Taking the Confusion Out of Common Injury and Estate Planning Worries: Answers to Your Frequent Questions

The most important job for any attorney is making sure that his client understands every aspect of her case. Although some lawyers are comfortable keeping their clients in the dark, we feel that you deserve more. You deserve to have all of your questions and concerns addressed in order to pursue your own case confidently and successfully. This is why we take the initiative to answer common questions that you may have even before you even step into our office. If you don't see your question answered below, please contact our office at 855-522-5291.

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  • Can I be forced to sell my home to pay for nursing home costs?

    Generally speaking, the answer is no – except in cases of fraud.

    Owning a house will likely not affect your eligibility for Medicaid assistance with the cost of nursing home care because you are allowed up to several hundred thousand dollars of ownership interest in your homestead (the house where you otherwise would and did reside). 

    Even if you have more than that amount of interest in your house, you may be eligible for the “spend down” program, wherein Medicaid determines the amount that you can and should be able to afford to spend on your medical care each month (based upon your assets and income).  All medical expenses above that “spend down” amount would be covered by Medicaid.

    Once you are deemed eligible for Medicaid assistance, it is important to note that Medicaid often CAN seek reimbursement for paying your medical bills (including nursing home bills) by (a) filing a lien on your real estate (house); and/or (b) filing a claim against your estate.  Neither a lien nor an estate claim will be filed until and unless you have resided in a nursing home for at least 120 days.  [If you are concerned about an estate claim and/or lien being filed, please note that (a) your heirs may request a waiver of estate claims by showing undue hardship; and (b) a lien will not be foreclosed upon except in cases of fraud and/or after you pass away; but the lien will affect you whenever you sell your house.]  A lien will also not be filed against your house if it is lawfully occupied by your spouse, by your child who is under the age of 21, or by your child who is over the age of 21 and is blind and/or disabled.  

    For more information, check out this video answer from attorney Angel Wawrzynek. If you need help forming a will or estate plan, contact us today at 855-522-5291 for a free consultation. 

  • Should I File a Petition to Change My Child’s Last Name or a Petition for Adoption?

    Parents in blended families frequently are confronted with a situation where a child wishes to change their last name so that their name will be the same as other members of the family. 

    Parents frequently ask whether they should file a petition for adoption, or whether they can simply petition the Court to change the child’s last name.  An adoption proceeding and a proceeding to change name are two very different procedures governed by two different statutes. 

    If a parent and a step-parent wish to adopt a child, they will have to file a Petition for Adoption.  If the biological parent approves of the adoption and the termination of his or her parental rights, he or she will have to sign an Irrevocable Consent to the adoption before a Judge in a courtroom.  Because the termination of one’s parental rights is seen as such a serious matter, it must be done in front of a Judge, to make sure the Consent is knowing and voluntary.  If the biological parent does not consent to the adoption, the adopting parents will have to prove the biological parent is “unfit,” by one of the means set forth in the Illinois Adoption Act. 

    If a Petition for Adoption is granted, any future child support obligation of the biological parent is terminated, although that parent will still owe any back child support that was owed prior to the date of adoption.  The adopting parents are then treated as if they were the biological parents, which means, should the adoptive parents divorce in the future, each parent has an equal footing in any future custody case, and both parents are equally responsible to support the child.

    If the parents simply wish to change the child’s last name, a Petition to Change Name of Minor can be filed with the Court.  If the biological parent will not agree to the name change, a hearing is held before a Judge, and the petitioning parents will have to prove it is in the best interests of the child to change names.  In deciding what is in the child’s best interests, the Judge must consider: the wishes of the child’s parents; the wishes of the child and his or her reasons for wishing to change names; the interaction the child has with the significant people in his or her life; and the child’s adjustment to his or her home, school, and community.  Any child support obligation the biological parent has would remain in place, even if the Petition to Change Name is granted. 

    Under either proceeding, the biological parent is entitled to Notice of all proceedings and should be provided a copy of whatever petition is filed. If you have questions regarding a petition to change names or a petition for adoption, you should speak to an experienced family law attorney right away to help you chose the best path for your family. We provide free consultations with our compassionate attorneys. Call today at 855-522-5291.

  • How soon will I receive my Workers' Compensation Settlement?

