Dear Friends,
This is the sixth newsletter I have sent to clients since January, 2006. I hope you have found the topics in past newsletters to be interesting and helpful. If you have not received past newsletters and would like to access them, you may do so on our web site at www.cantorfloman.com
Personal Injury Cases: How is a value placed on losses sustained in an automobile collision?
Being involved in an automobile collision is a frightening experience. The memory of the collision and the fear it engenders can remain with you for years. If you have been injured in an automobile collision that is not your fault, the law requires the at fault driver’s insurance company to compensate you for what happened by paying you “fair, just, and reasonable damages” for your losses. One person’s idea of what is “fair, just, and reasonable” may differ significantly from another’s. What goes into the determination? Here are some factors that are considered.
• How much physical damage was done to each car? For example, a fender bender is not treated as seriously as a collision that causes substantial damage to one or both of the cars.
• What injuries were sustained? For example, in most cases, a broken bone will be considered a more significant injury than a sprained neck or back.
• Is there a permanent injury? Some injuries clear up after several months; others may have an impact on you for the rest of your life.
• Have you missed time from work?
• Do you have out of pocket medical expenses?
• How are your symptoms and injuries described in your medical records? For example, did you tell a health care provider that your neck really hurts, but the entry in the medical record says you are continuing to improve?
• Do your medical records before the collision reflect normal age related changes to the parts of your body injured in the collision?
• How have the injuries affected your life? For example, are you back to the same routines you followed before the collision, or have things changed for you, even if only slightly?
If you have been injured on snow or ice we would be pleased to meet with you. A thorough investigation of legal responsibility for an injury sustained on snow or ice almost always includes photographs of the area, weather reports showing precipitation and temperature during relevant time periods, and a determination of who is in control of the area where the injury occurred.
Medicaid planning: Government programs that help you stay at home.
Although Medicaid generally is thought of as the government program that pays for the cost of long term nursing home care, there are Medicaid and other government programs that assist elderly or disabled residents receive care at home. Most programs have income and asset eligibility limitations, but in some cases the limitations are surprisingly generous. Here are some of the more prominent programs.
• The Connecticut Home Care Program for Elders (CHCPE) is administered by the Department of Social Services. It can pay for home health aides, companions, adult day care, transportation to medical appointments, and related services that make it easier to stay at home.
• The CONNPACE program is administered by the Department of Social Services and provides assistance with the cost of prescription medicine.
• Medicare home care benefits are part of the coverage available through Medicare Part A. Services can include intermittent skilled nursing care, physical and occupational therapy, and home health aides.
• Medicare hospice services are part of the coverage available through Medicare Part A. Services include prescription medicine, nursing and other medical care, and grief counseling.
• Veterans and surviving spouses of veterans may be eligible for what is referred to as the Aid and Attendance Benefit. The Aid and Attendance Benefit is a monthly cash payment made to the veteran or surviving spouse. The program is administered by the Department of Veterans’ Affairs.
The goal of each program is to make it easier for an elderly or disabled family member to stay at home. We would be pleased to meet with you to help you assess whether a family member is eligible for one or more of these important government benefit programs.
Estate planning: I’m not old! Why do I need to do this?
Many people assume that a Durable Power of Attorney Instrument and Health Care Instructions are only needed by “old” people. The truth is that in today’s fast paced society anyone legally an adult (older than eighteen in Connecticut) should consider executing these documents.
• A Durable Power of Attorney Instrument authorizes others to make financial decisions for you if you become incapacitated as the result of an accident or an illness.
• Health Care Instructions authorize others to make health care decisions for you if you become incapacitated as the result of an accident or an illness, including decisions about the termination of life support systems.
• Young adults at college or work away from home should not overlook the need for these important documents.
• In the absence of a Durable Power of Attorney Instrument and Health Care Instructions it may be necessary for a family member to ask the Probate Court to appoint a conservator to make those decisions for you.
We would be glad to meet with you to prepare these important documents.
Real estate transactions: We’re thinking of buying a home together, but we’re not married.
It increasingly is common for non-married people to buy a home together. What happens if the relationship ends? Who stays? Who goes? What are the terms? A written agreement that sets forth the rights and responsibilities of each party will make the separation easier for both.
• Ideally, the agreement should be entered into prior to the purchase or shortly after the purchase.
• The agreement should cover subjects such as responsibility for expenses while living together, sharing appreciation and depreciation, allocating tax benefits and burdens, buy-out options, and a mechanism for resolving disputes.
• Statutory provisions applicable to the division of property when a marriage or civil union fails are not applicable, but may provide helpful guidance.
• Because of the potentially conflicting interests, the same law firm should not represent both parties.
• Although love, affection, and friendship abound in the beginning, it is important not to lose sight of the fact that the purchase also is a business transaction and should be treated as such.
We would be pleased to meet with you to help prepare an agreement that protects your interests and, at the same time, treats your partner with respect and sensitivity.
Business entities: Maintain your liability insurance.
An important reason for creating a business entity is to protect the owner from personal liability for claims arising out of the conduct of the business. Although this works in most instances, one area in which the owner continues to have personal liability is for negligent conduct committed by the owner.
• Example 1: Owner is driving the company car on company business and goes through a red light colliding with another car and injuring the other driver. In this example, the owner, because he is the driver, has personal liability for the injuries to the other driver that have been caused by the ownerÍs negligent driving; this is so even though the owner is driving the car on company business.
• Example 2: An employee is driving the company car on company business and goes through a red light colliding with another car and injuring the other driver. In this example, the owner has no personal liability for the injuries caused by the negligent driving of his employee, because the employee is acting as an agent of the company and not the owner.
• Be sure to maintain insurance sufficient to insure the owner’s potential liability in circumstances in which the owner’s negligent conduct may cause an injury.
We can help you structure your business entity in a manner that minimizes the circumstances in which the owner may have personal liability arising out of the conduct of the business.
Our job is to present your case persuasively to the other driver”s insurance company. If a reasonable settlement can not be negotiated with the insurance company, our job, then, is to present your case persuasively to the judge or jury who ultimately determines “fair, just, and reasonable damages” for your losses.
Very truly yours,
STEVEN P. FLOMAN