When a Caregiver Gets Too Close

If you live in Alabama and you have an aging parent or other relative, you likely are already aware of the many ways people attempt to exploit or abuse seniors every day. One of the more common scenarios is when a caregiver or home health worker gets very close to the senior and quickly begins assuming roles that are normally reserved for family. For instance, after a few months of providing in-home care, an elderly person may decide to change powers of attorney or other estate planning documents to include this new trusted friend. While this may be nothing more than a kind gesture, in most cases there is something more insidious going on.

At Five Points Law Group, our attorneys have decades of experience protecting seniors and their families from exploitation and abuse. If you suspect a caregiver is trying to gain access to your loved one’s money or other assets, call us right away.

Basic Legal Protections

First, we begin with the assumption that a senior has appropriate planning documents in place, namely a Last Will and Testament and durable powers of attorney for health and finances. If these are not already in place, a senior is at risk. Not having these legal protections means that if the senior becomes cognitively impaired (i.e. stroke, dementia, etc.), a court process known as guardianship or conservatorship would be necessary just to handle the person’s affairs.

If the elderly individual is still mentally capable of executing these documents, he or she should schedule an appointment to meet with an experienced attorney right away. If not, there is still hope.

Changes to Estate Plans and Powers of Attorney

Under Alabama Law (Section 26-1A-301 of the Alabama Code), a statutory power of attorney form can be crafted to allow a loved one to make decisions regarding things like:

• Real estate transfers
• Tax documents
• Bank accounts
• Investments
• Insurance policies
• Retirement accounts
• Just about any other financial asset

While this can be a powerful instrument to help family members manage the finances of an aging senior who may be losing the mental ability to do so on his or her own, it can also be a dangerous weapon for unscrupulous caregivers looking to steal from a senior.

Restrictions on Healthcare Providers Being Named as Agents Under Powers of Attorney

If your aging parent or other loved one is considering granting these types of powers to a stranger or healthcare provider, you should be aware that public policy generally prohibits healthcare providers from being named as agents under powers of attorney. The reason stems from the obvious potential for a conflict of interest. Anyone who is performing a service for money should likely not be the agent in control of paying that money.

How a Lawyer from Five Points Law Group Can Help

If you have recently discovered that a healthcare worker is getting “too close” to your aging relative and you suspect they may be trying to gain access to assets and finances, you should talk to an attorney. Find out if your loved one has the necessary documents in place and learn whether the relative is capable of revoking them. You may need to get a court-supervised process, like guardianship or conservatorship, established to protect your loved one. Whatever the best course of action, we may be able to help. So give our firm a call today to learn more.

The post When a Caregiver Gets Too Close appeared first on Five Points Law Group.

When a Caregiver Gets Too Close posted first on https://www.5pointslaw.com/

Update on Alabama Divorce Laws

For those looking to get divorced in 2019, there are some changes to the law that you may want to keep in mind. Did you miss the window to file in 2018? If so, here is what you need to know.

Call Five Points Law Group today if you need help understanding the changes to the law or just want help getting your divorce finalized. We have years of experience helping people throughout Birmingham, and we might be able to help you, too.

New Tax Rules Effective January 1, 2019

Up until the clock struck midnight on December 31, 2018, alimony was a tax-deductible expense for the payor. This made a lot of sense, actually, because it is money the payor was court-ordered to give to someone else outside of his or her household and it did nothing to benefit the payor. It lightened the burden of an alimony payment to some extent.

As of this year, however, alimony is no longer tax-deductible. Under President Trump’s new tax law passed in 2018, starting with 2019 tax year, alimony loses its deductible status entirely, making it even harder on those paying alimony. Why the change? Well, previously alimony was considered taxable income for the recipient, meaning it was still taxed, but usually at a lower amount. Consider the fact that the alimony payor is almost always the person making more money. Therefore, in most cases that person has a higher effective tax rate. Take this example:

A man making $100,000 is ordered to pay $1,500 in alimony per month to a spouse who earns just $40,000. The higher earning spouse will be taxed on his full income at the higher tax rate, yet the lower earning person will receive the money tax-free. Previously, the IRS was taxing the lower-earning party at a lower tax rate. In the end, the winner here is the IRS.

