How Supreme Court May Continue to Impact Family Law

The appointment and eventual confirmation of Justice Neil Gorsuch to the Supreme Court captured the attention of those in the media and the public at large. Any new member of the court is able to offer a huge impact on the cases they hear and the legal areas they concern, capable of tilting the ideological balance of the court in one way or another.

From the election itself to healthcare and immigration, a wide range of topics have been at the center of most discussions of the Supreme Court, and new Justice Gorsuch. One overlooked area of note though is actually family law. While most family law matters are handled on a local and state basis, it shows that under certain circumstances, the court itself can impact matters such as divorce.

For instance, the Supreme Court heard and ruled on the Howell vs. Howell case, which dealt with a veteran’s retirement pay, of which his ex-wife was entitled to half. When he opted to waive part of his pay to receive disability benefits, the Supreme Court ruled in a unanimous decision that he was not required to pay his ex-wife the amount she lost because of that decision.

That case and ruling illustrates how even divorce can be impacted by the Supreme Court, and how the court’s decisions can impact just about any individual person and his or her case. Surely there will be other family law cases that make it to the Supreme Court in the near future as well. However, it’s also important to note that family law can be impacted on the periphery of many other important decisions.

For instance, consider a couple with children who are being divorced. What if immigration laws are changed, and one party gained citizenship via the marriage? How does that impact their divorce and matters such as child custody?

The huge hot button issue of healthcare also comes into play. If current healthcare laws are changed and one or both parties lose insurance coverage as a result, that then may also ripple down into matters of child custody, child support, and alimony.

The way these issues intermingle and the way the Supreme Court rules on them is of course all quite complicated, and it’s worthwhile to understand the ways that family law cases can be impacted. It’s always essential to work with an experienced and knowledgeable attorney in your local area who can help you understand any such issues, and offer you the right advice on the best way to proceed.

Assisted Signatures: How to Execute a Document When the Client Needs Help Holding the Pen

Assume that we have a Client who is mentally sound but physically feeble and the following happens: The Client’s hand is guided as he places his name on the document and the person who guides his hand writes out the Client’s name in a manner that bears no resemblance to his customary “signature” from long ago. There is no issue as to the Client’s mental capacity — based upon the view of the witnesses present, it is his intention to sign. Is the signature valid?

What constitutes a “signature”?

The statutory definition of “signature” is found in New York General Construction[1] Law §46, which states:

The term signature includes any memorandum, mark or sign, written, printed, stamped, photographed, engraved or otherwise placed upon any instrument or writing with intent to execute or authenticate such instrument or writing.

Case law applying this statute make it clear that any mark is an acceptable form of signature[2] and that the key element of a “signature” for New York law is not the appearance or form of the writing or characters written or affixed, but rather the signer’s intent to sign.[3]

Similarly, the legal treatises discussing the subject echo this viewpoint. For example, the discussion in Corpus Juris Secundum emphasizes that the writing of one’s name by one’s self is not necessary for a valid signature and that any character, symbol or figure may be adopted as one’s signature. Of particular significance is Volume 80, Signatures, Section 6, addressing signatures “by the hand of another”:

Generally, a signature may be made by the hand of another, acting in the presence of such person, and at his direction, or request, or with his acquiescence… A signature so made becomes the signature of the person for whom it is made, and has the same validity as though written by him… Where a signature is made in this manner the person writing the name is regarded as a mere instrumentality, by which the person whose signature is written exercises his own discretion and acts for himself, and not through an agent. So a mark made for a person [by another person] at his direction may be regarded as his signature.

The writing of a name or the making of a mark by one other than the person whose signature the name or mark purports to be may constitute a sufficient signature of such person, where he touches the pen or pencil used in the process while the purported signature is being made, but the touching of the pen or pencil is not essential to the validity of the signature.

Applies to all kinds of documents

This analysis holds true for deeds, Wills, and other documents as well. For example, in Koo v. Robert Koo Wine & Liquor, Inc.[4], one brother signed the name of another brother on a deed; a lawsuit followed where the objectant to the deed alleged that the signing of the absent brother’s name was a forgery, particularly in the absence of written authorization to sign as agent. However, the Court held that since the brother had the authorization and consent of his brother, the signing of the absent brother’s name was not a forgery, was the signature of said absent brother, and constituted a valid signature for purposes of making a binding, lawful deed.

