Pre-Law: Elder Law

1. Health Care & Long-Term Care Planning: This area assists elders with advanced directives (living wills, health care proxies), nursing home and assisted living rights, and long-term care insurance. Furthermore, Medicaid/Medicare planning and eligibility fall under this category. 

2. Estate Planning & Asset Protection: Elder attorneys provide guidance on wills and trusts, power of attorney, probate and estate administration, as well as strategies to preserve assets while qualifying for public benefits. This area is preparation for when an elderly individual is either incapacitated or has passed away to avoid further conflict.  

3. Guardianship & Conservatorship: This faucet of Elder Law deals with legal processes for appointing decision-makers for incapacitated individuals and alternatives to guardianship (supported decision-making).  

4. Elder Abuse & Exploitation: When an elderly person is abused or exploited, elder attorneys can offer legal remedies for physical, emotional, and financial abuse. These can include protective orders, criminal prosecution, reporting mechanisms, and advocacy resources. 

5. Public Benefits: The social benefits category concerns government programs and assisting elders with receiving Social Security and Supplemental Security Income (SSI), Medicare and Medicaid, veterans’ benefits, and/or housing assistance. 

Facts of the Case: Georgi Talevski was an elder with dementia living under the care of Valparaiso Care and Rehabilitation, a nursing home run by the state of Indiana. After his abilities radically decreased, his family discovered the home used drugs to chemically restrain Georgi and made a complaint to the Indiana State Department of Health; after which, Valparaiso Care and Rehabilitation transferred him multiple times and discharged him with no notice. Ivanka Talevski sued the home on behalf of her husband, claiming his rights were violated under the Federal Nursing Home Reform Act. A district court dismissed the initial claim due to the Health & Hospital Corporation of Marion County arguing that FNHRA did not outline rights that could be violated. After appealing, the U.S. Court of Appeals reversed the decision due to finding constitutional violations.  

Rule of Law: Individuals can sue when guaranteed rights are violated, such as the protective rights outlined in the Federal Nursing Home Reform Act (FNHRA). State-run care facilities now have tangible consequences for crossing these legal boundaries and violating a patient’s rights.   

Final Decision: The U.S. Supreme Court ruled 7-2 that a plaintiff could sue for violation of rights protected under the Federal Nursing Home Reform Act. The majority opinion was authored by Justice Ketanji Brown Jackson and received dissents from Justices Samuel Alito and Clarence Thomas.   

Citation: Health & Hosp. Corp. v. Talevski, 599 U.S. 166, 143 S. Ct. 1444, 216 L. Ed. 2d 183, 2023 U.S. LEXIS 2421, 29 Fla. L. Weekly Fed. S 875 (U.S. June 8, 2023)  

Facts of the Case: Jennifer Smith was involved in two subsequent car accidents with Delaney Mahoney and Nicole Richards. Smith qualified for Medicaid and due to numerous medical expenses, she accumulated a large bill that was then paid in part by Medicaid. In court, Smith presented the higher bill, rather than the one Medicaid paid. After being sued for personal injury expenses of $24,911 for past medical expenses, $10,000 for future medical expenses, and $15,000 for pain and suffering, Mahoney and Richards both fought for the award to be decreased.  

Rule of Law: Medicaid paying for a plaintiff’s medical treatment in a tort case means that the plaintiff cannot rely upon the collateral source rule to recover medical fees in excess of what Medicaid actually paid. However, future medical expenses and the jury’s award were not reduced by predicted Medicaid payments because the plaintiff's future Medicaid eligibility is uncertain.   

Final Decision: The Defendants’ motion to alter or amend the previous judgement was granted in part and denied in part; Jennifer Smith’s awarded amount for past medical expenses was lowered to $5,197.71 but her reward for future expenses was not changed. 

Citation: Smith v. Mahoney, 2015 Del. Super. LEXIS 1071, 2015 WL 10519628 (Del. Super. Ct. November 20, 2015)

Facts of the Case: In April 1993, Rose Wallien (88) fractured her ankle and was placed in Meadowood Nursing Center by her daughter, Kay Delaney. In less than four months, Wallien developed stage III and IV pressure ulcers on her ankles, feet, and buttocks and passed away in the home. Evidence indicated she was frequently left in urine and feces due to staffing shortages and poor training. Delaney sued Meadowood and its administrators (Calvin Baker Sr. And Calvin Baker Jr.) for several charges including medical negligence, wrongful death, and neglect of an elder.  

Rule of Law: While the defendants were not discovered to have acted with “malice” or “oppression,” they did act “recklessly” under Welfare & Institution Code § 15657. Plaintiffs can recover enhanced remedies under California’s Elder Abuse Act (Welfare & Institutions Code § 15657), including attorney’s fees and pain and suffering damages when a medical provider commits elder abuse through acts of reckless neglect.   

Final Decision: The court returned their verdict in favor of Delaney on negligence and statutory neglect of an elder and awarded her for the heightened attorney fees, as well as pain and suffering damages.  

Citation: Delaney v. Baker, 20 Cal. 4th 23, 971 P.2d 986, 82 Cal. Rptr. 2d 610, 1999 Cal. LEXIS 1308, 99 Daily Journal DAR 2085, 99 Cal. Daily Op. Service 1637 (Cal. March 4, 1999) 

Facts of the Case: In January 2010, Alan Smith was involved in an auto accident and suffered from subdermal hematoma. After he was declared mentally incapacitated, Smith’s daughter petitioned the court to appoint a plenary guardian; Smith’s son was originally appointed. However, he resigned. John Cramer was appointed as a successor limited guardian and a year later applied to be a plenary guardian. Cramer was opposed by Glenda Martinez, who met Smith on a senior dating site in 2008. Before his accident, Smith had given durable power of attorney, a designation of health care surrogate, and preneed guardian power to Martinez. In 2011, he divorced his first wife and married Martinez, with Cramer still as his guardian. Cramer petitioned Martinez, claiming that she did not communicate well with caretakers and was not acting in Smith’s best interest, to which she responded that he was taking advantage of Smith.  

Rule of Law: Under Florida Statutes § 744.3045, a mentally able adult can appoint a preneed guardian if they ever become incapacitated. This can only be reversed if the court finds that the appointed guardian is not acting in the ward’s best interest.   

Final Decision: The appellate court reversed the trial court’s order appointing John Cramer as plenary guardian of Smith over Glenda Martinez, as the trial court failed determine a reason that Martinez’s guardianship would be contrary to the Smith's best interests.  

Citation: Martinez v. Smith, 159 So. 3d 394, 2015 Fla. App. LEXIS 3966, 40 Fla. L. Weekly D 695 (Fla. Dist. Ct. App. 4th Dist. March 18, 2015)