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Mealey's Elder Law

December 06, 2022
Panel Affirms Finding That Decedent Lacked Capacity To Sign Arbitration Agreement

LOS ANGELES — A California appellate court affirmed a trial court’s ruling that a decedent and former nursing home resident lacked the capacity to sign an arbitration agreement in a negligent hiring and supervision suit filed against the nursing home, finding that there was “substantial evidence” to support the trial court’s determination that the decedent lacked the capacity to sign the arbitration agreement.
December 06, 2022
Panel Affirms Order Requiring Former POA To Reimburse Estate By Almost $80,000

CHICAGO — An Illinois appellate court affirmed a trial court order finding a former agent authorized pursuant to a power of attorney (POA) liable for disbursements of $76,274.99 from the accounts of a woman who is now deceased, finding that the former agent must reimburse the woman’s estate because the POA she executed created a “fiduciary duty as a matter of law” requiring him to keep an accounting of disbursements.
December 05, 2022
N.H. High Court Rules On Will Dispute Between Sisters As Heirs Of Deceased Mother

CONCORD, N.H. — The New Hampshire Supreme Court affirmed in part a trial court order dismissing claims filed by a decedent’s daughter who had joint accounts with the decedent for the return from her sister of personal property allegedly bequeathed to her, finding that the claims statutorily fall under the jurisdiction of the probate court.
December 05, 2022
Fraudulent Transfer Suit Parties Dispute DUFTA Solvency Evaluation Framework

WILMINGTON, Del. — In a motion and opposition that pertain to compelling production of bid and valuation documents, parties in a putative class suit alleging fraudulent transfers from an insurance subsidiary dispute the applicable framework for evaluating solvency under the Delaware Uniform Fraudulent Transfer Act (DUFTA) in Delaware Chancery Court.
December 02, 2022
Amicus Supports Call For Review Of ERISA Pension Plan Reinterpretation Ruling

WASHINGTON, D.C. — Saying the case represents “the sorts of retirement nightmares to which Congress intended” the Employee Retirement Income Security Act “to be the antidote,” amicus curiae Pension Rights Center urges the U.S. Supreme Court to grant certiorari in a dispute over a reinterpretation of “retire” that stopped early retirement pension benefits for some plan participants.
December 01, 2022
9th Circuit Vacates, Remands District Court Garcia Decision In PREP Act Appeal

SAN FRANCISCO — The Ninth Circuit U.S. Court of Appeals, after determining that it would decide without oral argument a family’s COVID-19-related wrongful death suit against a senior living facility, vacated and remanded the district court’s decision, often cited by nursing homes, that the family’s state claims were preempted by the Public Readiness and Emergency Preparedness (PREP) Act, citing a Feb. 22, 2022, Ninth Circuit opinion rejecting federal jurisdiction in a similar case.
December 01, 2022
Federal Judge Approves Care Homes’ Consent Orders In $450,000 ADA Violation Suit

ALLENTOWN, Pa. — A Pennsylvania federal judge approved two separate consent orders submitted jointly by the U.S. government and two separate nursing home facilities after approving a $450,000 settlement with architects in a suit brought by the government against the owners of senior homes and the architects who designed them, alleging failure to meet the Fair Housing Act (FHA) and Americans with Disabilities Act (ADA) requirements.
December 01, 2022
Split Panel: Decedent’s Daughter Lacked Authority To Sign Arbitration Agreement

JACKSON, Miss. — A divided Mississippi appellate court affirmed a lower court decision that denied a motion to compel arbitration filed by a nursing home in a wrongful death suit filed against it by the son of a decedent who died there, finding that the decedent lacked the mental capacity to sign the arbitration agreement and that his daughter, who signed the agreement on his behalf, did not have the authority to sign as his agent.
November 30, 2022
Ohio Panel Rules On POA Undue Influence Allegations In Heirs’ Dispute Over Estate