The policy that a “signature” includes any mark or symbol is also evident in the statutes governing execution of negotiable instruments, too. Uniform Commercial Code §3-410(2).

New York Estates, Powers and Trusts Law §3-2.1 discusses signatures and provides for guidance of a testator’s hand:

Valid signature may be by personally subscribing his name, or having a third person subscribe it for him at his request, or by having a third person guide his hand on writing. A Testator’s signature is sufficient and complies with law if, being physically unable to sign his name, he calls upon another to assist him even to the extent of holding and guiding his hand so long as it is his wish that his signature be thus made and he acquiesces in or adopts it.

Note that, contrary to common belief, the mere act of writing someone else’s name to a document is not forgery. All the forgery statutes state that a requisite element is the “intent to defraud, deceive, or injure” (emphasis added).[5] The tricky part, of course, is making sure you have enough evidence that the execution of the document was definitely the signer’s intent.

Conclusion

The document in our example was duly signed by the Client in that a mark or signature was affixed to the document in such a manner that it constituted the act of the Client. Specifically, the Client’s affixing an ink mark which, with the aid or assistance of another’s hand, wrote out the Client’s name, while he held or touched the pen or writing instrument and the other person’s hand steadied, guided, or assisted the Client, at the Client’s request and/or with his consent, constituted the signature of the Client and was lawful, valid and binding. Furthermore, the act does not constitute forgery — nor any other wrongdoing — particularly in the absence of a showing of fraudulent or deceptive intent.

Disclaimer: This article is based on NY law. It is for general information and is not legal advice nor the formation of an attorney-client relationship. Every situation is unique and you should not infer from the situations discussed, but must instead consult an attorney to discuss your particular situation.

Endnotes

1. The meaning of the word “Construction” here is how words are to be “construed” or interpreted as they relate to statutes.

2. See, e.g., In re Mark’s Will, 21 A.D.2d 205, 250 N.Y.S.2d 177 (1964).

3. See, e.g., People v. Mercado, 123 Misc. 2d 775, 474 N.Y.S.2d 950 (1984); People v. Lo Pinto, 27 A.D.2d 63, 275. N.Y.S.2d (1966).

4. 170 A.D.2d 360, 566 N.Y.S.2d 63 (1991) (signatory to writing transferring real property can, with requisite intent, adopt any mark or sign as his own signature, without resort to or need for written agency agreement).

5. New York Penal Law Article 170.

Do I Need a Lawyer for Traffic Tickets? A Perspective From a Lawyer

As a criminal defense attorney, I am often asked if someone needs a lawyer for traffic offenses. The answer is complicated. Sometimes it is okay to represent yourself, but sometimes you will be doing yourself a disservice by not hiring an attorney. This article will address some of the pros and cons of representing yourself in traffic related offenses. Furthermore, this article will address some of the consequences of representing yourself without full knowledge of the law.

Representing yourself may not pose serious risks if you are dealing with a non-moving violation or a ticket that you can simply pay off without any consequences with the DMV or your insurance company. The issue is deciding whether you are dealing with a non-moving violation or not. The answer is not always so clear cut, some offenses which on their face appear to be non-moving violations, can actually be moving violations and have dire consequences for your privilege to drive. If you are not sure if you can pay a ticket off without any consequences, schedule a free consolation with an attorney. Most lawyers will not waste their time representing you if the outcome will be the same if your handled your own matter. The pro of handling your own matter can be saving a little bit of money. The consequences of representing yourself when you probably should have hired a lawyer are plenty and some are grave consequences.

Many people have handled a ticket or two on their own without representation. So why are they hiring a lawyer now? Often times, because their representation of themselves had dire consequences and they are either experiencing a huge insurance increase, or even worse, they have lost their privilege to drive because DMV has suspended their license. There are many ways a person’s license can be suspended. In some states, just for example, if you plead to two speeding tickets over 55 mph within a 12-month period, your license will be suspended. So, when the district attorney offers for you to plead to 60 in a 55 instead of the actual 70 in a 55 that you were driving when you got the ticket, you may think it sounds like a good deal, but the district attorney is not allowed to tell you the implications of a plea agreement. You accept the plea at your own risk. If you have represented yourself in the past and are now experiencing huge consequences because of your representation, you should still meet with a lawyer. Just because your case is over, that does not mean that a lawyer cannot try to fix things.

