Can a resident be discharged from nursing home because back child support will start to be with-held from social security?

ADDITIONAL INFORMATION:

Social Security will now start with-holding back child support from payment made to nursing home. He has no income and no way to pay the difference.

ATTORNEY ANSWER:

I am going to assume from your question that the nursing home resident is receiving Mediciad benefits. For patients who are on Medicaid in the nursing home, the nursing home is paid partially by the resident through the resident’s income and Medicaid pays the balance. The person who is representing the resident (health care agent/power of attorney) should contact the state’s Medicaid office to notify the office that there has been a change in the resident’s income.

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Winter 2010 Newsletters

Can we avoid going through probate court and automatically inherit my mom’s vacation home?

ADDITIONAL INFORMATION:

My mom died and my brother was the “executor” of the estate and his name was on the deed of her main house.  Now there was no will but all of her assets and bills were taken care of by my brother. This is in Massachusetts, but she had a vacation home in NH. I was told we would have put that home through a separate probate or wait a certain number of years and it automatically is inherited by her children. Then we could have my brothers and sister sign that they don’t want it and put it in my name. If we really don’t have to go through probate, how long do we have to wait until it is automatically inherited and we can put it in my name?

ATTORNEY ANSWER:

The probate process must be endured for any asset that your mother owned in her name alone. No amount of time can take away the probate requirement.   In New Hampshire, the creditors of your mother’s estate have two years to file a claim against your mother’s estate for an unopened probate. Had your mother’s estate not be probated, the creditor could petition the court to begin the probate process.
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How long does it take to get a hearing before a judge in probate court?

ADDITIONAL INFORMATION:

I am in a dispute over a house between myself and my mother.  We both own the house we need to settle in court.  How can we get a hearing and how long does it take to get one?

ATTORNEY ANSWER:

First, I do not know that Probate Court is the appropriate venue for your hearing. If all parties who own the property are alive, Land Court may be the correct forum.   Secondly, a hearing requires that once you apply to the court, notice must be provided to the other party. There are all sorts of procedural issues that you will encounter.  While you can represent yourself pro se, I would suggest consulting an attorney.

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Under Massachusetts law, are there any circumstances that allow children to contest against the father when there was no will?

ADDITIONAL INFORMATION:

My mother recently passed and we don’t know for sure if she had a will. We know that she always said that she had but now our dad is saying that she didn’t.  He is taking control over all of her possessions saying that he can do what he wants. I’ve been living in one of the houses for 22 years and have been paying the taxes but the receipts were in my mother name. Do I have any claim to the property?

ATTORNEY ANSWER:

If your mother died without a will, she died “intestate”. Each state has its own statute on how property passes to family members and in what percentages under intestate succession. You did not post where your mother was a resident at her death. The laws of the resident state would control.   Any property that your mother owned in her own name alone at her death must go through a probate process. You father cannot automatically claim possession of them without putting the property through the probate process. You may or may not have rights to your mother’s probate estate. I suggest that you consult a probate attorney in order to determine your rights.

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What is a reasonable fee to draw up a Codicil to an already existing will?

ADDITIONAL INFORMATION:

I just needed my will updated so that my daughter instead of brother in law is the executor of the will. What is a reasonable fee?

ATTORNEY ANSWER:

Each attorney sets his own fee schedule and some attorneys do not charge for an initial meeting. Also, attorney fees vary according to the attorney’s experience as well as the location of the attorney within the state.   Usually the attorney who originally drafted the documents charges a minimal fee to update this documents. However, if you have moved from another state, you would need to meet with a Massachusetts attorney.

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With today’s lower mortgage interest rates, is it time to refinance?

Mortgage interest rates are at historic lows. According to the Mortgage Bankers Association, the average interest rate for 30-year, fixed-rate mortgages dropped to 4.25% in September, 2010, and the average rate for 15-year mortgages fell to 3.73%. These are the lowest rates in almost 50 years.

