Failure to Reference the Guardian Ad Litem's Recommendation

 The Mississippi Supreme Court held in S.N.C. v. J.R.D. Jr., 755 So. 2d 1077, 1082 (¶18) (Miss. 2000), “that a chancellor shall include at least a summary review of the qualifications and recommendations of the guardian ad litem in the court’s findings of fact and conclusions of law.”  Furthermore, “when a chancellor’s ruling is contrary to the recommendation of a statutorily required guardian ad litem, the reasons for not adopting the guardian ad litem’s recommendation shall be stated by the court in the findings of fact and conclusions of law.”  Id.; see also Barber v. Barber, 288 So. 3d 325, 335 (¶¶37-38) (Miss. Ct. App. 2020) (reversing chancellor’s ruling and remanding for failing “to address the [GAL’s] findings and recommendations); Borden v. Borden, 167 So. 3d 238, 243 (¶13) (Miss. 2014) (finding the chancellor’s failure to “provide a summary of the [appointed GAL’s] report or a summary of his reasons for rejecting the [GAL’s] recommendation” was error).

When is a Medicaid Trust Needed?

 A Medicaid Trust, also known as a Special Needs Trust or Supplemental Needs Trust, is typically used when an individual with disabilities or special needs is receiving or expecting to receive a personal injury settlement and needs to preserve their eligibility for Medicaid benefits.

Medicaid is a government program that provides healthcare coverage for individuals with limited income and resources. To qualify for Medicaid, an individual must meet certain income and asset requirements. If a person receiving Medicaid benefits suddenly receives a large sum of money from a personal injury settlement, it could disqualify them from Medicaid due to the increased assets.

Here are some situations where a Medicaid Trust may be needed for a personal injury settlement:

1. Preservation of Medicaid Eligibility: A Medicaid Trust allows the funds from a personal injury settlement to be set aside in a trust, which is not considered as the individual's personal assets for Medicaid eligibility purposes. This way, they can continue to receive Medicaid benefits while using the funds from the trust for supplemental needs that are not covered by Medicaid.

2. Protection of Government Benefits: Many individuals with disabilities rely on government benefits, such as Supplemental Security Income (SSI) or Medicaid, for their medical and living expenses. By placing the settlement funds in a Medicaid Trust, the person can preserve their eligibility for these benefits and ensure that the settlement does not jeopardize their access to essential support.

3. Management of Funds: A Medicaid Trust provides a structured way to manage and allocate the settlement funds on behalf of the individual with disabilities. The trust is typically managed by a trustee who has a fiduciary duty to use the funds for the beneficiary's benefit, while also ensuring compliance with Medicaid rules and regulations.

It's important to consult with an attorney who specializes in elder law, special needs planning, or Medicaid planning to determine if a Medicaid Trust is necessary and to properly establish and administer the trust in accordance with the applicable laws and regulations in your jurisdiction.

Per Capita vs. Per Stirpes

 

Per capita and per stirpes are two different methods of distributing an estate or inheritance among a group of beneficiaries, and the main difference between the two is how they handle the distribution of property when one or more of the beneficiaries predeceases the testator (the person who created the will or trust).

Per capita distribution means that the estate or inheritance is divided equally among all living beneficiaries, regardless of their relationship to the deceased. For example, if a person's will specifies that their estate should be distributed equally among their three children, and one of the children predeceases the testator, the remaining two children would split the inheritance equally.

Per stirpes distribution, on the other hand, means that the estate or inheritance is divided by branch of the family, with each branch receiving an equal share of the property. If a beneficiary predeceases the testator, their share is divided equally among their own children or heirs. For example, if a person's will specifies that their estate should be divided per stirpes among their three children, and one of the children predeceases the testator, that child's share would be divided equally among their own children or heirs.

In summary, per capita distribution divides the estate equally among all living beneficiaries, while per stirpes distribution divides the estate equally by branch of the family, with each branch receiving an equal share of the property.

Tennessee Malicious Prosecution

 

In an opinion released today, the Tennessee Supreme Court extended its previous holdings with respect to civil defendants in Parrish v. Marquis, 172 S.W.3d 526, 531 (Tenn. 2005), and Himmelfarb v. Allain, 380 S.W.3d 35 (Tenn. 2012), and held that a criminal defendant can pursue a claim for malicious prosecution only if an objective examination, limited to the documents disposing of the proceeding or the applicable procedural rules, indicates the termination of the underlying criminal proceeding reflects on the merits of the case and was due to the innocence of the accused. 

