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Mealey's Elder Law

  • June 22, 2018

    Indiana High Court Says Compromise Chapter Cannot Enforce Pre-Mortem Agreement

    INDIANAPOLIS — A 4-1 Indiana Supreme Court on June 19 reversed an appeals court’s ruling that a woman could use the state’s compromise chapter to enforce an agreement she and her brother entered into before her father’s death, holding that the Legislature intended the chapter to apply to agreements entered into after someone’s death (David Kent v. Cynthia Kerr, No. 55S01-1712-ES-00747, Ind. Sup., 2018 Ind. LEXIS 449).

  • June 20, 2018

    Panel Affirms Vacatur Of $18M Verdict Against Long-Term Care Facility

    FRANKFORT, Ky. — A Kentucky appeals court on June 15 held that a trial court did not err when it vacated an $18 million jury verdict and granted a long-term care facility’s motion for a new trial, finding that an estate’s claims based on Kentucky’s long-term Resident’s Rights Acts could not be submitted to the jury because the resident died before the claims were filed (Patty Jennings, ex rel. Estate of Eliza Jennings v. Berea Area Development, LLC, No. 2016-CA-001823-MR, Ky. App., 2018 Ky. App. LEXIS 185).

  • June 20, 2018

    Maine High Court: Woman Lacked Standing Under Grandparent Visitation Act

    PORTLAND, Maine — A 6-1 Supreme Judicial Court of Maine on June 12 affirmed a trial court judge’s ruling that a woman lacked standing under the Grandparent Visitation Act (GVA) or as a de facto parent to seek visitation of her grandchild, holding that the woman failed to show any “extraordinary contact” with the child (Deborah E. Lamkin v. Corrie L. Lamkin, No. Cum-17-310, Maine Sup., 2018 Me. LEXIS 78).

  • June 20, 2018

    Alabama High Court Affirms Court’s Rejection Of Action Challenging Validity Of Will

    MONTGOMERY, Ala. — The Alabama Supreme Court on June 15 affirmed a lower court’s ruling that rejected an action challenging the validity of a will that was executed in September 2012, finding that there was a disputed factual issue as to the decedent’s competency (Stephen Colley v. The Estate of Sara Dees, et al., No. 1170042, Ala. Sup., 2018 Ala. LEXIS 58).

  • June 18, 2018

    California High Court Won’t Hear Nursing Home Wrongful Death Appeal

    SAN FRANCISCO — The California Supreme Court on June 13 denied a nursing home’s petition for review filed after an appellate panel upheld a lower court judge’s ruling denying the nursing home’s motion to arbitrate a man’s wrongful death claim (Avila v. Southern California Specialty Care, No. S248114, Calif. Sup.).

  • June 15, 2018

    Disabled Class That Wants To Move Out Of Nursing Homes Appeals Dismissal Of Suit

    WASHINGTON, D.C. — A class of people who allege that they have been denied effective transition services by the District of Columbia, resulting in them being stuck in nursing facilities in violation of the integration mandate of Title II of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act, filed a corrected brief on June 6 asking the District of Columbia Circuit U.S. Court of Appeals to remand a lower court’s ruling that dismissed their lawsuit (Ivy Brown, et al. v. District of Columbia, No. 17-7152, D. Cir.).

  • June 15, 2018

    Woman: High Court Should Deny Nursing Home’s Request To Review Arbitration Ruling

    WASHINGTON, D.C. — The U.S. Supreme Court does not need to again review a ruling finding that a woman’s power of attorney (POA) over her now-deceased husband does not subject her personal injury and wrongful death claims against a nursing home to arbitration, the woman says in a May 29 brief filed with the high court, because the Kentucky Supreme Court properly followed the U.S. Supreme Court’s directive in its May 15, 2017, ruling in the case (Kindred Nursing Centers LP v. Beverly Wellner, No. 17-1318, U.S. Sup., 2018 U.S. S. Ct. Briefs LEXIS 2113).

