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Mealey's Elder Law

  • October 19, 2018

    Antenuptial Agreement Didn’t Bar Bequest To Stepsons, But Will’s Terms Did

    LITTLE ROCK, Ark. — An antenuptial agreement (AA) between a couple that remarried each other after divorcing revoked the wife’s right to her husband’s property and estate that had been promised in an earlier will but did not affect the residuary bequest to her sons; however, her sons had no claim to the estate when their stepfather died because the will stated that they had a right to the estate only if their mother failed to survive her husband by 30 days, an Arkansas appellate panel ruled Oct. 17 (Ricky Lee Craig v. Cheryl Craig, et al., No. CV-18-82, Ark. App., 2018 Ark. App. 489).

  • October 19, 2018

    Panel: Trustee Did Not Breach Her Duties By Failing To Evict Elder From Residence

    SANTA ANA, Calif. — A California appeals panel on Oct. 17 affirmed a lower court’s decision to invoke its equitable power under California Probate Code Section 16440, subdivision (b) to deny a church’s petition to remove a decedent’s niece from her position as successor trustee, finding that the church's argument that the trustee should have evicted an elderly family friend who was given a life estate in the decedent’s house is “both unrealistic and not particularly charitable” (Orange Catholic Foundation, et al. v. Rosie Mary Arvizu, as Trustee, etc., No. G055189, Calif. App., 4th Dist., Div. 3, 2018 Cal. App. LEXIS 936).

  • October 17, 2018

    Remand, Stay Granted In Invalid Nursing Home Licenses Class Suit

    TAMPA, Fla. — A Florida federal judge on Oct. 16 granted a motion to remand a class action lawsuit accusing a real estate broker and an individual in the senior housing industry of engaging in a scheme to market and sell 22 Florida nursing facilities they knew were operating without valid licenses; however, the judge also issued an order on the same day granting a motion to stay remand for either 70 days or the completion of any appellate remedy (The Estate of Shirley T. Cox, et al. v. Marcus & Millichap, Incorporated, et al., No. 18-381, M.D. Fla., 2018 U.S. Dist. LEXIS 177224). 

  • October 15, 2018

    Pennsylvania Panel: 2006 Will Must Be Considered After 2010 Will Is Invalidated

    HARRISBURG, Pa. — The Pennsylvania Superior Court on Oct. 5 partially affirmed a lower court’s order invalidating a decedent’s 2010 will but reversed the portion of the order directing the estate to be administered according to state intestacy laws with instructions for a new order to be issued because it was unclear whether the existence of a 2006 will was originally considered (In Re:  Estate of Pearl Rose Anna Gross Cavanaugh, No. 1872 WDA 2017, Pa. Super., 2018 Pa. Super. Unpub. LEXIS 3693).

  • October 15, 2018

    Daughter Did Not Possess Authority To Sign Agreement On Father’s Behalf

    MONTGOMERY, Ala. — The majority of the Alabama Supreme Court on Oct. 5 reversed and remanded a trial court’s enforcement of an arbitration agreement between the daughter of a former rehabilitation center patient and the rehabilitation center after determining that the daughter did not have apparent authority to sign the agreement on behalf of her father because the father lacked the capacity to contract at the time the agreement was signed (Rhonda Stephan v. Millennium Nursing and Rehab Center Inc., No. 1170524, Ala. Sup.).

  • October 12, 2018

    Decedent’s Estate Sues Nursing Home, Staff For Negligence, Wrongful Death

    NEWARK, N.J. — The estate of a former nursing home resident sued the facility and some of its staff members on Sept. 28 in a New Jersey state court, alleging that negligence and inadequate medical care, among other factors, caused the resident injury and resulted in her wrongful death (Mirna Gonzalez v. Forest Hill Health Care Center, Inc., et al., No. ESX-L-006962-18, N.J. Super., Essex Co.).

  • October 12, 2018

    College’s Refusal To Hire Retirees Deemed Not Biased By 7th Circuit

    CHICAGO — An Illinois college’s decision to no longer hire retired state employees who were collecting annuities based on a change in law that imposed a penalty on covered employers did not constitute age discrimination or retaliation because the reason for the decision was one not based on age, a Seventh Circuit U.S. Court of Appeals panel ruled Oct. 11 (Barry Dayton v. Oakton Community College, et al., No. 18-1668, 7th Cir., 2018 U.S. App. LEXIS 28674).

  • October 12, 2018

    Judge Denies Nursing Home’s Motion To Compel Arbitration In Negligence Suit

    TUSCALOOSA, Ala. — A federal judge in Alabama on Oct. 10 denied a nursing home’s motion to compel arbitration, holding that the authorized representative of an incapacitated woman did not have the legal authority to bind the woman to an arbitration provision in the admission agreement (Stephanie Amos v. North Hill Nursing & Rehabilitation Center LLC, et al., No. 18-cv-0217-AKK, N.D. Ala., 2018 U.S. Dist. LEXIS 174132).

  • October 10, 2018

    $20M Award Vacated, New Trial Ordered In Dispute Over Senior’s Death

    MONTGOMERY, Ala. — A unanimous Alabama Supreme Court on Sept. 28 remanded a dispute between a wrongful death plaintiff and the rehabilitation facility that treated her mother, upon finding that a trial court offered a jury charge that was “clear error” (HealthSouth Rehabilitation Hospital of Gadsden LLC, et al. v. Regina Honts, Nos. 1160045, 1160068, Ala. Sup., 2018 Ala. LEXIS 91).

  • October 9, 2018

    U.S. Supreme Court Won’t Review Nursing Home Arbitration Decision

    WASHINGTON, D.C. — The U.S. Supreme Court on Oct. 9 denied a petition for a writ of certiorari filed by a nursing home seeking to challenge a Kentucky Supreme Court holding that a woman’s power of attorney (POA) over her now-deceased husband does not subject her personal injury and wrongful death claims against the nursing home to arbitration (Kindred Nursing Centers LP v. Beverly Wellner, No. 17-1318, U.S. Sup.).

  • October 9, 2018

    Connecticut Appeals Panel: Conservator Had Duty To Apply For Medicaid Benefits

    HARTFORD, Conn. — A Connecticut Court of Appeals panel on Oct. 9 reversed a trial court judge’s ruling awarding summary judgment to a court-appointed conservator, finding that he owed a duty to a nursing home to submit applications to obtain his ward’s Medicaid benefits in order to pay for his care (Bloomfield Health Care Center of Connecticut LLC v. Jason Doyon, No. AC 40281, Conn. App., 2018 Conn. App. LEXIS 380).

  • October 9, 2018

    Pennsylvania High Court Reverses Dismissal Of UTPCPL Claims Against Nursing Homes

    HARRISBURG, Pa. — The Pennsylvania Supreme Court on Sept. 25 held that a lower court improperly dismissed the commonwealth of Pennsylvania’s claims for violations of the Unfair Trade Practices and Consumer Protection Law (UTPCPL) against more than two dozen skilled nursing facilities and their parent companies but affirmed the lower court’s dismissal of the unjust enrichment claim (Pennsylvania v. Golden Gate National Senior Care LLC, et al., No 16 MAP 2017, Pa. Sup.; 2018 Pa. LEXIS 5018).

  • October 8, 2018

    Judge Remands Man’s Wrongful Death Suit Against Nursing Home

    ALBUQUERQUE, N.M. —A federal judge in New Mexico on Oct. 3 remanded a man’s lawsuit accusing a nursing home of negligence and wrongful death, finding that his claims were not based on alleged violations of the Federal Nursing Home Reform Amendments (FNHRA) (Danny Suazo v. Taos Living Center LLC, et al., No. 18 CV 00673 JAP/KK, D. N.M., 2018 U.S. Dist. LEXIS 172136).

  • October 4, 2018

    Elderly Woman Says Former Counsel Cannot Represent Niece During Guardianship Case

    AUSTIN, Texas — The Texas Supreme Court will hear oral arguments Oct. 10 as to whether a trial court judge erred when refusing to disqualify an attorney who previously represented an elderly woman when helping draft her will and who is now representing her niece, who filed a guardianship proceeding against the woman, under the Texas Disciplinary Rules of Professional Conduct (In re: Verna Francis Coley Thetford, No. 17-0634, Texas Sup.).

  • October 4, 2018

    Panel Holds Widow Did Not Unduly Influence Creation Of Bank Account

    JACKSON, Miss. — A Mississippi appeals panel on Oct. 2 affirmed a trial court’s decision to reject a petition to recover assets from a deceased man’s wife, holding that she did not use undue influence to convince her late husband to create a joint bank account for them and that a confidential relationship did not render her inheritance void (John Morgan Kaye Jr. v. Patricia Kaye, No. 2017-CA-00511, Miss. App., 2018 Miss. App. LEXIS 484).

  • October 3, 2018

    Alabama Panel Affirms Ruling In Paternal Grandmother’s Favor In Visitation Dispute

    MONTGOMERY, Ala.— An Alabama appeals panel on Sept. 28 found that a lower court did not err in registering a New York Family Court judgment that awarded a paternal grandmother visitation with her grandchild (Melissa K. Marler v. Julie Lambrianakos, No. 2170483, Ala. Civ. App., 2018 Ala. Civ. App. LEXIS 158).

  • October 2, 2018

    Judge Rejects Elder Abuse Claim, Allows Wrongful Death Claim To Proceed

    OAKLAND, Calif. — A California federal judge on Sept. 24 granted a nursing home facility employee’s motion for summary judgment as to an estate’s elder abuse claim but denied the nursing home facility and its employee’s motion for summary judgment as to wrongful death claim based on medical negligence, finding that it is enough for the plaintiffs to allege that a number of different people and entities had duties of care to the deceased, breached their duties and each breach contributed to his death (Margaret Ward, et al. v. Mendocino, et al., No. 17-00911, N.D. Calif., 2018 U.S. Dist. LEXIS 163532).

  • October 2, 2018

    Illinois Appellate Panel Upholds Grant Of New Trial In Nursing Home Negligence Case

    CHICAGO — A trial court’s decision to grant a new trial in a lawsuit accusing a nursing home doctor of negligence in her care and treatment of a resident based on closing arguments where the defendant’s attorney asked the jury to place themselves in the doctor’s shoes was not improper, an Illinois appellate panel ruled Sept. 28, holding that the decision did not exceed “the bounds of reason or was illogical” despite its “finding that the trial court ascribed too much prejudice to the technically improper golden rule argument” (Mary Sikora v. Nirali R. Parikh, M.D., et al., No. 14 L 8881, Ill. App., 1st Dist., 4th Div., 2018 Ill. App. LEXIS 711).

  • October 2, 2018

    California AG, SAG Appeal Injunction Of IMDb Age Discrimination Law To 9th Circuit

    SAN FRANCISCO — In a pair of Sept. 27 appellant briefs to the Ninth Circuit U.S. Court of Appeals, California Attorney General (AG) Xavier Becerra and the Screen Actors Guild – American Federation of Television and Radio Artists (SAG) support the constitutionality of a California law requiring the operator of the Internet Movie Database to remove subjects’ age information upon request, arguing that the statute is a valid enforcement of contractual agreements and is intended to combat age discrimination (IMDb.com Inc. v. Xavier Becerra, et al., Nos. 18-15463 and 18-15469, 9th Cir.).

  • October 1, 2018

    Arguments On ADEA Reach For Political Subdivisions Held Before High Court

    WASHINGTON, D.C. — The Ninth Circuit U.S. Court of Appeals erred in its reading of the Age Discrimination in Employment Act (ADEA) when it held that it applies to a political subdivision with fewer than 20 employees, the attorney representing Mount Lemmon Fire District argued on Oct. 1 before the U.S. Supreme Court (Mount Lemmon Fire District v. John Guido, et al., No. 17-587, U.S. Sup.).