    A workers' compensation attorney can help you after an on the top injury.Many of my workers’ compensation clients ask me, “Once I agree to the settlement of my workers’ compensation case, how long does it take to get the money?”

    4-8 Weeks is a General Guideline for Workers' Compensation Settlements

    Generally, it will take 4-8 weeks from the time the agreement is reached until there is money in your hands.  Once the settlement is reached, the employers’ attorney will need to draft the settlement contracts. 

    The contracts are then signed by the attorneys and the employee and then submitted to the arbitrator handling the matter for approval.  This process can take a few weeks by the time everything is circulated in the mail.

    How The Workers' Compensation Payment Process Works

    Here’s how it works: Once the arbitrator approves the contracts, the employer’s attorney will order the settlement check from the insurer.  The settlement check is generally made payable to you and your attorney’s office. Therefore, you must endorse the check and then the attorney’s office must endorse the check. The funds are then placed in the attorney’s trust account until everyone is sure the check has cleared, a process that can take another two weeks. 

    Once the check has cleared, the attorney’s office will make the final distribution from its trust account. Further delays can arise if the insurer fails to pay the settlement amount once the contract has been approved by the arbitrator.

    While there is no deadline under the Illinois Workers’ Compensation Act, which states that the insurer must send the check within a certain time frame, the employer and his insurer can have attorneys’ fees and penalties assessed against them if there is an unreasonable delay in payment. Although everyone is committed to providing you with the funds as soon as possible, the rules of distribution set out by the Illinois Supreme Court tell us that, even though the settlement has been reached, it will still take some time before the money is in your hands. 

    Do You Need a Workers' Compensation Attorney to Help With Your Claim?

    If You have been injured at work, It's important to have a qualified and experienced workers' compensation attorney on your side. Contact Tapella & Eberspacher today at 855-522-5291 for a free consultation.

  • I want more visitation with my daughter. Do I need an attorney to go back to court?

    In January of 2016, Illinois greatly revised the way divorce proceedings will be handled in our state.

    For starters, 'grounds' and 'waiting periods' were basically eliminated.

    The new law allows for only one ground: irreconcilable differences. This phrase assigns no blame to either party.

    Another major change to the law is that parenting plans are now mandatory in Illinois. 

    That means that each parent will be required to submit their own plan for how the children should be parented in regards to education, religion, athletics, and other important areas. 

    Finally, custody and visitation have been redefined.

    As a matter of fact, those terms have been almost completely eliminated. Now you will hear attorneys and judges using the terms 'parental responsibilities' and 'parental time.' Parental responsibility functions as custody used to. In other words, it will determine who has decision making rights for the children in the important areas set forth in the parenting plan. Parental time functions as visitation used to. It determines who the child will stay with, and for what periods of time.

    As you can see, the new Illinois Dissolution of Marriage Laws are good for children and families, but they are complicated. Your time with your children is at stake, so we believe it's a good idea to find an attorney you trust to walk you through this process. If you are considering a divorce or you believe that your parental time needs to be revisited, call us anytime for a free consultation at 855-522-5291.

  • I had surgery for a back injury about 5 years ago. I was recently in a wreck while driving to an off-site work meeting and now it is flaring up. Is there any way for me to get Workers Comp?

    Many people believe that they cannot file for workers' compensation benefits on a preexisting condition like your back injury. In reality, you may be entitled to compensation if your injury/surgical site was aggravated by a work-related task. Since you were in the wreck while driving to a work-related function, it would most likely be covered by workers' compensation. Be sure to notify your employer, set up a doctor's visit, and then call us for a free consultation at 855-522-5291. 

  • Did talcum powder cause my ovarian cancer?

    Talcum powder has been available to consumers for many years. Used on babies and by adults, it has been a common product in most households. Not only is talc an ingredient in soap and cosmetics, it’s also found in toothpaste, chewing gum, and antiperspirants. While talcum powder may seem to be a harmless product, it has been linked to increased ovarian cancer risks since the 1970s.

