May 24

Maryland Repeals Filial Responsibility Law

Maryland’s filial responsibility law provided that adult children are obligated to financially support a destitute parent with food, care, shelter, and clothing. The law was not used much in nursing home cases because Maryland law prohibits a nursing home from holding adult children responsible for a parent’s nursing home bill unless the child consents in writing to be financially responsible. However, the law could have been used when a parent under age 65 was under the care of a psychiatric hospital.

The repeal was a bipartisan effort. The arguments for repealing the law were that filial responsibility laws were a holdover from Elizabethan times, and that a parent’s failure to exercise sound financial discretion should not burden the parent’s adult children. To read the full repeal, go here: http://mgaleg.maryland.gov/2017rs/chapters_noln/ch_540_sb0676t.pdf.

May 22

Reservation of Power of Appointment in Deed Does Not Conflict With Conveyance of Property to Children

Margaret Hession sought legal assistance to protect her house in the event she might need Medicaid benefits. As part of the Medicaid planning, she executed a deed transferring her house to her children. The deed reserved a life estate for her and granted her a special power of appointment that allowed her to appoint the property to any person except herself, her creditors, her estate, or her estate’s creditors. Ms. Hession decided her daughter Deaven Skye should inherit less than her other children. She wrote a will that exercised her power of appointment and reduced Ms. Skye’s interest in the property from one-third to 5 percent.

After Ms. Hession died, Ms. Skye objected to the will and argued that the power of appointment was void. The trial court dismissed Ms. Skye’s objection and admitted the will to probate. Ms. Skye appealed, arguing that the provisions in the deed granting the remainder interests and reserving a power of appointment are irreconcilably repugnant to each other.

The Massachusetts Court of Appeals, rules that the reservation of the power of appointment is consistent with the other provisions of the deed. According to the court, “because of the reservation of the life estate, the deed conveyed not present possessory estates but rather remainder interests; and, because of the reservation of the power, the remainder interests were defined, in part, by this limitation.” The court specifically does not express a “view on the effect of the reserved power of appointment on [Ms. Hession’s] strategy of avoiding MassHealth look-back period regulations.”

For the full text of this decision, click here.

May 19

Medicaid Recipient Who Transferred Assets to Wife During Period of Ineligibility Is Subject to Penalty Period

Martin Fagan was injured in a motorcycle crash and entered a nursing home. In 2012, he began receiving Medicaid benefits. In 2015, he received a $2 million personal injury settlement, and the state discontinued his Medicaid benefits. Mr. Fagan transferred $879,453.32 of the settlement proceeds to his wife in two chunks. When Mr. Fagan reapplied for Medicaid, the state determined that he transferred assets for less than market value and imposed a transfer penalty.

Mr. Fagan appealed, arguing that because the transfers to his wife were pre-eligibility transfers, he could transfer an unlimited amount to her without incurring a penalty. The state upheld the penalty period, and Mr. Fagan sued for injunctive relief in federal court. The state and Mr. Fagan filed motions for summary judgment.

The U.S. District Court, District of Connecticut, grants summary judgment to the state, holding that the penalty period is appropriate. The court rules that any transfer to a community spouse made after the institutionalized spouse is Medicaid eligible is prohibited if it happens during the same period of institutionalization. According to the court, there is no reason why statutory language “should be interpreted to give an institutionalized individual, found ineligible for benefits upon redetermination, a second opportunity to make transfers to his spouse prohibited at the time of his initial eligibility determination when the coverage relates to the same period of institutionalization.” 

For the full text of this opinion, click here.

May 17

Executor Does Not Have Standing to Pursue Legal Malpractice Claim When Estate Is Not Damaged

Marietta Meisler had a trust that apportioned assets equally between her two children. In 2000, she hired Richard Weinberg to draft another trust that gave her daughter, Carole Meisler, a 60 percent interest in the trust.

After Marietta died, Carole sued Mr. Weinberg for legal malpractice, alleging that his failure to include successor replacement language in the trust led to the estate not being divided according to Marietta’s wishes. Mr. Weinberg filed a motion for summary judgment. The trial court found Carole did not have standing to sue for legal malpractice, and Carole appealed, arguing that as executor, she had standing to sue.

The Ohio Court of Appeals, Eighth District, affirms, holding that Carole does not have standing to sue Mr. Weinberg because she did not have an attorney-client relationship with him and the damages sought are individual to Carole. The court rules that an executor does not have “standing to assert a legal malpractice claim when the estate as a whole has not been diminished.” The court notes that even if Carole has standing, there is no evidence that the attorney acted contrary to Marietta’s wishes.

For the full text of this decision, go to: http://www.supremecourt.ohio.gov/rod/docs/pdf/8/2017/2017-Ohio-1563.pdf

May 15

Nursing Home’s Claim Against Resident’s Spouse Under Necessaries Statute Can Continue

Cora Sue Bell’s husband, Robert, resided in a nursing home for a few months before he died, accruing $1,678 in unpaid nursing services.

The nursing home sued Mrs. Bell under Ohio’s necessaries statute. The statute requires a married person to pay for a spouse’s necessities if the spouse is unable to support him- or herself. Mrs. Bell argued that Mr. Bell could support himself because he had 54 days of skilled nursing home Medicare coverage remaining. The trial court granted summary judgment to Mrs. Bell, ruling that the nursing home was required to pursue a claim against Mr. Bell’s estate before pursuing a claim under the necessaries statute. The nursing home appealed.

The Ohio Court of Appeals, 12th District, reverses, holding that summary judgment is not appropriate because more facts are needed to determine whether Mr. Bell could support himself. The court rules that the necessaries statute creates a separate cause of action that is not dependent on pursuing a claim against the estate. According to the court, the fact that Mr. Bell had insurance policies through Medicare that may have covered the nursing costs is not enough to affirmatively demonstrate that the nursing home “could not establish the inability to support element of its necessaries claim.”

For the full text of this decision, go to: http://www.supremecourt.ohio.gov/rod/docs/pdf/12/2017/2017-Ohio-1499.pdf

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