Elder Law Issues
Daughter Has Priority As Guardian Despite Conflicts
FEBRUARY 21, 2000 VOLUME 7, NUMBER 34 Esther L.K., an elderly Wisconsin woman (Wisconsin courts help preserve anonymity by using initials rather than last names), needed a guardian. Her family members assumed they would be appointed, but the court instead appointed a private fiduciary organization, Legal Guardianship Services, Inc. Esther’s daughter Patricia A.M. (with support
Premarital Agreement Protects Husband From Wife’s Creditor
FEBRUARY 14, 2000 VOLUME 7, NUMBER 33 Premarital agreements are increasingly common, particularly in second marriages and between older couples. Do agreements between couples really work? A recent Arizona case provides good evidence that premarital agreements really can protect both husband and wife. Christopher and Shelley Schlaefer were married in 1994. They had already signed
Despite Dementia Diagnosis, Wyoming Man’s Will Is Valid
FEBRUARY 7, 2000 VOLUME 7, NUMBER 32 Two years before Erwin W. Schlueter died in 1997 at age 85, he had completed his estate planning. He had signed a will, a durable power of attorney for financial matters and a durable power of attorney for health care. When his relatives contested the validity of the
Phoenix Leader In Private Fiduciary Industry Goes To Jail
JANUARY 31, 2000 VOLUME 7, NUMBER 31 Arizona, unlike most other states, has a network of professional guardians and conservators to handle the personal and financial affairs of incapacitated adults (and minors). Most of the time, that network serves the community extremely well. Once again, however, the image of Arizona’s professional fiduciary industry has been
Expert Testimony Required In Lawsuit Against Nursing Home
JANUARY 24, 2000 VOLUME 7, NUMBER 30 Fred O. Thompson lived in the Embassy Rehabilitation and Care Center in Iowa. While there, he developed serious bedsores, ultimately requiring surgery to repair the damage. After his recovery, he brought suit against the nursing home, alleging negligent care. His complaint was dismissed by the Iowa courts. Mr.
Grandparents’ Court-Ordered Visitation Rights Under Review
JANUARY 17, 2000 VOLUME 7, NUMBER 29 Should grandparents have the right to enforced visitation with their grandchildren? Does the U.S. Constitution permit states to impose grandparent visitation on parents? Does state law adequately protect both the interests of families and the well-being of grandchildren? These are the questions posed by the U.S. Supreme Court
Prenuptial Pact Prevents Wife’s Claim Against Probate Estate
JANUARY 10, 2000 VOLUME 7, NUMBER 28 Jerry Cantrell lived in Tennessee and owned property there and in Kentucky. Mr. Cantrell was single, but had five adult children from a former marriage. In 1994, he saw Analyn Rojo’s picture in a mail-order bride magazine, and he got in touch with Ms. Rojo. They arranged to
Nursing Home Must Disclose Personnel Records, Pay Fine
JANUARY 3, 2000 VOLUME 7, NUMBER 27 Velma Buchanan was a resident of Country Care Nursing Home in La Vernia, Texas. Shortly before her death, she was the victim of a sexual assault. Her assailant was identified as sixteen-year-old Travis Moorhead, an unlicensed nurse’s aide at Country Care. Ms. Buchanan’s sister Charlotte Alexander brought a
State Court Declines To Act On Medicare HMO Denial Of Care
DECEMBER 27, 1999 VOLUME 7, NUMBER 26 Gilbert Levy, like many Medicare beneficiaries, was attracted by the promise of HMO coverage for his Medicare benefits. The California man shopped carefully, and only signed up with PacifiCare Health Systems after he was sure that he would be able to choose his own primary care physician, and
New Law Penalizes Gifts By SSI Applicants But Permits Trusts
DECEMBER 20, 1999 VOLUME 7, NUMBER 25 On December 14, 1999, President Clinton signed the Foster Care Independence Act of 1999. While most of the new federal legislation deals with foster care programs, it also changes the law and practice regarding so-called “Special Needs” trusts. The Supplemental Security Income (SSI) program, administered by but separate
