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Most Common Forms of Nursing Home Abuse

The most  common forms of nursing home abuse that is reported involve the neglect of the resident’s physical and emotional care. Many residents are reportedly treated for bedsores, pressure sores, dehydration, malnutrition and kidney or urinary tract infections. These health conditions and injuries that result are most often the result of neglect on the part of the caregivers assigned to the resident.

In a study that was reported by USA Today News, more than half of all nursing home residents suffer from some type of untreated or uncontrolled pain. Another study conducted by the National Center for Elderly Abuse reported that from 1999 until 2006 approximately thirty percent of all abuse cases that occurred within nursing home facilities resulted in the death of the patient due to dehydration, malnutrition and bedsores that were infected.

While there is more education available for family members and regulations that call for more investigation and inspections within the nursing homes, there is still a great deal of abuse that occurs. For situations in which the abuse is caught early, the victim still suffers from some degree of medical trauma whether this is physical or emotional. The families of the victims often times are reportedly stricken with guilt and other emotional trauma conditions as well.

Rights of a Nursing Home Abuse Victim and their Family

When a nursing home resident is victimized by abuse that is inflicted by the actions of a facility caregiver, there are certain rights that the victim and their family have. The National Center of Elderly Abuse has information that can be beneficial to the nursing home abuse victim and their family when it comes to determining the course that should be taken.

Goldberg & Osborne, a personal injury law firm, has provided this article for informational purposes only, written by an independent author, and has not reviewed or edited this article and is not responsible for its content or accuracy.

Widowed with grown children living and working away from home; she owns her small home; mortgage completed, and a small car. Middle-aged and in good health; I discovered that my new acquaintance surprisingly, however, is not unlike many Americans. She does not have a will.

According to a FindLaw.com survey conducted June of 2008; nearly 60 percent of Americans do not have a will. Although more than half of the persons surveyed aged 50 or older had a will, that percentage declined to 25 percent of persons with a will aged 25 to 34. Persons in the survey between the ages of 18 and 24, those with a will is less than ten percent.

Very few of us spend our daily lives thinking about death. Even fewer think about what it is we would like to leave our children, or our loved ones. In talking with people about their final expenses; if they have thought about the cost of a funeral, they have not thought about what happens after they have left us.

A sobering, but necessary thought. I have found that the younger my acquaintance is, the less chance there is that the words “death,” and “will” are in their vocabulary.

So, you if you say you don’t have a will, my immediate question is “why not?” I was told by one person, “Well, I don’t own anything, what do I need a will for?” Well, if you are a home owner, or you are a business owner; a will is not only prudent, but necessary, especially if your financial empire has residual income.

If you die without a will, do you realize what could happen to your car, your clothes, your family photo album? Your business? To pass away without a will, that is to die “intestate,” puts your spouse and/or family in jeopardy of having your state laws determine who gets what.

If you have a will, when is the last time you updated it? Not since the day you wrote it?

Go get it now and let’s have a look.

A will is a basic component of your estate planning. Among other things, it specifies how your assets will be distributed after you pass away, and who will receive them. Without a will, the laws of the state and the decisions of a probate court may determine how your estate is distributed, who will care for your children if they are minors, and so forth.

Your last Will Testament is one of the most important legal documents in your life. If you don’t have a will because you feel that you don’t own anything, make a list of your bank accounts; investments; real property; personal property, such as your 2010 Buick Lacrosse, or your ’56 Chevy; your rifle collection; fishing and hunting gear and mounts.

Ladies, what about that 14k-gold necklace; diamond-studded ring; a stamp collection; a Singer sewing machine that still works; or that broach you were given by your mother or grandmother? Guys, were you given your grandfather’s diamond-studded retirement watch when you were a child? What about those family photos of your great-grandparents; that baseball card collection that features a Jackie Robinson rookie card; or those savings bonds that have matured and are kept in a safety deposit box?

A will is a legal document that guides and designates when, where, and how your estate is settled and distributed according to your wishes. It can prevent arguments after your death. A will is not required by federal or state law; but if you don’t want your estate to visit probate court you’ll want to complete a legal and valid will, otherwise the state laws will determine who gets what based on family hierarchy, which may not be what you wanted.

As a home and/or business owner this should be done as soon as possible; a will and estate planning now will help spare your loved ones from the additional responsibilities of the distribution of your estate after you have left us; especially when your survivors should not be expected or be able to make some difficult decisions.

There are many options available when drafting a will. It is prudent to consult an attorney who specializes in estate planning to be sure that your will is compliant with current state tax codes and laws. Basic pre-printed and ready to fill-in wills are available; but these type wills are not customizable. Your own properly drafted will gives you the flexibility you need.

