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Family / Domestic Law

Monday, March 19, 2018

Nursing Home Negligence

Nursing Home Negligence 

For those who can no longer care for themselves as they age, it may be necessary to enter a skilled nursing facility. While many seniors receive quality care in these facilities, the elder care system has well documented problems with abuse and neglect. When accidents and failures lead to injuries or a resident is the victim of intentional harm, a nursing home can be held liable.

The most vulnerable members of our society can be harmed in a number of ways. For example, many nursing homes fail to supervise patient's adequately, which often leads to slip and fall accidents that result in significant injuries and even death. Moreover, many facilities are owned by corporations that engage in negligent hiring practices or fair to properly train and supervise employees. In these situations, employees may neglect or abuse patients.

The most egregious cases of negligence occur when a facility fails to maintain adequate health and safety policies or fails to provide patients with adequate medical treatment. However, a patient who suffers an injury as a result of a medical mistake that does not meet the accepted standard of medical care may have grounds for a lawsuit.

In short, this standard is the type of care that a reasonably skilled medical professional would have provided under the same circumstances. Both the nursing home and the individual who was responsible for the resident's care may be held liable.

It is important to note that residents of facilities that accept Medicare are also protected by federal regulations. The environment in these facilities must be free of accident hazards as possible and each resident must receive adequate supervision and assistance devices to prevent accidents. Moreover, the Department of Health and Human Services - the agency that oversees these facilities, has banned the use of arbitration clauses in patient admittance agreements.

This is important because many skilled nursing facilities include mandatory arbitrations clauses in admittance agreements to resolve disputes. As a results, incidents of abuse and neglect often go unreported and patients and their families are often unaware of these problems when they are selecting a facility. Now, residents who are injured have legal recourse to hold negligent nursing homes accountable.

In the end, residents of skilled nursing facilities have a right to receive the care that they deserve. If you or a loved one has been injured in a nursing home, a personal injury attorney can help you obtain significant compensation.

 


Wednesday, February 28, 2018

Disinheritance

Disinheritance

Inheritance laws involve legal rights to property after a death and such laws differ from state-to-state.   Heirs usually consist of close family members and exclude estranged relatives.  Depending on the wording of a will, an individual can be intentionally, or even unintentionally, disinherited.

In most cases, spouses may not be legally disinherited.  Certain contracts, however, allow for a legitimate disinheritance, such as prenuptial agreements or postnuptial agreements.  These contracts are typically valid methods of disinheritance because the presumed-to-be inheriting spouse has agreed to the arrangement by signing the document.  

If there is no prenuptial arrangement, then the state’s elective share statute or “equitable distribution” laws protect the surviving spouse.  Pursuant to the elective share statute, he or she may collect a certain percentage of the estate. 

In states that follow “community property” or “common law” rules, however, the outcome may be different.   An attorney should be consulted for clarification of the differences in the law.  Divorces affect spousal inheritance rights.  Post-divorce, it is prudent to consult an attorney to draft a fresh will, in order to prevent confusion and unintentional dissemination of assets.

If the will is unambiguous, it is usually possible for a child to be disinherited.   It should be noted, however, that it is highly likely that close relatives will challenge or contest a will in which they have been disinherited.  Fighting such a lawsuit may put a great financial strain on the estate's assets.  Depending on how time-consuming and expensive it is to defend the will, less money may be available for distribution to the intended beneficiaries. 

There are ways to protect estate assets from such problems, for example through trusts.  It is essential for an individual to receive the counsel of a licensed lawyer in order to effectively protect his or her estate as inexpensively as possible.


Monday, December 18, 2017

6 Events Which May Require Modification of Your Estate Plan

6 Events Which May Require a Modification of Your Estate Plan

Creating a Will is not a one-time event. You should review your will periodically, to ensure it is up to date, and make necessary changes if your personal situation, or that of your executor or beneficiaries, has changed. There are a number of life-changing events that require your Will to be revised, including:

Change in Marital Status: If you have gotten married or divorced, it is imperative that you review and modify your Will. With a new marriage, you must determine which assets you want to pass to your new spouse or step-children, and how that may relate to the beneficiary interest of your own children. Following a divorce it is a good idea to revise your Will, to formally remove the ex-spouse as a beneficiary, and also change your beneficiary on any life insurance policies, pensions, or retirement accounts.

