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Mealey's Elder Law

January 30, 2023
Respondents Tell High Court Anti-Cutback Rule Doesn’t Apply To Pension Dispute

WASHINGTON, D.C. — Arguing in part that the Employee Retirement Income Security Act’s anti-cutback rule “only applies to accrued benefits and no accrued benefit arose here,” respondents on Jan. 27 urged the U.S. Supreme Court to deny certiorari in a dispute over a reinterpretation of “retire” that stopped early retirement pension benefits for some plan participants.
January 30, 2023
Illinois Panel Affirms Order Requiring Attorney To Return POA Fees To Estate

OTTAWA, Ill. — An Illinois appeals court affirmed a lower court judgment for the Illinois attorney general, who intervened in a probate dispute opposing the decedent’s executor’s request to retain power of attorney (POA) fees paid by the estate, finding that the lower court correctly determined that the executor’s claim for POA fees, for which he was required to file a claim with the probate court, is now time-barred, while making “one small correction” to deduct $600 in pre-death work from the amount the executor is required to refund to the estate.
January 27, 2023
Judge Rules On 1st Amendment Row Over Unlicensed Advice From ‘End-Of-Life Doulas’

SACRAMENTO, Calif. — A California federal judge granted in part a summary judgment to a nonprofit providing “end-of-life doula” counseling in its free speech and due process violation suit against the California Cemetery and Funeral Bureau, enjoining the bureau from citing Full Circle for offering free advice without a license and finding that despite conflicting messages, the bureau conceded “that it has no important or compelling interest in regulating that speech.”
January 25, 2023
6th Circuit Affirms Remand, Says No PREP Act Support For COVID Death Suit Removal

CINCINNATI —The Sixth Circuit U.S. Court of Appeals affirmed a district court’s order remanding to state court a COVID-19-related negligence and wrongful death case against a nursing home and entities owning or operating it, finding that the nursing home and related entities failed to meet the burden to show that the Public Readiness and Emergency Preparedness (PREP) Act supports removing the claims to federal court.
January 19, 2023
Panel Affirms Judgment, Finds Suit Not Stayed By GAL Appointment In Other Case

SAN JOSE, Calif. — A California appellate court affirmed lower court orders finding in favor of a man’s guardian ad litem (GAL) in two fraud suits against the GAL and other defendants, finding that the appointment of a GAL in his marriage dissolution case did not require a stay in any other case.
January 17, 2023
U.S. High Court Will Review Putative Class Property Seizure Case By Elderly Woman

WASHINGTON, D.C. — The U.S. Supreme Court on Jan. 13 granted the petition for a writ of certiorari filed by a Minnesota woman who was 93 when her home was seized and argues in her putative class case that 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 is improper.
January 13, 2023
Judge Dismisses Suit Against Maryland AG, Cites ‘Vexatious Litigation’ In Will Row

GREENBELT, Md. — A Maryland federal judge dismissed a decedent’s former daughter-in law’s complaint against the Maryland attorney general, a county register of wills and attorneys after she was forced to return over $1 million in funds to the decedent’s estate in separate litigation, finding that the register of wills and attorney general are immune pursuant to the 11th Amendment to the U.S. Constitution and that res judicata bars the claims against the attorneys.
January 12, 2023
Petition For Cert Filed In Denial Of Disability Benefits Under Social Security Act

WASHINGTON, D.C. — A petition for writ of certiorari was filed with the U.S. Supreme Court challenging the Sixth Circuit U.S. Court of Appeals’ decision upholding the determination of an administrative law judge (ALJ) that a man seeking disability insurance benefits and supplemental security income through the Social Security Administration (SSA) did not have a disability under the terms of the Social Security Act.
January 11, 2023
11th Circuit Affirms Judgment In Estate Appeal, Cites No Wrongful Foreclosure

ATLANTA — The 11th Circuit U.S. Court of Appeals affirmed a district court’s summary judgment for a mortgagee in a wrongful attempted foreclosure suit filed by an estate against its reverse mortgage lender, finding that because the mortgagee’s publication of a foreclosure notice in a local paper was not intentional, but “merely mistaken,” it did not meet the knowing and intentional standard under Georgia law to recover damages for wrongful attempted foreclosure.
January 11, 2023
Expert Correctly Excluded In Wrongful Death Suit, Utah Appeals Court Says

SALT LAKE CITY — A trial court did not err in excluding an expert retained by the estate of a man whom it alleges died as a result of negligence by a nursing home, a Utah appeals court ruled, also finding that because the estate failed to establish medical causation, summary judgment was also appropriate.
January 10, 2023
11th Circuit Finds No Error In Allowing Expert Testimony In Insurance Fraud Case

ATLANTA — A district court did not err in admitting expert opinion testimony against a man convicted for his role in a $37 million health care fraud scheme that began in 1998 and involved bribing physicians to have patients entered into a network of assisted living facilities and skilled nursing facilities that he owned, the 11th Circuit U.S. Court of Appeals ruled, rejecting each of the man’s other arguments for reversal.
January 10, 2023
Panel Rules On Grandparent Visitation, Considers Genetic Testing Showing Paternity

COLUMBUS, Ohio — An Ohio appellate court affirmed in part a lower court order adopting a magistrate’s decision to add a paternal grandmother as a party in a case where her son was seeking to establish paternity regarding a minor child, finding that the lower court did not abuse its discretion in adding the grandmother as a party to the case because genetic testing showed that her son was the child’s father.
January 10, 2023
Judge Refers Fraud Case For Settlement In Siblings’ Tussle Over Aunt’s Annuity

NEW HAVEN, Conn. — A federal judge on Jan. 9 issued a docket entry order referring a case for settlement after issued a partial grant of a woman’s request for prejudgment remedy four days earlier in the woman’s fraud suit against her brother, alleging that he deprived her of her beneficiary status under their aunt’s annuity, finding that the woman’s facts and evidence sufficed to show probable cause of her brother’s intentional conduct.
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.