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Mealey's Elder Law

  • December 12, 2018

    Transfer Of Conservatorship Estate Assets To Trust Was Void Ab Initio, Panel Says

    HARTFORD, Conn. — A Delaware appeals court on Dec. 11 found that a co-conservator of an elder’s estate has statutory standing to bring a declaratory judgment action on behalf of the estate and the transfer of the assets of the estate to an irrevocable trust was void ab initio, affirming the lower court (Margaret E. Day v. Renee F. Seblatnigg, et al., No. AC 38734 Conn. App., 2018 Conn. App. LEXIS 459).

  • December 10, 2018

    North Carolina High Court: Jury Should Determine Intent Of Handwritten Codicil

    RALEIGH, N.C. — The North Carolina Supreme Court on Dec. 7 overturned an appeals court’s decision to vacate a ruling awarding summary judgment to a man, finding that a jury should determine if a handwritten phrase on his uncle’s will stating “begin[n]ing 7-7-03” establishes testamentary intent to disinherit two women from his will (In the matter of will of James Paul Allen, No. 227PA17, N.C. Sup., 2018 N.C. LEXIS 1030).

  • December 10, 2018

    Panel Affirms Dismissal Of Nursing Homes’ Suit Alleging Wrongful Denial Of Medicaid

    RICHMOND, Va. — The Fourth Circuit U.S. Court of Appeals on Dec. 6 affirmed a lower federal court’s dismissal of nursing homes’ lawsuit alleging that the secretaries of Maryland’s Department of Human Services and Department of Health wrongfully denied 11 of their residents Medicaid benefits in violation of the 14th Amendment to the U.S. Constitution and other federal statutes, finding that the 11th Amendment bars the constitutional and Medicaid Act claims (Wicomico Nursing Home, et al.  v. Lourdes R. Padilla, et al., No. 17-1972, 4th Cir., 2018 U.S. App. LEXIS 34382).

  • December 7, 2018

    Companies Deemed Alter Egos; Remand Ordered In Suit Over Elder Care

    RALEIGH, N.C. — A North Carolina federal judge on Dec. 4 remanded a putative class suit accusing two entities accused of failing to provide sufficient care in two North Carolina assisted living facilities, ruling that both companies are alter egos of each other and must be bound by a form-selection clause signed by one (Michelle Mullen, et al. v. Saber Healthcare Group, LLC, et al., No. 18-317, E.D. N.C., 2018 U.S. Dist. LEXIS 204591).

  • December 7, 2018

    Probate Exception Barred Heir’s Suit Against Executor, 11th Circuit Finds

    ATLANTA — A federal judge in Georgia did not err when dismissing an heir’s lawsuit accusing her brother of breaching his fiduciary duty as the executor of their father’s estate pursuant to the probate exception to federal jurisdiction, an 11th Circuit U.S. Court of Appeals panel ruled Dec. 4, holding that the relief sought by the plaintiff would have required the federal court to conduct tasks reserved for the state probate court (Pamela Hatcher Stuart v. William G. Hatcher Jr., No. 18-12231, 11th Cir., 2018 U.S. Dist. LEXIS 34078).

  • December 6, 2018

    Judge Dismisses Government’s Suit Against Special Administrator Of Man’s Estate

    GREENBELT, Md. — A federal judge in Maryland on Dec. 3 dismissed a suit brought by the United States against the special administrator of a man’s estate seeking a judgment against him for past due taxes, holding that the special administrator is not a proper defendant because special administrators lack the authority to defend a lawsuit or litigate actions on behalf of an estate (United States v. Timothy O’ Brien, et al., No. PWG-17-1007, D. Md., 2018 U.S. Dist. LEXIS 203841).

  • December 4, 2018

    Disabled Elders’ Transfers To Pooled Trusts Required Delay In Medicaid Eligibility

    DES MOINES — A majority of the Iowa Supreme Court on Nov. 30 held that a lower court properly interpreted the Federal Medicaid Act in agreeing with the Iowa Department of Human Services’ finding that transfers of more than a half a million dollars to pooled special needs trusts were for less than fair market value and required a delay in disabled elders’ eligibility for Medicaid benefits (Susan E. Cox, et al. v. Iowa Department of Human Services, No. 18-0026, Iowa Sup., 2018 Iowa Sup. LEXIS 105).

  • December 3, 2018

    Appellant To 1st Circuit: Beneficiaries Not Bound By Decedent’s Agreements

    BOSTON — A Massachusetts federal judge erred in finding that a beneficiary’s wrongful death claim derives from his or her decedent and that a decedent’s arbitration agreement can therefore be imputed to his or her beneficiary, a beneficiary told the First Circuit U.S. Court of Appeals on Nov. 29 (GGNSC Administrative Services LLC, et al., v. Jackalyn M. Schrader, No. 18-1779, 1st Cir.).

  • November 30, 2018

    Arkansas Appeals Panel Finds Nursing Home’s Arbitration Agreement Lacks Mutuality

    LITTLE ROCK, Ark.  — An Arkansas appeals panel on Nov. 28 upheld a trial court’s ruling denying a nursing home’s motion to compel arbitration, finding that the agreement was unenforceable because it lacked mutuality (Hickory Heights Health and Rehab LLC, et al. v. Lemarion Adams, No. CV-18-380, Ark. App., 4th Div., 2018 Ark. App. LEXIS 689).

