Monthly Archives: June 2010

Nursing Home in CA to Pay after Tenant Death

California courts elder lawThe Sacramento County Superior Court of  California just awarded his largest amount in elder abuse damages in the county’s history. After the death of a 79 year old tenant in a local nursing home, approximately $30 million in compensatory and punitive damages was awarded. The tenant had mild dementia, and was relocated to the home in March of 2005.  During her stay, the tenant suffered a hip fracture after a fall, and her injuries went undiagnosed for days. She eventually succumbed to her injures and passed away due to an infected bedsore.

The jury found the umbrella company in charge of the home guilty of elder abuse last month, and the jury clearly followed through on the nursing home lawyer’s request to award damages in order to teach the offending company a lesson, and to make an example to further deter bad conduct. The $30 million was due to the substandard care and constant understaffing provided at the nursing home – hopefully this will be enough to force the company to put patient care above profits.

The nursing home company intends to appeal the verdict, and a motion is expected to be filed soon. The spokesperson statement outlined that the ruling was based on emotion and not facts in this case, and the nursing home stands by its practices and employees.

If you find yourself in a similar situation with a loved one, contact a Massachusetts Nursing Home Attorney like Adam Tobin to discuss your case and go over your options. You may be entitled to compensation, and with the knowledge and experience of a practiced elder attorney, you may have a great case for success.

Read the full article here.

Probate Lawyers and Your Estate

In an article from the Los Angeles Times’ Business section, the author breaks down how an estate plan can save taxes and avoid family fights and probate problems. It delves into the topic by discussing the subsequent fallout that can result from the lack of an estate plan.

probate70% of Americans die without an estate plan, because they do not like thinking about the subject matter of wills while they are still around. But if you are included in this statistic, and decide not to write a will or have an estate plan, your estate (with all of your assets) gets brought into a court process called probate. During this time, the court decides, based on the law of the state, who gets what. This can typically mean that after your debts are paid, your estate goes to your children and surviving spouse. If there is no immediate family, the estate goes to the next blood-or adopted- relatives.

If this doesn’t sound complicated yet, introduce a children who don’t get along, blended families, husbands and wives with separate property upon entering marriage, or your intended heirs to your estate who aren’t typically considered your closest relatives. In order to prevent wrong people getting your assets, you need a plan.

Though almost everyone needs a will and it is recommended that you find an estate planning lawyer to execute it for you, the downside is that it won’t keep your estate from probate. However, many people can and do avoid probated because it is time-consuming, public, and costly. So with the aid of a probate lawyer, make a list of your assets – and Massachusetts estate planning lawyers like Adam Tobin can assure that your final wishes will be carried out.

Wealth Gifts to Children: How a “Crummey Trust” May be Right for You

Massachusetts Elder Law information on Crumney Trust.While still alive, many parents and grandparents wish to pass their wealth on to their children or grandchildren: these gifts are also a good way to decrease a taxable estate. In 2010, you can give a child or grandchild $13,000 a year without the subsequent incurring taxes, but you may not want the child directly receiving the gift just yet. (You can read the full law about giving to grandchildren here) Utilization of a “Crummey” trust (named for the court case that approved this type of trust) allows for you to take advantage of the gift tax exclusion while keeping the gift in a trust until the minor comes of age. However, similar “custodial accounts” for these minors entail parents or legal guardians retaining custody of this large account until the child turns 18, and you may not want an 18 year old receiving that large of a gift.

Instead, placing the money into a “Crummey” trust permits you to decide when the gift will be given to the minor and how much they will be given. Using a regular trust can cause one large complication: to avoid being taxed, the minor must have a “present interest” in the gift. An elder attorney will explain that due to the fact that promise of giving the child the gift later does not count as “present” interest, many gifts to regular trusts are not excluded from the tax. Click here for additional trust information.

A Crummey trust is structured to allow your gift to be placed into the trust while also getting the gift tax exclusion. One provision allows for the beneficiary to withdraw cash after approximately 30 days, where the money then becomes part of the trust. This is a critical aspect of the Crummey trust, as the beneficiary must be aware of this capability so that the IRS does not apply the gift tax exclusion. The risk with this is that the beneficiary will take out cash immediately, in which case you must make a verbal agreement that continued withdrawals will result in no more gifts. As the gift giver, you can control how much the beneficiary can receive and when they can receive it once the gift is in a Crummey trust.

(Source article here)

What Are the Levels of Nursing Home Requirements for Staff?

“The expectations of nursing homes are to provide sufficient staff and services to attain or maintain the highest possible level of physical, mental, and psychosocial well-being of each resident.”

An elder law attorney understands the issues with nursing homes today, both legally and personally. As a general rule, nursing homes are reputably understaffed. It’s no surprise that studies have reflected that the more staff available is equivalent to better care for nursing home inhabitants, but with the work intensive hours that correspond with this high-demand job often lead to overworked individuals and a high turnover rate. So, if you are in the process of choosing a nursing home for your loved one, a critical factor in your decision making should be the patient-staff ratio – but what are the legal ratio requirements?

Medicaid and Medicare-certified nursing homes are required by Federal law to have a nursing-homeregistered nurse on duty at least 8 hours / week, 7 days / week: and a licensed nurse should be on duty the remaining time. But nurse’s aides do not have a minimum staffing requirement, and these individuals in fact provide most daily care. These aides are trained for a minimum of 75 hours.

In order to improve this quality of care, the amount of nurse time for each patient must be adjusted. Currently, if a nursing home in fact meets the federal nurse staffing requirements as stated above, a resident receives only 20 minutes of allotted nurse time per day. The 2000 report from the Centers for Medicare and Medicaid Services, or CMS, illustrates that these same residents need three to four hours of staff time per day: this further breaks down to an hour of licensed nurse time, and two hours of nursing assistant time, optimally three.

Appropriate allocated time for nursing hours varies from state to state. If you have a loved one currently in a nursing home, know your rights. A nursing home attorney understands the requirements the law demands, and will provide you with valuable information and advice in regards to your legal situation. Adam Tobin specializes as a Massachusetts nursing home lawyer, so contact him today to see how he can help you.

Source article: Read more here.

Do you need an estate planning attorney?

Do you need a Massachusetts Estate Planning Attorney?Estate plans are both relevant and necessary if any of the following apply to you:

  • If it matters to you who inherits your assets
  • The future of your health care should you fall ill or otherwise incapacitated
  • Desire to avoid the inconveniences and hassles of probate court

The use of an estate plan is no longer associated for the upper classes looking to pay less taxes. Should anything happen to you, a probate court judge can have control over the fates of your assets and any children you may have under the age of 18 – unless you have an estate plan. The systematic process involved with probate is both financially draining and lengthy: a situation that can be avoided for your loved ones if you have an estate plan.

For these reasons, an estate plan is very beneficial. However, yours must be constructed correctly. An estate plan that is old, filled with loopholes and other potential issues for compromising your assets can be easily avoided by hiring an estate planning attorney. With the increasing trend of “do-it-yourself” trust or will-template websites, this can be a risky alternative to a very  important document. You need an estate planning lawyer to provide individualized legal advice for not just your estate planning, but for trusts, applicable laws for estate taxes, and probate.

Make the investment in your loved ones future, and assure that your wishes are followed through. Contact a Massachusetts estate planning attorney like Adam Tobin today to get you started on an estate plan or will that is right for you!

Click here for source article.