Incapicated Beneficiary

[Guest susanyb]

A surviving spouse is offered COBRA. She is 79 years old. The last day to enroll was 7-3-04. It is now 8-11-04 and her son-in-law has come to visit from out of town and calls about her COBRA coverage.

He said she is incompetent and unable to understand the COBRA paperwork she received - but now that he is here he wants to make an election for her. She has not been declared incompetent by any court, nor does she have anyone court appointed to handle her affairs - she is just old (we're all going to be there some day.)

I know he can make the election for her - my question is since we are past the 60 day election period is there anything we can do?

I have read the court cases - but none seem to address the fact that her election period has passed.

Opinions?

[oriecat]

If you want to be nice and allow him to enroll her, and if your insurance carrier agrees to it, then I don't see any reason that you can't allow it. To my knowledge, the regs allow 60 days for election, but I don't think they say you can't allow longer. Again, only if the carrier agrees of course. But due to her age, she will probably be a high claims risk, so the carrier might not want to allow it, and you should also consider that in your decision. Also if you allow it for her, will you need to allow others more time also?

[david rigby]

Precedent? either way?

Plan provisions?

[jeanine]

I seem to recall a case (I have no citation) where the QB was incapacitated due to being in a coma. The court held she did not receive notice. I believe the issue was, and might be in this case, whether sufficient notice is given due to the fact the QB was incapacitated. I'd ask the son to produce some proof of incapacity then allow her to enroll.

[papogi]

I never let 60 days pass without seeing my mom (yes, she shows me mail such as this to get my opinion on things), and she’s not incapacitated. If this woman is truly incapacitated, why is she being left alone for 2 months at a time, or having no one read her mail on a regular basis? Just a comment on the side...

[Guest llerner]

It is not her fault she has a bad family. Many do not have responsible children though i think to offer documentation of incapacity mentioned earlier would be the way to handle it. My elderly mom lives attached to me but most don't do that

She could be incapacitated and left alone, there are many types of families or maybe a recent development and he lives out of town & wsn't aware of it. Either way substantiation of incapacity is key.

[ERISAatty]

A few cases have held that either the COBRA 60-day election period, or the 30-day payment periods have been tolled by incapacity, respectively. See, e.g. Sirkin v. Phillips Colleges, 779 F. Supp. 751 (N. J. D. 1991); Branch v. G. Bernd Co., 955 F.2d 1574 (11th Cir. 1991).

Hope this is helpful.

[Kirk Maldonado]

The comments by ERISAatty shouldn't be interpreted as implying that in most cases the argument for the tolling of the deadline was rejected (so that tolling of the deadline was accepted only in a few cases). Rather, I believe what ERISAatty meant was that this issue has been presented to the courts only a few times, which is true.