R.G was the attorney-in-fact and primary caregiver for his parents. After R.G.’s mother fell ill, R.G. wanted to place his mother in a nursing home. R.G’s brother objected to this plan, but R.G. went ahead and had his mother admitted to a nursing home without his brother’s consent. R.G.’s brother sent angry and threatening texts and emails to R.G. as well as emails expressing his desire to find a way to care for their parents in their home. Eventually the men got into a physical altercation in which R.G.’s brother shoved R.G.

R.G. filed for a restraining order against his brother under the Prevention of Domestic Violence Act. The trial judge ruled that R.G. was harassed and assaulted and issued the restraining order. R.G.’s brother appealed, arguing that R.G. did not meet the definition of a victim of domestic violence.

The New Jersey Superior Court, Appellate Division, reverses, holding that R.G.’s brother’s actions did not amount to domestic violence. The court finds that there was insufficient evidence that R.G.’s brother purposely acted to harass R.G., ruling that “a mere expression of anger between persons in a requisite relationship is not an act of harassment.”

For the full text of this decision, go to: http://njlaw.rutgers.edu/collections/courts/appellate/a0945-15.opn.html

For New Jersey ElderLawAnswers member Donald D. Vanarelli’s more detailed summary of the case, click here.

The U.S. Court of Appeals for the Sixth Circuit rules that a case by the family of a Kentucky Medicaid recipient challenging the state’s adherence to federal law regarding spousal annuities rather than to a less restrictive state regulation is dismissed because federal law preempts the state regulation. Singleton v. Commonwealth of Kentucky (6^th Cir., No. 16-5596, Dec. 6, 2016).

Claude Singleton entered a nursing home and applied for Medicaid. His wife, Mary, purchased an annuity with herself as annuitant. Ms. Singleton wished to name the state as remainder beneficiary up to the amount of Medicaid paid on her behalf. State regulations provide that the state must be named remainder beneficiary for the amount of Medicaid benefits paid on behalf of the annuitant, and this did not change even after federal Medicaid law was amended in 2006 to require that states be named as a remainder beneficiary for Medicaid benefits paid on behalf of the institutionalized individual.  However, Ms. Singleton’s attorneys – the Lexington, Kentucky, ElderLawAnswers member firm of McClelland & Associates, PLLC — informed her that the state Medicaid agency’s branch manager would view structuring the annuity pursuant to the state’s regulation as a transfer for less than market value, so Ms. Singleton changed the state’s remainder beneficiary amount to Medicaid paid on behalf of Mr. Singleton.  

After Ms. Singleton died, her children, the annuity’s secondary beneficiaries, sued the secretary of the state Medicaid agency, along with other parties, in federal court, arguing that state regulations may be less restrictive than federal law and that the branch manager’s alleged policy of rejecting annuities drafted pursuant to Kentucky’s own statute was improper. The secretary of state filed a motion to dismiss, claiming immunity. The district court determined the case should not be dismissed because the secretary of state was not immune, and she appealed.

The U.S. Court of Appeals for the Sixth Circuit grants the secretary’s motion to dismiss, holding that federal law preempts the state regulation. According to the court, states may pass less restrictive laws that make additional people eligible for Medicaid, but because this regulation does not extend care to more individuals,  the secretary “was correct that federal law required her to impose a look-back penalty on couples who structured their annuities to avoid paying the state back for the cost of care.”

For the full text of this decision, go to: http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0283p-06.pdf

A U.S. district court refuses to grant an injunction requiring the state to provide Medicaid benefits to an applicant who transferred her assets to a limited liability company (LLC). Shackleford v. Lake (U.S. Dist. Ct., W.D. Okla., No. CIV-15-0218-HE, Nov. 29, 2016).

In March 2013, assisted living resident Leola Shackleford executed an operating agreement to create an LLC. She transferred all of her personal and real property into the LLC in exchange for a 100 percent interest. The terms of the LLC provided that Ms. Shackleford could not transfer her interest in the LLC to a third party without unanimous consent of the members. Ms. Shackleford also established a trust and transferred 99 percent of her interest in the LLC to the trust while transferring the other one percent interest to her children. Her son became manager of the LLC. The articles of incorporation of the LLC were filed in April 2013.

Ms. Shackleford applied for Medicaid benefits, but the state determined that the LLC was a countable resource and denied her benefits. She sued the state in federal court, seeking an injunction ordering the state to grant her Medicaid benefits. She argued that the LLC is a non-liquid resource that cannot be converted to cash, so it is not a countable resource.  

The U.S. District Court for the Western District of Oklahoma denies the injunction. According to the court, because the LLC was not incorporated until April 2013, it wasn’t legally capable of taking title to property before that date, so the assets effectively remained in Ms. Shackleford’s control. The court also rules that the LLC is an available resource because it is a “trust-like device” due to the fact that the assets in the LLC were managed by Ms. Shackleford’s son and used for her benefit.

For the full text of this decision, go to: http://cases.justia.com/federal/district-courts/oklahoma/okwdce/5:2015cv00218/93112/59/0.pdf?ts=1480522827