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In very short, my father passed away over two years ago

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Hi Pearl, in very...

Hi Pearl, in very short, my father passed away over two years ago after post surgery complications. I have now 2 years later been approached by his surgeons office as they have been trying to claim a surgery bill through his health fund & medicare and have had no luck so far, and now wish for the estate to pay the bill and do the chasing. Is the estate by law still liable to pay this after all this time?

Lawyer's Assistant: Since estate law varies from place to place, can you tell me what state this is in?

Vic

Lawyer's Assistant: What documents or supporting evidence do you have?

In regards ***** ***** surgery?

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

They have sent me through clinical notes etc which they say will most definitely mean medicare will pay it, but they want us to chase it now as apparently there is a 2year limit which its now past, and medicare will take up to 6 months to approve, which is why they now want us to pay it. My thoughts are if they are the experts why do they now expect me to know how to support the claim?

Submitted: 4 months ago.Category: Australia Law
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Answered in 5 minutes by:
12/6/2017
Solicitor: John Melis, Lawyer replied 4 months ago
John Melis
John Melis, Lawyer
Category: Australia Law
Satisfied Customers: 2,385
Experience: Principal Lawyer at Legal AU Pty Ltd
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Dear customer, my name is***** solicitor in Melbourne, thank you for using Just Answer, I will assist with your question today.

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Solicitor: John Melis, Lawyer replied 4 months ago

has the estate been distributed ?

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Customer reply replied 4 months ago
Hi John, yes over a year ago
Solicitor: John Melis, Lawyer replied 4 months ago

ok

and the final tax return for your late father's estate has been filed with the ATO ?

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Customer reply replied 4 months ago
final tax return was processed through the ato
Solicitor: John Melis, Lawyer replied 4 months ago

ok, this is good.

the fact that the estate as been fianalised, any claim against the estate will lack merit.

however, this does not stop a creditor making a claim against the executor, where they knew of such invoices were pending.

Would you like to discuss this matter on the telephone ? I have extended a special offer to you if you prefer.

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Customer reply replied 4 months ago
I am unable to talk on the phone as I am at work. Back when the estate was being distributed we paid a smaller bill to them for items not covered under the private health insurance, but this one we were completely unaware of, and at no stage at all, not a word has been said to us about this bill matter. over 2 years they have been claiming for this, (surgery performed 5aug15, father passed away 29aug15, estate not distributed until 11nov16)my thoughts are that they have never given us the opportunity to help or support the claim, and now we are finding out about it post their 2 year normal claim process and supposed to sort it out? should they not have brought this forward any time in between the surgery and estate distribution which was well over a year?
Solicitor: John Melis, Lawyer replied 4 months ago

if the executor new there was a bill standing, or forthcoming, which a reasonable person in the executor position would know, then the executor will be personal liable.

I recommend that when you have time, call me, to discuss this important matter by telephone.

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Customer reply replied 4 months ago
My brother and myself were the executors of the will, and can 100% say that we were not aware, nor would we have been made aware as at the time of the surgery my father was still alive. The surgery had my contact details post death as they sent me the other bill because this was not claimable, we were never made aware of this bill because this issue was obviously not foreseen, the surgery should have been completely covered and the surgery was in charge of the claims, not us
Solicitor: John Melis, Lawyer replied 4 months ago

I do recommend that when you have time we discuss by telephone as to the possible solutions and the risks to the executors, when you have time.

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Customer reply replied 4 months ago
Sorry I am unable to call John, which is why I used an online service
Solicitor: John Melis, Lawyer replied 4 months ago

ok, understand.

the hospital will have a claim of right against the executors

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Customer reply replied 4 months ago
its the surgeon claiming his services, which is why my father had the private health insurance. This was under the surgeon's direction in order to get the surgery covered.
Solicitor: John Melis, Lawyer replied 4 months ago

yes, but if there is a debt owed, and the executor new of, or that there was reasonably the possibility that further amounts will become claimable, on a reasonable person test, the executor will be liable.

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Customer reply replied 4 months ago
Okay so under the law 2 years is a reasonable time for us to expect to still get medical bills?
Solicitor: John Melis, Lawyer replied 4 months ago

again this is subject to the facts of the matter at the time of the probate.

