Determining Appropriate Compensation for the Caregiver of an Elder

Let’s say that you are named as an Agent under a Power of Attorney for an Elder in Connecticut. What is appropriate compensation for your duties on behalf of the Elder who is the Principal? Even if a family member is the Agent under a Power of Attorney, a family member need not serve gratuitously. What was agreement of the parties (the Elder and the Agent) as to compensation when the Power of Attorney was signed?

The best method is a written caregiver agreement between the parties which is executed before or at the time services of the caregiver are rendered. A written caregiver agreement can establish the determined appropriate compensation between the parties in case the arrangement is later questioned. A written caregiver agreement may also help avoid complications and disagreements between family members over the Elder’s assets. It may also avoid a denial of Medicaid benefits in the future, should the Elder have to enter long term care.

In the case of a caregiver who is a court-appointed Conservator, compensation may vary. If the conserved Elder is not on Medicaid (Title XIX) –the Connecticut Probate Court decides a reasonable fee for Conservator’s services. Conservators should keep records of time spent and description of what was done, even if you do not initially intend to be compensated as caregiver. Where an Elder is or may in the near future be receiving Medicaid assistance – the State of Connecticut usually severely limits rate of pay for Conservator or Power of Attorney.

Whether you are an Elder living with family, or a caregiver who is hosting an Elder in your own home, or living in the home of an Elder, you should give serious consideration to setting up a written caregiver agreement. Dzialo, Pickett & Allen, P.C. is ready to assist you with the right language which best fits your unique situation, and protects your expectations about the arrangement.

-Jeanne Messick, Esq.

Disclaimer: While this blog provides general information, it does not constitute legal advice. The best way to get guidance on your specific legal issue is to contact a lawyer. To schedule a meeting with an attorney, please call one of our lawyers at (860) 316-2741. The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship.

Alimony Is Not Just for Housewives

In Connecticut, judges in divorce actions may award alimony to either party. Alimony is money that is paid for the support of one spouse by the other spouse, and can be awarded for either the period that the divorce action is pending or as part of the final judgment of divorce.

Although there is a common perception that alimony is only awarded to a married woman who left the workforce to stay home and raise the couples’ children, that idea is a misperception in this modern era.

In this age, where both parties to the marriage are likely to work outside the home, the alimony law is in effect via statute to make certain that there is financial “equity,” or fairness, in divorce. Even though awards of permanent alimony (for life) are becoming far less common, the court, under certain circumstances, could order the person with more income to pay the one earning less for a fixed period of time, referred to in family court as a “term.” Alimony is also available whether the party is man or a woman.

Alimony can be ordered as a lump-sum but is typically awarded periodically, meaning a certain sum is paid weekly, bi-weekly or monthly for the term. Periodic alimony is viewed under special rules by the IRS. Typically, the payments made in a taxable year are income tax deductible by the person paying alimony. As a result, the person receiving the award must claim the payments as income and pay income tax on the award.

Regardless of how a settlement agreement or trial court’s decision describes a lump-sum payment as “alimony,” the IRS will generally treat that lump-sum payments as a property distribution resulting in no deduction for the paying spouse.

Understanding the tax implications of alimony is incredibly important when negotiating a settlement in divorce or, when necessary, preparing for a trial on the issue. As always, it is best to consult an experienced family law attorney to determine whether you have a claim or potential exposure for an alimony award and to avoid any potential negative implications of an alimony award during tax time.

-Katharine Gillespie, Esq.

Disclaimer: While this blog provides general information, it does not constitute legal advice. The best way to get guidance on your specific legal issue is to contact a lawyer. To schedule a meeting with an attorney, please call one of our lawyers at (860) 316-2741. The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship.

Why All Connecticut Drivers Need Uninsured Motorist Coverage

For many unknowing Connecticut residents, shopping for auto insurance is easy: simply identify the minimum car insurance requirements, and then call around for the lowest rate. Although this approach might save time and money while shopping for insurance, only purchasing the minimum motor vehicle insurance coverage can have disastrous consequences in the event of a car crash- particularly if the at-fault driver is uninsured.

Fortunately, making informed decisions regarding “uninsured motorist coverage” can help ensure that you have adequate insurance coverage regardless of the other driver’s insurance policy.

Under Connecticut state law, all motorists are required to carry minimum liability insurance limits of $20,000 per person and $40,000 per accident. Liability insurance generally covers the accident victim’s medical bills, lost wages, and pain and suffering.

