Beware of This Medicaid Policy If You or a Loved One is in a Nursing Home!

The move into assisted living can be a scary one. Not only does the new environment cause some sense of stress for the patient and family, but it can also be a huge financial burden to move into a nursing home. Medical care is costly, and the move into assisted living should not be taken lightly.

Although the financial commitment to live in a nursing home is significant, thankfully, Medicaid will help pay for those expenses. To many, this is a saving grace and lets them maintain a good quality of life in assisted living. 

However, Medicaid is entitled to recover for the benefits received by taking control of the beneficiary’s assets, such as their home and vehicle upon their death. This can be unexpected if the family is not aware of Medicaid’s ability to do so.

Irrevocable Trusts

Luckily, the law has created ways to protect assets from Medicaid and keep them in control of the family or whomever the Medicaid recipient wishes. One way to do this is to set up an irrevocable trust—a trust that cannot be altered after the trust document is signed, unless specific circumstances occur. This is the benefit of an irrevocable trust; once the grantor puts property in it, in general, cannot be taken out. Therefore creditors, like Medicaid, cannot reach it. 

Medicaid is a means-base test, so the size of your estate is relevant as to whether you qualify for Medicaid and how much funding you can receive. If your assets exceed a certain amount, then you do not qualify for Medicaid benefits. When assets are put into an irrevocable trust, their value is no longer included in the value of the grantor’s estate. Therefore, you may be able to meet the means test and qualify for Medicaid if you establish an irrevocable trust. 

Because trust property is no longer considered personal property, the property a grantor transfers into an irrevocable trust does not add to the value of their estate for tax purposes. Like creditors cannot reach the trust property, the IRS is not able to tax it. This is beneficial for all estates, but especially for those worth more than $5.5 million. The estate tax rate for this dollar amount and above is 40%, or $2.2 million. 

Planning

An important caveat to establishing an irrevocable trust for the purpose of protecting assets from Medicaid is that you must plan ahead. This is essential because of the five-year “look back” period. Any assets put into the trust within five years of attempting to qualify for Medicaid are not protected and are still considered part of the estate. Some sales or transfers to loved ones may be disallowed, which gives Medicaid the opportunity to reach your assets after you’ve passed away. 

Though no one likes to think about the possibility of entering a nursing home, with life expectancy in America on the rise, it is becoming increasingly common. Irrevocable trusts are an easy way to give a person entering assisted living and his or her family some sense of security that the patient will receive a good quality of life and give some assurance that the rest of the family will be taken care of financially in the future. 

If you’d like to discuss your options regarding the formation of a trust, please consult an attorney. At the Reid Law Firm, we are well-versed in the Alabama trust formation and regulation process. Trustees should have their trusts assessed annually. As rates go up and down and new policies are put in place, it is wise to keep a constant eye on how your savings are doing. You want to insure your money is continually handled in the most advantageous fashion. 

If you’d like to discuss your financial options, please contact the Reid Law Firm today. If you'd like to schedule a time to talk, please call 205-913-7406! You can also text us at (205) 913-7406 for a quick answer to any legal question. Chris Reid can be reached by email at chris.reid@reidlawalabama.com. All communication to the Reid Law Firm is protected by attorney client privilege, so any information submitted will be held in confidence. Initial consultations are always free. For a complete list of our practice areas please visit www.reidlawalabama.com. 

 

Special thanks to Dallas Coleman and Katie Pickle for their help in writing, researching, and editing this article.

Photo courtesy of Flickr user 401(K) 2012

What Are Your Options in a Personal Injury Case?

Personal injury law encompasses a wide range of accidents. Some of the most common personal injury cases involve car accidents. An unexpected car accident can take a huge toll on everyone involved. Not only are accidents terrifying, but they may cause physical and emotional pain. Medical bills can start to add up, auto repair is costly, and insurance companies may try to take advantage of a victim who is hurt and desperate. 

One legal option that financially struggling victims have is to sue for damages. However, in Alabama, fighting a successful suit can be difficult. Alabama is one of four states that follows a “Pure Contributory Negligence” standard. 

There are three types of legal negligence standards used across the U.S. explain: pure contributory negligence, pure comparative negligence, or modified comparative negligence.

Pure comparative negligence

The easiest standard to recover under is pure comparative negligence. This rule states that a person who is injured can recover as long as the other person is at fault in any way. For example, if the person suing is found to be 99% at fault, they may still recover some damages from the other party who is 1% at fault. The damages received are reduced by their degree of fault. This is the law in several states.

Modified Comparative Negligence

Because this standard may not seem altogether fair, many states have instead adopted a modified comparative negligence rule. This rule tries to negate the possibility that the person mostly at fault may sue and recover from the victim. Under a modified comparative negligence rule, if a person is found to be 51% at fault (in some states 50%) then he is completely barred from recovering damages. A majority of states follow this rule as it seems to strike a balance between protecting the victim and allowing the victim to recover only when it is the other person at fault.