 If you’re currently paying mortgage interest at a higher rate, you may be tempted to refinance your existing mortgage, even if you already refinanced once or twice before. But should you do it? The decision may not be as simple as it first seems. [Read more…]

2011 mileage rates released

The IRS has released adjustments to the mileage rates that can be used for business driving, driving for medical or moving purposes, or charitable driving. Effective January 1, 2011, the standard mileage rates for the use of a car, van, pickup, or panel truck will be 51¢ per mile for business miles, 19¢ for medical or moving purposes, and 14¢ for charitable driving.

New law delays return filing

If you itemize deductions or claim any of three restored deductions (for state and local sales tax, higher education tuition, or educator expenses), you must wait until mid to late February to file your 2010 tax return. The IRS must reprogram its computers to handle the changes made to these items by the 2010 Tax Relief Act passed in late December.

Paternity defendant avoids paying child support

Even if a defendant in a paternity case is actually the child’s father, he may be able to avoid paying child support by arguing that there is already an existing father figure in the child’s life, according to New York’s highest court.

The mother in the case gave birth to a daughter when she was living with a boyfriend. The boyfriend was listed as the child’s father on her birth certificate. Twelve years later, the mother filed a paternity action against another man, claiming he was actually the father and demanding child support. [Read more…]

Shared parenting okay even if parents don’t get along

Family law courts have the power to order many things, but they can’t order ex-spouses to get along with each other. Yet this doesn’t necessarily mean that an unfriendly couple can’t share parenting duties. A father in Pennsylvania who was planning to retire from his job asked a judge for shared custody. The judge denied the request, ruling that the mother and father couldn’t share custody because they didn’t “work well together” and hadn’t demonstrated the ability to be “civil and cordial.”

But the father appealed, and the appeals court disagreed. The appeals court said that as long as the mother and father showed a “minimal degree of cooperation,” they could share custody – it wasn’t necessary that the have a good relationship.

Jehovah’s Witness may get custody

The fact that a divorcing mother is a Jehovah’s Witness shouldn’t be held against her in deciding who gets custody, according to the Kansas Court of Appeals. The father had argued that giving the mother custody could endanger the child, because of the religion’s prohibition against blood transfusions.

But the court said that this was mere speculation, and there was no reason to think that the child had ever been denied a blood transfusion, needed a transfusion, or was likely to need one in the future. If the issue ever actually came up, a judge could deal with it at that time, the court noted.

Divorcing couples sometimes fight big battles over ‘small’ things

It’s surprising how often divorcing couples are ready to go to war over seemingly small things, such as who gets a particular piece of personal property. The item may have sentimental value, and it may become a proxy for other issues in the marriage. However, it’s often wise to step back and decide whether the battle is really worth the cost in terms of time, money and energy. [Read more…]

Father loses custody due to over-scheduling children

A New York judge recently awarded a mother primary custody of a couple’s two children in part because the lifestyle the father had created for them was overly scheduled and exhausting. The father centered the children’s life around tennis. He woke them at 6 a.m. for a half-day of school, after which they spent six hours at a tennis program, returning home after 9:30 each night. On weekends, the children – aged five and ten – participated in tennis school and/or tournaments.

The court said that the father “has displayed poor decision-making regarding his minor children in continuing with this grueling daily schedule despite the fact that the children are constantly tired, regularly late to school, their school work is suffering, and their tennis appears to be negatively impacted.” The court added that the children’s “daily schedule…is overly burdensome, exhausting and completely unacceptable.”

Divorced stepfather doesn’t have right to visit child

While the rights of stepparents have expanded over the years, they’re not entitled to the same rights as a parent. The Washington Supreme Court reinforced this idea in a recent decision that said a divorced stepfather couldn’t claim a legal right to visitation with his former stepdaughter. [Read more…]

Divorce can affect your will and other documents

When you get divorced, the last thing on your mind is likely to be documents such as your will. But after a divorce, it’s important to revise your will and other important documents, such as your power of attorney and health care proxy. These documents may contain provisions relating to a former spouse, former in-laws or stepchildren.