As you can see, it can be a lot simpler to consult with an attorney prior to representing yourself. Often times, you will find that it is a good idea to have legal representation, it can save you both time and money. In the event that you do not need a lawyer, great, the consultation will help you realize that you can just pay the ticket off with no serious consequences. When you do not consult with an attorney, you run the risk of spending a lot more money in the long run. It is easier for us to handle your case than to try and go back and fix issues once you have handled a case on your own.

In short, do you always need a lawyer to represent you for traffic offenses? The answer is no. Should you always consult with an attorney prior to representing yourself? The answer is yes! The pros of representing yourself can be saving a little bit of money. The cons of representing yourself can be spending much more money in the long run, facing serious consequences including the revocation of your driver’s license and spending much more time in the courtroom than you needed to. Consult with an attorney and hire one if you find that it will be helpful in your traffic matter!

The Top 10 Medicaid Planning Mistakes

1. Thinking it’s too Late to Plan.

Even after a loved one has moved into a nursing home, steps can still be taken to protect assets. With nursing home costs as high as $7,000 a month, giving up on protecting your assets can be very costly.

Solution: Schedule a meeting with a qualified elder law attorney to discuss your situation and how to best protect your assets.

2. Giving Away Assets.

Adding a child’s name to the deed for a home or transferring cash or other assets is a far too common mistake. Under the new Medicaid gifting rules that went into effect in 2007, there is now a 5 year look back period for any gifts or asset transfers. Also, the giving away of assets can cause an extended period of ineligibility.

Solution: Before giving away any assets, be sure to discuss your situation with a qualified elder law attorney.

3. Believing the Gift Tax Exemption Applies to Medicaid.

Gifts of up to $12,000.00 are exempt from gift taxes. This gift tax exemption however does not apply to the Medicaid rules. ALL gifts, even birthday or Christmas gifts, or gifts to a church or other charity are subject to the 5 year look back period and will result in a period of ineligibility.

Solution: Once again, you should meet with a qualified attorney to ensure that you do not find yourself in a situation where you are ineligible for Medicaid benefits.

4. Failure to Take Advantage of the Spousal Protections. Congress has provided that a spouse still living in the community should not become impoverished by paying nursing home expenses.

Solution: When meeting with an elder law planning attorney, it is important to discuss what legal strategies can be used to protect assets for the community spouse.

5. Failing to Plan Ahead.

Far too many people fail to plan for the possibility of residing in a nursing home even after they are diagnosed with a debilitating disease such as Alzheimer’s or Dementia. With new Medicaid rule changes it is more important than ever to be prepared for the possibility of having to apply for Medicaid in advance.

Solution: Meet with a qualified elder law attorney to discuss what precautions you should take to ensure that you don’t lose Medicaid eligibility.

6. Failing to Prepare for Estate Recovery.

Estate Recovery allows the state to seek reimbursement for Medicaid expenses after your death. Now, whenever a family member is receiving Medicaid benefits it is critical that also take steps to avoid estate recovery.

Solution: Meet with an elder law attorney to discuss the best way to avoid estate recovery in your situation.

7. Filing a Medicaid Application too Early or too Late.

The proper timing of an application is very important. Since the average cost of a nursing home is over $7,000 per month, filing too early or too late can cost thousands of dollars.

Solution: Your Medicaid planning should only be done with the assistance of an attorney who has significant experience in assisting others with situations similar to yours. A Certified Elder Law Attorney (CELA) or a member of the National Academy of Elder Law Attorneys (NAELA) is often a good indication of his or her legal specialty.

8. Not Having a Suitable Power of Attorney.

In order to implement any Medicaid planning, it is often necessary to require a power of attorney because the nursing home resident is no longer competent to make any financial decisions. However, just any power of attorney will not suffice. It is critical that the power of attorney authorize the type of planning that may be necessary. This may involve drafting special trusts, surrendering or transferring assets, purchasing an annuity, etc.

Solution: When meeting with an elder law attorney, be sure to discuss the need for a suitable power of attorney.

9. Assuming the Nursing Home Staff Can Help With the Medicaid Application.

The nursing home staff is paid to take care of your loved one. They are not experts in the Medicaid rules. If you rely on their assistance you may end up costing you or your loved one thousands of dollars.

Solution: Make sure you seek expert help in filing a Medicaid Application by consulting a qualified elder law attorney.