Drivers failing to meet these minimal requirements potentially face criminal charges, fines, and suspended registrations. Despite these requirements, however, an alarmingly high number of drivers on our roadways do not carry any insurance. According to a 2011 survey by the Insurance Research Council, approximately 10% of Connecticut drivers are uninsured. It is therefore vital that all Connecticut drivers obtain their own insurance coverage in the event that an uninsured driver causes a serious car accident.

In the event that the driver who caused the car accident either does not have insurance, your own coverage is very important. Fortunately for Connecticut residents injured by uninsured drivers, Connecticut also ordinarily requires that drivers carry “uninsured motorist coverage” (also referred to as “UM”). As opposed to the liability coverage explained above, which serves to protect others on the roadway from your negligence, this coverage protect the policyholder from the negligence of uninsured drivers.

Uninsured motorist coverage (UM) provides coverage for people injured due to the negligence of uninsured drivers. This coverage can also be invoked if the negligent party is unknown, such as if a “hit and run” driver causes an accident and then flees the scene prior to being identified. In either event, the injured party simply makes a claim with their own insurance company, which “stands in the shoes” of the negligent party to cover the policyholder’s losses.

Declining UM is a tremendous mistake because this coverage protects the driver and any other vehicle occupants from the negligence of uninsured car drivers. To make sure that you and your family have adequate insurance, review your policy limits with an attorney to determine what type of coverage you would have in the event of a motor vehicle accident. If you are injured in a motor vehicle accident, contact a personal injury attorney to determine what options for compensation you have based upon your UM coverage.

-Eamonn S. Wisneski, Esq.

Disclaimer: While this blog provides general information, it does not constitute legal advice. The best way to get guidance on your specific legal issue is to contact a lawyer. To schedule a meeting with an attorney, please call one of our lawyers at (860) 316-2741. The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship.

What are the Responsibilities and Liabilities as an Agent Under a Power of Attorney or Conservatorship?

Although most Connecticut residents know it is a good idea to have an Elder Law attorney create legal documents designating those responsible for making financial and personal decisions, fewer residents know the responsibilities and liabilities of being named as an agent in these documents.

According to Connecticut law, a fiduciary relationship is one in which one party (known as the principal) has entrusted the other party (known as the fiduciary) to act on behalf of the interests of the principal.

You have “fiduciary responsibilities” if you are named by the Elder to serve in any of the following capacities:

  • Agent under a Power of Attorney;
  • Trustee of a living trust;
  • Conservator of Person and Estate (appointed by Probate Court).

Principal–agent law governs responsibilities in the Power of Attorney. An Agent designated under a Power of Attorney has no duty to act, but if s/he acts, s/ he must do so in the best interests of the Elder. The Principal (Elder) in a Power of Attorney relationship is still presumed competent and able to act, so there is no finding of incapacity necessary to trigger the Power of Attorney’s authority and thus no duty to act.

In contrast to the Principal in a Power of Attorney relationship, a Conserved Person (Elder who is conserved) is no longer legally capable of conducting or transacting his/her own personal and/or financial affairs.

In Connecticut, the decision-making authority of a Conservator of the Elder’s Estate (meaning his/her assets) “trumps” the decision-making authority of another party names in a Power of Attorney. However, the authority of a Conservator is limited to the State in which the probate court is located- if the Conserved Person leaves the State, the authority “dies.” The Court of Probate may limit the authority of the Conservator, and most important decisions require the Court’s approval, including sales of the Elder’s real property and significant personal property, or a change in the residence of the Conserved Person.

Both Conservators and Agents under Power of Attorney cease having authority to act upon the Elder’s death. At that point, authority over the Elder’s assets will be made by the named Executor under a Will (or the administrator, if there is no valid Will).

Increasingly, both Agents under Power of Attorney and Conservators have been sued by nursing facilities as “responsible parties” if the costs of an Elder’s nursing home care is not covered by private funds or Medicaid (Title XIX) benefits. Care must be taken by the Agent or the Conservator to avoid liability under the terms of nursing home admission contracts and to seek professional help from an elder law attorney when getting the Elder ready for a spenddown of assets and applying for Medicaid benefits.

If you or someone close to you is serving as Agent under Power of Attorney or Conservator, we encourage you to have a consultation with us to understand your responsibilities and avoid costly mistakes, especially in the complex area of Medicaid eligibility.

-D. Jeanne Messick, Esq.

