Recent Developments in Elder Law- Selected Cases and Legislation 2016
| Publication year | 2021 |
| Pages | 112 |
CARMINE PERRI & BRENDAN F. DALY [*]
It was Aristotle, in his Politics, that said "even when laws have been written down, they ought not always to remain unaltered." In keeping with that quote, since 2012, there have been a number of developments in elder law. The aim in this article is to address a portion of the federal and state law developments, focusing on developments closer to the present.
This article is divided into the following three sections: (A) recent Connecticut legislation affecting Connecticut elders; (B) noteworthy nursing facility collection actions since 2012; and (C) recent Title XIX litigation, both in federal court and state court.
I. Recent Connecticut Legislation
In this section, three specific pieces of legislation will be discussed: the first and second laws, having to do with elder exploitation and the Uniform Power of Attorney Act respectively, were enacted in 2015, while the third, nursing facility statutory cause of action regarding transfers of assets, was enacted in 2013.
A. Public Act 15-236 titled, "An Act Protecting Elderly Consumers from Exploitation."
Public Act 15-236 is titled, "An Act Protecting Elderly Consumers from Exploitation," and is codified at General Statutes Section 17b-462. This Act, effective on October 1, 2015, states, in pertinent part, "an elderly person who has been the victim of abuse, neglect, exploitation or abandonment, as such are defined in Section 17b-450 of the general statutes, as amended by this act, may have a cause of action against any perpetrator and may recover actual and punitive damages for such abuse, neglect, exploitation or abandonment together with costs and a reasonable attorney's fee."[1] This new cause of action buttresses the usual claims of, among other claims, breach of fiduciary duty, conversion, unjust enrichment, and statutory theft (brought pursuant to General Statutes Section 52-564).
The Act also revised the so called "slayer statute."[2] To the extent deterrence has an effect on a wrong-doer, not only does a wrong-doer subject him or herself to an additional cause of action, he or she is also exposed to the possibility of being prevented from inheriting from their victim. General Statutes Section 45a-447 now states, in pertinent part, the following:
(a) (1) A person finally adjudged guilty, either as the principal or accessory, of any crime under section 53a-54a, 53a-54b, 53a-54c, 53a-54d, 53a-55, 53a-55a, 53a-122, 53a-123 or 53a-321, or in any other jurisdiction, of any crime, the essential elements of which are substantially similar to such crimes, or a person determined to be guilty under any of said sections pursuant to this subdivision, shall not inherit or receive any part of the estate of (A) the deceased victim, whether under the provisions of any act relating to intestate succession, or as devisee or legatee, or otherwise under the will of the deceased victim, or receive any property as beneficiary or survivor of the deceased victim . . . .
Additionally, regarding real property, the Act severs joint tenancy, between the wrong-doer and the victim, pursuant to General Statutes Section 45a-447, and, as to life insurance policies and annuities, states, in pertinent part:
(c) (1) A named beneficiary of a life insurance policy or annuity . . . who is finally adjudged guilty under section 53a-122 [Larceny in the first degree], 53a-123 [Larceny in the second degree], or 53a-321 [Abuse in the first degree], is not entitled to any benefit under the policy or annuity, and the policy or annuity becomes payable as though such beneficiary had predeceased the deceased victim.
The analysis for a beneficiary on a life insurance policy or annuity is not as cut and dry as either an inheritance or joint tenancy of real property since there are three possible scenarios where a beneficiary may be prevented from receiving a benefit under a policy or annuity. The clearest scenario is a conviction: a named beneficiary is not entitled to any benefit. If there is no conviction but a Superior Court judge makes the determination, "by a preponderance of the evidence, that a named beneficiary who has predeceased the interested person would have been found guilty under section 53a-54a, 53a-54b, 53a-54c, 53a-54d, 53a-55, 53a-55a, 53a-122, 53a-123 or 53a-321 had the named beneficiary survived," then the beneficiary would be prevented from receiving a benefit.[3] Finally, the third scenario, in the absence of either a conviction or a judicial determination, "the Superior Court may determine by the common law, including equity, whether the named beneficiary is entitled to any benefit under the policy or annuity."[4] It is unknown what standard the Superior Court would employ when making a determination "by the common law;" the burden of proof, however, would be on the person challenging the eligibility of the named beneficiary.[5]
B. Public Act 15-240, effective July 1, 2016, entitled, "An Act Concerning Adoption of the Connecticut Uniform Power of Attorney Act."
