When a Nursing Home Will Not Take Your Power of Attorney

You did everything right. You had a power of attorney created for your aging loved one, and even had the loved one sign it. Everything was supposed to be handled, and then it happened. The day came that you needed to place your loved one in an Alabama nursing home, but the nursing home is not honoring your power of attorney. If this describes a familiar situation, you are not alone. Thousands of nursing home residents throughout the state do not have valid powers of attorney. When this happens, it can be frustrating and intimidating, but there is good news. You can still accomplish your goal of protecting and caring for a loved one, even if the power of attorney is not sufficient.

What is a Power of Attorney?

First, it is important to understand the values and limitations of powers of attorney. These are simply legal documents that act somewhat like contracts. One person gives another person the right to make specific decisions for them, in the event they can not do so. A durable power of attorney is designed to last until death and provide an ongoing and uninterrupted ability to make certain decisions for someone else. The most common types of decisions included in an Alabama power of attorney are:

• Financial decisions
• Real estate decisions
• Medical treatment choices
• Obtaining medical records
• Talking to doctors about the person’s healthcare

Of course, powers of attorney can also limit these powers. Some people might want to give a loved one the right to make some healthcare decisions for them, but they may want to limit that power in some way.

Is the Power of Attorney Valid?

According to Section 26-1A-105 of the Alabama Code, a power of attorney is “presumed” to be valid if:

The principle signs it or directs another to sign it in the presence of a notary public. The principle must acknowledge signature before the notary. In addition to these basic formalities, the principle must be competent to create a power of attorney. While competence is presumed, it can be challenged. If someone learns that the individual signing the document lacked mental capacity to do so, they could bring a court action to invalidate the power of attorney, especially if it was fraudulently created or made through some form of undue influence or coercion.

Why a Nursing Home Might Refuse to Accept a Power of Attorney

While a power of attorney may be valid based on proper formalities, there are numerous reasons why a healthcare provider, including a nursing home, may not accept it or wish to honor it.  These may include:

• The document does not specifically authorize health providers to speak with the agent
• The document only covers financial decisions
• The document only covers healthcare (and not financial matters)
• There are specific exclusions listed in the power of attorney
• There are suspicions of abuse or neglect
• The nursing home suspects the person lacked the ability to make the power of attorney

What to do When a Health Provider Refuses to Honor a Power of Attorney

There are several options. First, you can attempt to file legal actions to enforce the power of attorney. Of course, these are often quite costly and may just lead to lengthy litigation. On the other hand, if the power of attorney is not working, you can also petition a court for a guardianship or conservatorship. If successful, you will receive a court order, granting you the right to make certain decisions for your loved one.

To get help with this process, call Five Points Law Group today.

The post When a Nursing Home Will Not Take Your Power of Attorney appeared first on Five Points Law Group.

Paying for a Divorce When You are Not Working

In many marriages, especially those with children, one spouse often acts as the sole or primary breadwinner for the entire household. In these marriages, the stay-at-home spouse may rightfully be concerned about a number of issues in divorce. Perhaps the most troubling issue for many is how to pay for a divorce. When one spouse controls the funds for the family, it can seem hopeless. The good news is you have options.

Changes in the Marital Unit

In a study by the Pew Research Center, data revealed that in 1960, about 70% of households included a single income-earning parent – usually the father. By 2010, the number had dropped to just over 30%. This means the average family in America today has a completely different makeup than it did just 60-70 years ago. With two parents working, divorces have become a bit more complicated, as has the process of financing a divorce. However, for those in the minority who are stay-at-home parents, it can often be a real concern to pay for a divorce.

The Income Earner can be Ordered to Pay the Cost of Your Attorney Fees

While every divorce is unique, when it comes to divorce, courts seek to balance the situation fairly. If you are not working and are primarily responsible for maintaining the home and caring for young children and your spouse works outside the home, you may be able to petition for your attorney’s fees to be paid by your spouse. It is not a sure thing, but it can work. Here is generally how this works.

Getting Your Spouse to Pay Your Legal Bills

Under Section 30-2-54 of Alabama’s Revised Statutes, you may be able to recover attorney fees if your spouse is in contempt. This can happen when you incur legal bills while attempting to enforce certain court orders, such as temporary maintenance or child support.

The other way to get your legal bills paid, however, is by having your attorney petition the court to award them. The courts favor both parties being represented by experienced legal professionals, as it cuts down on delays and ensures fairness. If you have no income, most judges will recognize the need for your attorney to be paid out of your marital estate. In other words, the income-earning spouse can be ordered to pay.

If you are concerned that your spouse will not be able to afford your fees and his or her own, just remember that a judge will have to review any petition for fees, and that same judge will be aware of your collective assets and debts. Therefore, a good attorney can usually tailor a divorce to suit just about any budget, assuming the parties can reach reasonable agreements without extended litigation.

Talk to an Attorney as Early as Possible

If you suspect you will need to have your spouse pay for your legal bills, contact Five Points Law Group today, as we can often help you plan and prepare for this process. Early planning is key. Just remember that the more information you have going into a divorce, the better your decisions will be.

Throughout Birmingham, the attorneys of Five Points Law Group are here to help, so call today.

The post Paying for a Divorce When You are Not Working appeared first on Five Points Law Group.

Legal Problems do Not Happen in a Vacuum

A woman was at work and her supervisor started making suggestive remarks that were clearly inappropriate. She told him to stop, but it did not end there. In fact, it got worse. Soon, it seemed like every time she passed him in the hall, there was an unwelcome comment. Sadly, over the course of several months, her marriage began to struggle. She was frustrated with work, her interest in sex and her relationship had diminished, and eventually her husband filed for divorce.

She decided to do something about the problems at work. She filed a sexual harassment lawsuit and ended up receiving a sizeable settlement offer based on her high rate of pay. Before she could even get the check, however, she was informed that she may need to split it with her ex-husband.

If this scenario seems strange or uncommon, rest assured it is not. In fact, it is quite normal. Millions of Americans struggle with marital trouble and many opt to end their marriages each year. Of that number, quite a few are simultaneously dealing with other problems that are legal in nature. At Five Points Law Group, our attorneys have the broad and diverse skills needed to tackle complex problems, even when several legal issues are occurring simultaneously.

What Happens to Discrimination Settlements in Divorce?

The example above is a classic case of a person receiving a settlement from a personal injury or workplace harassment suit while in the middle of a divorce. Because the money is designed to reimburse or make the individual “whole” again, most divorce courts will say the money is part of the marital estate. This means it could arguably become part of the property to be divided in the divorce. If you are using two different attorneys for these matters, it is a great reason to make sure they are talking to each other.

Divorce and Your Estate Plan

A lot of people think their divorce will end everything once and for all. It does not. There are a lot of things that linger after a divorce. Your estate plan is one of them.

Fortunately, under Section 43-8-137 of the Alabama Probate Code, divorce severs your bequests to your ex-spouse, as it is not the sort of thing you want to leave up to chance. Plus, things like powers of attorney, advanced directives, living wills, and trusts all should be immediately updated the minute you even think about filing for divorce. Also, you will want to be quick about updating beneficiary designations like life insurance, deeds, and 401(k) accounts. Divorce does not automatically change those at all.

The Five Points Approach

With attorneys individually skilled in multiple areas of the law, our group of skilled legal professionals can carry you through just about any challenge. Perhaps you are receiving money through a settlement and wish to protect your rights in a divorce, or maybe you are facing a divorce battle and want to protect your heirs from losing an inheritance. Whatever it is, make your first call Five Points Law Group, and let us help you today.

 

The post Legal Problems do Not Happen in a Vacuum appeared first on Five Points Law Group.

When Life Changes So Should Your Estate Plan

For some people, making a will is an unpleasant task. Confronting one’s own mortality can make a lot of people uncomfortable, so once the task is complete, it is rare for it to be revisited years later. However, this may not be the best way to look at an estate plan.

Sometimes it makes sense to take a second look at the way things were set up previously. This is especially true when you go through major life events. When life changes, so should your estate plan. At Five Points Law Group, we are here to help.

Big Reasons to Change Your Estate Plan

There are several major life changes that could prompt a person to want to take a second look at his or her last will or powers of attorney. A few common scenarios are:

• • Children: The birth or adoption of a child or grandchild is an exciting life event and a great reason to review and make changes to your estate plan. Because it is unwise to leave assets to a minor child, a will or trust can ensure that children or grandchildren get the full intended benefit of your estate while protecting them against unnecessary court costs and waste of your estate assets. A will can also provide important instruction to the court on your designation of guardian in case one is needed for a minor child. Additionally, once children are grown and may even have children of their own, you may want to make different provisions for them or for their children.
  • Divorce: If you made a will while married but then later got divorced, it is probably a good idea to change your will. The good news is you typically cannot leave your estate to an ex-spouse by mistake. This is because under Section 43-8-137 of the Alabama Statutes, any bequest made to a spouse is automatically invalid upon divorce. This does not mean you should still keep your estate plan the same after a divorce. After all, your previous choice to leave everything to a spouse may fail due to divorce, but this means you may not have made adequate arrangements for others in your estate plan.
  • Health Conditions: Another reason to change your will or powers of attorney is a major change in health condition. For instance, you may have drafted and signed a simple power of attorney when healthy. Today, however, you may be contemplating the possibility that you could need long-term care, home health care, a nursing home, or even hospice someday. With this in mind, there are certain options a skilled Alabama estate planning lawyer can use to modify your wishes to suit your own unique health situation.
  • Assets: Finally and perhaps most obviously, if you made a will or powers of attorney when you were younger or at a time in life when you had limited assets, it may have been a simple and uncomplicated plan. If years have passed, you may want to take a look to see if your estate plan can adequately protect your estate today. If you have earned significant income or amassed a large amount of savings, then you may be better served with a revocable trust or other planning tools.

