Posts made in November, 2014


A parent in a close-knit family will never want to leave his or her children with financial trouble in the event of his or her death. Thus, some resort to drafting a will (also called last will and testament), which gives instructions regarding what should become of their property after they die. Besides determining their property’s fate, the testator, that is the person drafting the will, can also include in his/her will the identity of the person who will act as: guardian for his/her minor children; and, the executor of his/her will; the will can also leave instructions on how the (testator’s) remaining taxes and debts should be paid or it may otherwise serve as support to a living trust.

A will, however, can be subjected to a probate, which is a court proceeding that will establish its validity, determine the estate’s administrator or executor (if the will does not name one) and who can be considered as lawful heirs (if no will was ever drafted).

Thus, to do away with probate, which usually lasts for about six months to a year and eats up a certain percentage of the left estate in court and lawyer’s fees, there are those who decide to draft a living trust instead.

A living trust, which is created by a “grantor,” or the person drafting the trust, is a legal document that contains all instructions about what the he/she wishes to happen to his/her property, heirs and dependents. The property or assets mentioned in the trust are placed under the care of a trustee, who is also the grantor himself/herself (or co-trustees if the trust were created together by the grantor and his/her spouse). Unlike a will, which becomes effective only after the testator’s death, a living trust’s effectivity begins even during the grantor’s lifetime.

The US government recognizes two main types of living trusts:

Revocable living trust, wherein the grantor retains control of his/her assets that have been transferred to the ownership of the trust (since he/she is also the named trustee). As the name suggests, this type of trust may be revoked or changed by the grantor anytime he/she wishes to. Upon the grantor’s death, his/her successor trustee takes charge in the distribution of the properties identified in the document; and,

Irrevocable living trust, which is the type of trust wherein properties are irrevocably and permanently given to beneficiaries even while the grantor is still alive, rendering these same properties free from the grantor’s interest and control. Extremely wealthy couples (or single parents), who have enough savings to last through a lifetime, are usually the ones opting to create this type of trust. Though they may lose actual ownership of certain properties, these will also be removed from their total estate, thus a smaller estate tax to pay.

According to the website of Peck Ritchey, LLC, the advantages of a living trust over a will is that the former avoids probate, may eventually save the family from paying costly property taxes (despite its being more expensive to prepare compared to a will), automatically names someone who will manage the grantor’s affairs, and maintains privacy, as the distribution of properties will neither be publicly made nor recorded. But while a living trust would be perfect for some families/couples, the creation of a will would already be just right for some.

While a living trust is much more complicated to prepare than a will, a will can also end up in legal complexities that may even cause the testator to commit mistakes or easy grounds for dispute. Having a lawyer deeply knowledgeable and experienced in probate, estate, and trust matters, to help the testator in all legal aspects of the document, is essentially a necessity.

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When an accident happens or when a destructive natural calamity comes, one major source of finances for the needed medical treatment or for repair/replacement of damaged property is insurance, a person’s means to protecting himself or herself from financial losses in the event such a catastrophe.

Some individuals even choose to pay higher premiums for higher benefits when needs arise. Often, though, policy holders end up disappointed and feeling cheated as the amount of financial benefit Insurance providers often grant are much smaller than the amount of the policy that they purchased. In many other instances, Insurance firms either deny or disapprove a claim, or maliciously impede the processing of a claim.

These tactics are the means employed by insurance providers in what is called bad faith – the act of deceiving another person by deliberately and maliciously refusing to honor a contractual obligation. Bad faith is a violation of the “implied covenant of good faith and fair dealing,” a law in most US states that is suggested in insurance contracts. Violation of this covenant gives the policyholder the legal right to file a claims lawsuit against the insurance provider due to breach of contract and for tort claim.

On its website, the law firm Smith Kendall PLLC explains the enormous responsibility that insurance companies have towards their policy holders in the event of an injury and/or serious damage to their properties. Sadly, however, due to the goal of these companies to earn and maintain profitability, many resort to means that will enable them to avoid legal responsibility and make payouts.

The violation of the trust placed by policyholders on insurers is enough to warrant any legal action against the latter and, if proven to be guilty of acts of bad faith, then they can end up paying policyholders an amount higher than the face value of the policy. Insurers, though, should consider seeking the help of a highly-competent insurance bad faith lawyer for a firm ground in the legal fight with insurance providers. This is due to the complexity of the law and the insurance policy, which may leave the policy holder more confused than clarified.

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A higher hourly minimum wage and more job security are what most employees in the US need right now, especially those who are employed in industries that give lower pay, such as employment, retail and food services. Low-paying jobs actually began to be created in 2010 (after the recession), replacing mid-wage jobs, which saw the lay-off of thousands of middle-income earners.