If you do have a will, you should review it at least every five years as circumstances and people around you and your life changes. Just as the Policy-owner in your life insurance plan, there may be cause or a need to change beneficiary or beneficiaries. Updates become necessary when there are life changing events: the birth of a child, or grandchild; a marriage; divorce; the acquisition or selling of real estate property or personal property; stocks; bonds; certificates of deposits; IRA’s and 401 K’s; or life insurance policies and annuities you may own, surrender or sell. If you want to give certain gifts or designate certain pieces of property you own; or simply if your overall financial state changes.

These changes require formalities that must be done correctly in order to make your changes valid and applicable under current law. You cannot cross out a word or a phrase and make new notes in handwriting on the margin on the side; this places your will in jeopardy. Minor changes can be made with a Codicil, which is a legal document designed to modify an earlier will. Major changes, however, would require revoking the old will and writing a new one. Neutral, non-beneficiary witnesses are necessary to these major changes as well. Number, sign and date every page of your will. A properly prepared will protects you and your wishes in a Court of Law; the Judge knows that there were no changes made to your will after your death by someone with ulterior motives who wrote in a change by hand, and either added or removed pages in your will.

When will you start preparing your will? Protect your investment; leave a legacy.

For 15 years opposite sides of a life and death struggle involving Terry Schiavo – who in February of 1990 at age 26 collapsed in her apartment, lapsed into a coma and only recovered to a vegetative state – fought through numerous court appearances and with each other in family battles that resulted in a debate fueled by money-powered advocates from both pro-life and right-to-die camps.

The debate also went to the US Congress and prompted a statement by then-President George Bush, who said that because there were “serious questions and substantial doubts” about the case; Terri Schiavo had no written directive as to whether she would wish to have her feeding tube removed, or not.

The Schiavo Family’s insistence that Terry wanted to remain alive and Terry’s husband Michael Schiavo’s wish to allow his wife to die a natural death could have been avoided with one simple documentation.

I’m sure you know someone who has been in this situation; if you have not been in this situation yourself. You’ve been seriously ill and are in the hospital. A nurse, after checking your vitals, says there are some papers for you to sign; it has to do with your scheduled surgery. These papers must be signed, or the surgery you need won’t be performed. She’ll be back later to collect them, with your signature.

You not have seen these papers before, and so you read. The papers ask what you want to happen in the event your surgery does not go well, and you don’t recover.

In the unfortunate event of an accident that renders you unable to speak, leaves you in a vegetative state or terminally ill, a living will describes to what extent you would like to receive life support, resuscitation procedures or other life-prolonging care.

Without this document your next-to-kin would have to make this decision on their own.

A Living Will is a written legal document detailing your instructions for life-prolonging medical care, with written instructions to your physicians that takes effect when you are no longer able to tell the doctor yourself.

As a “living document,” your living will is also a health-care Power of Attorney; it empowers someone to make medical care decisions for you while you are temporarily unable to do so; it also tells the physicians what certain medical decisions you want performed when you are no longer able to tell the doctor yourself. The health-care Power of Attorney can also require that someone follow the instructions in your living will.

Many people have both a last will and a living will so that they are covered in all situations. Living wills are also known as an “advance directive,” which applies when someone has been diagnosed as terminally ill. Schiavo died in March of 2005; although she suffered from extensive brain damage, Schiavo was never diagnosed as being terminally ill.

As with your Last Will Testament, be sure to update your living will every five years, and be sure that both documents are in accordance with your state laws.

Bequests

Bequests are a way to leave a legacy for your survivors. Listed in your Last Will Testament, Bequests can be a specific dollar amount, personal property or real estate.

There are a few types:

Percentage Bequests designate that a certain percentage of your estate be distributed to beneficiaries or a charitable organization. If giving property to a charitable organization; that organization must be specifically identified; this allows the donor to an estate tax deduction for the full value of the property transferred.

Residual Bequests are what remains after all your other Specific Bequests, estate taxes and administrative expenses have been distributed.

Contingent Bequests are effective when your primary beneficiary predeceases you; Specific Bequests are paid before all other bequests.

Bequests must be designated and properly documented and included in Your Last Will Testament.

This kind of planning applies to everyone irrespective of the size of their estates. This plan allows one when still living to see to it that property is given out fairly to the intended beneficiaries. It enables them to save considerably on lawyer fees and taxes as well as court fees. This plan is designed to ensure that beneficiaries are not overburdened with unnecessary financial uncertainty after the demise of their loved one.