How an Alabama Will and Trust Lawyer can Review Your Plan

At Five Points Law Group, we go the extra mile to make our clients comfortable. We know that talking about death, disability, and final affairs is never fun, but it can be a refreshing and renewing process. After all, revisiting your estate plan later in life allows you to take stock of accomplishments and truly appreciate how far you have come. So call us today to discuss your plan with an attorney near you.

The post When Life Changes So Should Your Estate Plan appeared first on Five Points Law Group.

Punished for Reporting Sexual Harassment: What Every Employee Should Know

There was a 50% increase in the number of sexual harassment claims brought in 2018, when compared to the prior year. This is according to the Equal Employment Opportunity Commission (EEOC), which is responsible for investigating and often enforcing complaints against employers. With this remarkable increase in the number of people coming forward to make complaints, many people may wonder if they can be terminated or suffer adverse employment actions because of their cooperation or for reporting harassment. The short answer is no, but there is much more to understand before speaking up.

To talk to an employment discrimination lawyer at Five Points Law Group today. We can help you investigate and build a strong case against an employer that is violating your rights.

What Happens if You Report Sexual Harassment?

If you have a potential claim for discrimination based on sex, you have just 180 days to bring your claim before the EEOC. This is a very short period of time for you and your attorney to investigate and build a case. Therefore, as soon as you experience discrimination, you need to contact an attorney for advice.

Once you report harassment, it will trigger an investigation. This does mean that your employer will find out. If you are merely making a report on someone else’s behalf, you may worry that you could suffer retaliation. The good news is that the law protects both claimants and witnesses who cooperate in an investigation.

Rules Against Retaliation

What is retaliation? Under EEOC guidelines, prohibited adverse actions can include:

• Taking any negative employment action
• Firing an employee
• Reduction in pay
• Refusal to transfer
• Refusing regular pay increases
• Limiting job assignments
• Overly scrutinizing employee conduct
• Issuing warnings and demerits
• Withholding benefits or pensions

Options if You Have Been Retaliated Against

If you are experiencing retaliation or believe your employer is making up excuses to punish you after you reported harassment or discrimination, or after you cooperated in a criminal or civil investigation, then you may have a right to be compensated. These options may include additional state or federal whistleblower laws that protect employees who call out illegal corporate conduct.

Here are some quick steps to protect your rights if you are suffering from retaliation:

• Read the Company’s Sexual Harassment Reporting Policy and follow its instructions
• Even if the policy says you may contact H.R. or a supervisor, make sure you submit your complaint in writing
• Bring your concern to a supervisor or human resources department
• Give the supervisor an opportunity to take action
• If the supervisor is the problem, direct your complaint to his or her supervisor
• If the problem is not addressed or you are further punished, contact an attorney

How Five Points Law Group can Help

At Five Points Law Group, our attorneys have many years of experience carefully reviewing cases of sexual harassment and discrimination. We can often help protect employees from retaliation and build a strong case against the employer if they continue the illegal conduct. But it is imperative you contact us early. The sooner we are involved, the better chance we have of helping you seek compensation. Remember that time is limited for pursuing justice, so do not delay. Call Five Points Law Group today.

The post Punished for Reporting Sexual Harassment: What Every Employee Should Know appeared first on Five Points Law Group.

What is Capacity for Making a Will?

Most Americans do not have a last will and testament in place. In fact, not long ago AARP estimated that about 60% of adults do not ever make a will. For many people, the thought discussing their own death can keep them from wanting to review their estate plans. For others, however, there may be a bigger concern. For instance, some people may not be able to create a will due to a mental or cognitive impairment.

As we age, we all face some physical and health declines, but for seniors suffering from dementia, Alzheimer’s, or related conditions, it could be too late to make a will. For help, call Five Points Law Group today.

What is a Will?

First, it is important to understand what a will is designed to do. It is called a “will” because it is supposed to represent the will of the person making it. This person is commonly called the testator, as it is this person’s testament. Since it represents a person’s conscious choices (i.e. their will), the law does require the testator to have the requisite level of mental functioning to create such a document. This is called “testamentary capacity,” and it is a bit of a tricky subject.

What Level of Capacity is Needed to Make a Will?

