Makedonsky v. ND Department of Human Services

20070183 Minnie Makedonsky, Appellant
v.
North Dakota Department
of Human Services, Appellee

Appeal from: District Court, South Central Judicial District, Kidder County
Judge Thomas J. Schneider
Nature of Action: Administrative Proceeding
Counsel:
Appellee: Jean R. Mullen , Att. General Office
Appellant: Larson Latham Huettl LLP
Term: 11/2007   Argument: 11/06/2007  9:00am
ND cite: 2008 ND 49
NW cite: 746 N.W.2d 185

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
1. Did the North Dakota Department of Human Services err by counting for purposes of Medicaid eligibility the assets that Appellant transferred before the applicable look-back period?
2. Did the North Dakota Department of Human Services err by counting for purposes of Medicaid eligibility the assets that Appellant transferred by and through her attorney-in-fact, pursuant to a validly executed power of attorney, to someone other than the attorney-in-fact?
3. Did the North Dakota Department of Human Services err by counting for purposes of Medicaid eligibility the assets that Appellant transferred by and through her attorney-in-fact, pursuant to a validly executed power of attorney, to all of Appellant's children jointly, which included the agent?
4. Did the North Dakota Department of Human Services err by determining that the effective date of the Appellant's transfers of assets was the date that Appellant ratified the transfers instead of the actual date of the transfers?

Reply Brief Issues
1. At The time of Signing the Statement of Intention to Gift, Minnie Ratified The Previous Transfers And This Ratification Applies Retroactively to the Date of the Transfers.
2. Only Those Transfers To JoAnn Are Subject To The Presumption Of Undue Influence And Any Presumption Of Undue Influence Was Overcome By Minnie's Signing Of The Statement Of Intention To Gift.

Appellee's Statement of the Issues:
1. The North Dakota Department of Human Services found the date on which Makedonsky signed a Statement of Intent to Gift was the date on which she made a disqualifying transfer of her "chose in action" to seek to have assets transferred by her Attorney-in-Fact returned to her. The issue is whether this finding was supported by the facts and the law.
2. The Department of Human Services found the evidence presented by Makedonsky did not rebut the presumption of undue influence that arises when a person in a confidential relationship gains an advantage from the beneficiary. The issue is whether this finding was supported by the facts and the law.

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Docket entries:
106/25/2007 NOTICE OF APPEAL: 06/20/2007
206/25/2007 ORDER FOR TRANSCRIPT: 06/20/2007
306/28/2007 Reset due date for Appellant's Brief as no transcript will be filed
406/28/2007 ACTION BY CLERK (reset due date for Appellant's Brief). Granted: 07/30/2007
507/17/2007 MOT. EXT/TIME APPELLANT BRIEF
607/17/2007 ACTION BY CLERK (MOT. EXT/TIME ATB). Granted: 08/13/2007
707/17/2007 RECORD ON APPEAL w/Separate (Entry No. 9 - ND Dept. of Human Svcs. Cert. of Record).
807/24/2007 MOT. EXT/TIME APPELLANT BRIEF (Faxed letter from Damian J. Huettl dated 7-23-07)
907/23/2007 E-FILED MOTION (MAT) (faxed)
1007/23/2007 ACTION BY CLERK (MAT). Granted: 08/20/2007
1107/25/2007 Administrative appeal hearing transcript (10/4/06)
1208/20/2007 APPELLANT BRIEF
1308/20/2007 E-FILED BRIEF - ATB
1408/21/2007 APPELLANT APPENDIX
1508/21/2007 Received $25 surcharge for ATB (Receipt 17657)
1609/12/2007 Received 8 copies of ATB from Central Duplicating
1709/19/2007 APPELLEE BRIEF
1809/20/2007 DISK - corrected aeb (e-mailed)
1909/20/2007 8 cc each of corrected TOA & pgs for AEB
2010/05/2007 REPLY BRIEF of Appellant (e-filed)
2110/08/2007 E-FILED BRIEF (RYB)
2210/05/2007 Certificate of Service by e-mail of RYB on opposing counsel
2310/11/2007 Received copies of RYB from Central Duplicating
2411/06/2007 APPEARANCES: Damian J. Huettl; Jean R. Mullen, Asst. Attorney General
2511/06/2007 ARGUED: Huettl; Mullen
2611/06/2007 ORAL ARGUMENT WEBCAST
2703/20/2008 DISPOSITION: AFFIRMED
2803/20/2008 SPLIT OPINION: Crothers, Daniel John
2903/20/2008 DISSENT: Maring, Mary Muehlen: DISSENT
3003/20/2008 DISSENT: Kapsner, Carol Ronning: JN/DIS
3103/20/2008 Costs on appeal taxed in favor of Appellee.
3203/24/2008 Judgment e-mailed to Parties
3304/03/2008 PETITION FOR REHEARING (e-filed)
3404/03/2008 E-FILED BRIEF (PER)
3504/07/2008 Received 7 copies of PER from Central Duplicating
3604/17/2008 ACTION BY SUPREME COURT. Denied
3704/29/2008 MANDATE
3805/01/2008 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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