Permanent Alimony is Out…Sort of

Back on April 13, 2017, the Governor passed HB 257, which essentially gave courts a strong instruction not to award permanent alimony (also known as “periodic alimony”). Under the new law, the court is not to award alimony for more than five years without giving a written explanation for the extraordinary reasons why the judge feels the recipient could not successfully rehabilitate and take care of him or herself. The major exception is where the marriage has lasted  more than 20 years.

Speak to a Lawyer Early in Your Divorce

Many people think you should only go to a divorce attorney once you have made the definite decision to get a divorce, but this may actually be a bit late. Instead, if you are having concerns or questions about divorce, it is probably time to engage in a fruitful discussion with an attorney near you.

At Five Points Law Group, we can provide insights and updates on the most recent laws and policies that may affect you. Keep in mind that each person’s situation will be entirely unique, so talking to a lawyer can be a helpful part of the planning process. You may ultimately decide divorce is not right for you, but it is impossible to make good decisions without good information. Call today and speak with an experienced divorce lawyer.

The post Update on Alabama Divorce Laws appeared first on Five Points Law Group.

Update on Alabama Divorce Laws posted first on https://www.5pointslaw.com/

Can I Get Paid to be the Representative of an Estate?

If you have been named the executor of a will or you need to act as the representative of a decedent’s estate in Alabama, it is important that you not attempt to handle the responsibility on your own. There are a lot of ways you can go wrong, so you should at least speak with a probate attorney early in the process to make sure you are not accidentally waiving your own rights or making key mistakes in how you handle estate funds. Call Five Points Law Group today to get the guidance you need.

The Representative’s Job

First, make sure you understand your role in the estate. A probate estate is a formal court proceeding by which the court manages and oversees how the estate is administered. However, in most cases, the court will not directly “supervise” your behavior as the representative. Instead, the court will simply be available to resolve disputes and grant the authority you need to distribute funds and pay debts. Think of the job as a case manager. You will be responsible for:

• Finding possible assets that belonged to the deceased
• Collecting and gathering property, real estate, bank accounts, and retirement funds
• Making sure lawful claims and debts are paid
• Disputing invalid claims and debts
• Fighting off any will contests or disputes
• Distributing funds to heirs and legatees appropriately
• Managing the estate’s funds properly (you will be acting as a fiduciary)
• Paying final estate taxes and filing a final tax return with the IRS and State of Alabama
• Closing the estate once all administration is concluded

Administrator vs. Executor

When there is a will, the representative is known as an “executor,” because you are actually following the will’s instructions in order to achieve the purposes set for by the decedent. When there is no will, you will be called an “administrator.” The job is basically the same, but when there is no will, you will be guided by default rules under Alabama law.

Compensation for a Representative

It is not easy administering an estate – even a modest one. Family members may dispute distributions, you may need to deal with a disgruntled contractor who seeks payment of an unfair or illegitimate debt or mechanic’s lien, and you might need to work with banks, credit unions, life insurance carriers, and other institutions just to find all the assets. In some cases, you may even have to prosecute lawsuits where the decedent had legal matters needing to be handled prior to death.

For these reasons, many representatives find that they must spend personal money on things like postage, medical records, copying charges, and excessive mileage, and travel time. To be compensated for this, you will want to keep careful records of all expenses and time incurred. When it is time to distribute the remainder of the estate to heirs, you may be able to receive your share (if you are an heir or legatee under the law or the will) plus reasonable compensation for your services if this fee is allowed under the terms of the Will.

Additionally, where there is no Will, Administrator’s in Alabama are generally granted a fee of 2.5% of funds received by the estate and 2.5% of funds distributed by the estate.  These fees are set by the Court at Final Settlement and should not be taken by the Administrator without prior Court approval.

An attorney from Five Points Law Group can help you determine the appropriate amount to charge, as well as assist you in gaining court approval where required. Give us a call today to speak with an experienced Birmingham probate lawyer.

The post Can I Get Paid to be the Representative of an Estate? appeared first on Five Points Law Group.

Can I Get Paid to be the Representative of an Estate? posted first on https://www.5pointslaw.com/

Report Suggests Sexual Harassment Linked to Health Problems

According to a recent study published in the Journal of the American Medical Association (JAMA), women who suffer from sexual assault and harassment suffer from a host of health complications at a higher rate than the general public. The tragic consequences of harassment, assault, and other violations of a woman’s autonomy can be seen throughout the study.

For those suffering from unfair discrimination and workplace harassment in Birmingham and throughout Alabama, Five Points Law Group is here to help. Here is what makes the study so telling.

Conditions Linked to Harassment and Assault

It is well-known that traumas may increase one’s risk factors for emotional and physical health problems, but this study goes further and includes things like sexual harassment, thus finally showing the startling connection between what women go through on a daily basis and their adverse health consequences. Conditions the study looked at included:

• High blood pressure
• Depression
• Anxiety
• Sleep disturbances (insomnia, apnea, and others)

According to the study, 304 female nonsmokers between 40 and 60 years of age were evaluated. Of that group, 19% reported experiencing sexual harassment, while 22% experienced some form of sexual assault. A total of 10% reported enduring both. Here is what researchers discovered:

Findings for Sexual Assault Survivors

• Depression             3 times higher risk
• Anxiety                2 times higher risk

Findings for Sexual Assault OR Harassment Survivors

• Sleep problems     2 times higher risk

Findings for Victims of Workplace Harassment

• Higher blood pressure
• Higher risk of stroke
• Higher risk of aneurysm
• Higher risk of kidney disease
• Higher risk of heart attacks

What This Means for Women and Employers

Studies like this one may have sweeping implications for employers because this suggests that workplace discrimination and sexual harassment are more than just a mere “legal” concern for employers. They may also pose a physical threat to workers. Therefore, employers who knowingly permit harassment and sexual assaults to take place may arguably be liable for the physical injuries that result.

For women, these studies should send a clear message that even though it may be difficult to self-advocate and come forward, there are serious health consequences that can result from not doing so. Instead, if you believe you are being discriminated against or harassed at work, you should immediately contact an employment lawyer from Five Points Law Group. We may be able to help you understand your rights and protect them.

Deadlines for Taking Action

If you are experiencing discrimination or harassment, you should first attempt to address this by notifying your company in writing that you feel there is a problem and you would like it addressed in a timely manner. If your concerns are ignored and the harassment continues, you should immediately contact an attorney. You may have as little as six months to file a claim with the Equal Employment Opportunity Commission (EEOC). Failure to properly protect your rights could result in the loss of opportunity to hold your employer accountable. Do not be a victim; stand up for your rights. Call Five Points Law Group today.

The post Report Suggests Sexual Harassment Linked to Health Problems appeared first on Five Points Law Group.

Report Suggests Sexual Harassment Linked to Health Problems posted first on https://www.5pointslaw.com/

Risks of Foster Care Adoption

If you are an Alabama couple seeking to adopt, you may have heard that it is easier to become an adoptive parent if you begin as a foster parent. While this is true, there are numerous concerns and legal complications you may wish to consider before taking steps to become a foster parent.

At Five Points Law Group, our attorneys work to help dedicated and loving families adopt. For help with your adoption or to get answers to some of your challenging questions, call us today.

