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Garden City, NY Estate Planning & Complex Litigation Blog

Monday, May 22, 2017

Underinsured and At-Fault

Almost all states require some form of auto coverage insurance. This may include Bodily Injury Coverage, Personal Injury Protection, Property Damage Liability, Collision Coverage, and even Uninsured Motor Coverage. Depending on the state, the coverage level will vary greatly. For instance, you may only be required by to carry $25,000 in bodily injury coverage. While a relative residing across the country may be required to carry $50,000 in bodily injury coverage.  And while mandated requirements are often used as guides by drivers when selecting their policies, these coverage levels are not always enough to cover the cost of an accident. So what happens if you are underinsured and at fault in an accident?

The course of action will vary greatly depending on whether you are in a state with no-fault laws or traditional tort insurance laws. In states with no-fault laws, your insurance company will pay your damages while the other party’s insurance company will be responsible for theirs so if you choose to carry low levels of coverage the amount you receive after an accident will be capped by the coverage you selected. In states where traditional tort insurance laws exist, fault is established and the party at fault is responsible for the damages. If the driver at fault is underinsured in a traditional tort state, both parties may be in trouble.

Following the accident, your insurance company will seek to settle all claims as soon as possible. Even if you carry the lowest possible coverage, your insurer is responsible for your legal representation. If the opposing party has injuries exceeding your coverage level, and has Underinsured or Uninsured Motor Coverage, he or she may be able to collect the difference from this policy. However, if they don’t have this extra protection net from their own insurer or the damages exceed the policy limits, the injured party may file a lawsuit against you where your personal assets are at risk. 

In selecting an auto insurance policy, you might consider purchasing coverage above the minimum limits to protect your assets and livelihood. While a limit of $25,000 may seem high, the costs of healthcare continue to soar and just a one week stay at a hospital following an accident can easily exceed that amount.

 


Monday, May 15, 2017

When to Involve Adult Children in the Estate Planning Process

Individuals who are beginning the estate planning process may assume it's best to have their adult child(ren) join them in the initial meeting with an estate planning attorney, but this may cause more harm than good.

This issue comes up often in the estate planning and elder law field, and it's a matter of client confidentiality. The attorney must determine who their client is- the individual looking to draft an estate plan or their adult children- and they owe confidentiality to that particular client.

The client is the person whose interests are most at stake. In this case, it is the parent. The attorney must be certain that they understand your wishes, goals and objectives. Having your child in the meeting could cause a problem if your child is joining in on the conversation, which may make it difficult for the attorney to determine if the wishes are those of your child, or are really your wishes.

Especially when representing elderly clients, there may be concerns that the wishes and desires of a child may be in conflict with the best interests of the parent. For example, in a Medicaid and long-term care estate planning context, the attorney may explain various options and one of those may involve transferring, or gifting, assets to children. The child's interest (purely from a financial aspect) would be to receive this gift. However, that may not be what the parent wants, or feels comfortable with. The parent may be reluctant to express those concerns to the attorney if the child is sitting right next to the parent in the meeting.

Also, the attorney will need to make a determination concerning the client's competency. Attorneys are usually able to assess a client's ability to make decisions during the initial meeting. Having a child in the room may make it more difficult for the attorney to determine competency because the child may be "guiding" the parent and finishing the parents thoughts in an attempt to help. 

The American Bar Association has published a pamphlet on these issues titled "Why Am I Left in the Waiting Room?" that may be helpful for you and your child to read prior to meeting with an attorney. 


Monday, May 8, 2017

Respondeat Superior and Vicarious Liability

The first question an attorney must ask when filing a lawsuit is who is responsible for the damages to his or her client. A lawyer must figure out who to name as a party in the lawsuit. This is incredibly important, because, if the wrong parties are named, the victim may be left with no way to recover for the injuries suffered. This would be a travesty of justice and is unacceptable.

It is prudent to name every party that might be responsible when filing a lawsuit. Only an attorney can make the determination as to who might be liable for an individual’s personal injuries. It is particularly important to make sure that the parties who are named are capable of contributing to the damages, either through wealth or insurance. For example, if a person who does not normally drive and has no insurance is borrowing a friend’s car, and causes a car accident, that person is likely to be unable to pay for the damage he or she caused. Similarly, if a person makes a mistake while working and causes personal injury, that individual may be the one who caused the injury, but the individual is not the only one who can be held accountable for the pain and suffering.

The legal doctrine of Respondeat Superior is Latin for “let the master answer.” It places vicarious liability on any third party that had the right, ability, or duty to control the individual who caused a personal injury. Respondeat Superior is one of the oldest traditions in the practice of law. It predates our Constitution and goes back to English Common Law. Without it, corporations and municipalities would have little reason to enforce standards of care among their employees. Employers would avoid liability for their employee’s negligence, but injured people would have no way to collect money damages for their pain and suffering. Respondeat Superior is an integral part of American jurisprudence. The most common uses of this doctrine are to hold employers liable for the actions or omissions of their employees, to hold owners of property liable for the negligence of those allowed to use that property, and to hold parents liable for their unsupervised children. 


Monday, April 24, 2017

What Does the Term "Funding the Trust" Mean in Estate Planning?

If you are about to begin the estate planning process, you have likely heard the term "funding the trust" thrown around a great deal. What does this mean? And what will happen if you fail to fund the trust?

The phrase, or term, "funding the trust" refers to the process of titling your assets into your revocable living trust. A revocable living trust is a common estate planning document and one which you may choose to incorporate into your own estate planning. Sometimes such a trust may be referred to as a "will substitute" because the dispositive terms of your estate plan will be contained within the trust instead of the will. A revocable living trust will allow you to have your affairs bypass the probate court upon your death, using a revocable living trust will help accomplish that goal.

Upon your death, only assets titled in your name alone will have to pass through the court probate process. Therefore, if you create a trust, and if you take the steps to title all of your assets in the name of the trust, there would be no need for a court probate because no assets would remain in your name. This step is generally referred to as "funding the trust" and is often overlooked. Many people create the trust but yet they fail to take the step of re-titling assets in the trust name. If you do not title your trust assets into the name of the trust, then your estate will still require a court probate.

A proper trust-based estate plan would still include a will that is sometimes referred to as a "pour-over" will. The will acts as a backstop to the trust so that any asset that is in your name upon your death (instead of the trust) will still get into the trust. The will names the trust as the beneficiary. It is not as efficient to do this because your estate will still require a probate, but all assets will then flow into the trust.

Another option: You can also name your trust as beneficiary of life insurance and retirement assets. However, retirement assets are special in that there is an "income" tax issue. Be sure to seek competent tax and legal advice before deciding who to name as beneficiary on those retirement assets.


Monday, April 17, 2017

Can You Sue City Hall?

Many individuals mistakenly believe that they cannot sue city hall, but this is not the case. Under the doctrine of sovereign immunity, town, city, county and state governments were once protected from most lawsuits. Today, those rules have been scaled back to some extent, and the government can be held responsible for personal injuries and property damage or unlawful conduct. Let's take a look at personal injury and other lawsuits that can be brought against government entities.

There are a number of ways the government can be held liable for accidents and injuries. For example an individual who is injured in a slip and fall accident at a government office or facility may have grounds for a premises liability lawsuit. Similarly, a motorist or passenger who is injured in an accident with a government owned truck or car, or a motor vehicle being driven by a government employee or contractor while conducting official business, can bring a personal injury lawsuit.

In an addition, an employment lawsuit can be brought by a government employee for harassment, discrimination or wrongful termination against his or her government employer. Finally, law enforcement agencies can be sued for a wide range of civil rights violations.

In short, there are a number of legal claims that can be brought against the government. It is important to note that there are differences between suing the government and suing a private person or business.

For example, the time period to bring a personal injury claim against the government , referred to as the statute of limitations, is typically much shorter.  Further, before filing a lawsuit, it is also necessary to provide a Notice of Claim to the government, agency, or employee within a set time period notifying them that a lawsuit will be brought. Lastly, many states require individuals to file an administrative claim with a government agency before filing a civil case in court.

In the end, it is possible to sue city hall, so to speak, but there are a number of hurdles that need to be crossed. Moreover, some governments may still be immune from certain injury claims, depending on the state in which you live. If you were injured due to the negligent or illegal conduct of a government entity or employee, you should speak to an experienced attorney.


Monday, April 10, 2017

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.


Monday, March 27, 2017

Insurance Bad Faith

 

If you or a loved one is injured in an accident you may be entitled to compensation which usually means dealing with an insurance company. Although insurers have an advantage because they have teams of attorneys and experts, the law requires insurance companies to treat claimants and policyholders fairly. While there may be legitimate reasons to deny a claim, an insurer that fails to engage in good faith and fair dealing may be held liable for bad faith.