Disclaimer: While this blog provides general information, it does not constitute legal advice. The best way to get guidance on your specific legal issue is to contact a lawyer. To schedule a meeting with an attorney, please call one of our lawyers at (860) 316-2741. The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship.

Loss of Spousal Consortium in Connecticut

When a married person suffers a serious personal injury, such as an automobile accident or workplace injury, the impact can be felt not only by the injured person, but also their spouse. Although the accident victim’s spouse might not share the physical pain caused in a serious accident, the ripple effects from that injury can cause considerable direct harm to married couples. These ripple effects are much worse, both in terms of severity and duration, in wrongful death claims. Connecticut state law allows for compensation in personal injury and wrongful death claims if the claimant’s spouse was seriously injured, or even killed, in an accident caused by someone else’s negligence.

The Merriam-Webster Dictionary defines “consortium” as “the legal right of one spouse to the company, affection, and assistance of, and to sexual relations with, the other.” The term “consortium” is therefore broad, encompassing everything from the services that the injured party previously performed (such as chores around the home) to more intangible relations between the spouses, including affection and marital relations.

Damages for loss of consortium are generally awarded by a jury based upon the evidence presented at trial, to the extent that money can compensate someone for this anguish. Loss of consortium damages typically includes both past loss (dating from the date of accident to the trial) and future loss, calculated based upon the anticipated life expectancies for each respective spouse.

Loss of consortium is considered to be a “derivative” claim, meaning that it must have been directly caused by the accident itself. A loss of consortium claimant can only successfully pursue a claim if the injured party’s claim is successful. Therefore, it is important to contact an experienced personal injury attorney immediately should your husband or wife suffer an injury, so that all potential claims and lawsuits can be evaluated. Please contact us to schedule a meeting in either our Middletown or Old Saybrook offices. An experienced attorney can communicate with the insurance company, file a claim, address many common problems, and help ensure that your legal and financial interests are protected.

-Eamonn Wisneski, Esq.

Disclaimer: While this blog provides general information, it does not constitute legal advice. The best way to get guidance on your specific legal issue is to contact a lawyer. To schedule a meeting with an attorney, please call one of our lawyers at (860) 316-2741. The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship.

A Loved One is Having Difficulties Making Personal & Financial Decisions…How Can You Help Them Avoid a Crisis?

Suddenly becoming a primary caregiver for a loved one in Connecticut can be a stressful time for multiple reasons, including both the certain emotional distress of witnessing the deterioration of an elder family member and the uncertainty of how to act in that person’s best interests in legal matters.

Many Middlesex County residents and others in Connecticut unexpectedly thrust into the role as a primary caregiver for an elder Connecticut resident assume that authority to act is based on family relation, but that is not always the case. If you are the spouse, child, or next-of-kin of the Connecticut Elder, such status gives you no legal authority in and of itself. If you are the joint owner with the Elder over a bank account, your authority is limited to the account, but there is no authority to make decisions regarding any solely-owned assets of the Elder.

Properly planning for personal and financial decision-making authority depends upon the current state of the Connecticut Elder. If the Elder is mentally competent to act, s/he may create a number of documents to property assign decision-making authority to loved ones, including:

  • Power of Attorney for finances
  • Health Care Power of Attorney
  • A living will
  • Trust agreement
  • HIPAA Release (Privacy Act) to release health information
  • Advance Designation of Conservator.

By employing these tools, an Elder may both (1) reduce costs and delays in asset management, and (2) ensure that his/her selection of the most appropriate persons to take on these roles and responsibilities is followed upon disability.

If the Elder is no longer competent and has not created any of the foregoing documents, planning for financial and person decision-making authority is significantly more complicated. In those circumstances, you as the caregiver (or another concerned person) must institute conservator proceedings in the probate court district within which the Elder resides to have legal authority to assist the Elder. Conservator proceedings can take significant time and cost, and often delve into very personal affairs that most Elders would prefer to avoid if given the choice.

Don’t wait for a crisis to start a disability decision-making plan. We can discuss the available options for your loved one, create the tools to assure his/her independence and autonomy, and advise when changes to an existing disability plan should be made. Call us for a consultation today.

– D. Jeanne Messick, Esq.

Disclaimer: While this blog provides general information, it does not constitute legal advice. The best way to get guidance on your specific legal issue is to contact a lawyer. To schedule a meeting with an attorney, please call one of our lawyers at (860) 316-2741. The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship.

