Marie Brissette and her husband consulted attorney Edward Ryan for advice about how to protect their home from a Medicaid lien in the event that either needed long-term care. Ryan advised them to transfer the title to their property to their four adult children with reserved life estates. The Brissettes followed Ryan’s advice, transferring the property to their four children and reserving life estates for themselves. Thirteen years later, the Brissettes and two of their four children again consulted with Ryan to discuss the Brissettes’ desire to sell the home and buy another property.  Ryan told the Brissettes that they could be ineligible for Medicaid if they reserved life estates in the new property, and there could be a Medicaid lien against that property when they died. In reliance on Ryan’s advice, the Brissettes bought the new property but put title to the new property in two of their four children’s names without retaining life estates.

After her husband died, Mrs. Brissette sued Mr. Ryan for legal malpractice. She argued that, due to Ryan’s incorrect advice, she did not to obtain a life estate on the new property, leaving her with no legal interest in the property, which subjected her to the risk of being forced to move out of the house by her two children who owned the new property.

At trial, Ryan conceded that the advice he gave was wrong, both about ineligibility for Medicaid and about the possibility of a posthumous Medicaid lien being filed against the property had the Brissettes reserved life estates in the new property. Also, an expert witness testified that besides being wrong, Ryan’s advice was below the standard of care applicable to the average qualified attorney advising clients on Medicaid planning.

The jury found Ryan liable and set damages at $100,000. Ryan appealed, and the judge entered judgment in his favor notwithstanding the jury’s verdict. The judge ruled there was no proof that Mrs. Brissette suffered actual damages because her children testified that they would never “evict” their mother. Mrs. Brissette appealed.

On appeal, the Massachusetts Court of Appeals reversed, holding that:

[A]s a proximate and reasonably foreseeable result of Ryan’s negligence, [Mrs. Brissette] failed to obtain a valuable property right she otherwise would have: a life estate …. Deprivation of such a property right is actual damage….  It is no answer to [Brissette’s] claim against Ryan … to say that it does not matter because her children allow her to live in the house …. [T]he fact that because of Ryan’s negligence she has no right to alienate the property during her lifetime by, for example, renting or mortgaging it, means that she did not obtain something of value that she otherwise would have. She is damaged by that loss and should properly be compensated for it ….

As a result, the appellate court reinstated the jury’s verdict.

For the full text of this decision, go to: Brissette v. Ryan

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