ElderLawAnswers.com is a web site designed for seniors, their families, and attorneys with an interest in elder law issues ElderLawAnswers.com serves two distinct audiences: the public (namely seniors and their families), and elder law attorneys. The site delivers quality information about important issues facing seniors and provides seniors with referrals to qualified elder law attorneys nationwide.

Each year, ElderLawAnswers identifies the “top 10” elder law caselaw decisions from across the nation, and this year was no exception. Below, in chronological order, is ElderLawAnswers’ annual roundup of the top 10 elder law decisions for the past year, as measured by the number of “unique page views” of the summary of the case posted on the ElderLawAnswers web site. A link to the actual case is provided after the summary of each case.

  1. Elder Law Attorney Who Criticized Living Trust Scams Wins Summary Judgment in Defamation Lawsuit

In a non-precedential memorandum, the Pennsylvania Superior Court ruled that an elder law attorney who criticized living trust scams in a letter was entitled to summary judgment in a defamation lawsuit by a retirement planning company because the company did not show any actual harm. United Senior Advisors Group v. Blumer (Pa. Super. Ct., No. 365 MDA 2017, Feb. 14, 2018).

  1. U.S. District Court Finds that Transfers into Pooled Trusts by Persons Over Age 64 Are Countable by Medicaid

A Maine federal district court dismissed a challenge to the state’s practice of treating deposits into pooled special needs trusts (SNT) by individuals age 65 and over as transfers of assets for less than fair market value and subject to a penalty under Medicaid. Richardson v. Hamilton (D. Me., 2:17-cv-00134-JAW, Feb. 27, 2018).

  1. Trust Allowing Trustee to Distinguish Income From Principal Is Unavailable for Medicaid

A Massachusetts trial court ruled that a Medicaid applicant’s irrevocable trust was not an available asset even though it contained a provision permitting the trustee to determine what part of the trust property is income and what is principal. Yanow v. Office of Medicaid (Mass. Super. Ct., No. 1677CV00599, March 7, 2018).

  1. Winning Client Sues Attorney in Will Contest Case for Not Pursuing Different Legal Theory

A New Jersey appeals court ruled that a client cannot prevail on a legal malpractice claim against an attorney for pursuing the wrong theory in a will contest case because the client prevailed and there was no evidence the other theory was better. Begelman, Orlaw & Melletz v. Ehrlich (N.J. Sup. Ct., App. Div., No. A-2233-16T4, May 4, 2018).

  1. Wife Who Did Not Probate Husband’s Will Can Proceed With Legal Malpractice Claim Against Attorney Who Did Not Sign Will

Reversing a lower court, an Indiana appeals court ruled that an attorney who failed to sign a client’s will as a witness was not entitled to summary judgment in a legal malpractice claim by the client’s wife because the wife did not need to probate the will in order to prove damages. Davey v. Boston (Ind. Ct. App., No. 89A01-1712-PL-2955, May 30, 2018).

  1. Residency Agreement Making Daughter Personally Liable Is Not Unconscionable

Reversing a trial court, a Connecticut appeals court ruled that a residency agreement signed by the daughter of an assisted living facility resident making the daughter personally liable for her mother’s care is not unconscionable or against public policy. Emeritus Senior Living v. Lepore (Conn. App. Ct., No. AC 40078, June 26, 2018).

  1. Medicaid Applicant Who Began Paying Her Daughter After Two Years of Free Caregiving Receives Penalty Period

A New Jersey appeals court ruled that a Medicaid applicant who paid her daughter to be a companion after two years of free caregiving did not rebut the presumption that a transfer of assets to a relative who previously provided services for free is an uncompensated transfer for Medicaid purposes. E.B. v. Division of Medical Assistance and Health Services (N.J. Super. Ct., App. Div., No. A-3087-15T4, July 13, 2018).

  1. Mother’s Transfer of House to Daughter Is Proper Medicaid Planning

A New Jersey appeals court held that a mother’s transfer of her house her daughter was appropriate as part of Medicaid planning and not a result of undue influence, but that the daughter is not entitled to attorney’s fees. (N.J. Super. Ct., App. Div., No. A-0375-17T1, Sept. 6, 2018).

  1. Attorney Suspended for Charging Excessive Fees for Long-Term Care Planning

Kansas’s highest court suspended for six months an attorney who, among other things, charged a couple three times the going rate to qualify for VA and Medicaid benefits. In the Matter of Crandall (Kan., No. 117,910, Nov. 30, 2018).

  1. Medicaid Agency Wrongly Rejected Evidence That a Transfer Fell Under the Caretaker Child Exception

A Massachusetts trial court ruled that a Medicaid hearing examiner should have accepted evidence that a Medicaid applicant’s transfer of her house fell under the caretaker child exception and that the applicant’s other transfers were not made in order to qualify for Medicaid. Coko v. Tsai (Essex Sup. Ct. CA No. 2018-00071-A, December 13, 2018).

(This blog post is adapted from an article on the ElderLawAnswers web site. Mr. Vanarelli is a founding member of ElderLawAnswers.)

For additional information concerning will contests, probate litigation, and elder abuse actions, visit:

Will Contests, Probate Litigation and Elder Abuse Actions

_______________________________________________

ABOUT DONALD D. VANARELLI

Donald D. Vanarelli has been a practicing attorney since 1983 in New Jersey and New York. Don provides legal services in the areas of elder law, estate planning, trust administration, special education, special needs planning and trial advocacy, including probate litigation, will contests, contested guardianships and elder abuse trials.

Don is a Certified Elder Law Attorney, an Accredited Veterans Attorney and a Past Chair of the Elder and Disability Law Section of the New Jersey State Bar Association. Don is a recipient of the Lifetime Achievement Award, the highest honor given by the New Jersey State Bar Association – Elder and Disability Law Section. The Lifetime Achievement Award is bestowed on an attorney with an established history of distinguished service who has made significant contributions in the field of elder and disability law throughout his or her career. Recently, Don was selected by the New Jersey Law Journal as a Top Rated New Jersey Lawyer in 2019.

Don is actively involved in trial advocacy on behalf of elderly and disabled citizens. Don was lead counsel representing the plaintiff in a seminal estate planning / guardianship / Medicaid planning case entitled In re Keri, 181 N.J. 50 (2004), in which the New Jersey Supreme Court, for the first time, permitted guardians to engage in public benefits planning to obtain Medicaid eligibility for their wards. Don also represented the plaintiff in a pivotal case entitled Saccone v. Police and Firemen’s Retirement System, 219 N.J. 369 (2014) in which the New Jersey Supreme Court, for the first time, permitted a special needs trust to be designated as the beneficiary of a state pension. Don was also co-counsel representing the plaintiff in Galletta v. Velez, Civil No. 13-532 (D.N.J. June 3, 2014) in which a federal court ruled, for the first time, that a pension from the Department of Veterans Affairs may not be counted as income in determining Medicaid eligibility.

When he’s not working, Don spends his time with his wife, Marion, and his three children, Julianne, Evan and Alex.