Top Six Tips If You Are Injured At Work

As a Connecticut workers’ compensation attorney, many people ask me “what should I do if I am injured at work?”  Suffering an injury at work is a serious problem that leads to considerable uncertainty for Connecticut workers due to the combined effects of a painful injury and lost income.  If you suffer a workplace injury or illness, there are several important initial steps you should consider.

First and foremost, it is very important that injured workers seek medical attention right away from an appropriate provider.  Some Connecticut employers have designated medical providers for workplace injuries, so it is a good idea to know your employer’s workplace policies.  If no such policies exist, the claimant generally has the right to select a provider. Under Connecticut law, all medical bills should be paid by the employer’s insurance company.

Although our laws allow longer notification periods, immediately notify your employer about the injury.  Your employer should then notify their insurance company about the potential claim.  Any delays in reporting the injury could potentially lead to the insurance company disputing that the injury occurred at work.

Confirm wage replacement benefits.  Injured employees are eligible to receive wage replacement benefits for time missed due to the workplace injury.  Contact your employer or your employer’s insurance company if you do not promptly receive benefits.

Once your doctor releases you to return to work, return to work per instructions: be sure to make your employer aware of any restrictions your doctor has placed on your ability to perform certain tasks.  You may be eligible for wage replacement benefits if there is no suitable work available.

In addition to the initial notice to the employer, file an official claim with the Workers’ Compensation Commission (WCC) to ensure that the statute of limitations has been satisfied and protect your eligibility for future benefits.  Contact the WCC or an experienced workers’ compensation attorney for more information.

Consider hiring a workers’ compensation attorney.  An experienced workers’ compensation attorney can answer questions about Connecticut law, file an initial claim, and help ensure that you can focus on recovering and returning to work.  Furthermore, an attorney experienced in both personal injury and workers’ compensation will be able to quickly analyze whether a workers’ compensation claimant could also bring a personal injury lawsuit for the same set of facts. Please contact us to schedule a meeting in either our Middletown or Old Saybrook offices

– Eamonn Wisneski, Esq.

Disclaimer: While this blog provides general information, it does not constitute legal advice. The best way to get guidance on your specific legal issue is to contact a lawyer. To schedule a meeting with an attorney, please call one of our lawyers at (860) 316-2741. The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship.

The Importance of Receiving Proper Medical Treatment After a Car Crash

If you ever have the misfortune of being involved in a car collision and suffer injuries, there are many important steps to consider to protect your interests.  First, you should go see a doctor right after the police have arrived and finished their investigation, even if you feel that your injuries are minor or non-existent.  Frequently, people do not feel pain immediately after a crash even if they are seriously injured.  They may feel stiff and in pain the next day, but pain sometimes takes several days or even weeks before it appears.  A doctor will be able to help you get the treatment you need.

Medical treatment after a car crash is also important in the event that a claim or lawsuit arises from this auto accident.  Under those circumstances, it will be useful to have a written record of treatment available in case the automobile insurance company who insures the at-fault party later tried to claim that the accident did not cause any injuries.  Otherwise, an insurance adjuster or claims representative might try to claim that the car accident injuries are due to some other cause, rather than the crash, or that they simply do not exist.

Depending on the severity of the injuries, you should consider requesting an ambulance at the scene of the accident, going to the nearest hospital, or calling your physician to request to be examined as soon as possible.  Remember to explain to the doctor that you were in a crash and what occurred.  For instance, let him or her know if you were rear-ended, broad-sided, or if your vehicle rolled-over.  In addition, explain to the doctor the severity of damage to the car’s involved.

When comes to your treatment, honesty is the best policy.  Be sure to tell the doctor about any pre-existing conditions (injuries to the same body part that you had before the crash).   It’s best for the medical providers to have your full medical history so they can give you the best care.  If information about prior treatment shows up in your medical records later, and you failed to tell the doctor about a similar condition to the same body part, it can be used to make you look like you are not truthful.  Once again, insurance adjusters will use this against you.  However, you should tell the doctor if the pain is different in any way.

It takes time to know the full extent of your injuries so be patient.  Follow your doctor’s advice, follow his or her treatment recommendations, and follow through with testing and physical therapy, if advised to do so.  If you continue to have pain, weakness, tingling, numbness, or any other symptom, it is imperative that you communicate what you are feeling to your doctor.

– AnnMarie Rocco, Esq.

Disclaimer: While this blog provides general information, it does not constitute legal advice. The best way to get guidance on your specific legal issue is to contact a lawyer. To schedule a meeting with an attorney, please call one of our lawyers at (860) 316-2741. The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship.