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Mealey's Elder Law

  • April 19, 2019

    Panel Affirms Denial Of Motion To Remove Public Administrator As Guardian, Conservator

    KANSAS CITY, Mo. — A Missouri appeals panel on April 16 affirmed a lower court’s ruling denying a wife’s motion to remove a public administrator as the guardian and conservator of her husband and appoint her and her daughter as successor co-guardians and co-conservators, further finding that the lower court did not err in permitted the administrator’s attorney fees to be paid out of the appellant’s husband’s funds (In The Matter Of Virgil D. Williams, Nos. WD81613, WD81701, Mo. App., 2019 Mo. App. LEXIS 532).

  • April 17, 2019

    Panel Affirms Order Denying Skilled Nursing Facility’s Motion To Compel Arbitration

    RIVERSIDE, Calif. — A California appeals panel on April 12 affirmed a lower court’s ruling that  denied a skilled nursing home’s petition to compel arbitration because there was no valid  agreement to arbitrate between the nursing home and its elder resident (Rosa Perez et al. v. P&M Health Care Holdings, Inc., No. E069985, Calif. App., 4th Dist., Div. 2, 2019 Cal. App. Unpub. LEXIS 2569).

  • April 17, 2019

    Department Tells High Court Trust Beneficiary Should Be Taxed

    WASHINGTON, D.C. — The solicitor general for North Carolina told the U.S. Supreme Court on April 16 during oral arguments in a tax trust case that in-state beneficiaries of a trust administered in New York should be taxed for undistributed income because they are the “key part of the trust, the very heart” and because they benefit the most from the trust’s revenue (North Carolina Department of Revenue v. The Kimberly Rice Kaestner 1992 Family Trust, No. 18-457, U.S. Sup.).

  • April 16, 2019

    Court Correctly Refused To Reconsider Ruling As To Presumption Of Undue Influence

    BISMARCK, N.D. — The North Dakota Supreme Court on April 11 held that a lower court did not abuse its discretion in refusing to reconsider its judgment that appellants failed to rebut the presumption that they exercised undue influence over their father, affirming the lower court (In the Matter of the Estate of Ralph Bartelson, No. 20180255, N.D. Sup., 2019 ND 107; 2019 N.D. LEXIS 94).

  • April 15, 2019

    Texas High Court Remands For Executor To Pursue Will Probate In Individual Capacity

    AUSTIN, Texas — In overruling Faris v. Faris and disapproving of cases that have affirmed Faris’ imputation rule, the Texas Supreme Court on April 12 vacated a lower court’s dismissal of an executor’s application to probate the will of her late ex-husband’s wife and remanded to grant her an opportunity to amend her pleadings to pursue the probate of the will in her individual capacity (Linda Ferreira v. Douglas W. Butler, et al., No. 17-0901, Texas Sup., 2019 Tex. LEXIS 375).

  • April 14, 2019

    Judge Adopts Recommendation To Reverse Ruling Denying Benefits Withdrawal Request

    CINCINNATI — A federal judge in Ohio on March 22 adopted a magistrate judge’s ruling to reverse the commissioner of Social Security’s decision to deny a man’s request to withdraw his request for retirement benefits and overruled the man’s objection regarding the denial of his request for attorney fees and costs (David Thomas Terwilliger v. Commissioner of Social Security, No. 18-cv-11, S.D. Ohio; 2019 U.S. Dist. LEXIS 47634).

  • April 14, 2019

    Delaware Judge: Pennsylvania Provider Not Indispensable In Nursing Home Suit

    WILMINGTON, Del. — A Delaware judge on April 8 refused to dismiss a man’s wrongful death and survival suit against an in-state nursing home over injuries his father sustained after falling four times at the facility, holding that health care providers in Pennsylvania who also treated the decedent were not indispensable parties (Richard O’Rangers v. Cadia Rehabilitation Silverside, et al., N18C-12-253 DCS, Del. Super., New Castle Co., 2019 Del. Super. LEXIS 181).

  • April 14, 2019

    Probate Judge Awarded Judgment On Gross Neglect Claim In Guardianship Case

    HOUSTON — A probate judge was granted summary judgment on a gross neglect claim by a Texas federal judge on March 14 in a guardianship proceeding involving a deceased mother while a remaining breach of fiduciary duty claim against a guardian was remanded (Sherry Lynn Johnston v. David Dexel, et al., No. 16-3215, S.D. Texas, 2019 U.S. Dist. LEXIS 41340).

  • April 12, 2019

    Arbitration Agreement Was Unenforceable Against Elderly Resident, Panel Finds

    SANTA ANA, Calif. — A nursing facility’s arbitration agreement was unenforceable against an elderly resident who filed a lawsuit raising allegations of elder abuse and negligence, a California appeals panel affirmed April 2 because the nursing facility failed to show that the resident’s son was authorized to sign the agreement for his mother (Sedigheh Tahmasebi v. Gordon Lane Healthcare LLC, et al., No. G056154, Calif. App., 4th Dist., Div. 3, 2019 Cal. App. Unpub. LEXIS 2307).

  • April 11, 2019

    ACA Age Discrimination Claim Against Hospital Fails, Judge Says

    NASHVILLE, Tenn. — A son’s Patient Protection and Affordable Care Act (ACA) claim alleging that a hospital discriminated against his 93-year-old mother lacks evidence that he exhausted administrative remedies as required by the underlying discrimination law, a federal judge in Tennessee held April 9 (Alvin Galuten, et al. v. Williamson Medical Center, et al., No. 18-519, M.D. Tenn., 2019 U.S. Dist. LEXIS 61207).