Pure Contributory Negligence

Alabama follows the harshest rule for personal injury cases- pure contributory negligence. This standard states that a person who is injured cannot recover damages if they are even 1% at fault. This is the opposite of the pure comparative negligence, as it acts as a complete bar from recovery for damages. This may seem unfair, as someone could be 99% at fault for the accident and get off scot-free. 

Because this rule is so harsh, if you are in an accident in Alabama it is extremely important to reach out to an attorney as soon as possible. The administrative process that follows an accident is lengthy and time-consuming, an attorney’s advice is invaluable. 

After an accident occurs, it must be reported to the Alabama Department of Safety (DPS). You should document the scene of the accident the best you can and as soon as possible. This includes description of the accident, witnesses, and all parties involved.

Following these steps may seem overwhelming, especially when you are dealing with insurance costs and injuries. Hiring an attorney can help alleviate this stress and will help guide an injured person through the process. 

Most important, an attorney can help the victim recover costs. With Alabama’s harsh law on personal injury, it is essential to have someone with extensive knowledge of the law on your side. 

Here at Reid Law Firm, we hope the aforementioned scenario never happens to you, but if you find yourself in a heartbreaking situation, it is extremely important to hire an attorney as soon as possible to assist with your lawsuit. Though it will not completely take away the pain you and your family have experienced, it is the best way to ensure that you get the help you need and get on the fastest road to recovery.

If you were recently involved in a car accident in Birmingham, Alabama and would like to discuss the particular facts of your case, please contact the Reid Law Firm today at 205-913-7406! You can also text us at (205) 913-7406 for a quick answer to any legal question. Chris Reid can be reached by email at chris.reid@reidlawalabama.com. All communication to the Reid Law Firm is protected by attorney client privilege, so any information submitted will be held in confidence. Initial consultations are always free. For a complete list of our practice areas please visit www.reidlawalabama.com.

 

Special thanks to Dallas Coleman and Katie Pickle for their help in writing, researching, and editing this article.

The Legal System Has Taken Measures to Prevent Substance Abuse

Dealing with substance abuse is not only difficult for the user, but for the user’s family and friends as well. Fortunately, the legal system has taken aim at assisting people with substance abuse problems. 

Pretrial diversion programs offer a unique legal solution to dealing with substance abuse issues. Instead of seeking to punish through the usual prosecutorial means of the court, the pretrial diversion (PTD) program offers a second chance for a path to recovery. It allows the user to keep any offense off his criminal record, in hopes that the user will be encouraged to stay clean and become a productive member of society. 

Another avenue to help those struggling with substance abuse is drug court, which allows a person avoid the consequences of criminal prosecution by undergoing rigorous program requirements.

Eligibility for PTD

PTD is only offered to first time offenders over the age of 18, because the purpose of the program is to lower recidivism rates. It is required that the user admits his guilt, and signs an agreement accepting the terms of the program. The person entering the program will not be accepted if he was involved with a burglary, sale of drug, or other charges that are excluded in the Pre-trial Diversion law.[1]

There are also fees that the person seeking eligibility must pay. First, the person must agree to pay the court fees and any attorney fees prior to completing the program. Second, the person is responsible for any expenses that the district attorney incurs while pursuing the case, such as extraordinary investigative expenses. 

The program will admit those eligible so long as long the state believes justice will be served by their admittance. In other words, admittance turns on whether the person is willing to admit their wrong and are willing and ready to make a change. The program also takes into account whether the person’s needs can be met by the program and that they pose no threat to the community. Once the program is completed, the charges are dismissed. 

Eligibility for Drug Court

Eligibility requirements for drug court are similar to those of PTD. A person must be facing narcotic charges such as possession of marijuana or cocaine. However, the charge cannot be for distribution or manufacturing. A person that has been convicted of a violent felony such as rape, murder, or robbery is not eligible either. Similar to PTD, a guilty plea must be entered before being accepted into the program, which will last anywhere from 6 to 18 months. [2]

Once enrolled, the person will be required to take random drug tests, meet weekly with a case manager, and make frequent court appearances for updates. In Alabama, you must call in to find out the date of your next drug test. Weekly meetings with the case manager allow the judge overseeing the case to have consistent updates on the user’s progress. 

Once a person completes the program, charges are dismissed. If a person doesn’t finish the program, they will face criminal charges for the original crime.

Repeat Offenders

While PTD is a saving grace for first time offenders and drug court offers a great alternative to criminal prosecution, repeat DUI offenders face harsh penalties with the new bill introduced by Rep. Jones and Sen. Jim Holley. Previously, the court was only able to look back five years to determine if a person is a repeat offender. Senate Bill 90 will double that, allowing the court to look back ten years to determine if the person is a repeat offender.