10. Not Getting Expert Help.

Almost everyone knows someone who claims to know about Medicaid. However, with the Medicaid rules constantly changing the information they know is most likely outdated. Medicaid is a complicated area of law and it is best to consult someone who makes a living helping clients in this field. With so much at stake it would be foolish not to.

Solution: Don’t use advice from well intended friends and family members or information you read online as the basis of your Medicaid planning. Consult a qualified elder law attorney to make sure that you don’t make any costly mistakes.

Lemon Law Lawyers And What They Do

Consumers who suffer due to the purchase of faulty vehicles are protected by the lemon law. Attorneys that deal with lemon laws are lemon law lawyers. Most vehicles are manufactured by huge manufacturing companies and it is not always possible for a common man to stand against these giants. This is where you need the help of lemon attorneys.

Each state follows a different set of laws concerning lemons and it is vital that you take the services or help of a lawyer experienced with the law of a particular state to fight manufacturers of the same state. A lemon lawyer helps the consumer by helping them understand their rights with respect to the laws and also does everything in their power to get the justice in the form of compensation. This would be charged to the manufacturer who sold the vehicle to the customer even when it was in a defective state. These attorneys are equipped to handle vehicles such as cars, buses, boats, SUV’s and even jet skis. These days you would be easily able to find a respectable lawyer by searching online. Most reputable lawyers have websites which requires your details and information with respect to your case.

When you have a lemon lawyer helping and defending you, the probability of a higher compensation is multifold. Lawyers in general are great negotiators and so they will go that extra mile to ensure your satisfaction. Most lemon lawyers know the manufacturers they are dealing with and have good contacts which help them file a case against defective manufacturing.

The laws are varied and some states do not require a case in the court even. Some states allow the victim to file a complaint which is checked for authenticity with relevant documents submitted and the company is sued. Some states allow the victim to claim the lawyer fees from the manufacturing company itself. You are allowed to reclaim the amount paid as fees to the lawyer from the manufacturing company provided the lawyer wins the case. In order to know the laws of a particular state the lawyer needs to have relevant experience in that state.

Many times the manufacturing company try to settle the case without going to court using a one to one settlement or an out of court settlement. However, this is done only after the lawyer ensures that his client knows that no clauses can be waived off if the vehicle turns to be defective.

What Is a Copyright Search?

Some law firms will perform copyright searches in an attempt to learn whether an image or work might infringe someone’s copyright. Copyright searches aren’t like other IP searches. Trademark searches are performed to see if a potential mark is likely to be registered or face obstacles during prosecution. Patent searches are performed to see if an invention is novel and nonobvious and can be patented. Copyright searches are a bit different, and often dangerous.

Copyright protection exists from the moment a work is created. Just about everything with a minimal level of creativity has copyright protection. Federal registration of a copyright is another matter – this is a process that must be applied to begin and results in having your copyright federally registered. Copyrights that are registered are relatively easy to search and discover, because the government has a list of them catalogued away. It would be impossible, however, to find all relevant, non-registered, copyrighted images. Most works are never registered for copyright protection, such as school essays, restaurant menu designs, website layouts, childhood drawings, and on and on and on…. All of these things have copyright protection, but they will be almost impossible to find because they are usually never registered. If I draw something and file it away, it has copyright protection, but no one will ever really know about it.

The impossibility of finding them isn’t necessarily a problematic thing. Because copyright infringement generally requires proof of both access and copying, the impossibility of searching and finding a work could correlate with it not being initially accessed, and therefore, not copied. This, too, makes sense: the fact that one kid’s picture of the family, the house, the dog, and the sun looks like another kid’s doesn’t mean they are copies – it simply means they look alike. If the first kid never had access to the other kid’s work, he couldn’t have copied it.

Doing a search opens a can of worms, and that can has the label “access.” If you were to do a search of registered or non-registered copyrighted images and did find something that is similar to your work, you have now accessed that similar work. If you then continue to use your work with your new-found knowledge of the similar work, there is an argument that you have now infringed the similar work’s copyright. So a search doesn’t really help “avoid” infringement: if you copied your image from a work, then you know about the underlying work, and the search is unnecessary. If you didn’t copy your image from a work, then you will only risk acquiring knowledge of a similar work by performing a search and exposing yourself to an infringement claim.