In some states, a divorce automatically revokes any bequest in a will to a former spouse. But this isn’t always the case. And in any event, once you get divorced your financial picture will have changed, and you’ll want to review all your estate planning decisions. [Read more…]

Post-nuptial agreements are growing in acceptance

Most everyone has heard of prenuptial agreements, where a couple decide before they get married what will happen if they get divorced or if one of them dies.

But did you know that there are also post-nuptial agreements? These are pretty much the same as prenuptial agreements, except that they’re signed after the marriage, rather than before. [Read more…]

Returning veteran could sign away his right to sue

A returning veteran can waive his right to sue his employer for firing him, says a federal appeals court in Ohio. The employee worked at IBM. He left to serve in Afghanistan and later returned to his old job, but was fired after several months. At the time, he signed a waiver of his legal claims against the company in return for a $6,000 severance package. However, he later sued under a federal law that requires employers to re-integrate returning veterans into their workplace.

The employee argued that the federal law trumped his agreement, and that it would be wrong to let companies use severance offers as a tool to induce veterans to waive their rights. But the court sided with IBM and said the waiver agreement was valid.

New rules apply when companies change health insurance

The health care law passed by Congress earlier this year contains a wide variety of new rules for employer-provided health insurance, such as requirements of coverage for pre-existing conditions and dependents up to age 26. However, if a company had a plan in place on March 23, 2010 that didn’t meet these requirements, in some cases it can be “grandfathered” and remain exempt from them, at least for a time.

But this is tricky. If a company makes certain changes to its plan, it can lose its “grandfather” status. For instance, a company can be “de-grandfathered” if it eliminates or substantially reduces certain types of coverage, such as dropping cancer coverage. It can also lose grandfather status if it reduces employer contributions by more than five percent, raises co-payments more than $5 or 15 percent (whichever is greater), or raises deductibles more than medical inflation plus 15 percent.

Interestingly, companies can also lose grandfather status if they change carriers – even if the plan itself remains identical.

‘Non-sexual’ comments can be sexual harassment

Two recent cases show that even comments that aren’t specifically sexual can still amount to sexual harassment.

In one case, a female doctor who worked at a clinic sued over crude comments made by a male doctor. She claimed that over the course of several years the doctor repeatedly made inappropriate comments about her weight gain while pregnant and about breastfeeding.

A federal judge threw the case out, saying that “general crudity” didn’t amount to sex discrimination. But an appeals court in Virginia reinstated the woman’s suit. It said that sexual harassment could include “highly personalized comments designed to demean and humiliate” the doctor and “ridicule her in the eyes of patients and drug salespeople.” [Read more…]

New genetic discrimination law creates problems for employers

What if a manager reads about a worker’s family illness on Facebook?

Employers are struggling to comply with a new federal law that prohibits discrimination based on genetic information.

The Genetic Information Non-Discrimination Act, or GINA, not only makes it illegal for an employer to discriminate against workers based on genetic susceptibility to illness, but also makes it against the law merely to “acquire” such information about an employee, including family medical history. [Read more…]

More employees are entitled to time off to care for children

An employee may have a right to take time off to care for a sick child even if the employee isn’t actually the parent of the child. That’s the word from the U.S. Department of Labor, which recently decided that an employee may have such a right under the Family and Medical Leave Act.

The Act is a federal law giving employees up to 12 weeks of unpaid time off each year for personal sick leave or to care for a family member who is ill. [Read more…]

Legal pitfalls of unpaid internships

As many employers (and quite a few students) found out this summer, unpaid internships can create a number of legal problems. Even though hiring unpaid interns is a common practice – and it’s even more popular in these tight economic times – the truth is that there are relatively few situations in which an unpaid intern can legally work in a for-profit business. Employers need to be on guard because the Department of Labor has announced that it is stepping up enforcement of violations.

According to the Department, the key to a valid internship program is that the internship must be primarily for the intern’s benefit – rather than for the employer’s benefit. [Read more…]