Ask an Attorney

Both PTD and drug court are great alternatives for those charged with drug possession or a DUI. However, the process of getting into these programs can be tiresome. Filing proper paperwork is required and knowledge of the law is helpful in ensuring that a person is admitted to a program. With the new proposed bill lengthening the look back period for DUIs, having an attorney is essential to help lessen the blow of facing those charges and give yourself the best chance at a bright future. 

If you were recently arrested for DUI or drug possession in Birmingham, Alabama and would like to discuss the particular facts of your case, please contact the Reid Law Firm today at 205-913-7406! You can also text us at (205) 913-7406 for a quick answer to any legal question. Chris Reid can be reached by email at chris.reid@reidlawalabama.com. All communication to the Reid Law Firm is protected by attorney client privilege, so any information submitted will be held in confidence. Initial consultations are always free. For a complete list of our practice areas please visit www.reidlawalabama.com.

 

[1]Pre-trial Diversion law, Act 706, Section 7, Regular Session of the Alabama Legislature, 1978

[2]https://www.avvo.com/legal-guides/ugc/drug-court-programs-in-alabama

 

Special thanks to Dallas Coleman and Katherine Pickle for their help in writing, researching, and editing this article.

New DUI Law Cracks Down On Repeat Offenders

Alabama DUI offenders are set to face tougher penalties beginning this later this year. Prior to this legislative session a court could only consider a defendant’s DUI convictions in a five year “look back” period of sentences. Now, according to Rep. Mike Jones, R-Andalusia, that window has been pushed back to 10 years.

As part of SB 90, Rep. Jones and Sen. Jimmy Holley, R-Elba, have ensured that repeat offenders are held accountable for their past crimes, even those that transpired 10 years ago. Rep. Jones, a previous municipal judge in Andalusia, touched on the new law stating “it’s a scary thing. You will still have those charged with DUI who have just made a stupid decision. But they still have to be responsible and thats the bulk of what we see.”

As part of a statewide crack down on DUI deaths, the new rules will give judges more leverage when sentencing habitual offenders.

If you were recently arrested for DUI or drug possession in Birmingham, Alabama and would like to discuss the particular facts of your case, please contact the Reid Law Firm today at 205-913-7406! You can also text us at (205) 913-7406 for a quick answer to any legal question. Chris Reid can be reached by email at chris.reid@reidlawalabama.com. All communication to the Reid Law Firm is protected by attorney client privilege, so any information submitted will be held in confidence. Initial consultations are always free. For a complete list of our practice areas please visit www.reidlawalabama.com.

No representation is made that the quality of the legal services to be performed is greater than the quality of the legal services performed by other lawyers.

 

Special thanks to Chris Simmons for his help in writing, researching, and editing this article.

Probate Fraud: The Law, Its Consequences, and Compensation

Laws on Probate Fraud

Probate disputes are covered by state law. Title 43 Chapter 8 of the Alabama Code is the Probate Code. Section 43-8-5 addresses fraud connected with proceedings initiated under the chapter. It states that any person against whom fraud is committed may obtain appropriate relief against the perpetrator.[1]

There haven’t been many major cases addressing the specific prosecution of probate fraud, since most of these cases occur at a lower court level. Damages in probate fraud cases are assessed in the same manner as damages in other civil disputes. There is not often a connection between the size of the estate and the damage amount granted Compensatory damages are calculated based on the amount taken from the estate, and any other amounts lost to the plaintiff as a result of the fraud. 

Punitive damages – meant to punish the wrongdoer – might also be available. Section 6-11-20 of the Alabama Code states that when there is clear and convincing evidence that there has been fraud, malice, etc., punitive damages may be assessed. Fraud is defined as intentional misrepresentation, and malice is defined as intentional wrongdoing that harms a party or that the law will see as done with evil intent.[2]Size of estate may matter for computation of potential punitive damages, as a court might believe that there is more evil intent when an estate is larger (perhaps defendant more motivated to take advantage of the estate). 

Consequences for Professional Licensees

Many criminal and civil offenses may affect an individual’s ability to use/retain his professional license, whether or not the charges are directly related to his profession. A defendant may have to defend himself both in court and against the licensing board.[3]

Potential consequences of an offense depend on the rules of the specific licensing board and the professional rules associated with the particular career. For instance, the rules for healthcare professionals provide a good example of typical licensing board rules that might apply. Alabama Code Section 34-24-360 outlines the licensing rules for medical professionals. It states that medical licenses may be suspended, revoked, or restricted for conviction of any crime or offense that reflects the inability of the practitioner to practice with regard to the health/safety of patients.[4]

 

Special thanks to Katie Pickle, my chief law clerk, for her help in writing, researching, and editing this article. 

 

[1]https://law.justia.com/codes/alabama/2006/30792/43-8-5.html

[2]https://law.justia.com/codes/alabama/2006/3069/6-11-20.html

[3]http://chapmanlawgroup.com/practice_area/criminaldefense_pofessionallicense/

[4]http://www.albme.org/groundsdiscipline.html