Housing Complex May Be Held Liable Despite Public Funding
DECEMBER 13, 1999 VOLUME 7, NUMBER 24 Ruth M. Leibig was an active and self-sufficient 78-year-old, living in a senior complex operated by Somerville Senior Citizens Housing, Inc., a non-profit organization, in New Jersey. On May 16, 1994, she was found in her bathtub. Her arm had wedged behind the “grab bar” installed in the
Bank Is Not Liable For Alleged Mismanagement Of Account
DECEMBER 6, 1999 VOLUME 7, NUMBER 23 In 1998, Gertrude Hoener signed a bank card giving Ronald Hoener power of attorney over her accounts at People’s Bank of Pratt, Kansas. By the time she died in 1995, he had written checks to himself for $140,000 and had liquidated over $250,000 in certificates of deposit held
Jury Awards $1 In Freezing Death Of Demented Patient
NOVEMBER 29, 1999 VOLUME 7, NUMBER 22 Homer Cone suffered from dementia. As a result, he was placed in a nursing home in Missouri, run by national nursing home chain Beverly Enterprises. Apparently because of his confusion, he wandered out of the nursing home one winter day, got lost and died of hypothermia. Mr. Cone’s
Bankrupt Wins Damages For Bank’s Foreclosure Proceeding
NOVEMBER 22, 1999 VOLUME 7, NUMBER 21 Kenneth A. Kaneb, like many northern retirees, spent his winters in Florida. Although he lived alone after his wife’s death, he owned the family home in Massachusetts and a second home, a condominium, in Florida. In 1993, at the age of eighty five, Mr. Kaneb found that he
“Upscale” Facility Qualifies For Iowa Property Tax Exemption
NOVEMBER 15, 1999 VOLUME 7, NUMBER 20 Ballard Creek Community, an assisted living facility in Huxley, Iowa, is operated by a religious organization called Madrid Home for the Aging. Ballard Creek is a new development, and its current residents are mostly financially secure. Can such a facility qualify for a property tax exemption as a
Mother’s Incapacity Does Not Force Trustee To Account
NOVEMBER 8, 1999 VOLUME 7, NUMBER 19 Elisabeth Frudenfeld lives in California. In 1987, she established a revocable living trust. Nine years later, the California courts appointed a professional fiduciary as conservator to handle her affairs. Ms. Frudenfeld’s trust was primarily designed to avoid the probate process, and so she retained the power to revoke
Federal Initiative Combats Medicare and Medicaid Fraud
NOVEMBER 1, 1999 VOLUME 7, NUMBER 18 Two programs—Medicare and Medicaid—provide the majority of acute medical and long-term nursing care for America’s senior citizens. In fact, those two programs provide over one third of all medical care for Americans of all ages. With the total cost of those two programs approaching $400 billion per year,
Housing Project Allowed To Refuse Mentally Ill Applicant
OCTOBER 25, 1999 VOLUME 7, NUMBER 17 In 1980, a non-profit group in Cleveland, Ohio, applied for federal funds to renovate a former Franciscan Monastery. Our Lady of Angels Apartments, Inc., used the money to turn the former monastery into housing for the elderly and disabled. A decade later, Our Lady of Angels was sued
Patient’s Bill of Rights Also Protects Employee From Firing
OCTOBER 18, 1999 VOLUME 7, NUMBER 16 In the absence of a detailed employment agreement spelling out the grounds for discharge, most employees can be fired for any reason at all. Sometimes, however, notions of public policy override the ability of an employer to discharge an employee. Jane Hausman worked for the St. Croix Care
“Informed Consent” Duty Not Satisfied When Doctor Lies
OCTOBER 11, 1999 VOLUME 7, NUMBER 15 Before undertaking any medical procedure, physicians are required to obtain the consent of the patient (except in some limited circumstances, such as medical emergencies). Under American law, it is not enough to simply get the patient’s consent, however. The consent must be “informed”—in other words, the patient must
