Mealey's Elder Law

  • July 22, 2022

    Texas Panel Affirms Default Finding In Late Probate Of Domestic Partner’s Will

    EL PASO, Texas — A Texas appellate court on July 20 affirmed a trial court’s order denying a domestic partner’s application to probate a holographic will bequeathing the decedent’s home to his domestic partner, finding that because “there is some evidence in support of the trial court’s implied finding of default” in failing to meet the statutory requirement to probate the will within four years of death, “legally sufficient evidence supports the finding.”

  • July 19, 2022

    Magistrate Says Standard Of Care Facts Remain In $2M Suit Against Home Care Agency

    SAN JUAN, Puerto Rico — A Puerto Rico federal magistrate judge on July 12 denied a home care agency’s summary judgment motion in surviving adult children’s medical malpractice suit against the home care agency and its related hospital, whose alleged failure to follow the adequate standard of care allegedly resulted in their father’s death, finding that material questions of fact remain regarding whether agency staff failed to provide “adequate” care and “whether any deviation from the standard of care” contributed to the man’s death.

  • July 21, 2022

    Magistrate Recommends Approving $4M Settlement In Suit Filed On Elder’s Behalf

    FRESNO, Calif. — A California federal magistrate judge on July 18 recommended approving a $4 million settlement in a negligence and violation of the Americans with Disabilities Act (ADA) suit filed against a restaurant by a guardian ad litem on behalf of her mother who was injured in a fall there, finding that the terms of the settlement are “fair and reasonable.”

  • July 20, 2022

    Illinois Panel:  Care Home Arbitration Agreement Ended Upon Former Resident’s Death

    CHICAGO — An Illinois appellate court on July 18 affirmed a trial court order denying a nursing home’s motion to compel arbitration in a negligence and wrongful death suit filed against it by the daughter of a woman who died there, finding that though the nursing home did not waive its right to arbitrate by participating in litigation, the “agreement was no longer enforceable” due to “the contract’s explicit language that it terminated upon decedent’s death.”

  • July 14, 2022

    Washington Panel Says Board Didn’t Err In Finding Neglect Of Vulnerable Adult

    TACOMA, Wash. — A Washington appellate panel on July 12 affirmed a trial court order upholding a state board’s determination of neglect against a primary caregiver of a 96-year-old woman, finding that the board’s “findings of fact are supported by substantial evidence.”

  • July 13, 2022

    Split Oklahoma High Court Affirms Order Making Daughter Guardian Over Mother

    OKLAHOMA CITY — In a split decision, the Oklahoma Supreme Court on June 14 affirmed a trial court’s order appointing the daughter of a woman diagnosed with dementia as her guardian in a guardianship dispute between the daughter and her stepfather, finding that the trial court did not abuse its discretion when approving guardianship because there was sufficient evidence “to justify the trial court's rejection” of the woman’s request to stay at home with her husband.

  • July 13, 2022

    Judge Grants Judgment For Disability Advocate In North Carolina Voting Law Dispute

    RALEIGH, N.C. — A North Carolina federal judge on July 11 granted summary judgment to a disability rights organization in its suit against the North Carolina State Board of Elections (NCSBE), asserting that North Carolina absentee ballot provisions violate the federal Voting Rights Act and the U.S. Constitution’s supremacy clause by not permitting disabled absentee voters to choose their own assistant, finding that the challenged provisions of North Carolina law “conflict with federal law, and thus are preempted by the Voting Rights Act.”

  • July 13, 2022

    Panel: Professional Liability Insurer Has Duty To Defend Senior Living Facility

    RICHMOND, Va. — The Fourth Circuit U.S. Court of Appeals on July 12 held that residents of a senior living facility have pleaded an injury “caused by” a professional health care incident, affirming a lower court’s ruling that a professional liability insurer has a duty to defend against an underlying class action alleging that the facility and its owners breached their contractual duties to provide adequate staffing and personal care.

  • July 13, 2022

    California AG: Medicare Preemption Not ‘Categorically’ Preemptive Of State Laws

    SAN FRANCISCO —  A week after the California attorney general filed an amicus brief with the California Supreme Court in a negligence, elder abuse and wrongful death suit against a Medicare Advantage (MA) provider, contending that the Medicare Act’s preemption clause “does not categorically preempt” state laws, the Civil Justice Association of California on June 15 filed an amicus brief in support of the provider, arguing that the preemption clause bars the state law claims.

  • July 12, 2022

    Bad Faith, Financial Elder Abuse Claims In Water Coverage Suit Fail, Judge Says

    SAN FRANCISCO — A homeowners insurer did not act unreasonably in handling an insured water damage coverage claim, a California federal judge said July 7 in granting the insurer’s motion for partial summary judgment on bad faith and financial elder abuse claims.

