Living Wills and Health Care Representatives.

Living Wills and Health Care Representatives.

A Living Will expresses your desire not to be kept alive by a mechanical device if you are in a persistent vegetative state or in the final stages of a terminal illness. The Living Will also designates the individuals authorized to communicate your wishes to health care providers. Prior to October 1, 2006, the Connecticut Living Will statute called those authorized representatives, “Health Care Agents” and limited their authority to end of life decision making.  A law passed by the Connecticut legislature that became effective on October 1, 2006 now calls the authorized representative a “Health Care Representative” It also expands the authority of the Health Care Representative to communicate your wishes for non end of life health care decision making. A Living Will signed before October 1, 2006 remains valid according to its terms. A Living Will signed after October 1, 2006 will include the expanded authority of the Health Care Representative.

As with all estate planning documents, a periodic review to accommodate changes in the law or in your family or financial situation is advisable.

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If you are a Connecticut company be cautious about choice of law provisions in any business Agreement you enter.

If you are a Connecticut company be cautious about choice of law provisions in any business Agreement you enter.

Almost all business Agreements contain language that says the law of a particular State governs the interpretation and enforcement of the Agreement. Since business transactions increasingly are conducted across state lines, the choice of law provision in a business Agreement has become extremely important. There are significant variations in the substantive and procedural law from one state to another. If you are a Connecticut business, you always will want to try to negotiate a provision stating that Connecticut law governs the interpretation and enforcement of the Agreement.

If we represent you in a business transaction, it is our job to do our best to assure that any Agreement you sign states that Connecticut law governs the interpretation and enforcement of the Agreement.

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Who pays your medical bills if you are injured in an automobile collision.

Who pays your medical bills if you are injured in an automobile collision.

Even if you have been injured in an automobile collision that is not your fault, the law does not require the other driver’s insurance company to pay your medical bills as they are incurred. Rather, initially, you are required to pay your medical bills by using your own insurance. If you have Medical Payments Coverage as part of your automobile liability policy, by law, your automobile Medical Payments Coverage must be used first. After you have used up any Medical Payments Coverage you have, you next must use your own health insurance, including Medicare if that is your primary health insurer. If you have no health insurance, some health care providers will accept monthly payment arrangements or Letters of Protection from our office.

An important responsibility of our office is to assure that applicable insurance is accessed or other payment arrangements are made for the medical bills you incur.

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There still are important asset protections for a husband and wife if only one spouse requires long term care.

There still are important asset protections for a husband and wife if only one spouse requires long term care.

The 2006 legislative changes that I wrote about last year do not have any effect on Medicaid’s spousal asset protection rules. A very important protection concerns the family home. If one spouse is in a nursing home (“Institutionalized Spouse”) and the other spouse remains at home (“Community Spouse”) the family home is an excluded asset. That means the ownership of the home by either spouse does not affect the Institutionalized Spouse’s eligibility for Medicaid. With proper planning, it also means the State may not place a lien on the home for Medicaid benefits paid on behalf of the Institutionalized Spouse. In addition to the excluded status of the home, the Community Spouse is allowed to keep a car and ½ of the couple’s other non-excluded assets, but subject to a maximum of $101,640.00. The maximum increases every January 1.

Even if one spouse is in a nursing home, appropriate planning allows the spouse in the community to keep the family home, a car, and up to a maximum of $101,640.00 in other non-excluded assets.

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The importance of funding a revocable trust (“living trust”).

The importance of funding a revocable trust (“living trust”).

One of the reasons an estate plan includes a revocable trust (sometimes called a living trust) is to bypass the Probate administration process. That is because assets actually in the trust on the date of your death can be transferred to your beneficiaries by your successor trustee without needing the assistance of the Probate Court to do so. The process of transferring your assets from your individual name to the name of your trust is referred to as funding the trust.

In order to accomplish this important purpose of the revocable trust, it is critical to verify that your trust actually has been funded.

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A “letter of intent” or “memorandum of understanding” can have legal significance.

A “letter of intent”  or “memorandum of understanding” can have legal significance.

Occasionally, parties to a real estate transaction sign a written document they prepare called a “letter of intent” or “memorandum of understanding”. It often occurs in the early stages of a transaction and springs from a belief that the document is not legally binding, but merely expresses what the parties plan to do. There are many Connecticut court cases holding that such documents can be treated as legally enforceable contracts. You may end up stuck in a deal that does not contain the terms you expected. 

Therefore, it is not advisable to sign what you consider to be a non-binding letter of intent or memorandum of understanding without having the document first reviewed by your attorney.

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The “look-back” period for gifts has been increased from three years to five years.

The “look-back” period for gifts has been increased from three years to five years.

On February 8, President Bush signed legislation that makes radical changes in the Medicaid eligibility rules. One such change has to do with what is referred to as the “look-back” period. The look-back period is the number of years prior to the date of a Medicaid application with respect to which gifts must be disclosed. Prior to February 8, the look-back period had been three years for all gifts, except gifts to a trust. The new law increases the look-back period to five years for all gifts. This is a significant change in the law!

Although the change in the look-back period and other changes effected by the law make asset protection strategies for Medicaid planning more complex, there still are many creative ways to protect all or some of a family’s assets if a loved one faces the prospect of needing long term care.

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Arbitration provisions in business agreements can be helpful, but need to be thought through with care.

Arbitration provisions in business agreements can be helpful, but need to be thought through with care.