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Customer reply replied 4 months ago
post my fathers passing, on the 9th of January 2016 the Surgeon provided us with a bill for services rendered (items not covered under private health insurance) and this was subsequently paid by the estate, that it would be reasonable to assume that the surgery had billed us for everything outstanding in relation to a surgery 5aug2015 and that if anything further was to be billed that it would have been reasonable for us to assume the surgeon would have made us aware of any unpaid bills at the same time. Furthermore that the surgeon has had no further contact or made the estate aware of any further outstanding costs between bill paid January 2016 and new bill correspondence 5dec17?
Solicitor: John Melis, Lawyer replied 4 months ago

i understand the points that you are raising, the only way to properly consider the options is to discuss the matter by telephone.

I can canvass the basis issues in this forum but to narrow down the options you have available it requires verbal communication, which I hope you understand the same.

I have extended a special offer if you wish to consider.

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Customer reply replied 4 months ago
I understand and a lot faster, I will check with my boss
Solicitor: John Melis, Lawyer replied 4 months ago

ok

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Customer reply replied 4 months ago
No my boss wont help as I expected, story of my life
Solicitor: John Melis, Lawyer replied 4 months ago

understand.

we can keep chatting in this forum if you like ?

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Customer reply replied 4 months ago
thank you john I appreciate it and understand it makes it harder
so in short if they provided us with a bill in jan16 based on a surgery from 5aug15, wouldn't it be reasonable that we assumed that was it? and then wouldn't it have been reasonable for us to expect if that wasn't it, that they would alert us to the claim issues earlier than 2 years after the fact? In laments terms in my opinion its now become the "too hard basket" and they want the estate to fix it.
Solicitor: John Melis, Lawyer replied 4 months ago

there is a fiduciary duty by the executor to ensure all debt are paid.

the medical claim if pursued will be raised against the executors in this case, and the executors will be personally liable, subject to a detail assessment of the facts.

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Customer reply replied 4 months ago
okay that's clear. Then the only other question is, can this really be considered a debt. This "debt" has been created because the surgeon hasn't (in medicare and hcf's minds) provided appropriate documentation to support the claim. The surgery has been communicating with medicare & hcf for 2 years without luck, and they have now sent me a letter - stating "I am sure, with the submission of clinical details (the two operative reports are enclosed) Medicare will pay a benefit, and then HCF will pay a benefit" - but they now want us to pay the bill and do the claim because medicare will take 6 months to process. If they are sure with this documentation it will be paid, why have they not submitted these previously in the 2 years they've had to do so??
Solicitor: John Melis, Lawyer replied 4 months ago

This will be considered as a debt, with relevant interest applying.

Statutory limitations period is 6 years.

does this answer your question today ?

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Customer reply replied 4 months ago
in short anybody can send us a bill for up to 6 years post death and there's nothing we can do about it.
Solicitor: John Melis, Lawyer replied 4 months ago

it is subject to the facts of the matter.

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Customer reply replied 4 months ago
you asked at the start if estate had been distributed and if tax return had been done. does this help support us in anyway?
Solicitor: John Melis, Lawyer replied 4 months ago

yes it will subject to the reasonable person test of the executor

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Customer reply replied 4 months ago
okay I understand. One more question and I will leave you be.
In your opinion, given the information I've provided you, do you think if it did go to court we would lose this battle?
Solicitor: John Melis, Lawyer replied 4 months ago

this will be subject to a a detail discussion, but if the reasonable person test is passed then you may have a good case.

does this answer your important questions today ?

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Customer reply replied 4 months ago
not really but its best im going to get it seems.
Thank you for your time john.
Solicitor: John Melis, Lawyer replied 4 months ago

I have extended a special offer to talk on the telephone with a solicitor on your important matter, which is far more cost effective than paying over $300 per hour.

I recommend that you consider this offer, as the only way you will get clarity is to talk directly with a lawyer on the telephone.

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Customer reply replied 4 months ago
I simply cannot talk on the phone, I cannot risk my job.
Solicitor: John Melis, Lawyer replied 4 months ago

you are welcome to call me when you are not working or out of hours as well.

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