LIMA, Ohio — An Ohio appellate court affirmed in part a trial court’s order in an appeal filed by a decedent’s daughter who asserted that the trial court erred by granting summary judgment to the decedent’s other children in a dispute over their mother’s estate, finding that the trial court correctly granted summary judgment regarding her claims that the POA was procured through undue influence and that she may not raise a fraud claim as a third party where the alleged injury was incurred by the decedent.
November 29, 2022
Judge Denies Dismissal Of Seniors’ Punitive Damages Claim In UCL Suit Against AT&T

SAN DIEGO — A California federal judge granted AT&T’s dismissal motion in a suit filed against it by children of a decedent whose closed AT&T account was purportedly fraudulently reopened, finding that the claims against AT&T, including claims for negligence and violation of California’s unfair competition law (UCL), were not factually sufficient but that the claim for punitive damages for senior citizens met the statutory definition for senior citizen and the children “invoke[d] this statute for themselves.”
November 28, 2022
Senior’s Reps Ask 9th Circuit To Affirm, Cite No PREP Act Preemption In COVID Suit

SAN FRANCISCO — Representatives for a woman who died two years ago at a nursing home after contracting COVID-19 filed a response brief on Nov. 23 with the Ninth Circuit U.S. Court of Appeals, seeking affirmation of a district court’s remand to state court their COVID-19 death suit against the nursing home, asserting that the district court correctly determined that their claims against the nursing home are not preempted by the Public Readiness and Emergency Preparedness (PREP) Act.
November 23, 2022
Nebraska Panel Affirms Order Appointing Son As Guardian For Octogenarian Mother

LINCOLN, Neb. — A Nebraska appellate court on Nov. 22 affirmed a lower court’s order appointing an 83-year-old woman’s son as her permanent guardian and conservator, finding that while most of a daughter’s objections are moot because they relate to the temporary order that was replaced by a permanent order, two errors will not be considered because they were not raised at trial and the lower court’s “denial of her motion for a continuance was not an abuse of discretion.”
November 23, 2022
Alaska High Court Remands For Elder Fraud Determination In Deed To Daughter

ANCHORAGE, Alaska — The Alaska Supreme Court affirmed a trial court’s grant of summary judgment to a bank as a “bona fide lender” in a constructive notice suit filed against it by a man alleging that his sister’s deed to the property to secure bank loans was void because of fraud, finding that the trial court correctly granted the bank summary judgment but reversed and remanded the lower court’s dismissal of the fraud claim because the “bona fide lender status is irrelevant” to the bank’s defense of the fraud claim, which was dismissed in error.
November 23, 2022
Judge Dismisses In Row Over LTC Insurance, Finds No Elder Abuse In Coverage Denial

SANTA ANA, Calif. — A California federal judge granted a long-term care (LTC) insurer’s dismissal motion in a breach of contract and elder abuse suit filed against it by an insured seeking coverage for his stay at a residential care facility for the elderly (RCFE), finding that the policy provisions were sufficient to provide the insured with notice of coverage limitations and that the elder abuse claim failed because the insured was not deprived of personal property since the insurer “properly” denied benefits.
November 22, 2022
Calif. Panel: Grandparents’ Visitation Rights Not Affected By Restraining Order

SANTA ANA, Calif. — A California appellate court on Nov. 21 affirmed a trial court’s issuance of a restraining order against a father, awarded custody of the children to the mother and required the children to be kept away from the maternal grandparents, finding that the trial court’s findings sufficed to show that the father “was the dominant aggressor” and that “the maternal grandparents’ statutory visitation rights” are not impacted because the order binds the mother and father, not the maternal grandparents.
November 22, 2022
Panel Says Responsible Party Signer Lacked Consent To Arbitrate In Care Home Suit

LAKELAND, Fla. — A Florida appellate court reversed a lower court order compelling arbitration in a wrongful death suit filed against a nursing home by the daughter of a deceased former resident, finding that because another daughter and agent pursuant to a power of attorney (POA) signed admissions documents as a responsible party rather than as an attorney-in-fact, she lacked the authority to consent to the arbitration agreement.
November 21, 2022
Judge Finds Factual Dispute On Actual Harm In ERISA Case, Denies Summary Judgment

