Mealey's Elder Law : Mealey's : Legal News & Analysis

Mealey's Elder Law

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.
November 17, 2022
Judge Approves Counsel Fees Of $11.5M In Mass. Soldiers’ Home $57M COVID Death Suit

BOSTON — A Massachusetts federal judge approved class counsel’s $11.5 million attorney fee request after the commonwealth of Massachusetts paid $57 million to resolve a class action filed by veterans and the estates of veterans who died at the Soldiers’ Home in Holyoke, Mass., from COVID-19 and on behalf of other residents who died from or contracted COVID-19 there, finding the award of attorney fees “reasonable.”
November 16, 2022
Washington Panel Rules On Sanctions Award In Sibling Dispute Over Parents’ Estates

SEATTLE — A Washington appellate court reversed in part and affirmed in part a daughter’s appeal of a lower court order awarding attorney fees and costs against her as sanctions and the dismissal of her claims against her brother as the personal representative of their parents’ estates, finding that her appeal did not warrant imposing attorney fees and that the trust mismanagement and legal malpractice claims were incorrectly dismissed.
November 15, 2022
Heinz Cited In Certiorari Bid Over ERISA Pension Plan Reinterpretation Dispute

WASHINGTON, D.C. — Seeking review of a ruling that they argue “renders Central Laborers Pension Fund v. Heinz toothless,” participants in a defined-benefit multiemployer pension plan urge the U.S. Supreme Court to resolve a circuit split by ruling “that a reinterpretation that reduces or eliminates an accrued pension benefit is a prohibited amendment within the meaning of” the Employee Retirement Income Security Act; the respondents then were granted an extension to oppose the petition for certiorari.
November 15, 2022
Citing ‘Law Of The Case,’ Panel Affirms Order Awarding Attorney Fees In Estate Row

SANTA ANA, Calif. — A California appellate court on Nov. 14 affirmed a post-judgment order awarding attorney fees to the beneficiary of a decedent’s trust after the former personal estate representative appealed the award, finding that the appellate court’s prior holding awarding attorney fees to the beneficiary is “law of the case,” precluding the argument made on appeal.
November 11, 2022
Panel Finds No Abuse Of Discretion In Order Allowing Visitation With Grandchildren

CINCINNATI — A Ohio appellate court affirmed a trial court’s judgment awarding a grandfather visitation with his grandchildren, finding that the trial court did not abuse its discretion in issuing the judgment because it did not improperly shift the burden to the father to show that visitation with the grandfather was against the children’s best interests.
November 11, 2022
Texas Panel Affirms Judgment In Will Dispute Over Claim Of Undue Influence

HOUSTON — A Texas appellate court affirmed a trial court’s judgment in a suit filed by a decedent’s daughter alleging that her mother’s will admitted to probate was obtained by undue influence and was invalid, finding that the daughter did not show that the jury’s failure to deem the will invalid “was against the great weight and preponderance of the evidence.”
November 11, 2022
Federal Judge Dismisses Elder Abuse Suit Against Bank, Cites No Knowledge Of Fraud

LOS ANGELES — A California federal judge granted JPMorgan Chase Bank and its employee’s motion to dismiss a financial elder abuse against them filed by a couple who were victims of wire fraud, finding that the couple failed to allege facts showing that the bank and its employee knew that the couple was being defrauded.
November 10, 2022
Judge Issues Partial Grant In Class Suit Seeking Injunction Over CMS Interim Rule

NEW HAVEN, Conn. — A Connecticut federal judge granted in part Medicaid recipients’ preliminary injunction motion in a putative class action asking the court to enjoin the enforcement of a Centers for Medicare and Medicaid Services (CMS) interim final rule (IFR) reducing their Medicaid benefits, finding that “the harm . . . already affecting the plaintiffs outweighs the costs to the various states.”
November 09, 2022
U.S. High Court Hears Oral Arguments On Right To Sue Under Nursing Home Reform Act

WASHINGTON, D.C. — Attorneys representing a nursing home, Indiana and 21 other states, the wife of a deceased former nursing home resident and the U.S. government in support of neither party, presented oral arguments on Nov. 8 before the U.S. Supreme Court regarding whether the Federal Nursing Home Reform Act (FNHRA) confers a private right of action to nursing home residents under Title 42 U.S. Code Section 1983 for rights established by spending clause legislation.
November 08, 2022
Ark. High Court Remands For Findings In Ruling On Care Home’s Arbitration Dispute

LITTLE ROCK, Ark. — The Arkansas Supreme Court remanded with instructions a nursing home’s appeal of a trial court’s order granting in part and denying in part its motion to compel arbitration in a negligence suit against the nursing home, finding that “to conduct a proper appellate review,” remand is necessary for the trial court to provide findings regarding its order.
November 07, 2022
Iowa Panel Agrees With Finding Of Niece’s Undue Influence In Estate Challenge

DES MOINES, Iowa — An Iowa appellate court affirmed a lower court decision determining that a decedent’s bank accounts were estate property, finding that the decedent’s niece failed to meet the “burden to rebut the presumption of undue influence” when she became a joint account owner on the decedent’s bank accounts.
November 04, 2022
Federal Employee’s Age Bias Claim To Proceed After Government Changes Position

RICHMOND, Va. — A psychiatrist who was hired as a federal employee but then forced to resign after failing to pass a physical abilities test may proceed with her age and gender bias claims, a Fourth Circuit U.S. Court of Appeals panel ruled Nov. 3 following a change in position by the federal government after a divided panel ruled nearly a year ago that the age bias claim could not proceed.