Traditionally, legal disputes between two parties have been resolved by a judge or jury in a court proceeding. Increasingly, however, parties in business transactions are opting to have disputes resolved by binding arbitration. The assumed advantage of binding arbitration is that it can provide a quicker and less expensive resolution of a legal dispute. Nevertheless, there are circumstances in which a traditional court proceeding may be advantageous.

Before entering into a significant business agreement, you should have legal advice about whether a court proceeding or arbitration is the better mechanism to protect your interests in the event a dispute arises about the agreement.

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The importance of a timely investigation of the exact circumstances of a collision.

The importance of a timely investigation of the exact circumstances of a collision.

If you are driving along in your car and another car hits you from behind, you might think that fact, alone, is sufficient proof of the collision being the other driver’s fault. That is not always the case. It is still the injured party’s responsibility to prove that the driver who hit you from behind is at fault, legally. There are a number of Connecticut court cases that emphasize it is the injured person’s burden to prove that the collision is the other person’s legal fault, even though it may seem obvious that is the case. This underscores the need for a thorough and prompt investigation of the circumstances of a collision in every personal injury case, even those that seem obvious.

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July 27, 2006

Personal Injury Cases: The importance of a timely investigation of the circumstances of a collision.


One would think that if you are driving along in your car and another car hits you from behind, that, alone, is sufficient proof that the collision is the other driver’s fault. That is not so. It still is the injured party’s responsibility to prove that the driver who hit you from behind did so because of his/her fault. There are a number of Connecticut court cases that emphasize it is the injured person’s burden to prove that the collision is the other person’s legal fault, even though it may seem obvious that is the case. This underscores the need for a thorough and prompt investigation of the circumstances of a collision in every personal injury case, even those that seem obvious.

Medicaid Planning: The look back period for gifts has been increased from three years to five years.


On February 8, President Bush signed legislation that makes radical changes in the Medicaid eligibility rules. One such change has to do with what is referred to as the “look back” period. The look back period is the number of years prior to the date of a Medicaid application with respect to which gifts must be disclosed. Prior to February 8, the look back period had been three years for all gifts, except gifts to a trust. The new law increases the look back period to five years for all gifts. This is a significant change in the law! Although the change in the look back period and other changes effected by the law make asset protection strategies for Medicaid planning more complex, there still are many creative ways to protect all or some of a family’s assets if a loved one faces the prospect of needing long term care.

Wills, Trusts, and Estate Planning:The importance of funding a revocable trust (“living trust.”)


One of the reasons an estate plan includes a revocable trust (sometimes called a living trust) is to bypass the probate administration process. That is because assets actually in the trust on the date of your death can be transferred to your beneficiaries by your successor trustee without needing the assistance of the Probate Court to do so. The process of transferring your assets from your individual name to the name of your trust is referred to as funding the trust. In order to accomplish this important purpose of the revocable trust, it is critical to verify that your trust actually has been funded.

Real Estate Transactions: A “letter of intent” or “memorandum of understanding” can have legal significance.


Occasionally, parties to a real estate transaction sign a writing they prepare called a “letter of intent” or “memorandum of understanding.” It often occurs in the early stages of a transaction and springs from a belief that the document is not legally binding, but merely expresses what the parties plan to do. There are many Connecticut court cases holding that such documents can be treated as legally enforceable contracts. You may end up stuck in a deal that does not contain the terms you expected.Therefore, it is not advisable to sign what you consider to be a non-binding letter of intent or memorandum of understanding without having the document first reviewed by your attorney.

Business Entities: Arbitration provisions in business agreements can be helpful, but need to be thought through with care.


Traditionally, legal disputes between two parties have been resolved by a judge or jury in a court proceeding. Increasingly, however, parties in business transactions are opting to have disputes resolved by binding arbitration. The assumed advantage of binding arbitration is that it can provide a quicker and less expensive resolution of a legal dispute. Nevertheless, there are circumstances in which a traditional court proceeding may be advantageous. Before entering into a significant business agreement, you should have legal advice about whether a court proceeding or arbitration is the better mechanism to protect your interests in the event a dispute arises about the agreement.

Worker’s Compensation: Social security offset is repealed.


For many years, Connecticut law had provided that if you are entitled to worker’s compensation benefits because of a work related injury, but, at the same time, you also are receiving social security benefits, your worker’s compensation benefits were reduced, dollar for dollar, by the amount of social security benefits you were receiving. Many perceived this as unfair and discriminatory. This session of the Connecticut legislature repealed that law. As a result, there no longer is a reduction in worker’s compensation benefits for any social security payments you may be receiving.

Insurance Company Bad Faith: In most cases, there is no independent claim for damages for the bad faith processing of a worker’s compensation claim.


The Connecticut Supreme Court recently ruled that in most cases bad faith processing of a worker’s compensation case does not give rise to an independent claim for damages against the insurance company. The Court concluded that the Connecticut Worker’s Compensation Act, itself, contains adequate remedies for a worker who has been treated unfairly by an insurance company that processes a worker’s compensation claim. The Courts of several other states that had considered the same question had reached a different conclusion, so the Connecticut Supreme Court’s decision was somewhat surprising. The Court did leave the door open for an independent claim by stating that if the conduct of the insurance company is extraordinarily egregious, an independent claim may be asserted.

Very truly yours,
STEVEN P. FLOMAN

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