Elder Law Issues
Creditor Files Claim Against Parent’s Joint Tenancy Account
FEBRUARY 11, 2002 VOLUME 9, NUMBER 33 Ruth Libros, like many parents, wanted to make it easy for her children to manage her affairs if she became incapacitated. She also wanted to make sure there would be no costly or time-consuming probate proceedings upon her death. She decided one way to achieve both results was
Debts Not Forgiven At Death Without Proper Documentation
FEBRUARY 4, 2002 VOLUME 9, NUMBER 32 Virginia Lee Bessett was fond of Edwin Huson. Ms. Bessett loaned Mr. Huson money several times over a two-year period. For each loan, Mr. Huson signed a promissory note that Ms. Bessett held as evidence of the loan. Upon Ms. Bessett’s death, a sealed letter addressed to Mr.
Damages Upheld For Medicare “Whistle-Blower” Employee
JANUARY 28, 2002 VOLUME 9, NUMBER 31 When Illinois anesthesiologist Michael Brandon was fired he was sure it was in retaliation for his efforts to uncover possible Medicare fraud. He sued his employer, Anesthesia & Pain Management Associates, Ltd., and won a jury verdict. That was not, however, the end of the legal wrangling. Dr.
Unsuccessful Challenge Costs Claimant And His Attorney
JANUARY 21, 2002 VOLUME 9, NUMBER 30 Despite the popular notion that it is easy to attack a decedent’s estate plan, successful challenges are actually quite rare. It is seldom possible to mount a challenge just because the decedent’s plan seems unfair, or because the decedent “always wanted” some other distribution. In fact those who
States Vigorously Prosecute Medicaid and Medicare Fraud
JANUARY 14, 2002 VOLUME 9, NUMBER 29 According to the federal government, as much as 10% of the funding for the joint federal/state Medicaid program is lost to fraud, mostly on the part of medical providers. The Medicare program is also deeply concerned about the possibility of fraudulent costs. Although both the Medicaid and Medicare
Massachusetts First on Modern Conception and Inheritance
JANUARY 7, 2002 VOLUME 9, NUMBER 28 If a husband and wife “bank” sperm so that the wife may conceive artificially, and the wife conceives through insemination of this sperm after the husband dies, will children resulting from such a pregnancy enjoy the inheritance rights of “natural” children in Massachusetts? Last week the Massachusetts Supreme
Assisted Living Facility May Be Liable For Death Of Resident
DECEMBER 31, 2001 VOLUME 9, NUMBER 27 For seniors who need a supportive residential environment but not nursing home placement, assisted living facilities can be a wonderful option. They can combine all the advantages of a controlled placement, but need not interfere with their residents’ personal freedom. Sometimes, however, assisted living facilities can be caught
Medicare+Choice Benefits Are Permitted To Vary By Region
DECEMBER 24, 2001 VOLUME 9, NUMBER 26 In 1997 Congress created a new range of managed care choices for Medicare beneficiaries. The new options, dubbed “Medicare+Choice,” were intended to give seniors (and the disabled) a range of options for delivery of health care services. The success of the program has been limited, and the availability
Lawyer/Draftsman Not Liable For Agent’s Misappropriations
DECEMBER 17, 2001 VOLUME 9, NUMBER 25 When Mark Hall decided to take financial advantage of Helen Fuite he began, as so many exploiters of the elderly do, by having her sign a financial power of attorney. He took her to his own attorney, Richard C. Holst of Wyoming, Michigan, to have the document prepared;
Husband Kills Wife, But His Family Inherits From Her Estate
DECEMBER 10, 2001 VOLUME 9, NUMBER 24 In April of 1998 Edward M. Covert shot and killed his wife Kathleen, and then killed himself. Out of that family tragedy arose an interesting legal problem: who would inherit Kathleen Covert’s estate? Mr. and Mrs. Covert lived and died in New York, but the legal problem was
Sons Inherit From Father Even After Adoption By Step-Father
DECEMBER 3, 2001 VOLUME 9, NUMBER 23 A recent California appellate case, as Judge Morrison of California’s third Appellate District writes at the start, “illustrates the danger of using preprinted wills. This danger, ill-described in the text of the opinion, may be better stated as “Be careful of what you fail to wish for.” Decedent
Claimant In Will Contest Not Entitled To Trial By Jury
NOVEMBER 26, 2001 VOLUME 9, NUMBER 22 Alaskan Lillie M. Rahm was in her early nineties when she first met handyman Robert Riddell, then in his mid-sixties. Their friendship grew quickly, and Mr. Riddell moved in with Ms. Rahm within a few months. Two years later friends and relatives instituted legal proceedings that lasted well
Unsigned Deed Effects Transfer Despite “Statute of Frauds”
NOVEMBER 19, 2001 VOLUME 9, NUMBER 21 The law can be inflexible and unforgiving of mistakes. This is particularly true with respect to real estate transfers, where nearly four centuries of legal precedent require strict compliance with the formalities of deeds and conveyances. Sometimes, however, the legal system recognizes that mistakes happen, as was the
Cremation Approved Despite Objection From Next of Kin
NOVEMBER 12, 2001 VOLUME 9, NUMBER 20 John Cottingham tried to make it clear that he wanted to be cremated. Even his will directed his family and friends to see to that wish. His mother, however, disapproved—and it took a court proceeding to overturn her decision to have him buried. Elder Law Issues has previously
Americans With Disabilities Act Overrides Local Zoning Rules
NOVEMBER 5, 2001 VOLUME 9, NUMBER 19 George and Astrid Dadian live in the Village of Wilmette, Illinois. The Dadians both have medical problems—she suffers from osteoporosis and asthma, and he from orthopedic problems. That is why they wanted their reconstructed home to have a garage that could be reached from the front curb. The