SAN JOSE, Calif. — Ruling that the plaintiff in question created a factual dispute as to whether actual harm flows from allegedly misleading presentations, a California federal judge denied summary judgment on the only remaining claim in an Employee Retirement Income Security Act case over whether the administrator of an executive medical retirement plan misrepresented that the plan provided lifetime health insurance benefits.
November 21, 2022
U.S. Supreme Court Denies Cert In Row Over PREP Act Preemption In COVID Death Suit

WASHINGTON, D.C. — The U.S. Supreme Court today denied a nursing home’s petition for a writ of certiorari in a case where the Ninth Circuit U.S. Court of Appeals affirmed remand to state court of a wrongful death suit filed by the successors and heirs on behalf of a man who died at the nursing home from COVID-19 after finding “that the Public Readiness and Emergency Preparedness Act of 2005 (PREP Act) does not completely preempt state-law claims like those” filed by the heirs.
November 21, 2022
Pa. Panel Affirms Guardianship Order For Senior, Finds Due Process Claims Waived

PITTSBURGH — A Pennsylvania appellate court affirmed a lower court’s order adjudicating a 65-year-old man as incapacitated and appointing a plenary guardian of his person and estate, finding that the man waived his claims for errors of due process and personal jurisdiction and that the lower court’s findings are supported by the evidence.
November 21, 2022
Maryland Panel Remands POA Row Between Relatives Of Allegedly Disabled Man

ANNAPOLIS, Md. — A Maryland appellate court reversed a trial court’s ruling that denied a daughter’s request for a jury trial in her suit seeking to invalidate a power of attorney (POA) appointing her aunts as POA for her allegedly disabled father, finding that the trial court improperly denied the daughter’s timely filed request for a jury trial in response to the aunts’ counterclaims.
November 18, 2022
La. Panel Affirms Dismissing Undue Influence Challenge In Sibling Row Over POA

BATON ROUGE, La. — A Louisiana appellate court affirmed a trial court’s dismissal of a daughter’s undue influence challenge of her mother’s grant of power of attorney (POA) to another daughter, finding that granting the mother’s motion to dismiss and her request for attorney fees was correct and not an abuse of discretion.
November 18, 2022
N.H. High Court Vacates Grandparent Visitation, Cites Failure To Consider Factors

CONCORD, N.H. — The New Hampshire Supreme Court vacated a lower court order granting grandparent visitation, finding that the lower court failed to consider and issue findings of fact related to all the statutory factors regarding granting grandparent visitation.
November 17, 2022
Judge Issues Order Closing Case In ADA Violation Suit Against Housing Authority

NEW ORLEANS — After a $250,000 consent order was issued the previous month, a Louisiana federal judge on Nov. 16 issued an order closing a suit filed by the U.S. Department of Justice against the Housing Authority of New Orleans (HANO) and seven private developers alleging violations of the Fair Housing Act (FHA) and the Americans with Disabilities Act of 1990 (ADA) in building eight multiunit residential facilities.
November 17, 2022
Federal Judge Grants Care Home Motion To Compel Arbitration, Enjoins Suit

ASHLAND, Ky. — A Kentucky federal judge granted a nursing home’s motion to compel arbitration after it filed a petition asking the court to find the arbitration agreement valid and enforceable, finding that because the agreement is valid, the co-guardian must submit her state court negligence claims to arbitration.
November 17, 2022
Wisconsin Panel Affirms Incompetency, Guardianship Order Of Septuagenarian

WAUSAU, Wis. — A Wisconsin appellate court affirmed a lower court’s finding of incompetency of a 75-year-old woman and issuing an order of guardianship of her person and estate, finding that the evidence supported the lower court’s finding that due to her cognitive impairment, she is unable to make necessary decisions for her health and safety and therefore meets the guardianship requirements.