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Garden City, NY Estate Planning & Complex Litigation Blog

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.


Monday, February 6, 2017

What Your Loved Ones Absolutely Need to Know About Your Estate Plan

The conversation about a person’s last wishes can be an awkward one for both the individual who is the topic of conversation and his or her loved ones. The end of someone’s life is not a topic anyone looks forward to discussing. It is, however, an important conversation that must be had so that the family understands  the testator’s final wishes before he or she passes away. If a significant sum is being left to someone or some entity outside of the family, an explanation of this action may go a long way to avoiding a contested will. In a similar vein, if one heir is receiving a larger share of the estate than the others, it is prudent to have this action explained. If funds are being placed in a trust instead of given directly to the heirs, it makes sense for the testator to advise his or her loved ones in advance.

When a loved one dies, people are often in a state of emotional turmoil. Each deals with grief differently and, often, unpredictably. Anger is a common reaction to loss, one of the five stages postulated to apply to everyone dealing with such a tragedy. Simply by talking to loved ones ahead of time, a testator can preempt any anger misdirected at the estate plan and avoid an unnecessary dispute, be it a small family tiff or a prolonged legal battle.

The executor of the estate must be privy to a significant amount of information before a testator passes on. It is helpful for the executor to know that he or she has been chosen for this role  and to have accepted the appointment in advance. The executor should know the location of the original will. Concerns of fraud mean that only the original copy of a will can be entered into probate. The executor should be aware of all bank accounts, assets, and debts in a testator’s name. This will avoid a tedious search for documents after the decedent passes on and will ensure that all assets are included as part of the estate. The executor of an estate should be aware of all memberships, because it will be the executor’s responsibility to cancel them. An up-to-date accounting of all assets and debts will simplify the settlement of the estate for an executor significantly.


Monday, January 23, 2017

What if more than one party is responsible for my injuries?


If you were injured in an accident, it may be possible to hold another individual accountable by pursuing a personal injury lawsuit. In some cases, however, more than one person may be responsible for your injuries. In these circumstances you may still be compensated under the doctrine of comparative fault: the allocation of responsibility under the theories of contributory and comparative negligence.

Contributory Negligence

In the few states that still rely on the contributory negligence approach, individuals have a duty to act reasonably and not put one's self at risk of injury. This means that if a plaintiff is even partially responsible for the accident, he or she may be barred from recovering damages.
Read more . . .


Monday, January 16, 2017

Do I need an attorney if I am buying a home?


Buying a home can be an exciting experience, but the process can be complicated. While some homebuyers may think hiring an attorney will be too expensive, not having proper legal representation can be even more costly. Although real estate agents typically bring buyers and sellers together, a highly skilled attorney can perform critical due diligence, anticipate problems, and be your advocate at the closing table.

It's often been said that real estate is all about the price and "location, location, location," but there are a number of factors to consider such as purchase and sales contracts, home inspections, title issues as well as arranging for financing. An experienced real estate attorney who knows the local housing market can help a buyer navigate these issues and protect his or her investment.
Read more . . .


Monday, January 9, 2017

Top Five Estate Planning Mistakes


In spite of the vast amount of financial information that is currently available in the media and via the internet, many people either do not understand estate planning or underestimate its importance. Here's a look at the top five estate planning mistakes that need to be avoided.

1. Not Having an Estate Plan

The most common mistake is not having an estate plan, particularly not creating a will - as many as 64 percent of Americans don't have a will. This basic estate planning tool establishes how an individual's assets will be distributed upon death, and who will receive them.
Read more . . .


Monday, December 26, 2016

What is tort reform and what are some of the criticisms of it?

Tort reform is the name commonly given to a proposed solution to the rising healthcare costs in America.  Some people believe that medical malpractice lawsuits are the main reason why the United States has such high healthcare costs.  The argument is that because doctors are afraid of being sued, they have to conduct more tests than is reasonable.  Essentially, doctors complain that they are forced to be too thorough.  Also, it is believed that hospital bills are high because malpractice insurance premiums are high.  Therefore, by limiting the maximum amount that a Plaintiff could win in a lawsuit, malpractice insurance costs would be reduced, doctors would be free to practice as they see fit and prescribe fewer tests, and the savings would be passed on to the patients. 

This line of thought is not without criticism.  While doctors and insurance companies would surely benefit greatly from putting a cap on the amount of money damages awarded in medical malpractice awards, there is no cap on the amount of damage a doctor might do by making a mistake.  In the case of Colin Gourley, an OBGYN’s negligent prenatal care of Colin’s mother led to the boy being born with severe birth defects including physical, cognitive, and behavioral problems.  He was quickly diagnosed with cerebral palsy.  He will require round the clock care for his entire life.  A jury found that the hospital and the doctor should be responsible for these costs, and awarded the family $5,625,000.00 to cover the damages.  However, because of a law capping damages in such a case, their award was limited to $1.25 million, leaving a middle-income family with a bill of $4,000,000.00 that they had no means of paying.  This is only one case of many which demonstrates the real cost of putting a cap on damages.

