An Attorney Who Advised Against Life Estate While Conducting Medicaid Planning Is Liable for Legal Malpractice

An Attorney Who Advised Against Life Estate While Conducting Medicaid Planning Is Liable for Legal Malpractice

Medicaid Planning

A Massachusetts appeals court rules that an attorney who negligently advised a client that obtaining a life estate in property would hurt her chances of qualifying for Medicaid damaged the client because deprivation of a property right is actual damage. Brissette v. Ryan (Mass. Ct. App., No. 14-P-919, Oct. 29, 2015).

Marie Brissette and her husband consulted attorney Edward Ryan about protecting their house if they eventually needed Medicaid. Mr. Ryan advised them to transfer the house to their children and reserve a life estate, which they did. Thirteen years later, they wanted to sell that house and buy another house. Mr. Ryan advised them not to retain a life estate in the new property because it would make them ineligible for Medicaid and Medicaid could obtain a lien on the property. The Brissettes sold their house and used the money to buy a new house in the name of two of their children.

After her husband died, Mrs. Brissette sued Mr. Ryan for legal malpractice, arguing that due to his incorrect advice not to obtain a life estate on the new property, she had no legal right to it, which subjected her to the risk of being forced to move out by her children. A jury found Mr. Ryan liable for $100,000 in damages. Ryan appealed and the judge entered a judgment n.o.v., ruling that Mr. Ryan’s negligence did not cause Mrs. Brissette any actual harm because her children testified that they would never evict her. Mrs. Brissette appealed.

The Massachusetts Court of Appeals reverses and reinstates the jury’s verdict, holding that deprivation of a property right is actual damage. According to the court, “the fact that because of [Mr.] Ryan’s negligence [Mrs. Brissette] has no right to alienate the property during her lifetime by, for example, renting or mortgaging it, means that she did not obtain something of value that she otherwise would have. ”

TO READ THE TOP 8 MISTAKES IN MEDICAID PLANNING CLICK HERE.

For the full text of this decision, go to: http://www.mass.gov/courts/docs/sjc/reporter-of-decisions/new-opinions/14p0919.pdf

Be sure to consult with an experienced Medicaid Planning Attorney before making any planning decisions.

Questions? Email me at medicaid@RaphanLaw.com

Regards,

Brian

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s