Is Media Plagiarism Between Mediums Acceptable?

Should a blog post on someone’s website end up verbatim in a newspaper or magazine publication? Is taking the dialogue from a television news show and publishing it in print an acceptable practice? With technology and media being what they are today, this type of thing happens all the time. Publishing duplicate content on the internet will get flagged by software that checks for duplicate content or previous publication, but what about cross-medium media plagiarism? How do you avoid that? It happens every day both on and off the internet. Is there a way to prevent it?

In many cases the answer is no. The best plagiarism software can only check submitted content and match it to any other similar content found online or on offline proprietary databases. Video and television, unless there is a published script on the web, cannot be flagged with this method. The best you can do is to transcribe the story and then check the transcription with the plagiarism software. This isn’t as difficult as you might think. Closed captioning can do it for you if it’s available. Transcripts may also be available directly from the media outlet that airs the story.

One of the more common forms of media plagiarism comes in the form of scientific research plagiarism. This is not as easily detectable as other forms of plagiarism where matched content can be flagged. The scientific discovery itself could be the item plagiarized, and writing about it as if it were your own is every bit a copyright infringement as copying and pasting the exact content. In order to write scientific white papers, data is necessary to back up the statements made in plain prose. Taking that data from another source that is not your own is also considered plagiarism.

Retype a newspaper story and publish it on the internet. Copy and paste a web story and publish it in print. Download a television script or scientific whitepaper and claim it for your own. These are the types of cross-medium plagiarism instances that modern technology has made possible. The technology to detect these abuses has also improved along the way, but ultimately the only way to prevent it is through the integrity of writers and editors. There are far too many instances where duplicate content is submitted and editors just don’t care. That needs to stop.

In February 2011, Google put through a change in their search algorithm called Google Panda, or Google Farmer as it is known in some circles. Part of this change involved the devaluation of duplicate content, essentially dropping any website that uses it from a prominent page position down to one in search engine oblivion. This change is a start, but it doesn’t cover material or content that isn’t published on the internet. There are companies that will buy printed material, like school papers for instance, and resell them for reproduction by students in other locales. This practice, heinous as it is, is not punishable by any significant fine or legal penalty, like other forms of plagiarism are. Hopefully, some day it will be.

It Is Sensible to Hire Conveyancing Experts to Handle the Entire Process for You

If you wish to buy or sell a property, or a house, then, you will have to undergo the conveyancing process. And, if you want to minimize all your hassles and worries and want to have a smooth sailing, then, it’s vital that you hire a skilled legal representative, who will ensure that the process is smooth and uncomplicated. The legal representatives help you get through the entire without much anxiety.

When you hire any of the conveyancing experts, be assured that your deal will be well taken care of. Though their fee and charges might be slightly high, yet, it is worth the services they offer. Remember, you will need a conveyancer as he understands the complete process and he would have assisted other people in the past to materialize their deals. So, at any point in time, it is advisable to hire an expert, who can be of great help in the entire process.

The fact is that these conveyancers are authorized to handle the entire property transfer deal. However, it’s important that they have good amount of experience, and they have to be knowledgeable and well-read to grip the process proficiently. This characteristic is mainly vital in those cases where there might have been disputes or problems related to property in the past. Thus, when you hire one of these legal representatives after proper research and information, you can be guaranteed that your case will be dealt with extreme ability. Also, you will not have to worry about any additional expenses.

When you decide to go ahead with a conveyancer, then, there are several aspects that will be skillfully handled by him. For example, he will go through all the details and information of the property you intend to buy or sell. He will guide you through all three stages; which are before contract, before completion, and after completion. The process can start only after the offer has been made and all the legal details have been exchanged and accepted by both the parties. The conveyancer helps with that. He will also work on other details, like how and when the credentials and papers need to be put forward, and whether or not to allow more groundwork time to a party, and many other such things.

Though conveyancing is believed to be an unofficial process, it can get very complicated during the route of resolution. That’s exactly why experienced conveyancing experts have to be appointed. So, when there are so many conveniences, there is no reason for you to not to seek their services and ease out the entire process for yourself.

Street Racing – A Dangerous Pastime

The Fast and the Furious movie franchise has achieved a status of popularity that I am sure far exceeds the expectations of everyone involved in the making of these films. The producers of these movies may have had an inkling that they would be doing a sequel, but I doubt it ever occurred to them that there would be seven of these films made over the course of 14 years with an eighth in the series set to be released in 2017.