Oregon Doctor Disciplined For Inadequate Treatment Of Pain
OCTOBER 4, 1999 VOLUME 7, NUMBER 14 Adequate control of pain, especially at the end of life, is a key issue in modern medical care. Increasingly doctors, nurses, patients, family members and advocates realize that death need not be physically painful. The most recent demonstration of that consensus among medical care providers comes from the
“Fifty and Beyond” Is A Lively, Fact-Filled Elder Law Resource
SEPTEMBER 27, 1999 VOLUME 7, NUMBER 13 Non-lawyers are sometimes surprised when lawyers acknowledge that the legal system is not well-suited to some kinds of problems. That surprise will probably turn to astonishment at the suggestion of two elder law practitioners in a new book published this week: We begin, however, with this short cautionary
Will Prepared By Bookkeeper Valid–Contestants Disinherited
SEPTEMBER 20, 1999 VOLUME 7, NUMBER 12 Six days before he died, Arizonan Ralph Shumway signed a new will. Rather than consult a lawyer to prepare the will, Mr. Shumway had relied on his bookkeeper, Adelida Vega Rodriguez, to prepare the document for him. Because the will she prepared left one fourth of Mr. Shumway’s
Codicil To Will Valid Despite Questions Raised By Witness
SEPTEMBER 13, 1999 VOLUME 7, NUMBER 11 Last week Elder Law Issues reported on the Tennessee case of Cleon Cooke, in which bank customer service representatives apparently did not know how to properly witness and notarize a will according to state law (“Bank Not Liable For Mistakes Made By Witnesses, Notary”). Sometimes the problem is the
Bank Not Liable For Mistakes Made By Witnesses, Notary
SEPTEMBER 6, 1999 VOLUME 7, NUMBER 10 Witnesses are required for a number of legal documents, including wills (in most cases), powers of attorney and health care directives. Most lawyers recommend not having family members witness legal documents, since questions may later be raised about the signer’s competence, or the possibility of undue influence. It
Failure To Plan May Result In Court Naming Surrogates
AUGUST 30, 1999 VOLUME 7, NUMBER 9 When an adult becomes incapable of handling his or her own personal and financial affairs, someone must step forward and pay bills, make medical decisions and handle a host of daily decisions. Court proceedings, agency investigations and the plans made by the adult before becoming incapacitated will all
Insurance Saleswoman Unduly Influences Wisconsin Man
AUGUST 23, 1999 VOLUME 7, NUMBER 8 Vanessa Henningfeld first met 71-year-old George Milas when she visited his Wisconsin home to sell him a long-term care insurance policy. The two of them quickly became friends. Mr. Milas had a number of problems to deal with. He had a heavy Lithuanian accent that made it hard
Developmentally Disabled Man Dies Before Court Decides His Fate
AUGUST 16, 1999 VOLUME 7, NUMBER 7 Though once viewed as slightly out of the mainstream of American thought, the “right-to-die” movement has become widely accepted today. Few would argue with the notion that a competent patient has the right to refuse life-sustaining treatment, even when the medical community collectively believes that the treatment should
Disinherited Sister Has No Claim Against Brother’s Lawyer
AUGUST 9, 1999 VOLUME 7, NUMBER 6 Walter Heine never married and never had children. His closest relative was his sister, Alma Francis. In 1987, after Mr. Heine suffered a stroke, the Minnesota courts appointed a conservator to handle his money. Before his stroke, Mr. Heine had never gotten around to making out a will.
Medicaid Eligibility Sometimes Requires Legal Assistance
AUGUST 2, 1999 VOLUME 7, NUMBER 5 Bipin Shah worked in New York as a chemical engineer. Along with his wife Kashmira and their two children, Mr. Shah lived in New Jersey. On August 1, 1996, while working in Suffolk County, New York, Mr. Shah suffered a serious head injury, resulting in his hospitalization in