  • April 11, 2019

    Pennsylvania Panel: No Punitive Damages For Orphans’ Court Cases

    HARRISBURG, Pa. — A Pennsylvania judge’s denial of a motion for summary judgment by two sisters embroiled in a dispute with their brother over their father’s estate will stand because the sisters waived the right to assert the issues raised in their appeal, the Pennsylvania Superior Court ruled in an unpublished April 10 decision (In re:  Estate of Strahsmeier, No. 1162 WDA 2017, Pa. Super., 2019 Pa. Super. Unpub. LEXIS 1330).

  • April 10, 2019

    Department Of Justice: Charges Filed In 6 States For Fraud Schemes

    WASHINGTON, D.C. — The U.S. Department of Justice announced April 9 that charges had been filed against 24 individuals in federal courts in California, Florida, New Jersey, Pennsylvania, South Carolina and Texas for their roles in health care fraud schemes that involved telemedicine companies inducing elderly patients to ask their physicians for durable medical equipment (DME) that was not medically necessary and then billing Medicare for the products, resulting in $1.2 billion in losses.

  • April 10, 2019

    Panel Affirms Protective Placement Order, Revocation Of Powers Of Attorney

    WAUSAU, Wis. — A Wisconsin court did not erroneously conclude that an elderly man was incompetent and in need of protective placement and that his son’s durable powers of attorney should be revoked, a state appeals court held April 9, affirming the lower court’s decision (In The Matter of the Guardianship and Protective Placement of J.J.N., S.R., No. 2017AP15502019, Wis. App., Dist. 3, Wisc. App. LEXIS 197).

  • April 10, 2019

    2nd Circuit Reinstates Age-Based Claims Against Anthropologie

    NEW YORK — A former employee of Anthropologie Inc. may proceed with her age-based hostile work environment and retaliation claims after a trial court failed to consider events found to be untimely as background evidence and applied an erroneous legal standard, a Second Circuit U.S. Court of Appeals panel ruled April 8 (Blair Davis-Garett v. Urban Outfitters, Incorporated, et al., No. 17-3371, 2nd Cir., 2019 U.S. App. LEXIS 10210).

  • April 9, 2019

    Illinois Panel Affirms Ruling For Home Care Provider In Elder’s Negligence Suit

    CHICAGO — An Illinois appeals panel on April 5 affirmed a lower court’s ruling in favor of a home care provider in an elderly woman’s negligence lawsuit, finding that the plaintiff did not present any evidence supporting her allegations that the defendant breached its duty of reasonable care (Sma Tsatsos v. Northwest Home Care, Inc., No. 1-18-0583, Ill. App., 1st Dist., 6th Div., 2019 Ill. App. Unpub. LEXIS 612).

  • April 9, 2019

    Trust Tells High Court It Had No Contacts With State Warranting Taxation

    WASHINGTON, D.C. — A family trust that was established in New York told the U.S. Supreme Court on March 18 that it should uphold a North Carolina Supreme Court ruling finding that its assets cannot be taxed because it had no contacts with the state, explaining that the nation’s high court’s decisions in Safe Deposit & Tr. Co. v. Virginia, 280 U.S. 83 (1929), and Hanson v. Denkla, 357 U.S. 235, 246 (1958), support affirmation (North Carolina Department of Revenue v. The Kimberly Rice Kastner 1992 Family Trust, No. 18-457, U.S. Sup., 2019 U.S. S. Ct. Briefs LEXIS 1062).

  • April 8, 2019

    Arkansas Appeals Court Revives Estate Administrator’s Tort Suit Against Hospital

    LITTLE ROCK, Ark. — An Arkansas appeals panel on April 3 reinstated a wrongful death and survival action suit against a hospital brought by the special administrator of a man’s estate, finding that a lower court judge erred in dismissing the action on the ground that he was not properly designated by the probate court (Steve Arman v. Chi St. Vincent Hot Springs, et al., No. CV-18-450, Ark. App., 4th Div. 2019 Ark. App. LEXIS 207).

  • April 4, 2019

    Workers Claim IBM Stopped Releasing Comparator Information During Layoffs

    NEW YORK — International Business Machines Corp. (IBM) violated the Older Workers Benefit Protection Act (OWBPA) when it stopped providing comparator information to employees being laid off and started requiring laid off workers to waive their right under the Age Discrimination in Employment Act (ADEA) to bring collective age bias claims in any forum, four employees terminated in May 2016 allege in their March 27 complaint filed in the U.S. District Court for the Southern District of New York (Steven Estle, et al. v. International Business Machines Corporation, No. 19-2729, S.D. N.Y.).

  • April 3, 2019

    Judge: Plaintiff Does Not Qualify For Provision’s ‘Uniform Services’ Exception

    CAMDEN, N.J. — A New Jersey federal judge on March 29 held that the commissioner of Social Security correctly found that a plaintiff’s retirement insurance benefits should be reduced pursuant to the Social Security Act's Windfall Elimination Provision (WEP), concluding that the plaintiff failed to qualify for the WEP's "uniform services" exception (Floyd Douglas Newton v. Commissioner of Social Security, No. 18-751, D. N.J., 2019 U.S. Dist. LEXIS 54091).

  • April 2, 2019

    North Dakota High Court Affirms Probate Court’s Final Distribution Of Estate

    BISMARCK, N.D. — The North Dakota Supreme Court on March 18 held that a probate court did not abuse its discretion by approving the final accounting and distribution of a decedent’s estate and did not err when it allowed the decedent’s daughter to participate in the probate proceedings as the personal representative of the estate and as an interested person (In the Matter of the Estate of Ann Biel Brandt, No. 20180160, N.D. Sup., 2019 N.D. LEXIS 86).