July 28

States Attempt to Fill Gaps to Help Traumatized Veterans

A staggering share of veterans who served in Iraq and Afghanistan have been returning home with mental illnesses brought on by their time overseas. But as hundreds of thousands struggle with post-traumatic stress disorder, many are going without the help they need, which is prompting several states to step in. State officials say they are trying to bridge what they see as gaps in services provided by the U.S. Department of Veteran Affairs, whose medical centers have been plagued by mismanagement, often face lengthy backlogs and can be located far from rural communities. If veterans with PTSD aren’t treated while their wounds are still raw, it will end up costing not only the veterans and their families, but society, according to state lawmakers and mental health workers. Veterans with PTSD are more likely to be depressed, drink heavily or use drugs, and many have trouble working and maintaining relationships — problems that cost billions of dollars in lost productivity. Starting this year, Texas will give money to nonprofits and private programs that provide treatment to veterans with PTSD and their families. New Hampshire has been training community mental health staff since last summer on how to find veterans and treat their PTSD. And New York is expanding a program that connects service members and veterans with mental health needs in small settings or in activities such as yoga and tai chi. Although state and local governments have long relied on the VA, states have an obligation to veterans, and they need to do more, said Kathryn Power, a regional administrator for the Substance Abuse and Mental Health Services Administration. The agency encourages local governments at a minimum to train mental health center staff about military culture, and make sure they know how to help veterans and their families.

For the article from Pew Charitable Trusts, click here.

July 25

Massachusetts Assisted Living Facilities Push to Add Medical Services

Owners of assisted-living facilities are lobbying Massachusetts lawmakers for authority to provide several highly sought medical services — a campaign that is sparking concern among patient advocates and dividing the industry. Unlike nursing homes, which provide round-the-clock medical care by nurses, assisted-living centers are designed and regulated in Massachusetts as private apartments that offer assistance with daily activities, such as bathing, cooking, dressing, and managing medications. Such facilities are home to roughly 14,000 residents in Massachusetts. Proposed legislation would allow assisted-living facilities to provide limited medical services that include injections, catheter replacement, applying medication and sterile dressing for wounds and skin problems, and administering oxygen to patients with serious ailments.

For the article from the Boston Globe, click here.

July 21

Court May Place Estate Assets in Constructive Trust During Divorce Action Following a Spouse’s Death but Prior to a Final Judgment (N.J. Super. Div.)

John and Emmaline O’Hara were married in 1955. Emmaline filed for divorce in 2012 and a litigious divorce proceeding ensued. John died unexpectedly during the pendency of the action. John’s last will created a marital and family trust for Emmaline’s benefit, the terms of which permitted, but did not require, the trustee to make principal distributions to Emmaline. The court subsequently granted a motion by Emmaline to join John’s estate as a defendant to the matrimonial action and add a claim for a constructive trust. The estate, in its motion to dismiss for failure to state a claim, argued that a constructive trust was not necessary because Emmaline had not been disinherited and there were no exceptional circumstances justifying equitable relief. After additional discovery, the court concluded that, although John’s last will established trusts for Emmaline’s benefit, it did not guarantee her the rights she would have otherwise been entitled to under the alimony and equitable distribution statutes. The order was affirmed on appeal. In exceptional circumstances equitable relief, including constructive trusts, may be available in divorce actions following a spouse’s death but prior to entry of a final judgment. The appellate court held that John’s death did not diminish Emmaline’s right to equitable distribution and further discovery was warranted to determine whether the estate would be unjustly enriched if it retained full interest in the marital assets.

O’Hara v. O’Hara, 2016 WL 731863 (N.J. Super. Div. Feb. 25, 2016) (unpublished)

July 18

Nonlawyer Personal Representative May Not Litigate Pro Se on Behalf of the Estate (Minn. App.)

Appellant Craig Anderson filed five lawsuits against numerous individuals for claims involving his father’s estate and property previously owned and occupied by his parents. The current lawsuit entails several additional claims that Anderson filed in his capacity as personal representative of his parents’ estates. The district court imposed preconditions on him before he could file any additional complaints, among them that he must be represented by counsel, post a bond of $20,000, and obtain permission from the court. Anderson, appearing pro se on behalf of the estate, appealed the preconditions. The appellate court dismissed the appeal, holding that a nonlawyer personal representative may not litigate on behalf of an estate, as this constitutes the unauthorized practice of law. A nonlawyer personal representative may only appear pro se when the personal representative’s actions are at issue.

Anderson v. Carlson, 2016 WL 764615 (Minn. App. Feb. 29, 2016) (unpublished)

July 14

Ward’s Beneficial Interest in a Trust Alone Does Not Confer Guardianship Court with Authority to Override Decisions of the Trustees (Fla. App.)

Ronald Mount was a ward in a nonadversarial guardianship proceeding. The guardianship court entered an order at the request of Mount’s court-appointed counsel compelling the co-trustees of the Ronald Mount Revocable Trust to return funds held in an escrow account at the Stern & Kilcullen law firm to the trust’s primary bank account. The co-trustees appealed, and the Florida court of appeals reversed the order in its entirety. The court held that in the absence of an action commenced by the guardianship against the trustees, Mount’s beneficial interest in the trust alone does not confer authority on the guardianship court to override decisions of the trustees regarding the management of trust assets. Without proof a trustee failed to perform its fiduciary duties, a guardianship court lacks authority to remove trust assets from a trustee’s control.

Guardianship of Mount, 2016 WL 759304 (Fla. App. Feb. 26, 2016) (publication pending)

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