The best plan will outline clearly how assets should be distributed to the beneficiaries. This process is overwhelming and it requires guidance from a legal attorney. There are so many things that people may choose to do with their assets but is important that they appoint someone to oversee the estate. Others may find that they have been incapacitated even though they are still alive, but a good plan must contain clear details concerning the assets.

It is possible for ones assets to be distributed among beneficiaries unfairly without a clear estate plan. It is normal for conflicting matters on the estate to arise upon ones death. A good plan must address issues on how taxes will be managed and the beneficiaries as well as any transfers of property to an organization.

To effectively handle such matters, one must hire the services of an experienced lawyer. The lawyer sees to it that the estate is handled in accordance to the wishes of the deceased. This ensures that the estates are distributed to beneficiaries quickly and fairly. A good lawyer can also help in choosing someone who can handle the estate in case the owner dies.

A good plan minimizes taxes that are owed by people’s estates by giving the allowed maximum to various beneficiaries. If one owns a business empire, they should make sure that the business runs uninterrupted by detailing a good plan of succession and distribution of revenues.

Hundreds of people around the world never bother to plan for their assets. This situation may cause the estate to end up in probate. In the absence of a proven will, the power to distribute the assets lies in the hands of the courts. This can be avoided when one employs a planning lawyer to set up a trust as well as other arrangements.

In the event of death, the law stipulates clearly how ones estates can be distributed. An experienced attorney can assist in protecting the estate. The attorney ensures that the assets are not vulnerable to this long and expensive procedure. They also help reduce tax liability which estates suffer when the owner dies.

A person or party may raise objections such as that while the person apportioned certain parts of his legacy to the addressed person(s) in the will, he did so under external influence, that he was under a lot of peer pressure, that he would not have had done so under neutral circumstances or that it is an example of fraud. The person or party therefore raises the objections that the act of apportioning by the person whose will is being contested must be declared null and void and that the legal or rightful owners must be allowed to lay claim to his legacy.

It is very important to note that according to the law, the person or party that takes the daring measure of contesting a will is at risk of losing all their fortune should the person or party fail in convincing the judge of the miscalculation on part of the person, whose will is being contested, in drawing up his will. However, in case the contest is successful, this clause is automatically eradicated.

The contest of a will therefore has two main parties to the conflict, one, those mentioned in the will, the beneficiaries, and second, those who object to the beneficiaries’ involvement and declare that they themselves are the ‘deserving heirs’, the ‘would-be-beneficiaries’.

If so, it’s crucial that you understand all of the options that are available to you. While everyone’s circumstance is unique, many homeowners have turned to the short sale process to remove themselves from this onerous burden. While in many cases it is often a good alternative, it’s critically important that you have a full understanding of all of the legal repercussions.

So let’s begin with an explanation.

When an existing lender agrees to allow the sale of a property for less than what is owed, it is called a short sale. The lender essentially ends up financially “short” of the full value of monies owed to them. While in a short sale transaction your lender may agree to release the lien on your property, it does not necessarily mean that they are cancelling the promissory note that you executed when you originally purchased the property. So, in a transaction you could potentially continue to be financially liable to the lender if very specific release language is not included in the final approval letter from your lender.

How does a short sale work?

The process itself is fairly straight forward. However, there are often many twists and turns through a reasonably extended period of time to get to the finish line! Here’s the typical flow of events in a short sale transaction:

• We recommend that the process begin with you speaking to an attorney and a tax professional to discuss options, possible outcomes and legal ramifications.
• You then list your property at a fair market value with a Real Estate Agent.
• Your agent markets the property and obtains a purchase offer.
• The purchase offer, along with all of the required supporting financial documentation is submitted to the lender or lenders for approval.
• Once you and the lender agree upon the terms, the transaction moves on to final closing just as in a regular real estate resale transaction.

Clearly, there is much to consider before entering into a short sale transaction. Scottsdale Law Group can provide you with accurate, professional information so that you can make intelligent choices for your future. It is assisting hundreds of clients with short sale transactions, bankruptcies and other means of asset protection. It can be your professional partner through these complex and difficult times.

In all cases the landlord should be sure to obtain the tenant’s permission, although in most cases this permission can be inferred if the tenant is given notice that the landlord requires access and does not raise any objection to this. It should be remembered that the tenant has a right to quiet enjoyment of the rental property without interference from the landlord and that continual unreasonable requests for access may constitute a breach of the tenancy agreement.

Inspection of Premises
As a landlord, you have a right to inspect the rental property to ensure that the tenant is keeping it in a clean and sanitary condition, that he is not causing a danger or nuisance to neighbours and that he is observing the conditions of the tenancy.

