E.S.

“Thank you for your help with drafting my estate planning documents. You made the process so smooth and captured everything that was important to me. I did not like thinking about my estate but I am so happy to have this finally completed so that my wishes will take place. “

– E.S.

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J. G., Branford

“Allison and her staff were extremely professional and attentive every step of the way – always on top of deadlines and following up consistently with all parties. Their professionalism made an otherwise overwhelming process a stress-free and enjoyable one. I highly recommend her and her team. “

– J. G., Branford

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M. M., West Haven

“”The entire staff was very professional, courteous, and knowledgeable with any questions or concerns that come up during the closing process. They were very prompt with returning my phone calls or emails when questions came about prior to the closing. When I arrived for the final closing I was welcomed into a very friendly environment where I felt very comfortable. During the closing every piece of paper that was presented was explained thoroughly and the staff made sure I understood every aspect of the mortgage, fees, insurance, etc. As a first time home buyer I would absolutely recommend this firm to anyone I talk to about buying a house. I was nervous already being a first time home buyer, but working with Floman DePaola I felt more comfortable.” “

– M. M., West Haven

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Chris B.

“”Floman DePaola has been doing our latest contract work for (client’s business name), and is an expert attorney in the digital space for businesses. I have know Allison since her childhood, and am highly impressed with her knowledge and depth of understanding of the many intricate facets of law for businesses negotiating the digital realm. She is extremely professional and a delight to work with on these sometimes long and arduous contract terms.” “

– Chris B.

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Who will take care of things for me if I can’t do it myself?

It’s human nature to think we’ll always be able to take care of the daily financial matters we all routinely manage. Things like paying the rent or insurance or utilities, or writing checks.  But what if an injury, accident, or illness takes you out, and you can’t do that, either for a short time or a long time? Who will take care of things for you?

Here is a list of documents that allow you to choose who takes care of things for you.

  • Durable Power of Attorney Instrument: This is a legal document that allows you to choose the person who will manage your financial affairs if you can’t. This is a private document and usually works well if you trust your designated decision makers and are confident there is no potential for abuse. Although the intent is that it be used only if you can’t act for yourself, it is a “live” document when it is signed. Generally, you keep possession of it and your agent uses it only if and when you become incapacitated. Alternatively, a Springing Durable Power of Attorney Instrument can be used. This is not a “live” document when it is signed; rather, it “springs” into action only on the happening of a specific event, such as a medical condition that prevents you from making financial decisions on your own.
  • Revocable Trust, also known as a Living Trust: A Revocable Trust allows you to retitle your assets as owned by your Revocable Trust. While you are alive and capable you manage the assets the same way you presently do. If you become incapacitated, however, the successor Trustee(s) that you’ve chosen will take over the job of managing the assets, but only as you specifically have directed in the Trust, not as they choose. This gives you a degree of protection not afforded by a Durable Power of Attorney Instrument.

What happens if you do not have these documents in place?

  • Conservatorship: If you don’t have a Durable Power of Attorney Instrument or a Revocable Trust, the only way a third party can manage your finances is by being appointed as the conservator of your estate. This involves an application to the local Probate Court, a hearing, usually a bond, and usually a periodic accounting report. Generally, managing finances through a conservatorship is more expensive, time consuming, and formal than managing finances through a Durable Power of Attorney Instrument or Revocable Trust. Sometimes, though, use of a conservatorship is what is best for your protection.
  • Health care decision making: If you are unconscious and someone needs to make health care decisions for you, who will that be? Although many health care providers will allow a spouse or child to act for you, you can’t count on that. Legally, you need to have designated someone to be your health care representative. That is a separate legal document. If you haven’t designated a health care representative and the health care provider insists on someone with authority, you will need to have a conservator of your person appointed by the Probate Court.

There are lots of choices that you are able to make. The best way to determine what is right for you is to meet with an attorney who will ask the right questions, listen to what you say, and make recommendations individually tailored for you.

For advice specific to you, please contact the office.  We would be glad to meet with you for a no hassle, no charge initial consultation, no matter how long it lasts.

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Should we give our home to the children?

We often are asked, “Should we give our home to the children?”  The impetus for the question almost always is a fear that the home will need to be sold to pay for nursing home costs. If that were to happen, what would be left for the children? As with many legal questions, the answer is an annoying “it depends”. Usually the answer is no, but sometimes it is yes.

Here are 7 factors that need to be considered:

  1. If one spouse is in a nursing home but the other spouse still lives at home, the home is an exempt asset for Medicaid (Title 19) eligibility purposes. If you give the home to your children it loses its exempt status.
  2. In most instances, a gift of the home to your children will trigger the 5 year Medicaid look back rule before the gift is a protected gift.
  3. A gift of the home is a taxable gift that has gift tax reporting requirements; in most instances no gift tax is payable, but a gift tax return is required.
  4. A gift of the home to your children can lead to the loss of the capital gains exclusion if it is sold while you are alive and a loss of the step up in basis when the home is sold after your death.
  5. A gift of the home to your children can cause you to lose any elderly tax exemption or veteran’s tax exemption you may be receiving.
  6. If your home is owned by your children, it is available to their creditors, passes through a child’s Will if a child dies before you, and is a marital asset if a child’s marriage breaks down.
  7. Despite the risks, if gifting the home to your children turns out to be the right thing to do for you, there are different ways to make the gift, some of which can bypass the pitfalls created by an outright gift to children.