What is bad faith?

Bad faith is a legal term for an insurer denying a claim without a reasonable basis. In first party insurance situations, bad faith arises when an insurance company denies a claim without a valid reason. In third party insurance situations, bad faith occurs when an insurer fails to defend or indemnify the policyholder without a valid reason.

Proving bad faith varies from state to state. In some states, it is necessary to show that the insurer failed to conduct a thorough investigation. Other states have a higher a higher threshold that requires proving the insurance company missed or ignored obvious facts or information in denying a claim. A stricter standard that some states rely on requires demonstrating an insurer intentionally conducted an inadequate investigation.

Generally, it is not necessary to demonstrate that the insurer denied a claim merely to advance its interest at the expense of the claimant. On the other hand, an insurance company that makes a mistake or error in denying a claim cannot be held liable for bad faith. Lastly, an insurer that is shown to follow a pattern or practice of not adhering to state regulations governing claims investigation can be held liable for bad faith.

What can I do if I have been the victim of bad faith?

If you have been the victim of bad faith on the part of an insurance company you have options. By engaging the services of an experienced insurance law attorney, you may be able to recover damages from the insurance company. These damages include the amount the insurance company should have paid out for the initial claim, as well as additional damages arising from the bad faith denial.


Monday, March 20, 2017

Making Decisions About End of Life Medical Treatment

 

While advances in medicine allow people to live longer, questions are often raised about life-sustaining treatment terminally ill patients may or may not want to receive. Those who fail to formally declare these wishes in writing to family members and medical professionals run the risk of having the courts make these decisions.

For this reason, it is essential to put in place advance medical directives to ensure that an individual's preferences for end of life medical care are respected. There are two documents designed for these purposes, a Do Not Resuscitate Order (DNR) and a Physician Order for Life Sustaining Treatment (POLST).

What is a DNR?

A Do Not Resuscitate Oder alerts doctors, nurses and emergency personnel that cardiopulmonary resuscitation (CPR) should not be used to keep a person alive in case of a medical emergency. A DNR is frequently used along with other advance medical directives by those who are critically ill and prefer not to receive life sustaining treatment.

What is a Physician Order for Life Sustaining Treatment (POLST)?

A Physician Order for Life Sustaining Treatment is similar to a DNR,  however a POLST is prepared by a patient's doctor after discussing end of life treatment options. This is not a legal document prepared by an attorney, but rather a binding doctor's order that is kept with a patient's medical records. A POLST declares a patient's preference for receiving certain life sustaining treatments, as well as treatment options the patient does not want to receive or to be continued.

Examples of these treatments include, but are not limited to, artificial nutrition and hydration, intubation and antibiotic use. These decisions should be made when there is no medical crisis that can affect an individual's decision making, after various treatment options have been discussed with his or her doctor. In short, a POLST ensures that a patient will receive appropriate treatments, but not be subjected to life sustaining measures the patient does not want.

By having these advance medical directives in place, a person can have peace of mind knowing that he or she will receive end of life treatment according to his or her wishes, and loved ones will not be forced to go to court to obtain the right make these decisions.

 


Monday, March 13, 2017

Negligence Claims Against the Government

When an individual is wronged or injured by a federal agency or government employee, that person may have an actionable negligence claim against the government. It is necessary to seek legal counsel to determine whether or not the government is immune in this particular case or whether a legitimate claim can be brought under the Federal Tort Claims Act (FTCA).

Pursuant to the FTCA, if the incident arose from an act by a federal employee who was “acting in the scope of” his or her employment, an action may be brought.  Claims against the government, however, are often complex, burdened with various restrictions.  It is always advisable to consult with an attorney in such cases, rather than attempting to bring a lawsuit independently.

The FTCA does not extend liability to every individual associated with the government, and claims are only permitted under certain circumstances.  For example, independent contractors employed by the government are only included under the act in exceptional cases.  Most often only a claim of negligence can be brought, rather than a complaint for deliberate wrongdoing.  Furthermore, the claim must be grounded upon, and cannot conflict with, state law.  