Estate planning is complicated when there are children from multiple marriages, and an attorney can help you ensure everyone is protected, which may include establishing a trust in addition to the revised Will. Depending on jurisdiction, this may also apply to couples who have established or revoked a registered domestic partnership. If one of your Will’s beneficiaries experiences a change in marital status, that may also trigger a need to revise your Will.

Births: Upon the birth of a new child, the parents should amend their Wills immediately, to include the names of the guardians who will care for the child if both parents die. Also, parents or grandparents may wish to modify the distribution of assets provided in their Wills, to include the new addition to the family.

Deaths or Incapacity: If any of the named executors or beneficiaries of a Will, or the named guardians for your children, pass away or become incapacitated, your Will should be revised accordingly.

Change in Assets: Your Will may need to be changed if the value of your assets has significantly increased or decreased, or if you dispose of an asset. You may want to modify the distribution of other assets in your estate, to account for the changed value or disposition of the asset.

Change in Employment: A change in the amount and/or source of income means your Will should be examined to see if any changes must be made to that document. Retirement or changing jobs could entail moving to another state, thus subjecting your estate to the laws of that state when you die. If the change in income modifies your investing, saving or spending habits, it may be time to review your Will and make sure the distribution to your beneficiaries will be as you intended.

Changes in Probate or Tax Laws: Wills should be drafted to maximize tax benefits, and to ensure the decedent’s wishes are carried out. If the laws regarding taxation of the estate, distribution of assets, or provisions for minor children have changed, you should have your Will reviewed by an estate planning attorney to ensure your family is fully protected and your wishes will be fully carried out.


Friday, December 8, 2017

Is Birth Tourism a Shortcut to US Citizenship ?

Is Birth Tourism a Shortcut to US Citizenship?

Ever since the post-Civil War adoption of the 14th Amendment to the Constitution, all persons born on American soil have been automatically granted citizenship. This policy was common sense in the era it was adopted, a time when international travel was cumbersome and relatively rare, but today its wisdom is being questioned. Is birthright citizenship being abused by people who want to short-circuit America’s labyrinthine immigration law?

The Citizenship Clause of the 14th Amendment states:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

From the moment it was adopted, this clause has motivated foreigners to give birth in America. For many years the number of these birth-tourists were limited by the nature of travel, but in today’s world, where air travel drastically cuts down the time it takes to get from one country to another, the path to citizenship guaranteed by the 14th Amendment is well-trod.

Stories abound of pregnant women visiting the U.S. on tourist visas who stay long enough to have their children, get American birth certificates and passports for them, then go back to their native countries, American tot in tow. The Chinese film industry even made a popular romantic comedy about the practice

Having a child that is an American citizen does not, however, guarantee that the child will grow up in America, or allow the family of the child to stay in this country indefinitely. Unless the parents have legal status in the United States, the entire family must return to their home country. It is not until an American-born baby is 21 that they are able to come to the United States and stay without being in school or having to show that they have a legal guardian here.

Once they reach the age of majority, the birthright citizen can enjoy the full benefits of citizenship, and can even sponsor his or her parents’ applications for citizenship.  It is important to remember that having an American-born child is a way to short-cut the system, but will likely take at least 21 years to capitalize on the investment.. In most cases applying for citizenship through other means will be just as fast.


Tuesday, October 31, 2017

A Primer on Irrevocable Trusts

A Primer on Irrevocable Trusts

Many individuals are aware that a will is one way to plan for the distribution of their assets after death. However, a comprehensive estate plan also considers other objectives such as planning for long-term care and asset protection. For this reason, it is essential to consider utilizing an irrevocable trust.

This estate planning tool becomes effective during a person's lifetime, but it cannot be amended or modified. The person making the trust, the grantor, transfers property into the trust permanently. In so doing, the grantor no longer owns property, and a designated trustee owns and manages the assets for the benefit of the beneficiaries.

In short, irrevocable trust provide a number of advantages. First, the property is not subject to estate taxes because the grantor no longer owns it. Moreover, unlike a will, an irrevocable trust is not probated in court. Finally, assets are protected from creditors.