For advice specific to you or your family, please contact the office.  We would be glad to meet with you for a no hassle, no charge initial consultation, no matter how long it lasts.

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Preparing for a Medicaid (Title XIX) Application  

If you are applying for Medicaid (Title XIX) there is a lot of information you need to gather to submit your application to the Department of Social Services (“DSS”).  Here are some of the common items that are necessary:

  1. Personal Identification. A copy of your birth certificate, social security card, health insurance card(s), and Medicare Card. If you are married you will need the same information for your spouse, and a copy of your marriage certificate.
  2. Income Information. Proof of monthly social security and pension income, or any other sources of income.
  3. Asset Information. A copy of monthly bank statements and investment statements for all open accounts for the three years prior to the date of the Medicaid application and the December statements for years four and five prior to the application.
  4. Life Insurance and Long Term Care Insurance Information. If you have life insurance or long term care insurance you will need the policy type, number, face amount, and cash surrender value amount.
  5. Closed Account Information. You will need to list all accounts that have been closed during the five years prior to the application and be prepared to trace where the funds from the closed account went.
  6. Information about Gifts. Be prepared to explain any gifts larger than approximately $500.00 during the five years prior to the application.  Some of this information may be found on your account statements in number 3, above.

Preparing the Medicaid application and answering the many follow up questions usually posed by the DSS intake worker can be a daunting task. Having help from a professional who knows what to do can ease the burden for you.

For advice specific to you or your family, please contact the office.  We would be glad to meet with you for a no hassle, no charge initial consultation, no matter how long it lasts.

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Meadowbrook Center v. Buchman: Signing Nursing Home Agreements as “Responsible Party”

The background. This case focused on the question of personal liability of an individual who signed an agreement as a “responsible party” when admitting his mother to a nursing home. Nursing home contracts drafted by the facilities often ask for a responsible party to sign as an agent for residents who lack capacity to contract. This signing requirement can create a blurred line of responsibility for these third-parties. The facility may point to some “no personal liability” language in the agreement, however, if something goes wrong with the Medicaid application the facility will likely look to that responsible party as having the obligation to fix the problem or otherwise face potential personal liability.

The case. Maude Buchman, who was suffering from dementia, was admitted to a skilled nursing facility, Meadowbrook Center (“plaintiff”), in November of 2006. Her son, Robert Buchman (“defendant”), entered into an agreement with the plaintiff to provide care for his mother. The agreement identified the defendant’s mother as “the resident” and the defendant as “the responsible party.” The relevant part of the agreement stated that Maude would be responsible for paying for her care unless Medicaid or another third party made payment. Another part of the agreement stated that Maude and the responsible party, the defendant, agree to make prompt application for Medicaid assistance to the Connecticut Department of Social Services (“DSS”) when Maude’s assets were insufficient to pay for her care.

As it turned out, the defendant was not diligent in pursuing his mother’s Medicaid application.  By the time of Maude’s death, the unpaid balance due to the plaintiff for her care was $99,820.78. The plaintiff sought to recover damages from the defendant for breach of contract because the defendant had signed the admission documents as the responsible party. The plaintiff alleged that the defendant breached the agreement when he failed to provide DSS with certain requested information for his mother’s Medicaid application in a timely fashion. The parties stipulated that if DSS had granted the mother Medicaid benefits, DSS would have paid the facility $47,561.18. The Trial Court rendered judgment for the plaintiff, awarding damages of $47,561.18.

The appeal. The defendant appealed, claiming that the award of damages was impermissibly speculative because the record did not disclose any evidence indicating that his conduct was the cause of those damages. The majority of the three judge panel came to the conclusion that the defendant, who signed the agreement as the responsible party, could not be held liable based on the evidence, or lack of evidence, presented at trial.

The evidence did establish that the defendant failed to provide all the information requested by DSS and therefore breached his duty as a responsible party under the agreement. However, the majority concluded that he could not be held liable because there was “no evidence in the record… indicating that, had the defendant complied with his obligations under the agreement, the plaintiff would have received any Medicaid payments.”

In other words, the nursing home proved that the defendant breached the contract, but did not prove that his breach was the legal cause of damages, even though “the parties stipulated…that if the department granted Medicaid benefits to the defendant’s mother, the department would have paid the facility $47,561.18.”  The ruling focuses on the fact that the “if” exists here.

A concurring opinion, written by Judge Schaller raised another issue, apparently not briefed by the parties. Judge Schaller took the position that federal Medicaid law and Connecticut’s patients’ bill of rights preclude a nursing home from imposing liability on a responsible party unless the responsible party has been shown to have misappropriated the resident’s resources, because without that personal fault, the responsible party agreement becomes a “guaranty,” prohibited by federal Medicaid law And Connecticut’s patient’s bill of rights The majority, however, “strongly” rejected that analysis.

The future. You can expect more litigation between nursing homes and family members who sign admission agreements as responsible parties. Although there may have been many other defenses to Meadowbrook’s claim, the failure of Meadowbrook to offer any proof that the defendant’s breach of contract was the legal cause of damages is as far as the Court needed to go.  If you are a family member being asked to sign an admission agreement, it would be prudent to have it reviewed in advance by legal counsel. You want to help your family, but, at the same time, you don’t want to put your own assets at risk by doing so.

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