There are several steps to be taken in filing a lawsuit against the government. First and foremost, within two years from the date of the incident, an administrative claim must be filed with the agency that allegedly caused harm.  In order for the claim to be considered and investigated, a form has to be filed which includes all relevant facts and requested damages.  The claim for damages is limited; punitive damages are not typically an option. 

If and when the agency discards the claim, in whole or in part, a suit may be filed within six months of the date on the decision letter.  In most cases, all administrative remedies must be fully exhausted before seeking legal action.  If the agency does not respond, however, the complainant may be permitted to proceed with the lawsuit.  An attorney can best advise whether an action can be filed, whether the government has any plausible defense, and whether it is in the client's best interest to settle the case.  


Monday, February 27, 2017

What is a Pooled Income Trust and Do I Need One?

A Pooled Income Trust is a special type of trust that allows individuals of any age (typically over 65) to become financially eligible for public assistance benefits (such as Medicaid home care and Supplemental Security Income), while preserving their monthly income in trust for living expenses and supplemental needs. All income received by the beneficiary must be deposited into the Pooled Income Trust which is set up and managed by a not-for-profit organization.

In order to be eligible to deposit your income into a Pooled Income Trust, you must be disabled as defined by law. For purposes of the Trust, "disabled" typically includes age-related infirmities. The Trust may only be established by a parent, a grandparent, a legal guardian, the individual beneficiary (you), or by a court order.

Typical individuals who use a Pool Income Trust are: (a) elderly persons living at home who would like to protect their income while accessing Medicaid home care; (2) recipients of public benefit programs such as Supplemental Security Income (SSI) and Medicaid; (3) persons living in an Assisted Living Community under a Medicaid program who would like to protect their income while receiving Medicaid coverage.

Medicaid recipients who deposit their income into a Pool Income Trust will not be subject to the rules that normally apply to "excess income," meaning that the Trust income will not be considered as available income to be spent down each month. Supplemental payments for the benefit of the Medicaid recipient include: living expenses, including food and clothing; homeowner expenses including real estate taxes, utilities and insurance, rental expenses, supplemental home care services, geriatric care services, entertainment and travel expenses, medical procedures not provided through government assistance, attorney and guardian fees, and any other expense not provided by government assistance programs.

As with all long term care planning tools, it’s imperative that you consult a qualified estate planning attorney who can make sure that you are in compliance with all local and federal laws.


Monday, February 13, 2017

Defamation - Breaking it Down

Defamation has two basic forms: “libel,” the written form, and “slander,” the spoken form.  To establish either type, certain elements must be present. The false statement must be "published" and the false statement must result in injury. In terms of defamation accusations, “published” does not mean publication in a newspaper, magazine, or book— a statement is considered to be "published" when another party sees or hears it. In this context, speaking loudly enough to be heard by a third party may be considered "publication." False statements can also be made not only through spoken or written words, but by presentation of images or symbols.

There are, however, exceptions that make individuals immune to liability. These include absolute and qualified "privilege" and apply in special situations, such as in communications between spouses, in governmental proceedings, or in statements made in self-defense.

Privilege is not the only defense against accusations of defamation. Truth of the assertion is an “absolute defense” to an accusation of defamation.  A statement is not actionable or defamatory if it is honest. Likewise, a statement of opinion cannot be defamatory. 

Furthermore, one cannot recover damages for defamation if there has not been resulting injury or damage to the reputation of the other party.  Examples of damage include loss of employment, harassment, and loss of business contacts or friends.  It should be noted that public officials are less likely to be shielded from defamatory content.  Beyond proving the above-stated elements, a public official may be required to demonstrate the existence of “actual malice.”  "Actual malice" is generally defined as making a statement with knowledge that it was not truthful, or with “reckless disregard” for the honesty of the declaration. 

The discovery process in defamation cases may be lengthy because the jury must analyze all of the circumstantial evidence surrounding the statement in question.  Factors to be considered may consist of the place where the declaration was made, the relationship of the accuser to the accused, and the reasons or motives behind the assertion. Because of the complexities involved in defamation cases, expert advice from a licensed attorney is essential.


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Lawrence M. Gordon, Attorney at Law, P.C. has offices in Garden City, NY and assists clients throughout Long Island, including: the north shore of Long Island, The Town Of Oyster Bay, The Town Of North Hempstead, The Town Of Hempstead, The Town Of Huntington, Nassau & Suffolk Counties & throughout the Five Boroughs of The City Of New York.



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