Common Irrevocable Trusts

There are a variety of irrevocable trusts, including:

  • Bypass Trusts -  utilized by married couples to reduce estate taxes when the second spouse dies. In this arrangement, the property of the spouse who dies first is transferred into the trust for the benefit of the surviving spouse. Because he or she does not own it, the property does not become part of this spouse's estate when he or she dies.

  • Charitable Trusts - created to reduce income and estate taxes through a combination of gifting and charitable donations.  For example, charitable remainder trust transfers property into a trust and names a charity as the final beneficiary, but another individual receives income before,  for a certain time period.

  • Life Insurance Trusts - proceeds of life insurance are removed from the estate and ownership of the policy is transferred into the trust. While insurance passes outside of the estate, it is factored into the value of the estate for tax purposes, so this vehicle is designed to minimize estate taxes.

  • Spendthrift Trusts – designed to protect those who may not be able to manage finances on their own. A trustee is named to manage and distribute the funds to the beneficiary or directly to creditors, depending on the terms of the trust.

  • Special needs trusts - designed to protect the public benefits that many special needs individuals receive. Since an inheritance could disqualify a beneficiary from Medicaid, for example, this estate planning tool provides money for additional day to day expenses while preserving the government benefits.

The Takeaway

Irrevocable trusts are essential estate planning tools that can protect an individual's assets, minimize taxes and provide for loved ones. In the end, these objectives can be accomplished with the advice and counsel of an experienced estate planning attorney.

 


Wednesday, October 25, 2017

Employment Discrimination Laws in a Nutshell

Employment Discrimination Laws in a Nutshell

There are a variety of state and federal laws that make it illegal for employers to discriminate based on certain characteristics when making decisions about hiring, terminating, promoting, demoting or compensating employees, or any other terms and conditions of employment. Employers are also barred from retaliating against employees who file a discrimination-related complaint or engage in other protected activities. While the laws vary from state to state, all employers have an obligation to adhere to the following federal laws.

Title VII of the Civil Rights Act of 1964

This law prohibits discrimination in the workplace based on race, color, national origin, religion and gender. Title VII also established the Equal Employment Opportunity Commission (EEOC), the government agency that is tasked with investigating employment discrimination claims.  Before an employment discrimination lawsuit under federal law can be brought, it is necessary to file a claim with the EEOC. Title VII applies to employers with 15 or more employees.

Age Discrimination in Employment Act (ADEA)

The ADEA prohibits employers with 20 or more employees from discriminating against individuals who are 40 years or older and their age cannot be used as a factor in any employment decision.

The American with Disabilities Act (ADA)

The ADA prohibits employers with 15 or more employees from discriminating or harassing disabled employees and requires employers to make reasonable accommodations that will enable a qualified disabled worker to complete his or her job functions.  

The Pregnancy Discrimination Act (PDA)

The PDA prohibits discrimination based on pregnancy regarding any aspect of employment in businesses with 15 or more employees. Women who are temporarily unable to perform their jobs due to pregnancy must be treated similarly to other temporarily disabled workers. The ADA may also protect a woman who suffers from a pregnancy related medical condition.

The Bottom Line

In sum, employers are prohibited from discriminating against employees and potential job candidates because of race, religion, sex, age, disability, pregnancy or national origin. Not only can violations lead to financial penalties, a discrimination lawsuit can damage a business' reputation. By engaging the services of an experienced employment law attorney, you can establish policies and procedures to ensure that your business is in compliance with these laws. 

 


Friday, September 8, 2017

What is a Spendtthrift Trust ?

What is a Spendthrift Trust ?

When it comes to estate planning, there are many factors to consider, not the least of which how to provide for loved ones. Although we like to believe that our heirs are deserving and capable of managing an inheritance, some beneficiaries may not be responsible or lack an understanding of financial matters. Fortunately, it is possible to leave assets to a troubled heir by creating a spendthrift trust.

This estate planning tool limits a beneficiary's access to trust property in order to protect it from him or herself as well as creditors. Rather than providing assets or funds directly to the beneficiary, the trust maker (or grantor), designates a trustee to manage the trust property and provide regular payments to, or purchase goods and services for, the beneficiary.

