal, the petitioner contends that the
AAU erroneously found that the Thea G. Braiterman Irrevocable
Trust (the Trust) was includable as an asset for the purpose
of determining the applicant's eligibility for
Medicaid-OAA benefits. The petitioner has argued, and DHHS
has not disputed, that the petitioner's challenge is not
moot even though the applicant is now deceased. Assuming
without deciding that the petition is not moot, we deny the
petition for a writ of certiorari.
applicant created the Trust in 1994, naming herself and her
son, David J. Braiterman, as trustees. The applicant resigned
as a trustee in 2008. However, the Trust authorized the
applicant to appoint additional and successor trustees, and
the petitioner acknowledges that the applicant could have
resumed service as a trustee by appointing herself as an
additional or successor trustee.
Trust named the applicant's children - David, Ken
Braiterman, and Marta Tanenbaum - as the
"Legatees." Ken has since died, leaving no issue.
Thus, David and Marta are the remaining Legatees.
the Trust was created, the applicant granted it all of her
real property interests, her personal property interests, and
$1.00. The real property included the furnished home in which
the applicant and her husband lived. The applicant and her
husband lived in the home rent-free until he died in 2004. At
some point after her husband died, the applicant moved into
an assisted living facility. Thereafter, the furnished home
was sold, and, in 2009, the sale proceeds were transferred to
an investment account.
2009, the investment account contained approximately $189,
000. By November 2013, the account contained between $130,
000 and $135, 000. Between 2009 (when the applicant entered
assisted living) and 2012, regular disbursements from the
Trust were made to undisclosed recipients for undisclosed
reasons. According to the AAU, the petitioner
"equivocated" as to whether either David or Marta
used any of the disbursements from the Trust to fund the
applicant's expenses. DHHS has not inquired as to whether
the disbursements were used to benefit the applicant.
applicant resided in a nursing home from January 2014 until
her death in March 2016. In February 2014, she applied for
Medicaid-OAA. In March 2014, DHHS denied her application on
the ground that her assets, which included the Trust (then
valued at $156, 000), were "more than the limit set
for" Medicaid-OAA. The applicant appealed DHHS's
decision to the AAU. Following a hearing, the AAU upheld the
determination that the Trust was includable as an asset for
the purpose of assessing whether the applicant was eligible
for Medicaid-OAA benefits. The applicant unsuccessfully moved
for rehearing, and this petition followed.
Trust Agreement contains 11 clauses, not all of which are
relevant to this appeal. The Trust Agreement refers to both
the applicant and her son, David, as "Trustee." The
applicant is also referred to as "Donor, " and
David is listed as one of the "Legatees."
3 concerns the applicant's reserved powers and rights as
the donor of the Trust. Under Clause 3.1, the applicant
reserved the right "to alter the order and number of the
successor Trustees . . . or to name additional Trustees or
successor Trustees." In Clause 3.2, the applicant
reserved "the power, exercisable at any time . . ., to
appoint any part or all of the undistributed income of the
Trust Fund to any one or more of the Legatees, "
including "the power to make lifetime gifts." In
Clause 3.3, the applicant reserved "the power,
exercisable at any time . . ., to appoint any part or all of
the principal of the Trust Fund, outright or upon trusts,
conditions or limitations, to any one or more of the
Legatees, " including "the power to make lifetime
gifts." Under Clause 3.7, the applicant reserved
"the power to require the Trustee to accumulate any or
all of the income of the Trust Fund."
3.6 provides that the applicant did "not retain any
interest in the principal or income" of the Trust
"by express reservation or by agreement between or
among, or assumption of, " the applicant, the trustee,
and the Legatees. Clause 3.8 provides that the applicant did
"not reserve any power or authority whatever to revoke
or amend any provision" of the Trust Agreement.
4 concerns dispositions from the Trust during the
applicant's lifetime. Pursuant to Clause 4.1, during the
applicant's lifetime, the Trustee could "distribute,
from time to time, to and among any one or more of the
Legatees as may be living, so much of the principal or income
of the Trust Fund at such time or times and in such amounts
and proportions" as the trustee, in his or her
"uncontrolled discretion, [deemed] advisable."
Clause 4.1.1 provides:
If, at any time during the lifetime of the [applicant], the
[applicant] may lose or may lose eligibility for substantial
cash benefits or medical or other services by reason of the
existence, size or terms of this Trust, the [applicant]
suggests that the Trustee consider taking action to terminate
the Trust by distributing the principal and accumulated
income of the Trust Fund, if in the judgment of the Trustee
such loss of eligibility would likely necessitate
expenditures from the Trust for or on behalf of the
[applicant] at a rate expected to deplete the Trust
substantially and to defeat its supplemental and long-term
purposes. The [applicant] expresses the hope that if the
Trust is terminated during the lifetime of the [applicant],
any persons taking under this paragraph will use a portion of
her gift to supplement the income and the governmental
benefits and services to which the [applicant] may be
entitled by reason of age, disability or otherwise. It is not
the intention of the [applicant], however, to impose any
legal obligation or trust.
Clause 7.13 provides:
Notwithstanding any other provisions of this instrument
except as specifically set forth herein, the discretionary
power of the Trustee . . . to distribute principal or income
or to determine the size of any such distribution shall not
be exercised or exercisable by any Trustee in a manner that
will benefit the Trustee personally or anyone whom the
Trustee has a legal obligation to support . . . .
A.Standards of ...