Below, in chronological order, is the annual roundup of the top 10 national elder law decisions for the year just ended, as measured by the number of “unique page views” of case summaries on the ElderLawAnswers website.

  1. Florida’s High Court Bars Non-Lawyers From Engaging in Medicaid Planning

Florida’s Supreme Court ruled that non-lawyers who engage in various Medicaid planning activities are engaging in the unlicensed practice of law.  The court’s ruling embraced a proposed advisory opinion of the Florida Bar that resulted from a petition by the Bar’s Elder Law Section. The Florida Bar Re: Advisory Opinion — Medicaid Planning Activities by Nonlawyers (Fla., No. SC14-211, Jan. 15, 2015).  To read my blog post about the ruling, click here.

  1. Beneficiaries Not Named in Trust Have Standing to Sue Attorney

A Pennsylvania appeals court held that beneficiaries who are not named in a trust still have standing to sue the attorney who prepared the trust as third-party beneficiaries if they can prove they were intended beneficiaries. Agnew v. Ross (Pa. Super. Ct., No. 2195 EDA 2014, Feb. 2, 2015).To read my blog post about the ruling, click here.

  1. Payments to Caregiver Subject Medicaid Applicant to Penalty Period

Reversing a lower court, a Michigan appeals court ruled that under state regulations a Medicaid applicant’s payments to a non-relative caregiver subjected the applicant to a penalty period because the caregiver did not have a written contract and a doctor had not recommended the service be provided. Jensen v. Department of Human Services (Mich. Ct. App., No. 319098, Feb. 19, 2015). To read a summary of the case, click here.

  1. State Can Impose Second Penalty Period on Same Transfers of Assets

A Massachusetts appeals court ruled that the state may impose a second penalty period based on the same transfers of assets after one of the transfers was cured and the applicant reapplied for benefits before the first penalty period was over. Burt v. Director of the Office of Medicaid (Mass. Ct. App., No. 13-P-1853, May 29, 2015). To read a summary of the case, click here.

  1. Wisconsin Estate Planning Attorney’s License Revoked for “Staggering” Misconduct

A Wisconsin attorney’s license to practice law was revoked for numerous counts of professional misconduct, including preparing an estate plan for an assisted living facility resident and his spouse that delayed the resident’s eligibility for Medicaid and significantly depleted the couple’s assets. Office of Lawyer Regulation v. Laux (Wis., No. 2014AP974, June 24, 2015). To read a summary of the case, click here.

  1. Ohio High Court Rules That Interspousal Transfer of Home Prior to Medicaid Eligibility Is Improper

A narrowly divided Ohio Supreme Court ruled that the transfer of a home between spouses prior to Medicaid eligibility is an improper transfer and is subject to the community spouse resource allowance (CSRA) cap. Estate of Atkinson v. Ohio Department of Job and Family Services (Ohio, No. 2013–1773, Aug. 26, 2015). To read a summary of the case, click here.

  1. Short-Term Annuities Are Not Resources for Medicaid Eligibility Purposes

The Third Circuit Court of Appeals ruled that Medicaid applicants’ short-term annuities are not resources even though the terms were less than the annuitants’ life expectancies. Zahner v. Secretary Pennsylvania Dept. of Human Services (3rd Cir., Nos. 14-1328, 14-1406, Sept. 2, 2015).To read my blog post about the ruling, click here.

  1. Attorney Who Advised Against Life Estate While Conducting Medicaid Planning Is Liable for Legal Malpractice

A Massachusetts appeals court ruled that an attorney who negligently advised a client that obtaining a life estate in property would hurt her chances of qualifying for Medicaid damaged the client because deprivation of a property right is actual damage. Brissette v. Ryan (Mass. Ct. App., No. 14-P-919, Oct. 29, 2015).To read my blog post about the ruling, click here.

  1. Son Must Pay for Mother’s Care Under Filial Responsibility Law Despite Abusive Childhood

A Pennsylvania appeals court held that a son is required to pay for his mother’s care under the state’s filial responsibility law even though the mother did not have outstanding medical bills and the son claimed he had an abusive childhood. Eori v. Eori (Pa. Super. Ct., No. 1342 WDA 2014, Aug. 7, 2015). To read a summary of the case, click here.

  1. Irrevocable Trust Is Available Asset Because Medicaid Applicant Had Right to Use Trust Asset

A Massachusetts trial court ruled that a Medicaid applicant’s irrevocable trust is an available asset because the applicant still had a right to live in, use, and get income from the condominium owned by the trust. Daley v. Sudders (Mass. Super. Ct., No. 15–CV–0188–D, Dec. 24, 2015). To read a summary of the case, click here.

(This blog post is based upon an article posted on the ElderLawAnswers website. Mr. Vanarelli is a member of ElderLawAnswers, the Web’s Most Trusted Long-Term Care and Planning Resource.)

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