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Mealey's Elder Law

January 10, 2023
Split Ala. High Court Tosses Appeals, Deems Fee Awards Not Final In Probate Row

MONTGOMERY, Ala. — A split Alabama Supreme Court dismissed an estate representative’s appeal of a probate court’s fee awards to a guardian and conservator and a guardian ad litem (GAL), finding that the fee awards were not final, appealable orders.
January 10, 2023
Ill. Panel Reverses, Finds Existence Of Arbitration Contract In Care Home Appeal

SPRINGFIELD, Ill. — An Illinois appellate panel reversed a lower court’s decision denying a nursing home’s motion to compel arbitration in an estate administrator’s wrongful death suit filed against the nursing home, finding that a valid contract to arbitrate existed because “the arbitration agreement was not mandatory but voluntary.”
January 10, 2023
Alabama Court Denies Mandamus, Cites Appeal Remedy In Grandparent Visitation Case

MONTGOMERY, Ala. — An Alabama appellate court denied petitions for writs of mandamus after a juvenile court denied a custodial aunt’s motions to dismiss maternal grandparent visitation petitions, finding “that because the aunt has an adequate remedy by appeal, her petitions for a writ of mandamus are to be denied.”
January 09, 2023
Judge Dismisses Companies In Wrongful Death Suit, Cites No Personal Jurisdiction

GREENVILLE, S.C. — A South Carolina federal judge granted dismissal to two out-of-state parent companies of a nursing home in an elder abuse and wrongful death suit filed against them by an estate representative for a man who died at the nursing home, finding that the federal court lacks personal jurisdiction over the parent companies because they did not forfeit their personal jurisdiction defense and they are not subject to specific jurisdiction.
January 09, 2023
U.S. High Court Denies Petition Challenging Age Bias Federal Service Requirement

WASHINGTON, D.C. — The U.S. Supreme Court on Jan. 9 granted the motion of civil procedure professors for leave to file an amicus brief and denied the petition the professors supported filed by two former employees of federal agencies challenging the dismissal of their age and disability bias claims for failure to serve the United States in addition to the agencies for which they worked.
January 05, 2023
Massachusetts High Court Hears Oral Arguments In Veterans Home COVID-19 Death Case

BOSTON — The Massachusetts Supreme Judicial Court on Jan. 4 heard oral arguments in the state attorney general’s appeal of a court’s dismissal of criminal charges against a former superintendent and medical director of a veterans home for their roles in comingling residents with symptomatic and confirmed COVID-19 cases, resulting in an outbreak that caused the deaths of 76 residents.
January 05, 2023
Appellees Urge 1st Circuit To Uphold ERISA Ruling Against LTC Policyholder’s Suit

BOSTON — Arguing that a Massachusetts federal judge properly interpreted the plan and granted judgment in their favor, appellees urged the First Circuit U.S. Court of Appeals to uphold that ruling in a group long-term care insurance policy participant’s putative class suit challenging two premium increases.
January 05, 2023
Split Texas Panel Rules On Executor’s Objections Made Under Dead Man’s Rule

AUSTIN, Texas — A split Texas appellate court reversed in part a lower court’s judgment in a dispute over accounting of business funds between former business partners after one partner died and his executor was substituted for him, finding that the lower court erred by overruling the executor’s objections to the surviving partner’s testimony of oral statements made by the decedent because pursuant to the Dead Man’s Rule, the lower court should not have included the decedent’s uncorroborated statements.
January 03, 2023
Magistrate Refuses To Lift Stay, Cites No ‘Substantial Changes’ In Trust Dispute

CHICAGO — An Illinois federal magistrate judge on Dec. 30 denied a trust beneficiary’s motion to lift a stay in a breach of fiduciary duty suit filed against his sister, the primary successor trustee of their deceased father’s trust, finding that the trust beneficiary failed to show “substantial changes” that would alter a federal judge’s 2012 stay order pending the resolution of the trust beneficiary’s countercomplaint against his siblings in a state court dispute over the trust’s assets.
December 23, 2022
Panel Vacates, Remands For Evidentiary Hearing In Nursing Home Arbitration Row

CHICAGO — An Illinois appellate court on Dec. 22 vacated and remanded a lower court judgment denying a nursing home’s motion to dismiss in a negligence and Nursing Home Care Act violations suit filed against it by a woman injured at the nursing home, finding that because the woman’s expert witness opined about her inability to understand the arbitration agreement she signed, this raised questions of fact that the court should have addressed by conducting an evidentiary hearing.
December 22, 2022
Panel Reverses, Remands Grandparent Visitation Order For Statutory Consideration

SALEM, Va. — A Virginia appellate court reversed and remanded a lower court order granting grandparent visitation to paternal grandparents and allowing the children’s paternal aunt to be present during visitations, finding that the lower court failed to meet the statutory requirements to determine the children’s best interest.
December 21, 2022
Split Mass. High Court Deems Physician-Assisted Suicide Not Due Process Right

BOSTON — A split Massachusetts Supreme Judicial Court affirmed a lower court’s grant of summary judgment for the Massachusetts attorney general and a district attorney in a physician and terminally ill man’s suit seeking a declaration that physician-assisted suicide does not violate Massachusetts criminal laws, finding that the Massachusetts Declaration of Rights does not protect physician-assisted suicide.
December 19, 2022
6th Circuit Won’t Apply ‘Repudiation’ Rule Of Accrual In ERISA Benefits Due Row