  • July 12, 2022

    Michigan High Court: Allegations Against Care Home ‘Sound In Medical Malpractice’

    LANSING, Mich. — The Michigan Supreme Court on July 7 affirmed an appellate court’s holding that new allegations in a daughter’s complaint against the nursing home where her father died “sound in medical malpractice” but reversed the appellate court’s holding that a standing order could not be admitted to establish the standard of care, finding that the standing order’s requirements to notify a physician immediately regarding aspiration risks “necessarily implicates medical judgment beyond common knowledge and experience,” therefore sounding in medical malpractice.

  • July 11, 2022

    Louisiana Panel Says Court Abused Discretion In Sanction Award Over POA Dispute

    GRETNA, La. — A Louisiana appellate court on July 6 reversed and remanded a trial court’s order awarding sanctions against a decedent’s wife in a suit filed by the decedent’s relatives seeking a judgment that the decedent lacked the capacity to change his power of attorney (POA) in favor of his niece and sister-in-law to authorize his wife as his medical decision maker, finding that the trial court abused its discretion in awarding sanctions against the wife because of a lack of evidence of misrepresentations.

  • July 11, 2022

    5th Circuit Affirms Remand Of Nursing Home COVID Death Suit To State Court

    NEW ORLEANS — The Fifth Circuit U.S. Court of Appeals on July 7 affirmed the remand to state court of a wrongful death suit filed against a nursing home by the family of a woman who died there from COVID-19, finding that there are no claims for willful misconduct under the Public Readiness and Emergency Preparedness (PREP) Act and no longer “any federal claims, but only negligence claims under Louisiana law.”

  • July 08, 2022

    Pa. Panel Affirms Finding That Care Home’s Arbitration Agreement Is Unconscionable

    PITTSBURGH — A Pennsylvania appellate court on July 5 affirmed a trial court’s order overruling a nursing home’s preliminary objection to compel arbitration in a negligence and wrongful death suit filed against it by the daughter of a former nursing home resident who died there, finding that the trial court correctly determined “that the Arbitration Agreement was unconscionable as a matter of law” due to its unfavorable terms without giving the decedent “any meaningful choice to accept or reject” it.

  • July 06, 2022

    Georgia High Court: Undue Influence Claim Not Barred By In Terrorem Trust Clause

    ATLANTA — The Georgia Supreme Court on June 30 reversed and remanded a Court of Appeals decision determining that an in terrorem clause barred a son’s undue influence claim and resulted in his forfeiture of assets as a trust beneficiary of his father’s trust, finding that because the son’s “undue-influence claim was successful, the void in terrorem clause did not result in his forfeiture of benefits from the trust.”

  • July 06, 2022

    Rehearing Sought After Split 7th Circuit Orders Trial In Age Bias Suit

    CHICAGO — An employer accused of failing to stop repeated verbal and physical harassment of an employee due to his age petitioned for a rehearing on June 30, approximately two weeks after a divided Seventh Circuit U.S. Court of Appeals panel vacated summary judgment for the employer and remanded the case for a trial.

  • July 01, 2022

    Maine High Court Affirms Grandmother’s Visitation Dismissal For Lack of Standing

    PORTLAND, Maine — The Maine Supreme Judicial Court on June 14 affirmed a lower court’s order dismissing a grandmother’s petition for visitation for lack of standing, finding that the lower court’s use of the preponderance of the evidence standard was correct “and the record did not compel the court to make factual findings in the grandmother’s favor.”

  • July 01, 2022

    Cert Petition Filed Seeking Review Of Medicare Fraud Standards In Hospice Care

    WASHINGTON, D.C. — With splits among U.S. Circuit Courts of Appeals regarding Medicare fraud standards in hospice certifications, U.S. Supreme Court review is warranted, a man contends in his June 22 petition for writ of certiorari, after his federal conviction in a health care fraud scheme was upheld by the Fifth Circuit U.S. Court of Appeals.

  • July 01, 2022

    Alabama High Court: Grandson Entitled To Father’s Share Of Grandfather’s Estate

    MONTGOMERY, Ala. — The Alabama Supreme Court on June 24 reversed and remanded a probate court’s determination that a decedent’s daughter was sole beneficiary of her father’s estate rather than her nephew inheriting his deceased father’s share, finding that the will’s language of “share and share alike” did not support the conclusion that if the decedent’s child predeceased him, the surviving child would inherit the whole estate.

  • June 30, 2022

    Noting Prior De Novo Review, 9th Circuit Denies Policy Holders Rehearing Request

    SEATTLE — The Ninth Circuit U.S. Court of Appeals on June 28 denied insureds’ request for rehearing en banc and amended its May 10 memorandum opinion to note the de novo review affirming summary judgment of the insureds’ claims in an insurer’s suit against them seeking a declaration that the insurer correctly denied their claims for long-term care coverage.

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