Grandson’s Creditors Can Not Reach Spendthrift Trust Assets
OCTOBER 29, 2001 VOLUME 9, NUMBER 18 When Kyle Krueger’s grandmother established a trust for him in 1985, she may or may not have known how the 19-year-old would turn out. For whatever reason, she locked up his trust benefits until his fiftieth birthday. As it turned out, her decision was good for Mr. Krueger—but
Eligibility, Benefits Figures Increase With Cost of Living
OCTOBER 22, 2001 VOLUME 9, NUMBER 17 Each year Social Security benefits are raised automatically to keep up with the increased cost of living. Benefit increases are pegged to standard measures of inflation, and take effect on January 1. Social Security figures, however, are not the only automatic increases affecting seniors and the disabled. Beginning
Evidence of Living Will Intent Must Be Clear and Convincing
OCTOBER 15, 2001 VOLUME 9, NUMBER 16 Many patients approaching the end of life feel very strongly that they would not want to be kept alive by feeding tubes, artificial breathing machines or other devices. Signing appropriate advance directives helps, but there is no guarantee that they will be located, properly understood and followed in
Probate Court Lacks Authority To Seize Lawyer’s Property
OCTOBER 8, 2001 VOLUME 9, NUMBER 15 Probate, guardianship and conservatorship proceedings can be difficult to navigate. Most people utilize lawyers to help with the process, and are well served by having legal representation. Lawyers often serve as protectors of the beneficiaries of those proceedings, and help steer individuals away from mismanagement of estate funds—or
Prenuptial Agreement Is Valid Despite Wife’s Failure To Read
OCTOBER 1, 2001 VOLUME 9, NUMBER 14 Prenuptial agreements, though not particularly romantic, are often important to couples about to be married. Particularly in second marriage situations, a prenuptial agreement can reduce anxiety between the new spouses as well as among family members of each spouse. There are some clear rules that must be followed
Medicaid Underpays Nursing Homes By $9 Per Patient Day
SEPTEMBER 24, 2001 VOLUME 9, NUMBER 13 A new study commissioned by the American Health Care Association confirms what most senior advocates have long suspected: funding for long-term care services (and particularly nursing home care) is insufficient to pay the actual cost of care. While there is significant variation among the states, the federal-state Medicaid
“Trust Mill” Shut Down, But State Pays Parent Company
SEPTEMBER 17, 2001 VOLUME 9, NUMBER 12 Fremont Life Insurance Company did a profitable business selling seniors living trusts. They used the usual pitch: avoid probate and the legal system, save on taxes and simplify your estate plan. Oh, and while we’re helping you plan your estate we think you should buy an annuity from
Nursing Home May Sue On Surety Bond For Nonpayment
SEPTEMBER 10, 2001 VOLUME 9, NUMBER 11 When J. Michael Cantore, Jr., was appointed as conservator of the person and estate of Diana Kosminer, he was required to post a bond to help ensure that he would handle her finances properly. The purpose of a “surety” bond (the type usually required of conservators) is to
“Simultaneous Death” Laws In Conflict For Insurance Payout
SEPTEMBER 3, 2001 VOLUME 9, NUMBER 10 Sometimes when the legislature adopts a new statute, no one notices that it conflicts with an existing law. While those conflicts usually get discovered and resolved, they can sometimes create real confusion in real cases. Consider the tragic case of the Craig family. William and Diane Craig and
Power of Attorney Does Not Always Avoid Conservatorship
AUGUST 27, 2001 VOLUME 9, NUMBER 9 Like many seniors, Robert Anderson signed a financial power of attorney, giving his daughter and son-in-law power to manage his financial affairs. He may have understood that the power of attorney would avoid the necessity of court proceedings to appoint a conservator if he became incapacitated. Having a
Neighbor Who Volunteered Help May Not Sue For Injuries
AUGUST 20, 2001 VOLUME 9, NUMBER 8 Wilbur Kloepping wanted to stay in his home even though he knew he was dying. The 80-year-old man was confined to a wheelchair most of the time, but his wife Marguerite helped take care of him. Sometimes Mr. Kloepping would fall out of his wheelchair, however, and Mrs.
Court Refuses Permission For Withdrawal Of Feeding Tube
AUGUST 13, 2001 VOLUME 9, NUMBER 7 Twice before we have told the unfolding and tragic story of Robert Wendland. Fate and the California Supreme Court have now written the final two chapters in the saga. You may recall that Robert Wendland was injured when his truck rolled over in 1993. Mr. Wendland had been
Court Win For Innovative Drug Cost Control Program In Maine
AUGUST 6, 2001 VOLUME 9, NUMBER 6 Medicare is a federal program providing medical care to millions of seniors and disabled individuals. Although beneficiaries may pay some portion of their own care costs those contributions are in most cases modest. By any reckoning, however, there are two important medical needs not covered by the Medicare
States Differ On Grandparents’ Rights To Visit Grandchildren
JULY 30, 2001 VOLUME 9, NUMBER 5 When the United States Supreme Court decided its landmark case regarding grandparents’ visitation rights in June of 2000, the Justices might have thought they were laying many of the legal issues to rest. Troxel v. Granville decided that the law in Washington State giving grandparents the right to
Heir Sues Agent For Adding Beneficiaries To Bank Accounts
JULY 23, 2001 VOLUME 9, NUMBER 4 Fae Powell had given her nephew Jackie Powell a power of attorney so that he could handle her financial affairs. Mr. Powell used that power of attorney to change over $600,000 worth of bank CDs into “payable on death” status, naming himself and other nephews and nieces as