  • June 13, 2018

    Panel: Probate Judge Erred When Appointing Professional Fiduciary As Guardian

    DETROIT — A probate court judge erred when appointing a professional fiduciary to serve as a man’s guardian and conservator, a Michigan appeals court panel ruled June 5, holding that the judge failed to consider the mental competence of the man’s only daughter pursuant to Michigan’s Estates and Protected Individuals Code (EPIC) (In re: Guardianship/Conservatorship of Harold William Gerstler, No. 338935, Mich. App., 2018 Mich. App. LEXIS 2572).

  • June 13, 2018

    Understaffed Nursing Homes Class Complaint Is Dismissed For Lack Of Injury

    LITTLE ROCK, Ark. — An Arkansas federal judge on June 12 granted a motion for judgment on the pleadings by the defendants in a proposed class complaint accusing four nursing homes of failing to adequately staff their facilities, ruling in part that the plaintiffs failed to plead any injuries (James Green, et al. v. Skyline Highland Holdings LLC, et al., No. 17-534, E.D. Ark., 2018 U.S. Dist. LEXIS 98403).

  • June 13, 2018

    Divided 6th Circuit Reverses Dismissal Of Suit Over Senior Center’s Billing

    CINCINNATI — A woman’s False Claims Act (FCA) lawsuit accusing a senior living center of failing to submit to Medicare certifications supporting the need for medical services for patients was reinstated June 11 by a 2-1 Sixth Circuit U.S. Court of Appeals panel, after it found that the woman’s allegations satisfied the act’s requirements for materiality and scienter (United States, ex rel. Marjorie Prather v. Brookdale Senior Living Communities Inc., et al., No. 17-5826, 6th Cir., 2018 U.S. App. LEXIS 15617).

  • June 12, 2018

    Nebraska High Court Vacates Order Allowing Grandparent Visitation To Couple

    LINCOLN, Neb. — A Nebraska couple that was neither the adoptive nor biological parents to a deceased woman’s children cannot have court-ordered visitation with them under the grandparent visitation statutes and Child Custody Jurisdiction and Enforcement Act, the Nebraska Supreme Court ruled June 8, holding that the plain language of the statutes defines a grandparent as the “biological or adoptive parent of a minor child’s biological or adoptive parent” (Frederick Heiden, et al. v. Tracy J. Norris, No. S-17-689, Neb. Sup., 2018 Neb. LEXIS 105).

  • June 11, 2018

    Iowa Appeals Panel Upholds $900,000 Award Following Nursing Home Death

    DES MOINES, Iowa — A $900,000 jury award for the family of a woman who was determined to have died from dehydration due to negligence at the nursing home where she resided was not excessive given “degree of reprehensibility,” an Iowa Court of Appeals panel ruled June 6, affirming a trial court’s order upholding the jury award (Kristine Christensen, et al. v. Good Shepherd, Inc., No. 17-0516, Iowa App., 2018 Iowa App. LEXIS 535).

  • June 11, 2018

    Majority: Application Of Revocation Rule To Policy Does Not Violate Constitution

    WASHINGTON, D.C. — A majority of the U.S. Supreme Court on June 11 found that the retroactive application of Minnesota's revocation-upon-divorce statute to a life insurance policy does not violate the contracts clause of the U.S. Constitution, reversing an Eighth Circuit U.S. Court of Appeals ruling against two individuals named as contingent beneficiaries of their father's life insurance policy (Ashley Sveen, et al. v. Kay Melin, et al., No. 16-1432, U.S. Sup., 2018 U.S. LEXIS 3503).

