Fleming & Curti, P.L.C. - The "Vanishing" Income Cap

DECEMBER 26, 1994 VOLUME 2, NUMBER 25

The "Vanishing" Income Cap

Several recent cases from courts around the country should be of interest to those who deal with the elderly:

Incompetent Patient Not Liable

Roland Monicken, a Wisconsin nursing home resident, struck Sheri Gould, a nurse in the Alzheimer's ward where Monicken was cared for. Gould was injured, and brought suit against Monicken and his insurance company.

The jury found Monicken negligent and awarded damages. On appeal, the Court of Appeals determined that a person in Monicken's condition could not be negligent because of his dementia. The Court directed the trial judge to determine whether Monicken actually understood or appreciated the consequences of his actions. Gould v. American Family Mutual Insurance Co., Wisc. Court of Appeals, September 27, 1994.

Jointly Owned Property May Not Be Available

Laimomi Golis, a Hawaii resident, owned a one-fourth interest in real property. The Hawaii Medicaid agency valued her interest by dividing the assessed value by four; the result was that Golis was ineligible for Medicaid.

Golis brought a class action in Federal Court. She alleged that Hawaii's method of valuing fractional interests violated federal law. The Court agreed, finding that her interest was worthless, since there was evidence that no one would purchase her fractional interest at any price. The Court disagreed with Golis' additional argument that Medicaid was required to give her an open-ended opportunity to sell the property; Medicaid is permitted to revalue her interest in conformance with federal law. Golis v. Rubin, Hawaii District Court, July 20, 1994.

Lawyer Liable for Mistake

New Hampshire lawyer Christopher Calivas wrote a will for Robert Simpson in 1984. Unfortunately, the will contained a drafting ambiguity which resulted in an interest in 100 acres of land and buildings being distributed to someone other than Simpson intended. His son, who was supposed to receive the land, sued Calivas.

Although Calivas did not represent Simpson's son, and therefore did not owe him any duty directly, the New Hampshire Supreme Court found that he was liable. The Court noted that the "risk" to Simpson's son was "apparent" at the time of the drafting. Simpson v. Calivas, New Hampshire Supreme Court, September 21, 1994.

Deed Signed by Incompetent Cancelled

Glenn Bowen talked Delaware resident Raymond Barrows into selling him Barrows' investment real estate under an arrangement whereby he paid only $100 down and carried the balance for an indefinite term with no interest. The Delaware Court, finding that Barrows lacked capacity to contract, simply voided the entire transaction. The Court particularly focused on the terms of the note in finding the sale invalid. Barrows v. Bowen, Del. Chancery Ct., May 10, 1994.

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