The Top 10 Elder Law Decisions of 2018

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 our summary of the 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In a non-precedential memorandum, the Pennsylvania Superior Court rules that an elder law attorney who criticized living trust scams in a letter was entitled to summary judgment in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 Advisor's Group, Inc. v. Blumer (Pa. Super. Ct., No. 365 MDA 2017, Feb. 14, 2018). To read the full summary and click through to the full text, click here.

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

A Maine federal district court dismisses 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). To read the full summary and click through to the full text, click here.

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

In a case argued by the ElderLawAnswers member firm of Margolis & Bloom, aMassachusetts trial court rules 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). To read the full summary and click through to the full text, click here.

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

A New Jersey appeals court rules 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, Orlow & Melletz v. Ehrlich (N.J. Sup. Ct., App. Div., No. A-2233-16T4, May 4, 2018). To read the full summary and click through to the full text, click here.

5. 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 rules 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). To read the full summary and click through to the full text, click here.

6. Residency Agreement Making Daughter Personally Liable Is Not Unconscionable

Reversing a trial court, a Connecticut appeals court rules 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). To read the full summary and click through to the full text, click here.

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

A New Jersey appeals court rules 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). To read the full summary and click through to the full text, click here.

8. Mother's Transfer of House to Daughter Is Proper Medicaid Planning

A New Jersey appeals court holds 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. Estate of Guglielmelli (N.J. Super. Ct., App. Div., No. A-0375-17T1, Sept. 6, 2018). To read the full summary and click through to the full text, click here.

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

Kansas's highest court suspends 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). To read the full summary and click through to the full text, click here.

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

A Massachusetts trial court rules 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, Dec. 13, 2018). To read the full summary and click through to the full text, click here.