  • June 11, 2018

    Arkansas Panel: Claims Against Medical Director Not Subject To Arbitration

    LITTLE ROCK, Ark. — An Arkansas appeals court panel on May 23 affirmed the denial of a physician’s motion to compel arbitration of an estate’s claims for negligence and wrongful death, finding that although the doctor was the nursing home’s medical director, the claims brought against him were based on his role as the decedent’s treating physician (Gerald Stipanuk, M.D. v. Songela Williams, No. CV-18-1, Ark, App., 3rd Div., 2018 Ark. App. LEXIS 345).

  • June 6, 2018

    Panel Denies Admission To Probate Of Holographic Writing As Last Will And Testament

    TRENTON, N.J. — A New Jersey appeals panel on May 29 affirmed a lower court’s ruling that denied the admission to probate of a holographic writing as a decedent’s last will and testament, finding that the plaintiff failed to establish by clear and convincing evidence that the writing reflected the decedent’s intention to create a will (In the Matter of the Estate of Alicia A. Heffley, No. A-1025-16T3, N.J. Super., App. Div., 2018 N.J. Super. Unpub. LEXIS 1235).

  • June 6, 2018

    Judge: Defendants Violated Medicaid Act By Failing To Provide Home Health Services

    INDIANAPOLIS — An Indiana federal judge on June 1 ruled that officers of the Indiana Family and Social Services Administration violated the Medicaid Act, the Rehabilitation Act and the Americans with Disabilities Act (ADA), finding that they have failed to provide a quadriplegic with the medical assistance for which she qualifies and, as a result, have institutionalized her against her will (Karen D. Vaughn v. John J. Wernert, M.D., et al., No. 16-03257, S.D. Ind., 2018 U.S. Dist. LEXIS 91670).

  • June 5, 2018

    West Virginia High Court: Nursing Home May Rely On Alternate DPOA’s Authority

    CHARLESTON, W.Va. — A trial court erred when it failed to enforce an arbitration agreement between a nursing home and a resident’s daughter who was an “alternate” durable power of attorney (DPOA) as the nursing home had no evidence that the daughter was exceeding her authority, the West Virginia Supreme Court of Appeals ruled May 30 (AMFM LLC, et al. v. Kimberly Shanklin, No. 17-0096, W.V. Sup., 2018 W. Va. LEXIS 451).

  • June 5, 2018

    Majority Remands For In Camera Review Of Documents In Suit Against Nursing Home

    CLEVELAND — A Ohio appellate court majority on May 24 reversed a lower court’s ruling that denied a nursing home’s motion for a protective order and compelled it to provide discovery of records pertaining to a nonparty nursing home resident who allegedly fatally assaulted another resident, remanding for an in camera review of the documents to determine whether they are undiscoverable (David Howell, Jr. v. Park East Care & Rehabilitation, et al., No. 106041, Ohio App., 8th Dist., 2018 Ohio App. LEXIS 2225).

  • June 4, 2018

    Panel Holds Wife’s Signature Did Not Bind Nursing Home Resident To Arbitration

    PHILADELPHIA — A Pennsylvania appeals panel on May 30 affirmed a trial court’s decision that an estate was not bound to arbitrate a deceased nursing home resident’s negligence claims against the home and its owners, finding that the decedent’s wife lacked the authority to sign the agreement on the resident’s behalf (Elizabeth A. Gross, ex rel. v. Genesis Healthcare Inc., et al., No. 2022 EDA 2017, Pa. Super., 2018 Pa. Super. Unpub. LEXIS 1761).

  • June 1, 2018

    Ruling Reviving Man’s 2005 Will Upheld By Tennessee Appeals Court

    NASHVILLE, Tenn. — A Tennessee appeals panel on May 17 upheld a chancellor’s ruling that a man did not die intestate, finding that a 2005 will could be revived because an original copy of a 2011 will that expressly revoked all other wills and codicils could not be located and because the 2005 will distributed the decedent's property in a manner that was generally consistent with the wishes he expressed close to the time of his death (In re Estate of John Tyler McKelvey, No. M2017-01298-COA-R3-CV, Tenn. App., 2018 Tenn. App. LEXIS 276).