Becoming a Foster Family in Alabama

First, to become a foster parent in Alabama, there are some rules and minimum qualifications. In general, you must:

• Be at least 19 years of age
• Have a safe home
• Meet the Alabama Minimum Standards for Foster Family Homes
• Have enough space for the child
• Make sure all people in your household are willing to participate in child care duties
• Make sure all members of the household are in good health
• Ensure that all adults in the home are able to pass a criminal background check

Is it Really Easier to Adopt as a Foster Parent?

Sometimes. In order to adopt a child in Alabama, you must petition the appropriate court for permission to assume legal responsibilities for the child. This can be a complex process. In a foster home arrangement, the State of Alabama will first make a determination of your suitability, then once a child in need is identified, that child will be placed in your care temporarily without many of the lengthy proceedings that accompany an adoption. But take note: Foster care is usually temporary.

Assuming the natural parents do not take the legally required steps to regain custody of their child, a court may eventually terminate their parental rights. If this occurs, you will still need to petition for adoption; however, the court will be looking for the best interests of the child. Since that child will have been in your care for some time, foster parents are often preferable as adoptive parents.

So, when things go right, being a foster parent means getting parental custody of an adoptive child earlier and in a more streamlined way.

Problems With Foster Adoptions

Now that you understand how being a foster parent might make things easier, it is important to note what happens when things do not go smoothly. Many times natural parents will begin to improve their lives and get custody of the child again. After being a parent to a young child for months or even years, you could have to return the child to what seems to be an abusive or even unfit home life. Courts are very reluctant to terminate parental rights unless there are serious reasons. This can lead to a painful back and forth, where the child is shuffled from natural parent to foster care and back again. In many situations, a foster family may care for dozens of children before they ever find a child to legally adopt.

How an Attorney can Help

Many times, the most difficult part of the adoption process is navigating the court system and all of the legal requirements involved. A guardian ad litem (GAL) is appointed to interview and investigate in order to help the court make decisions. Often the GAL’s report will make a big impact on the outcome of an adoption. Likewise, there may be conflicting arguments regarding the safety and welfare of a child going back to a natural parent. Having a skilled adoption lawyer on your side puts you in a better position to get the outcome you are seeking.

Call Five Points Law Group today to schedule a private meeting with one of our skilled adoption lawyers in Birmingham.

The post Risks of Foster Care Adoption appeared first on Five Points Law Group.

Risks of Foster Care Adoption posted first on https://www.5pointslaw.com/

How to Protect a Disabled Person’s Right to Public Benefits

If you have a relative who is severely disabled and can not work, you may worry about how that person would continue to receive the public benefits he or she desperately needs if you or someone else in the family were to pass away and leave him or her money. This issue usually comes into play when a parent is planning his or her estate and has a disabled child (minor or adult) to think about. If a parent leaves money to the child, it could disqualify the child from receiving lifesaving benefits, like Medicaid, Medicare, Social Security, and more. So, what is the solution?

At Five Points Law Group, our estate planning attorneys can craft a carefully prepared special needs trust to protect a disabled person’s interests, while preserving his or her rights to public programs and benefits. Here is how these trusts work.

Eligibility for Medicare and Medicaid

For aging parents of a disabled child, it can be a scary time. It may be clear that without public health benefits, a child may have no way to care for him or herself. At the same time, aging parents may want to make sure that their inheritance is not wasted. Thus, through careful estate planning, there are ways to do both leave money to the disabled child, while simultaneously maintaining his or her right to utilize benefits. This is often done through an Alabama special needs trust (SNT).

How Does a Special Needs Trust Work?

There are two kinds of SNTs — a third-party or a first-party trust. The one you use depends on the circumstances.