Spendthrift trusts are typically created when an heir does not know how to manage money or is frequently delinquent with debt. In addition, a spendthrift trust can protect those who have drug, alcohol or gambling problems or who are at risk of being manipulated.

The role of the trustee

The trustee is responsible not only for managing the trust, but also protecting the assets from being squandered by the beneficiary. This requires the trustee to manage the trust in a manner that preserves the value of the assets while providing for the beneficiary.

In order to do so, the trustee should have the power to make set payments to the beneficiary on a regular basis. Similarly, the trustee must also be able to withhold payments under certain conditions, particularly if the beneficiary gambles or gets into debt. However, this would also require the trustee to monitor the beneficiary's behavior, which could be problematic.

Finally, the grantor could also specify conditions under which payments should be released to the beneficiary. For example, the grantor could instruct payments be made directly to a landlord or a creditor rather than the beneficiary. In some cases, the beneficiary could also be required to undergo drug or alcohol testing before receiving a payment from the trustee.

In sum, a well designed spendthrift trust must consider the unique relationship of all the parties. It is crucial for the grantor to name a trustee who is honest and capable, and who will fulfill his or her obligation to preserve the trust assets and provide for the beneficiary.

Contact us for all of your Wills, Trusts, or other Estate Planning needs. 


Friday, July 28, 2017

Enforcing a Child Support Order

Enforcing a Child Support Order

As many can attest, going through a divorce can be a difficult experience and the process can become contentious. Even after the spouses reach a settlement, conflict may continue to arise, particularly when a parent fails to make the required child support payments. In these cases, it may be necessary to take legal action to enforce the child support order.

Child Support at a Glance

While child support determinations may vary state to state, the courts generally consider a number of factors in reaching these decisions, including:

  • The child's standing of living while the parents were married

  • The income of each parent

  • Whether one parent is paying alimony to the other

  • The health, medical and educational expenses of the child

Child support orders specify the amount that is to be paid and usually require payments to be made on a monthly basis until the child becomes an adult.

Enforcing a Support Order

While both parents are responsible for the financial well-being of their children, the parent who has primary custody will typically be awarded child support. A parent who fails to comply with court ordered child support can be held accountable by the other parent. In order enforce the order, it is necessary to file an "Order to Show Cause" or a similar legal document with the court. This order must also be served on the non-paying parent.

The court will then hold a hearing and the non-paying parent will need to explain why the payments have not been made. In some cases, there may be legitimate reasons, such as a sudden loss of income or an illness or other emergency. If the order was violated without cause, however, the court will move to enforce the order. In these situations, the court has a number of options, such as ordering payments to be automatically deducted from the non-paying parent's paycheck.

If the parent is a repeat offender, the court can also garnish his or her wages, place a lien on real property or even seize bank accounts. A more drastic step, the court may find the non-paying parent to be in contempt of court which could result in a prison sentence and fines. However, courts are generally not inclined to go this far since the parent will then be unable to earn income to comply with the child support order.

In the end, divorcing spouses have a duty to support their children, regardless of the circumstances of the divorce. If you need help enforcing a child support order, you should consult with an experienced family law attorney.

 


Tuesday, July 18, 2017

Responsibilities and Obligations of the Executor/Adminstrator

Responsibilities and Obligations of the Executor/ Administrator

When a person dies with a will in place, an executor is named as the responsible individual for winding down the decedent's affairs. In situations in which a will has not been prepared, the probate court will appoint an administrator. Whether you have been named  as an executor or administrator, the role comes with certain responsibilities including taking charge of the decedent's assets, notifying beneficiaries and creditors, paying the estate's debts and distributing the property to the beneficiaries.

In some cases, an executor may also be a beneficiary of the will, however he or she must act fairly and in accordance with the provisions of the will. An executor is specifically responsible for:

  • Finding a copy of the will and filing it with the appropriate state court

  • Informing third parties, such as banks and other account holders, of the person’s death

  • Locating assets and identifying debts

  • Providing the court with an inventory of these assets and debts

  • Maintaining any assets until they are disposed of

  • Disposing of assets either through distribution or sale

  • Satisfying any debts

  • Appearing in court on behalf of the estate

Depending on the size of the estate and the way in which the decedent's assets were titled, the will may need to be probated. If the estate must go through s probate proceeding, the executor must file with the court to probate the will and be appointed as the estate's legal representative.