Moving on to the second piece of legislation, Public Act 15-240, effective July 1, 2016, entitled, "An Act Concerning Adoption of the Connecticut Uniform Power of Attorney Act," was a substantive piece of legislation which will undoubtedly impact elder law practices throughout the state. Given the depth and breadth of this legislation, however, this article will only address certain portions that affect litigation.
Section 11 of the Act permits a principal to designate two or more persons to act as co-agents. Pursuant to Section 11 (d), however, one agent who has actual knowledge of a breach or imminent breach of fiduciary duty by another against must notify the principal or, in the case of an incapacitated principal, take "any action reasonably appropriate in the circumstances to safeguard the principal's best interest."[6]The "good agent" failing to report the "bad agent" is "liable for the reasonably foreseeable damages that could have been avoided if the [good] agent had notified the principal or taken such action relating to such theft or misappropriation." Section 15 of the Act permits the principal to include a provision in the power of attorney relieving an agent of liability for breach of duty except, the Act does not permit the principal to relieve the agent "of liability for breach of duty committed dishonestly, with an improper motive or with reckless indifference to the purposes of the power of attorney or the best interest of the principal" and the Act does not permit a provision within the power of attorney that "was inserted as a result of an abuse of a confidential or fiduciary relationship with the principal."[7]
As to requesting an accounting pursuant to General Statutes Section 45a-175, the Act provides a laundry list of interested parties who have standing to do so including, but not limited to, the following: principal; agent; conservator; health care representative; the principal's spouse, parent, or descendant; and "the principal's caregiver or another person that demonstrators sufficient interest in the principal's welfare."[8] In short, almost anybody can request an agent to account for their doings under a power of attorney.
Finally, as to damages, Section 17 states, in pertinent part, that an agent "is liable to the principal or principal's successors in interest for the amount required to:
(1) Restore the value of the principal's property to what it would have been had the violation not occurred; and
(2) Reimburse the principal or the principal's successors in interest for the reasonable attorney's fees and costs paid on the agent's behalf."[9]
C. Public act 13-234, substantially revised, among other sections of the general statutes, section 17b-261q.
This next Public Act further empowered nursing facilities by creating a statutory cause of action regarding transfers of assets; however, the application of this cause of action is extremely limited. Effective October 1, 2013, Public Act 13-234, also known as the Governor's Implementer Bill, substantially revised, among other sections of the General Statutes Section17b-261q.
Pursuant to General Statutes Section 17b-261q, a nursing facility could bring a cause of action against a transferor or a transferee, as defined by the statute. The statute imposes the following two conditions on the cause of action: (1) the debt recovery does not exceed the fair market value of the transferred asset at the time of transfer, and (2) the asset transfer that triggered the penalty period took place not earlier than two years prior to the date of the nursing facility resident's medicaid application (a penalty period is " the period of medicaid ineligibility imposed pursuant to 42 United States Code §1396p(c) . . . on a person whose assets have been transferred for less than fair market value for the purposes of obtaining or maintaining medicaid eligibility").[10]
If the nursing facility proves, based upon clear and convincing evidence, that the defendant or defendants incurred a debt for unpaid care provided to a resident who has been subject to a penalty period by (1) willfully transferring assets that are the subject of a penalty period, (2) receiving such assets with knowledge of such purpose, or (3) making a material misrepresentation or omission concerning such assets, then a court may award the nursing facility actual damages, court costs, and reasonable attorney's fees. If, on the other hand, the defendant successfully defends the action, the court shall, as a matter of law, award the defendant court costs and reasonable attorney's fees. It must be noted that this statutory cause of action is in addition to all other rights or remedies a nursing facility has or may believe it has.
Finally, a conservator of the estate who transfers...
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