AUGUST 15, 1994 VOLUME 2, NUMBER 6
Some recent court cases of note to those caring for or working with elders:
Call Button Inaccessible
Virginia Wunstell was admitted to Norman Health Care Center in Louisiana after several falls at the hospital where she had been treated. She suffered from dizziness and was near death.
Ms. Wunstell complained to at least three people that she could not reach her call button. Norman personnel advised her not to move without assistance and suggested restraints, which she refused. Within a few weeks of her admission, Ms. Wunstell was discovered on the floor of her room with a broken hip; she died six days later.
Gwendolyn Russell, Ms. Wunstell’s daughter, brought suit against Norman Health Care Center for wrongful death. The jury awarded Ms. Russell $46,000 in damages.
The Louisiana Court of Appeals ruled that the jury award was neither excessive nor inadequate. The Court specifically noted that Ms. Russell had been devoted to her mother, and that her mother had been in great pain. On the other hand, the Court pointed out that Ms. Wunstell was already near death, that she had refused restraints, and that she had been admonished not to move without assistance. Russell v. Kossover, Louisiana Court of Appeals, March 15, 1994.
Transfer of Home Voided
Danny Miller held a power of attorney for his grandfather, George Miller. In 1988, George Miller entered a nursing home. Danny Miller, using his power of attorney, executed a deed transferring his grandfather’s home to himself and his wife Tonia in July, 1989. George Miller did not know of or approve the transfer. Danny Miller later explained the transfer as a means of protecting the property from his father (George’s son) Bill Miller, an alcoholic who would often go to George’s home and cause trouble.
When George Miller recovered and sought to return to his home, Tonia Miller (who was by this time in the process of divorcing Danny Miller) refused to reconvey the home to George. He sued, seeking the imposition of a “constructive trust.” (A constructive trust is a legal device by which the Court can compel the holder of property to reconvey it to its legal owner).
The Court ordered that the property be returned to George Miller. Tonia Miller appealed.
The Missouri Court of Appeals agreed with the trial court. The appellate court ruled that, because George relied on Danny to take care of all his business affairs, there was a relationship of confidence between the two. Furthermore, the law governing powers of attorney required Danny to act in good faith, to seek and follow George’s instructions, and to avoid self-dealing. For all these reasons, the transfer must be set aside and the property returned to George Miller. Miller v. Miller, Missouri Court of Appeals, March 22, 1994.