The consequences of tort reform affect those who suffer the most as a result of medical mistakes.  Also, the amount of the cap is arbitrary and inherently unfair to those who were mistreated by the medical professionals in the first place.  The proponents of tort reform might better serve society by putting their efforts into lowering healthcare costs by coming up with a way to reduce medical error and inefficiencies. 


Monday, December 19, 2016

Costs Associated with Dying Without a Will

When someone dies without a will, it is known as dying intestate.  In such cases, state law (of the state in which the person resides) governs how the person's estate is administered. In most states, the individual's assets are split -- with one third of the estate going to the spouse and all surviving children splitting the rest. For people who leave behind large estates, unless they have established trusts or other tax avoidance protections, there may be a tremendous tax liability, including both estate and inheritance tax.

For just about everyone, the cost of having a will prepared by a skilled and knowledgeable attorney is negligible when compared to the cost of dying intestate,  since there are a number of serious consequences involved in dying without a proper will in place.

Legal Consequences

The larger your estate, the more catastrophic the consequences of dying intestate will be. If you die without a will, the freedom to decide how your property will be divided will be taken from you and the state in which you reside will divide your assets.

Not only will you not be able to decide on the distribution of your property, but a stranger will be making personal, familial decisions. This may be divisive among your family members; instead of leaving your loved ones in peace, you may leave them engaged in bitter disputes over a family heirloom or even a simple memento. This can be especially true in situations where there are children from a previous marriage.

Tax Consequences

In addition to the legal and personal problems associated with dying intestate, the tax results can be severe as well. This is particularly true for clients who have not consulted with an estate planning attorney in order to protect themselves through tax avoidance methods. Both the state and federal governments can tax the transfer of property and an inheritance tax may be imposed on the property you have left to your heirs.

The most effective way to avoid all of these negative tax consequences is to create a will with a competent attorney. Your lawyer will help you to choose a proper executor (the person who will administer your estate, distribute your property and pay your debts), and will assist you in finding ways to limit your tax liability. There are several ways your attorney can help you to do this:

  • By gifting some of those you want to inherit before you die
  • By creating one or several trusts
  • By purchasing a life insurance policy
  • By buying investments in your loved one's name

These methods will ensure that your loved ones receive the assets you desire them to have, while simultaneously protecting them from possibly enormous tax burdens after you pass.

For those who have no family, dying without a will can be even more troublesome and costly, since their entire fortunes can be left to the state. If a genealogical search doesn't turn up any blood relatives, all of your assets will be claimed by the government. This means that any individual, group, organization or charity you wished to endow will receive nothing.

It is never easy to think of one's own mortality, but it is even more painful to contemplate leaving a messy, uncomfortable situation behind when you pass. By engaging the services of an excellent estate planning attorney, who will help you fashion a legally binding, precisely designed document,  you can make sure that your loved ones are well taken care of and that your final wishes are respected and implemented.


Monday, December 12, 2016

Auto Recalls and the Dangers They Seek to Avoid

Automakers recall millions of vehicles every year. A recall seeks to reach out to consumers to return faulty products, mistakenly put in the marketplace, for repair. In 2014, more than 60 million vehicles were recalled, nearly doubling the previous record set in 2004. These automobiles all had some sort of defect. Some of the defects, while annoying, were not of serious concern, such as a faulty air conditioners, while others resulted in significant safety issues, like problems with the ignition switches, brakes, or steering. Honda issued a recall of 14 million vehicles because its airbags might shoot sharp pieces of metal into the car when deploying.

Of the 60 million cars that were recalled in 2014, less than half were actually repaired. Consumers may not be aware of the recall. Cars change hands several times, and dealers have trouble reaching out to everyone who might have the car. Several major car manufacturers have been caught purposely misleading regulators and consumers about recalls to save money. Toyota recently paid a $1.2 billion fine for this improper action. Even when everyone is aware that a recall has been issued, a consumer may not prioritize it. When consumers are able to bring their automobiles in for the recall, the part necessary for the repair may be unavailable, especially on older model cars that are no longer in production.

This leaves millions of automobiles on the road every year that may pose significant safety issues. Wiring issues can increase the risk of car fires. Vehicle components could break resulting in loss of control of the vehicle. Seat belts might be defective. Windshield wipers might not work properly. All of these problems make the roads less safe for drivers of these vehicles and everyone else on the road.

If a consumer is injured as a result of an issue caused by an automobile defect, he or she may have a substantial claim against the auto manufacturer. If the defect has caused a collision, the car company may be responsible for all injuries. A consultation with an experienced attorney is necessary to determine whether or not a claim is viable in a particular situation. 

 


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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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