If there is a written tenancy agreement, the procedure for making an inspection and notifying the tenant will be outlined here. In the absence of a written agreement which specifies this process, the landlord must give the tenant reasonable written notice of the inspection and must take the necessary steps to ensure that the tenant receives this notice. In practice this means that the landlord should email or text the client or leave a note at the property informing him of the date and time of the inspection. ‘Reasonable’ notice is usually taken to mean not less than 24 hours.

As a landlord you do not have the right to make unannounced inspection visits, or to enter the property in the tenants absence to inspect its condition, and to do so would be a serious breach of the tenancy.

Access for Repairs
The landlord has a right to enter the property, or to direct his agents or employees to enter the property in order to carry out necessary repair work, or work which they are legally obliged to undertake. The procedure for securing access should be outlined int he tenancy agreement to prevent disputes, and again, if there is no tenancy agreement then the landlord or someone acting on his behalf may enter the property to carry out necessary repairs to the property or to a neighbouring plot so long as they give reasonable notice.

Tenants do not have any right to prevent the landlord from accessing the property to carry out work of this nature, and if they attempt to prevent the landlord accessing the property, they will have breached their tenancy agreement and the landlord may be able to commence legal proceedings to evict them

For work which does not constitute necessary repairs, the landlord is not usually entitled to access. For example, in the case of a tenancy which is coming to an end, the landlord is not entitled to enter the property to undertake decorating or refurbishment work in anticipation of the new tenants moving in.

Access in Emergencies
Where there is a real risk that someone might come to harm, or that the property or any neighbouring property might suffer damage, the landlord may re-enter the property immediately and without warning. This might be the case, for example, where there is a fire or gas leak, or where there is a risk of flooding or where a structural defect poses a safety risk.

The law presumes that any residential tenancy which lasts less than 7 years is an Assured Shorthold Tenancy unless the tenancy agreement specifically states otherwise. In an assured Shorthold Tenancy, the tenant is entitled to an initial fixed period at the originally agreed rent and the rent cannot be increased during this time.

However, at the end of the fixed period the landlord may decide to increase the rent. If there is a written tenancy agreement, this will usually outline the steps which the landlord must follow in order to vary the rent, or else if the tenant accepts this increase, the tenancy may be varied by mutual agreement.

If there is no written tenancy agreement setting out the procedure for rent increases, or the tenant refuses to agree to a variation in the rent the landlord may adopt the procedure set out in the Housing Act 1988.

Section 13 Notices

Under section 13 of the Housing Act 1988 the landlord may issue a section 13 notice. This notice must be in the required form, and must contain information on the proposed rent increase, and the date from which the increase will take effect. This notice must be properly served on the tenant and must give him sufficient notice of the change in rent.

Where the tenancy is on a weekly, fortnightly or monthly, then one month’s notice of the increase is required. In the case of an annual tenancy, the landlord will need to give at least six month’s notice of the variation.

A section 13 notice may only be used to increase the rent once in each 12 month period. If a notice is issued less than a year since the last increase then it will be invalid and the tenant will not be obliged to pay the new rent.

Effect of Failing to Issue a Section 13 Notice

Unless a section 13 notice is issued, the tenant may continue to pay rent at the originally agreed level and provided that he does so promptly and in accordance with the tenancy agreement, he will not have breached the tenancy.

For example, in a case where the landlord increases the rent but doesn’t use a section 13 notice, and the tenant continues to pay at the old rental rate, the landlord would be unable to obtain a court order requiring payment of the difference between the rent paid and the new rent, and he would b unable to obtain a court order for eviction on the basis of rent arrears.

However, it is important to remember that outside of the initial fixed period of the Assured Shorthold Tenancy, the tenant has no security of tenure. This means that the landlord may terminate the tenancy in accordance with the conditions set out in the tenancy agreement, usually upon one month’s written notice. If a tenant refuses to accept a rent increase outside the fixed period the Landlord may choose to end the tenancy.

A corporation cannot represent itself in court. If the landlord is a corporation, LLC, or some other entity, the landlord will need an attorney to file an eviction suit, for other than possession, on its behalf. If a court hearing is required, only an attorney may represent the corporation. Many owners are unaware of this rule and end up having their suits dismissed and paying their tenant’s attorney fees. The bottom line is that if the lease lists a corporation as the landlord, the owner must get an attorney to represent the corporation.

Some tenant attorneys will take cases when they realize that the landlord’s court filings are technically deficient. If the tenant gets an attorney, the landlord should seriously consider getting an attorney also. An experienced attorney with reasonable fees could mean the difference between losing a case and paying the tenant’s attorney fees, and getting the tenant evicted in a timely fashion. All landlords should weigh the pros and cons of proceeding without an attorney.