 

 The plaintiff, Kenneth J. Mynatt, was elected vice president of his local union. Mr. Mynatt alleged that after he publicly criticized the union’s financial waste, its leadership accused him of misusing union funds, which ultimately led to Mr. Mynatt’s indictment on two felony charges. The criminal charges against him were later dismissed. Mr. Mynatt in turn filed an action for malicious prosecution, among other things, against the union, the local chapter, and several individuals associated with the union.

 

 The defendants in the malicious prosecution case filed a motion to dismiss, arguing that Mr. Mynatt’s complaint did not establish that the criminal proceedings terminated in his favor, which is an essential element of a malicious prosecution claim. The trial court agreed and dismissed the complaint. The Court of Appeals reversed and remanded, determining that Plaintiff “sufficiently alleged in his complaint that the underlying proceedings terminated in his favor by asserting that the charges against him were dismissed, that he was innocent of the charges, and that he entered into no deal or agreement with the prosecutor.”  The Supreme Court granted review to consider under what circumstances the dismissal of criminal charges constitutes a “favorable termination” for the purposes of a malicious prosecution claim.

 

 In its unanimous opinion, the Supreme Court considered the evolution of the favorable termination standard and specifically focused on its two relevantly recent opinions in Parrish v. Marquis and Himmelfarb v. Allain, both of which involved malicious prosecution claims stemming from an underlying civil lawsuit. The Court noted that Parrish and Himmelfarb established that a favorable termination must relate to the merits and indicate innocence. The Supreme Court further considered the notable differences between civil lawsuits and criminal prosecutions and the decisions of courts in other jurisdictions. Ultimately, the Court determined that the favorable termination standard articulated in Parrish and Himmelfarb should be extended to apply to malicious prosecution actions where the underlying proceeding was criminal.  It also concluded that the prohibition in Himmelfarb precluding a fact-intensive and subjective inquiry into the reasons and circumstances leading to dispositions if civil cases also applies to dispositions of criminal cases.

 

 Thus, the Supreme Court held that a plaintiff can pursue a claim for malicious prosecution only if an objective examination, limited to the documents disposing of the proceeding or the applicable procedural rules, indicates the termination of the underlying criminal proceeding reflects on the merits of the case and was due to the innocence of the accused. Under this standard, the Court determined that Mr. Mynatt did not allege sufficient facts for a court to conclude that the dismissal of his criminal case was a favorable termination. Accordingly, the Supreme Court reversed the decision of the Court of Appeals and reinstated the trial court’s order granting the motion to dismiss.

 

 To read the Supreme Court’s opinion in Kenneth J. Mynatt v. National Treasury Employees Union, Chapter 39, et al., authored by Chief Justice Roger A. Page, visit the opinions section of TNCourts.gov

Dog Bites in Mississippi

 

Can you sue a dog owner after a dog bite attack in Mississippi? Dogs can be unpredictable.  Even when an owner thinks that his or her dog is a “friendly” dog, it can still attack and bite a stranger, friend, or family member.  Being injured by a dog bite can happen anywhere.  So, can someone sue a dog owner if they are injured by a dog bite?  The answer is: it depends. There is no specific statute in Mississippi as there is in other states that make a specific ruling on dog bites or dog attacks.  Dog attacks come under more general rules of negligence.  If the victim and his or her attorney can prove that the dog owner was negligent in some way, then a lawsuit may be successful.  Negligence may be proven in a number of different situations: The dog was released from its leash or allowed to run free in a public area where dogs were either forbidden or at least required to be on a leash. The dog was known by the owner to have previous dangerous tendencies.  This might include the fact that the dog had already attacked or bitten other people before the incident under question.  It might be because the dog was of a particular breed that had a known record of being dangerous, e.g. a pit bull terrier or mastiff. A dog attack victim’s cause of action against a dog owner is usually based on the dangerous-propensity rule.  Under the dangerous propensity rule, an animal owner may be exposed to liability for an attack by his or her animal when there is proof that: (1) the animal has exhibited some dangerous propensity or disposition that the owner was aware of prior to the attack complained of; and (2) the owner reasonably should have foreseen that the animal was likely to attack someone.  A previous physical attack is not always necessary to hold a dog’s owner responsible.  Evidence of barking, growling, and chasing may sometimes be sufficient to put the owner on notice of their dog “dangerous propensity.” Legal action is possible if you are attacked by a dog. Dog attacks and dog bites can cause serious and long-lasting injuries.  If you, or a member of your family, have been attacked by a dog in Mississippi and you have evidence that the dog had a reputation for aggressive or dangerous behavior, or was off its leash in a public area where leashes were mandatory, you should contact our office as soon as you can. The sooner you act after an unprovoked attack, the more likely you will be able to successfully sue the owner and receive compensation for the attack.