The creation of many new jobs that pay low wages may not be the only source of dismay to the so many unemployed who are still seeking work, though. Probably equally worrisome, as being paid a lower wage or being laid off, is the growing practice in many firms, which is granting “at will” employment to applicants.

The “Employment at Will” doctrine, which is now legally practiced by companies in almost all US states, recognizes the right of an employee to resign from work anytime; in like manner, it gives the employer the right to terminate an employee whenever he/she wishes. Resignation from work or termination of work may be done whether the reason is justifiable or not, or even if there is no reason at all, and no court would usually intervene to protect the employee unless any of the laws that protect employee rights has been violated.

Job application forms and employees’ handbooks usually indicate this “at will” phrase. Refusal to affix one’s signature on any employment contract that will indicate conformity to the “at will” policy may result to being denied employment or termination.

Despite the legality of the “Employment at Will” doctrine, employers should realize that such is not a ticket to discriminately end one’s employment. The U.S. Equal Employment Opportunity Commission (EEOC), which implements anti-discrimination laws, as well as the courts, will not simply dismiss termination cases where there are cries of foul play or discriminatory acts.

Many wrongful termination cases have been proven in spite of the “at will” employment policy. The most common causes of wrongful termination are retaliation of a superior against an employee, whistle blowing, an employee refusing to perform an illegal act for his/her employer, and employment discrimination practices.

On its website, The Melton Law Firm strongly emphasizes that employers are legally accountable for the wrongful termination of any of their employees. And that, despite the “at will” policy, employers’ right to terminate any one is still limited by certain laws.

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Regardless of the possibility of differences between states on the standard of care that health care professionals and institutions should provide their patients, one principle remains the same – that patients should be given the best care which will help them remain healthy, help them recover from their ailment/s, or prevent their illness from becoming worse.

The outcome of thousands of medical treatments, however, are far from being favorable as medical malpractice due to a single, or a series of, negligent act/s lead/s either to severe patient harm or death. And, sad to say, but medical malpractice is an alarming reality in the US, probably worse than most Americans realize, as national statistics show that it claims about 225,000 lives annually: about 106,000 deaths are due to severe side-effects from drugs; 80,000 are caused by nosocomial infections (infections acquired in hospitals or other healthcare facilities after being admitted for health complaints other than infection); 12,000 are due to unnecessary surgery; 7,000 are caused by wrong medication; and, 20,000 because of different types of hospital errors.

Despite these alarming numbers, however, very few lawsuits for malpractice claims have been (or are being) filed in courts all across the US, thus, not bringing to light the reality of malpractices that result to injury or death. Even with the least suspicion of a possible medical malpractice, the victim or his/her family, should immediately contact the Green Bay personal injury lawyers, who can provide vital help in assessing the situation, as well as the possibility of legally making malpractice claims.

One concrete result of medical negligence is cerebral palsy, which is an abnormality in the unborn or newly born child’s brain development, resulting to impairment in muscle coordination and disruption of cognitive development. Cerebral palsy is a birth injury that affects thousands of babies; this injury makes activities, such as talking, walking, eating and playing, difficult for a child.

By exhausting all necessary means, more so the use of technology, doctors may be able to help future couples, as well as those planning to conceive more children, avoid or prevent any risks that can lead to cerebral palsy. In the event of this birth injury, though, and with the capability of proving that this injury was sustained due to the doctor’s failure to perform or observe standard care that could have avoided it, then the injured child’s parents should immediately seek the help of the Philadelphia cerebral palsy lawyers, whose expertise and experience on medical lawsuits can help them seek compensation claims which can help in the costly added treatment for their child.

The use of modern medical devices should be maximized by health care professionals and institutions; however, too much dependence on these or allowing those inadequately trained to operate these should never be the case. For no matter how modern and well-designed a device is, making it perform a doctor’s tasks or entrusting its operations to a poorly trained doctor or medical staff, only spells “DANGER.” These scenarios always prove harmful to many patients, just like what many of those who have undergone minimally-invasive surgeries with the da Vinci robotic surgical system complain about.

The da Vinci Surgical Robot was designed by Intuitive Surgical and approved by the US Food and Drug Administration in 2000 for use in minimally-invasive surgical procedures. Besides calling their robotic surgical system a “state-of-the-art robotic technology,” Intuitive Surgical also declared that their creation will enable surgeon to complete even complex and delicate procedures with only a few small incisions, with greater accuracy, control, dexterity and clearer vision.

Not long after it was made available, though, injuries started to be reported, with some claiming that the device had a flaw, while many others blame the injuries on the doctor’s lack of training in properly operating the device. Reported Da Vinci surgical dangers included burns, punctured vessels or organs, excessive bleeding, intestinal tearing, uterus lacerations, and death.

Medical authorities declare that medical malpractice is a completely preventable thing as it is nothing more than a result of negligent acts. Thus, due diligence may all be what is necessary to avoid it and whatever injurious effects it may cause.

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