  • November 29, 2018

    Trustee Alleges Insurers Inflated Costs, Asserts UCL, Elder Abuse Violations

    SAN FRANCISCO — A trustee for a survivor’s trust on Nov. 27 sued various insurers in a California federal court, alleging that they committed financial elder abuse and violated California’s unfair competition law (UCL) by grossly inflating the replacement costs of his grandparents’ property (Richard P. Parducci v. Overland Solutions, Inc., et al., No. 1:18cv7162, N.D. Calif.).

  • November 29, 2018

    Judge: Death Certificate Can Defeat Nursing Home’s Summary Judgment Motion

    WICHITA, Kan. — A federal judge in Kansas on Nov. 19 granted in part and denied in part a motion for summary judgment filed by a defendant nursing home in a wrongful death suit, holding that an amended death certificate, rather than the testimony of two nurses, can be used to establish a triable issue as to whether a woman’s fall caused her death (Mark Funk, et al. v. Pinnacle Health Facilities XXXII LP, et al., No. 17-1099-JTM, D. Kan., 2018 U.S. Dist. LEXIS 196660).

  • November 29, 2018

    Nursing Facility Owed Costs Under Admission, Financial Agreement, Panel Affirms

    SEATTLE — An estate must pay a nursing facility costs under the terms of an admission and financial agreement, a Washington appeals panel held Nov. 26, remanding for entry of findings of fact and conclusions of law on the reasonableness of an award of attorney fees and costs (In re estate of Lawrence X. Sullivan; Stafford Health Services Inc. v. The estate of Lawrence X. Sullivan, et al., No. 77166-3-I, Wash. App., Div. 1, 2018 Wash. App. LEXIS 2660).

  • November 28, 2018

    Court Holds Confirmation Of Arbitral Award For Estate Was Not Appealable

    LOS ANGELES — A California court on Nov. 26 dismissed an appeal filed by a nursing home and another entity of a trial court’s decision to confirm an arbitral award for the daughter of a woman who died after a lack of appropriate care of a pressure sore while at the nursing home, holding that the order was not appealable because a claim that was stayed pending the arbitration remains between the parties (Patricia Porter, et al. v. AG Arcadia, LLC, et al., No. B285461, Calif. App., 2nd Dist., Div. 1, 2018 Cal. App. Unpub. LEXIS 7920).

  • November 26, 2018

    Panel Agrees: Nursing Home Prevails On Age Discrimination Claim

    NEW ORLEANS — A former nursing home dietary manager failed to establish that her firing was a result of age discrimination, the Fifth Circuit U.S. Court of Appeals ruled Nov. 20 in an unpublished, per curiam ruling (Annette Benjamin v. Felder Services L.L.C., No. 17-60662, 5th Cir., 2018 U.S. App. LEXIS 32854).

  • November 26, 2018

    Franchisee Worker’s Age Bias Suit Reinstated By California Appellate Panel

    LOS ANGELES — A California Second District Court of Appeal panel on Nov. 20 reversed a summary judgment ruling for a McDonald’s franchisee in an age bias suit brought by a former employee, finding triable issues of material fact (Jeanine Denise Morgan v. JCAL, Inc., et al., No. B276474, Calif. App., 2nd Dist., 2018 Cal. App. Unpub. LEXIS 7821).

  • November 21, 2018

    Judge Approves $4.25M Settlement In Dispute Over Retirees’ Health Benefits

    DETROIT — A Michigan federal judge on Nov. 19 approved a $4.25 million class action settlement in a dispute over the continuation of health benefits for retirees of the city of Pontiac, Mich. (The City of Pontiac Retired Employees Association et al., v. Louis Schimmel, et al., No. 12-12830, E.D. Mich.).

  • November 21, 2018

    Court Issues Restraining Order Prohibiting Alleged Mail Fraud Schemes

    WASHINGTON, D.C. — The U.S. Department of Justice (DOJ) on Nov. 19 said a federal court in New York has granted its request for a temporary restraining order, enjoining multiple individuals and corporations from engaging in ongoing alleged mail fraud schemes that targeted the elderly and vulnerable and grossed approximately $4.8 million in proceeds (United States v. Kafeiti, et al., No. 2:18cv6581, E.D. N.Y.).

  • November 20, 2018

    Alaska High Court Refuses To Overturn Order Vacating Adoption

    ANCHORAGE, Alaska — The Alaska Supreme Court on Nov. 16 affirmed a trial court’s decision vacating an adoption by foster parents, agreeing with the trial court that the foster parents materially misrepresented their intent on facilitating visitation and a relationship with the children’s grandparents (In re Matter of the Adoption of E.H. and J.H., Nos. S-16710, No. 7316, Alaska Sup., 2018 Alas. LEXIS 173).

  • November 20, 2018

    Nebraska High Court Says Removed Representative Need Not Pay Surcharge, Damages

    LINCOLN, Neb. — A personal representative for an estate who was removed for breaching his fiduciary duty need not pay damages or surcharges, the Nebraska Supreme Court ruled Nov. 16, after affirming a trial court judge’s decision that two women were unable to show that his breach of duty resulted in conversion, damages or loss of property (In re:  Estate of Hilda M. Graham, No. S-17-1296, Neb. Sup., 2018 Neb. LEXIS 190).

  • November 19, 2018

    Panel: Funds In Investment Account Rightfully Passed To Nonagenarian’s Sister

    WASHINGTON, D.C. — The District of Columbia Court of Appeals on Nov. 15 found that a lower court did not err in finding that the funds in an investment account properly passed to a decedent’s sister pursuant to her right of survivorship, rejecting the decedent’s wife’s claim that she was entitled to the funds (Aldray Reed v. Florine Rowe, No. 17-628, D.C. App., 2018 D.C. App. LEXIS 463).