By doing so, the executor can then pay all of the decedent's outstanding debts and distribute the property to the beneficiaries according to the terms of the will. The executor is also is also responsible for filing all federal and state tax returns for the deceased person as well as estate taxes, if any. Lastly, an executor may be entitled to compensation for the time he or she served the estate. If the court names an administrator, this individual will have similar responsibilities.

In the end, being name an executor or appointed as an administrator ultimately means supporting the overall goal of distributing the estate assets according to wishes of the deceased or state law. In either case, an experienced probate or estate planning attorney can help you carry out these duties.


Friday, July 7, 2017

What is Wrongful Birth and Wrongful Life ?

What is Wrongful Birth and Wrongful Life ?

Children who are born with significant disabilities or birth defects often experience pain and suffering, and caring for them can be an emotional and financial burden for the parents. Today, medical advances allow medical professionals to conduct genetic tests on parents to determine if they are carrying certain genes as well as prenatal tests to determine if those genes have been passed on to the unborn child.

Wrongful Birth

When a serious condition is identified, the parents have the option to terminate the pregnancy. If a medical processional fails to properly diagnose a child or provide reasonable genetic counseling about the risks of a birth defect to the parents, they may be able to pursue a wrongful birth lawsuit. In order to have grounds for a lawsuit, the parents must show that they would have terminated the pregnancy or would have elected not to conceive had they known of the potential risk.

In a successful wrongful birth claim the parents may be awarded damages that are directly related to the birth defects, such as the cost of caring for the child. Although wrongful birth is a valid claim is some states, it is not recognized by all.

Wrongful Life

A wrongful life suit can also be filed by a child who has suffered with severe birth defects due to a negligent diagnosis.Elements similar to those for wrongful birth need to be proven in a wrongful life claim, but many states do not recognize these claims.  Moreover, courts have been hesitant to award damages in these cases due the complexities associated with determining an appropriate amount of compensation.

Ultimately, wrongful birth and wrongful life claims involve complex legal and ethical issues, and pursuing these claims can be an emotional burden for the parents. If you are struggling to care for a child with special needs, an experienced personal injury attorney can help determine whether you have a valid claim.

 


Thursday, June 8, 2017

What is Elder Law ?

What is Elder Law?

As the population grows older, many elders must face the difficult challenges of aging, such as declining health, long-term care planning, asset protection and other financial concerns. The practice of elder law is designed to assist seniors with meeting these challenges and give them peace of mind knowing that they will age with dignity.

Long-term Care Planning

The escalating costs of long-term care, including services for both medical and non-medical needs, is a daunting challenge for elders and their loved ones. In some cases, elders may need non-skilled care to assist with daily tasks of living such as dressing, feeding, shopping, and light housekeeping. Alternatively, some elders may require skilled nursing care whether provided at home, or in an assisted living facility or nursing home.

By failing to adequately plan for these needs, the cost of long-term care can easily deplete an elder's savings. A skilled elder law attorney can help explore options such as long-term care insurance, selecting the best skilled nursing facility or qualifying for public benefits such as Social Security and Medicaid.

Medicaid Planning

One option to cover the costs of long-term care is Medicaid, a federal program run by the states that provides medical assistance to low-income individuals, and those who are 65 or older. However, many elders may not qualify because their financial resources exceed the eligibility threshold. One way to protect your home and your assets is by establishing an irrevocable trust known as a Medicaid Trust.

Elder Abuse

Elder abuse, whether physical, or emotional, has been called the crime of the twenty-first century. In addition, financial abuse occurs when an individual takes an elder's property for a wrongful purposes or with intent to defraud. In these situations, an elder law attorney can serve as a dedicated advocate and protect a senior's rights.

Ultimately, an experienced and compassionate attorney can help elders plan for the challenges of aging, preserve their independence, protect their assets and enable them to enjoy their golden years .


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