CINCINNATI — Ruling that a retirement plan recipient “was not injured until the Plan allegedly underpaid him; that is when his claim accrued,” a Sixth Circuit U.S. Court of Appeals panel on Dec. 16 reversed a trial court’s ruling that the Employee Retirement Income Security Act suit was time-barred.
December 16, 2022
Hearing Slated In $11.05M Residents’ Rights Violation Verdict Against Care Home

MIAMI — An amended notice of hearing for final judgment was filed in a Florida state court after a jury issued an $11.05 million verdict against a nursing home in a suit filed by the wife of a former resident alleging statutory violations of a Florida nursing home resident’s rights, including failing to protect the former resident from harm, to provide him with appropriate supervision and to monitor changes in his health condition.
December 15, 2022
Judge: Recusal Violation In ERISA Suit Over Life Insurance Was Harmless

MONTGOMERY, Ala. — Ruling that a recusal violation by an earlier judge was harmless, an Alabama federal judge refused to vacate a final judgment in an Employee Retirement Income Security Act suit over termination of retiree life insurance benefits.
December 15, 2022
Judge Dismisses Medicare Coverage Complaint, Cites Failure To Exhaust Remedies

PHOENIX — An Arizona federal judge dismissed a Medicare beneficiary’s complaint asserting that his insurer, a Medicare Advantage organization (MAO), wrongfully failed to cover the retreatment for his root canal, finding that because the beneficiary failed to exhaust his administrative remedies, the court did not have subject matter jurisdiction.
December 14, 2022
9th Circuit Affirms Dismissal, Reconsideration Denial In Row Over ERISA Plan RMD

SAN FRANCISCO — Affirming challenged decisions in a widow’s pro se suit over a required minimum distribution (RMD) from a retirement plan, a Ninth Circuit U.S. Court of Appeals panel said in an unpublished memorandum disposition that she failed to state a claim for breach of fiduciary duty and the trial court properly denied reconsideration.
December 13, 2022
Judge Permits Class To Amend Medicaid Fraud Complaints Without Adding Claims

TRENTON, N.J. — A New Jersey federal judge granted a limited liability company’s dismissal motion in a putative class action filed against it by families representing class members in New Jersey and Connecticut alleging that the company and its alleged legal affiliate defrauded the families and class members out of Medicaid benefits, finding “that the Third Amended Complaint fails to plead a requisite element” of a claim under the New Jersey Consumer Fraud Act (NJCFA).
December 09, 2022
Split Panel Affirms Order Requiring Trust Payment For Beneficiary’s Medicaid Debt

DES MOINES, Iowa — A split Iowa appellate court affirmed a lower court order requiring a trust to reimburse the Iowa Department of Human Services (DHS) for Medicaid funds used for the care of a now-deceased trust beneficiary, finding that because the beneficiary “had an interest in the corpus of the trust” that continued to the time of her death, DHS obtained her interest in the trust and recovery rights for her expenses after she died.
December 09, 2022
New York Panel: Lower Court Dismissed Care Home’s Medicaid Complaint In Error

BROOKLYN, N.Y. — A New York court of appeals reversed a lower court’s order dismissing a nursing home’s complaint seeking a judgment that one of its residents was entitled to Medicaid coverage, finding that the lower court erred in dismissing the complaint because the nursing home is not bound by the patient’s failure to exhaust administrative appeals for denial of Medicaid coverage.
December 09, 2022
Panel Affirms Grandparent Visitation Denial For Not Cooperating With Child’s Dad

LITTLE ROCK, Ark. — An Arkansas court of appeals affirmed a lower court’s order denying a maternal grandmother visitation with her granddaughter, finding that she did not establish that grandparent visitation was in the child’s best interest because she failed to show that she would cooperate with the child’s father and that grandparent visitation would not interfere with the father-daughter relationship.
December 08, 2022
Minnesota County, Official: No High Court Review Needed In Property Seizure Case

WASHINGTON, D.C. — The U.S. Supreme Court need not take up an appeal in a putative class complaint concerning the seizure of the full equity of a residence by Minnesota tax authorities where the tax debt owed was less than the property was sold for as there is no circuit split or error in the Eighth Circuit U.S. Court of Appeals ruling against the taxpayer, a Minnesota county and official argue in a response opposing the petition by a Minnesota woman who was 93 when her home was seized.
December 08, 2022
Panel Affirms Order Denying Guardianship And Dismissing Estate Planning Challenges

ANNAPOLIS, Md. — A Maryland appellate court affirmed a lower court order denying a daughter’s petition for guardianship of her mother and challenges to her mother’s estate planning documents granting authority to her mother’s sister, finding that the lower correct correctly held that the daughter failed to provide proof of risk without a guardian and that she lacked standing to challenge the estate planning documents without property interest in her mother’s potential probate assets while her mother is still alive.
December 08, 2022
Appellate Court Affirms Judgment In Family’s Row Over Widow’s Conservatorship

JACKSON, Miss. — A Mississippi appellate court affirmed a lower court’s order approving a final accounting submitted by a former conservator for her sister, who suffered from dementia, finding that while the accounting lacked sufficient detail, the lower court did not abuse its discretion in approving the final accounting and discharging the former conservator.
December 06, 2022
New York Files $18.6M Unjust Enrichment Suit Against Nursing Home, Owners

ALBION, N.Y. — New York Attorney General Letitia James filed an unjust enrichment and fraud suit against the Villages of Orleans Health and Rehabilitation Center and its affiliates and owners, alleging that after assuming ownership in 2015, the owners diverted more than $18.6 million to their bank accounts, resulting in negligent treatment of residents that could have been prevented had they invested the funds in adequate staffing and care of the residents.