This is the seventh newsletter I have sent to clients since January, 2006. 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. The web site includes an index by subject matter.
Personal Injury Cases: Has a family member been injured in a nursing home? Many families answer “yes” to that question. Injuries include bed sores, infections, choking on food, dehydration, incorrect medication, and fractured bones from falls from bed, wheel chairs, or during transfers. Here are some ways in which the legal issues concerning a nursing home injury differ from those related to an injury sustained in an automobile collision.
- Connecticut law requires the nursing home to maintain detailed records concerning patient care. These records often provide important clues about what happened. This is particularly important if the family member has some degree of cognitive limitation that impairs observation or communication skills.
- Connecticut law requires the nursing home to file a report with the Connecticut Department of Public Health describing the injury, explaining how it happened, and outlining a course of action to prevent similar occurrences. This report also provides important clues about what happened.
- Connecticut law has established a “Patients’ Bill of Rights” applicable to patients in nursing homes. The provisions of the Patients’ Bill of Rights are helpful in establishing a standard of care that must be followed by a nursing home.
We successfully have represented the families of individuals who have been injured in nursing homes. In fact, one of our employees is a nurse with past experience working in a nursing home. We encourage you to contact us if a family member has been injured. You can access the Patients’ Bill of Rights and other information about nursing homes by visiting the Department of Public Health website at www.ct.gov/dph.
Medicaid planning: How have the rules changed concerning “immediate annuities” owned by a Medicaid applicant? The rules concerning Medicaid eligibility for an applicant or spouse of the applicant who owns an “immediate annuity” (one that is paying out a fixed monthly or yearly sum for a specified period of time) have changed dramatically. The changes are the combined result of the 2005 Deficit Reduction Act (effective as of February 8, 2006) and proposed changes to the Connecticut Uniform Policy Manual (“UPM”). The UPM is the Manual used to administer the Connecticut Medicaid program. Here are some of the changes.
- Annuities purchased or annuitized after February 8, 2006 must be irrevocable, non-assignable, and actuarially sound.
- Connecticut contends that all annuities, whether purchased or annuitized before or after February 8, 2006, must name the State as the primary beneficiary to the extent of Medicaid benefits actually paid out by the State. Although this position may violate federal law, no Court yet has ruled on the issue.
- Connecticut contends that any immediate annuity owned by a Medicaid applicant is treated both as a source of income for the Medicaid applicant, and, as well, an asset owned by the applicant. Although this position may violate federal law, no Court yet has ruled on the issue.
If there is a reasonable possibility a family member will apply for Medicaid and the applicant or the applicant’s spouse either owns an annuity or is thinking of purchasing one, contact us for a full discussion of the new Medicaid annuity rules and how they may impact your family.
Estate planning: What is the current status of the federal estate tax for assets passing to non-spouse beneficiaries? To use a somewhat overused expression, it is “up in the air”.
- The value of assets that can pass, federal estate tax free, to non-spouse beneficiaries increased to $3,500,000.00 on January 1, 2009; transfers between spouses remain tax-free in unlimited amounts.
- In 2010, there is no federal estate tax at all.
- However, in 2011, the value of assets that can pass, federal estate tax free, to non-spouse beneficiaries is reduced to $1,000,000.00; the federal estate tax begins at 45% on the first dollar above $1,000,000.00.
- Most commentators expect the law to change in 2009, but no one knows how it will change; there is a large federal deficit and the federal estate tax is a hot political issue.
- The federal estate tax includes life insurance proceeds, retirement accounts, assets in a revocable trust (living trust) and all other assets owned by a decedent.
- Because of the broad scope of assets included as part of the federal estate tax base, many people are surprised to find that their estate may face a potential federal estate tax obligation.
We would be glad to meet with you to help you prepare an estate plan that avoids or minimizes exposure to the federal estate tax.
Real estate transactions: Should I bid on a house being sold at a foreclosure sale? You may end up as the owner at an attractive price, but there are significant elements of risk. A foreclosure sale is conducted by an attorney who has been appointed by the Court. The legal title of the attorney who conducts the sale is “Committee”.
- A sign on the property and an advertisement in a local paper will give you the date and time of the sale, and the amount of the required deposit. The property is sold to the highest bidder.
- You must take the property “as is”. In some instances you may be able to walk through the house for one hour before the bidding, but, at best, your ability to note physical or structural problems will be limited.
- There is no financing contingency. If you are the successful bidder you must give the Committee a certified check for the required deposit on the day of the sale. You must be prepared to pay the entire balance within thirty (30) days after the sale has been approved by the Court; if you do not do so, your deposit is forfeited.
- If you intend to bid at the sale, a title search of the Land Records is advisable. If you are the successful bidder, the purchase of an owner’s title insurance policy on the closing date is advisable.
We would be pleased to guide you through the process if you are considering bidding at a foreclosure sale.
Business entities: The importance of being licensed. If your business requires licensing by a State agency, treat the requirement seriously. In Connecticut, many trades and professions are licensed through the Department of Consumer Protection.
- A few examples of businesses that require licensing are health clubs, heating and cooling contractors, electricians, home improvement contractors, solar heating contractors, real estate appraisers, real estate brokers, and new home construction contractors; there are many others.
- Connecticut Courts consistently apply the doctrine of “illegality” to prevent an unlicensed business from collecting money owed it pursuant to the terms of a written contract.
- Connecticut Courts use the same doctrine of “illegality” to prevent the business from recovering the fair value of the work it has performed pursuant to a non-contractual theory of recovery referred to as “quantum meruit”.
- You can obtain additional information about business licensing requirements by visiting the web site of the Department of Consumer Protection at www.ct.gov/dcp.
If you are in business, contact us so we can help assure that your business has satisfied all licensing requirements.
We hope you have found this newsletter informative and helpful. Please do not hesitate to call us if you, a family member, friend, or colleague requires legal services in any of the practice areas handled in our office. As always, we are here to serve our past and present clients, and we also welcome new referrals.
Very truly yours,
SPF/jm STEVEN P. FLOMAN