Fast cars, competition, drama, excitement, attractive men and women – these movies definitely have something to offer a vastly diverse audience. There is, however, one common element in each of them, and that is the exhilaration brought on by speed. Of course, this franchise is not the first time there has been mass exposure to the concept of street racing. It has been a core theme in many Hollywood productions such as Grease, Death Race 2000, and Cannonball Run, among others.

Street racing is not a new phenomenon, by any stretch of the imagination; however, we do seem to hear about it much more frequently these days. It’s probably impossible to determine if this is due to it happening more frequently, if accidents that result from its practice are more widely reported, or if it has simply grown in popularity. Whatever the reason, street racing may be exhilarating for those who participate in it, but it can often have tragic consequences.

Sometimes these races are set up among friends or associates – a matter of meeting at a certain place and time where there will be light traffic and fewer cops – but sometimes there seems to be little concern about these matters and the street racing may be impromptu between drivers who don’t know each other. It can result from as little provocation as one driver revving his engine at a traffic light and some sense of ‘machismo’ kicks in. (Although women are involved in illegal street racing, the drivers at such events are usually male.) It would seem that such was the case when, on July 1, 2013, a West Delray mother of two was the apparent victim of a street race gone wrong because it is believed that the drivers did not previous know each other.

According to reports, the woman was pulling onto a roadway shortly before 9 a.m. when she struck the passenger door of one of the cars speeding past her while threading in and out of rush hour traffic. After the initial impact, the other driver who was racing then plowed into the driver’s side of the woman’s car, killing her instantly. It is estimated that the two drivers who were speeding were traveling at speeds of approximately 100 mph in a 45 mph zone.

Sadly, this type of tragedy is not an isolated incident. Another such incident occurred in Tamarac late last year in which a popular 20-year-old woman was killed when the car she was riding in hit a palm tree. According to one account, the car was racing a motorcycle when the driver lost control of the vehicle and hit a tree. After examination of the car’s sensors, it is believed that the driver of the vehicle was speeding at 42 mph over the posted speed limit.

Generally, those involved in this type of activity tend to be young males, but as with everything in life, there are exceptions to that generalization. A 42-year-old man was arrested in Palm Beach County when law enforcement broke up a group of approximately 50 motorcyclists who were involved in racing. The 42-year-old is the only suspect that was unable to evade the officers. The charges he now faces are racing on a highway, reckless driving, and he wasn’t licensed to drive a motorcycle.

I have already mentioned the excitement that many may gain from street racing, but the costs can often be devastating. Sometimes it is the racers themselves who suffer the consequences of these actions, but all too often, the victims of street racing bear no culpability in what befalls them. In both of the heart-wrenching cases mentioned above, an innocent person lost her life. It is impossible to say if the second victim I mentioned was an active participant, but it seems clear that the first victim certainly had no awareness of what was taking place. She was, in fact, just on her way to work when calamity struck.

“All of our dreams and happiness now have been shattered,” the mother of this victim told a Palm Beach County circuit judge.

Even if it is not those who are speeding through our streets who are injured or killed, their lives are also devastated. In this case, the two men who were involved in this incident were only 22 and 23; one of whom was a college student. In the second incident, the driver was a 21-year-old Tamarac man who had plans to join the Marines. One of these promising young men pleaded guilty to vehicular homicide and is now serving four years in jail. Even after his release, he will still have to face four years of probation. If he violates his probation, he could receive 15 years in prison.

The mother of the victim, however, stated, “Whether it is one day in prison or 50 years in prison, our daughter will never return, but a proper prison sentence may discourage similar driving by you some day, and/or another person, and thus save an innocent victim.”

The second driver is charged with reckless driving, vehicular homicide, manslaughter by culpable negligence, and unlawful speed, but the case against him is still pending. It is expected that he will stand trial later this year.

In cases such as these, those engaging in street racing which results in someone’s death can be charged with vehicular manslaughter, vehicular homicide, or both offenses, as well as other charges. These charges can be either first or second degree felonies, the consequences of which can be as severe as life imprisonment or the death penalty.

Yes, speeding can be exhilarating, but in addition to the macho attitude of many who engage in street racing, the enticement of this practice also stems from the inherent understanding that it is patently dangerous. Anyone who engages in street racing surely realizes the risk involved or the rush they get from doing so would not exist. This action is much more severe than going a just few miles over the speed limit because you are late for work. The ramifications, both legal and otherwise, are usually much greater than that of an ordinary speeding ticket.

Unfortunately, the choice to speed at whatever level can end in more than just a traffic ticket. Life-altering consequences are certain if an accident occurs. Lives are lost, the lives of victims’ families are forever changed, and the lives of the drivers are also irrevocably altered.

If you have been charged with reckless driving and speeding due to street racing or for any other reason, please give us a call at 954-967-9888 for a free consultation.

Two Types of Relief For Parental Care / V.A. Pension / Medicaid ICP

Attempting to explain the nuances of Pension Aid & Attendance and the Florida Medicaid ICP program in this article is simply not practical. So the next few paragraphs will lay out the basic concepts. Once those concepts are understood, IT IS CRUCIAL THAT THE READER GAIN PROFESSIONAL HELP BEFORE IMPLEMENTING ASSET PROTECTION STRATEGIES.

Let’s start with the Veteran’s Administration Aid & Attendance benefit because when an elderly person can qualify for this benefit, it is common that it is the only benefit ever needed or is the benefit obtained and used immediately prior to needing the Medicaid ICP benefit.

Homebound and Aid & Attendance Veteran’s Benefits

It is crucial to understand that Aid & Attendance is a reimbursement program. This means that the V.A. will pay up to its maximum benefit to reimburse a veteran for all medical expenses. Therefore, before applying, money must be expended. So, if a family member or other individual is providing care, the veteran should be paying for the services in a way that the expense can be proven (cancelled check, cash not recommended). Obviously if the care is being provided by a commercial homemaker or home health care company, proof of payment will be available. Here is the real point of this paragraph; V.A. Aid & Attendance is a reimbursement program and NO benefits will be paid based on future expectations unless the same type of expenditures are already underway.

Next, it is extremely important to understand two things

  1. V.A. currently has no set rules for how much in assets a person can have and qualify for benefits. The rule of thumb is that a couple cannot have more than $80,000 and a single person cannot have more than $25,000. While O.K. as a rule of thumb, be careful about relying on these numbers as the older a person gets the lower these numbers go. The basic theory is that the V.A. will attempt to calculate how much money the applicant will need to make it to the end of life. Therefore, someone 90 will need less than someone 75.
  2. Currently there is no look-back period for gifts. Therefore, someone who gives away excess assets to children or to a properly drafted and selected irrevocable trust (knowledgeable attorney a must) today, can apply for benefits tomorrow without fear of disqualification due to the gift. However, it is absolutely imperative to understand that massive changes to this and other V.A. homebound and Aid & Attendance policies are underway and inevitable. Therefore, if a loved one who is a veteran and needs care, served a total of 90 days in the service, one day of which was during wartime (combat service not required), and did not have a dishonorable discharge, and they are receiving care, now is the time to pursue benefits. Now, not later.

The potential maximum benefit for a single veteran is $1,788, for a married veteran is $2,120, for a surviving spouse of a veteran $1,149, and for two married veteran’s $2,837.

Nursing Home and Assisted Living Medicaid

There are two primary concepts that must be understood when qualifying for Florida Medicaid Long Term Care benefits.

  1. There are three types of assets a) exempt b) countable c) non-countable
  2. The income of the applicant cannot exceed $2,199 in Florida

The whole process of “Medicaid Planning” focuses on reducing income below $2,199 and countable assets below $2,000 for an individual or below $119,220 for a couple. Income reduction is accomplished using a Qualified Income Cap Trust. Countable assets are generally reduced by a) gifting money and waiting five years to apply for Medicaid b) gifting money, applying for Medicaid, and then using gifted money to pay the nursing home bill until the ineligibility period created by the gift has expired c) exchanging countable assets for exempt or non-countable assets d) or some combination of the three strategies.

Once the above concepts are understood, planning can begin.

If you need assistance with V.A. benefits the person must be authorized to assist with an application by the Veteran’s Administration. This includes attorneys and non-attorneys alike. If you need assistance with a Medicaid application, a person of your choosing can assist but only an attorney can make initial strategy determinations, create a plan, and draft legal documents. An application specialty company is likely to be the most successful at plan implementation and expedited approvals.

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