Alabama law just requires that at the precise moment of signing, the testator must:

• Be 18 or older
• Understand that he or she is making a will
• Understand the general effect that the will has
• Understand the nature and extent of his or her property
• Be aware of the “natural objects of her bounty” (in other words, the testator must know who close relatives are)
• Must sign the will voluntarily

Keep in mind that a person can even have a diagnosis of mild dementia or Alzheimer’s and technically still be capable of making a will, so long as he or she was lucid and capable at the moment of execution. Therefore, other than these basic requirements, anyone can make a will, including foreign nationals, felons, and those who are incarcerated. Of course, the lower someone’s cognitive functioning is, the greater the risk of a successful will contest later, in the event heirs wished to dispute validity.

What if the Testator has Erratic or Strange Behavior?

For the most part, odd behavior is irrelevant. Even extremely unusual and unconventional conduct is not enough to make a person incapable of executing a will. There have been cases of disinherited family members attempting to contest a will for many odd reasons, such as:

• A testator who gives all his money to charity
• A testator who chooses to give everything to a young, second spouse
• A testator who leaves money to a pet

However, it is important to note that so long as the individual knew relatives, knew what he or she was doing with the estate, and was capable of voluntarily signing the document, then the will is legally enforceable.

Levels of Testamentary Capacity may Vary by State or Country

Research from the United Kingdom suggests a heavy reliance on a physician’s assessment of the testator’s capacity. Similarly, it is wise to consult a physician if there is any doubt about one’s ability to execute a will. In situations in which one may suspect family members will fight over the outcome or where a particular individual may be disinherited, it is wise to obtain a physician’s letter or even mental health evaluation from a psychiatrist, which clearly outlines that the testator is competent to make such a decision.

Do Not Wait Until it is Too Late

While making a will does not require a significant level of mental functioning, it is possible for any of us to reach the point where we are simply unable to make one. In such a situation, rest assured that the State of Alabama has a statute in effect that will make the decisions for you. Do not let the state decide your final plans; contact Five Points Law Group today, and find out how simple and straightforward your estate plan can be.

The post What is Capacity for Making a Will? appeared first on Five Points Law Group.

Unique Challenges in Law Enforcement Discrimination Cases

Law enforcement, like any career, has its own unique challenges. Police officers are faced with frequent stress, odd work hours, and constant physical demands and threats to physical safety. For these reasons, relationships and communication can be a bit different than in white collar office jobs. Leaders may mistake bad language or sexual and racial epithets with strength or masculinity. Personnel departments have at times been guilty of retaliating against officers who speak out, all under the mistaken guise of protecting the force or maintaining a strong culture.

With these things in mind, it is important to recognize the distinct landscape of law enforcement when pursuing a claim for discrimination in the workforce. At Five Points Law Group, our attorneys have decades of experience helping workers fight for the compensation, benefits and fair treatment they deserve. Here are a few of the unique challenges that face law enforcement when bringing a claim for discrimination.

It can be Harder to Get Witnesses to Speak Up

Consider one recent case out of Amherst, Massachusetts, in which one of the senior-most officers in the department filed a claim for age discrimination. That case alleges that senior leadership used vulgarities and discriminated against him because of age and disability. While this is an ongoing case and the facts are still just alleged, it does highlight that in law enforcement, people may be reluctant to “break ranks” to speak out against a department. Whether due to feelings of disloyalty or concerns about retaliation, many law enforcement officers find it difficult to come forward.

The Job is Different

In most workplaces, the Equal Employment Opportunity Commission (EEOC) will regard unequal treatment as discriminatory, but law enforcement sometimes gets a bit of a pass. This is because of just how different the job really is. For instance, if an office worker were denied promotions due to a mental health condition like post-traumatic stress disorder (PTSD) or bipolar disorder, then that worker could reasonably make a claim for discrimination based on disability.

However, when a law enforcement officer is diagnosed with a severe mental health condition that could reasonably have a direct impact on his or her ability to make split-second decisions of life and death, then it can be more difficult to prove a discriminatory reason for the adverse actions.

Specific Law Enforcement Rules

In most cases, it is unlawful for an employer to force someone to retire due to age, but with law enforcement in Alabama, there are mandatory retirement ages in place to protect the public and the officers. Therefore, it can be more difficult to prove certain types of actions are discriminatory.

Get Advice Early

At Five Points Law Group, our attorneys can offer you practical tips and suggestions for building your case and protecting your rights. If your employer overreaches and violates the law, you will be in a better position to take action. Just keep in mind that most EEOC actions for discrimination will require you to file your action in as little as six months, so do not delay getting help.

The post Unique Challenges in Law Enforcement Discrimination Cases appeared first on Five Points Law Group.