• First-party trusts: A first-party trust is one that is funded using a disabled adult’s own money. This is commonly used when the disabled individual has come into money from some outside source, such as through a personal injury action or an inheritance that was not planned in advance. Perhaps a relative has given the person money. In these situations, the disabled person can establish a trust that protects the money, while maintaining eligibility for SSDI, SSI, or other benefits. There are strict rules about how the money can be spent, and regarding pay-back provisions to Medicaid after death.
• Third-party trusts: This type of trust is settled (or “funded”) by someone other than the disabled person. Usually, this is the best option for relatives who want to leave significant assets to a person with disabilities. Under federal and state laws, the money can be used to pay for things that may not already be covered by Medicaid or Medicare, such as certain medical costs, daily living support, or adaptive devices. Since the money never technically becomes the property of the disabled person, it remains largely protected against spend downs and pay-back provisions.

To discuss this option with a skilled estate planning attorney near you, call Five Points Law Group today.

The post How to Protect a Disabled Person’s Right to Public Benefits appeared first on Five Points Law Group.

How to Protect a Disabled Person’s Right to Public Benefits posted first on https://www.5pointslaw.com/

Is Open Marriage More Likely to End in Divorce?

In recent years, so-called “open marriages” have gained increased popularity. This is especially true of millennials and younger couples who seek to avoid some of the formalities and traditional trappings of wedlock. The reasons for an open marriage are just about as varied and diverse as the people who choose to engage in them. If one reads an article from 2007 and compares it with a psychological study from 2017, chances are there will be a widely differing set of conclusions. In some ways, this belies the fact that religious, institutional, and cultural views may shape outcomes just as much as anything.

However, where the law is concerned, adultery is still adultery. If you are considering an open marriage in Alabama, it is important to understand some of the pitfalls and legal consequences. At Five Points Law Group, our experienced attorneys understand many of the complex nuances of divorce. If you need help, give us a call to speak with an attorney who can help counsel you through your divorce in a non-judgmental and caring manner.

What is an Open Marriage?

If you ask 10 people, you will probably get about five different answers, but an open marriage is simply a marriage in which there is an element of mutually accepted infidelity. In other words, one or both spouses are free to engage in extramarital sexual relationships, usually subject to a number of agreed-upon rules.

Does Mutually Accepted Infidelity Strengthen or Weaken a Marriage?

It is hard to say, but a 2007 article from WebMD shows just how far therapists and society in general have come on this issue. In the 2007 article, the quoted therapists seem to disagree that an open marriage can be good for a healthy sex life or marriage, even saying that such marriages account for less than 1% of all marriages.

Just years later, a 2017 article by Deborah Anapol, Ph.D. published in Psychology Today emphatically proclaims that there are many highly functional polyamorous marriages, including some that last for decades.

The New York Times also recently did a lengthy piece on the pros and cons of open marriages, which portrayed these relationships as a personal choice and one that increasingly more Americans – especially women – are choosing.

So, what is the truth? Do they lead to divorce or not? It is tough to say for certain, but only about one in eight spouses leaving open marriages claim that the open nature of the marriage was the cause of the divorce.

How Alabama Law Views Open Marriages

In general, adultery remains a formal ground for getting a divorce. However, if a spouse commits adultery and the aggrieved spouse accepts that person back and re-engages in a sexual relationship, that ground for divorce is severed. This is thanks to a very old Alabama statute known as condonation. Therefore, if you are in an open marriage and your spouse seeks a divorce due to adultery, evidence of the open marriage may be used to destroy that reason for divorce.

Prenuptial Agreements are Wise

While an open marriage may be just as successful as a more traditional relationship for some, given the extra layer of complexity and the fact that the law does consider extramarital relations a ground for divorce, couples choosing this type of relationship may be wise to speak with an attorney about a prenup or antenuptial agreement that sets forth the relationship and terms of dissolution in advance, in the event either person wishes to change the arrangement later.

For help with a divorce or setting up a prenup or post-nuptial agreement, call Five Points Law Group today.

The post Is Open Marriage More Likely to End in Divorce? appeared first on Five Points Law Group.

Is Open Marriage More Likely to End in Divorce? posted first on https://www.5pointslaw.com/

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.

When a Nursing Home Will Not Take Your Power of Attorney posted first on https://www.5pointslaw.com/