    Symptoms of Ovarian Cancer

    Ovarian cancer has always been difficult to diagnose, especially because the early symptoms of this condition often go unnoticed. Although some symptoms in advanced stages of this cancer are more obvious, it’s still easy for doctors to overlook them. Symptoms of ovarian cancer may include:

    • Weight loss
    • Pelvic discomfort
    • Abdominal swelling/bloating
    • Bowel habit changes, such as constipation
    • Frequent need to urinate

    Ovarian Cancer Statistics And Risk Factors

    It’s unknown if the risk factors for ovarian cancer actually cause this condition. However, the following risk factors are worth noting:

    • Age. The older you get, the higher your risk of ovarian cancer. It’s rare in women younger than 40, and half of ovarian cancer patients are women 63 and older.
    • Weight. The more obese you are, the higher your risk of ovarian cancer.
    • Reproductive History. If you’ve carried a child to term before age 26, your risk for ovarian cancer is lower than women who get pregnant after age 35.
    • Fertility Drugs. Some fertility drugs have been known to increase the risk of developing ovarian tumors.
    • Birth Control. Using birth control actually lowers the risk of ovarian cancer after 3 to 6 months. The longer the use, the lower the risk.
    • Family History. Five to ten percent of ovarian cancer stems from inherited mutations. 
    • Talcum Powder. When applied directly to the vaginal area, talcum powder could cause cancer to the ovaries. Asbestos contamination may have been the contributing factor in the past, but now that products are required to be asbestos-free, more testing is being done to determine the safety of talcum powder.

    The American Cancer Society estimates that 22,800 new cases of ovarian cancer will occur in 2016, and 14,240 women will die from this condition. While there has been a slight decline in ovarian cancer deaths over the last 40 years, 1 woman in 75 will develop ovarian cancer.

    Talcum Powder and Ovarian Cancer

    Ovarian cancer can occur from the application of talcum powder to the vaginal area. The powder travels to the ovaries where it can cause inflammation and take years to dissolve. Doctors have found talc particles inside cancerous ovarian tissue, which supports the claim that talc may be a risk factor for ovarian cancer.

    If you’re concerned about the possible connection between talc and ovarian cancer, check to see if the products in your home are talc-based, and choose a healthier alternative. Baking soda, corn flour, cornstarch, and powdered rose petals can be good alternatives to talcum powder.

    We Can Help

    If you suspect that your ovarian cancer diagnosis was a result of using talcum powder, call the Tapella & Eberspacher Law Firm. Companies that did not warn customers of this potential risk may be held liable. Visit our website, or call us to schedule a free consultation. We’ll determine if your situation is  cause for action.

     

  • Can I sue for medical negligence if my child has Bell’s Palsy?

    The birth of a newborn should be an exciting time for a parent. However, this joyous occasion doesn’t always go as planned, and the risks associated with childbirth can sometimes include instances of medical malpractice. Bell’s palsy is an example of a birth trauma that can sometimes occur due to the negligence of medical staff. It’s important to know the symptoms and causes of this condition if you plan to file a lawsuit for negligence.  

    Understanding Bell’s Palsy and How to Recognize it

    In infants, Bell’s palsy is a weakness or paralysis of one side of the face. While it’s not a long-term condition, it can lead to serious consequences and health complications. This condition involves the loss of muscle movement in an infant’s face due to pressure put on a particular facial nerve at or before the birth.

    Bell’s palsy is typically characterized by the following symptoms that often appear in the lower part of the face and are especially noticeable when the infant cries:

    • The face (below the eyes) may look uneven.
    • The mouth does not move the same way on either side.
    • The eyelid might not close on the affected side of the face.
    • Paralysis may occur on the side of the face that’s affected. In more serious cases, this paralysis can occur from the forehead to chin.
    • The child may be unable to blink either one or both eyes
    • The child may drool.
    • The child’s face and/or eyes may droop.

    Additionally, the child may experience facial weakness or numbness and be unable to feel sensation in the face.

    What Causes This Condition?

    The cause of Bell’s palsy is unknown, but problematic birth deliveries can play a part in developing this condition. Bell’s palsy can also occur after a head trauma, surgical errors, or viral infections. In the case of a birth injury, doctors using forceps in a negligent way can cause permanent or temporary Bell’s palsy. Forceps are a surgical instrument that doctors use during childbirth to help deliver the baby and are sometimes used as an alternative to a vacuum extraction.

    Other causes of Bell’s palsy in infants include:

    • The herpes virus
    • Cold sores
    • Maternal infections
    • Upper respiratory infections like the common cold or the flu
    • Difficult deliveries

    Is Your Child’s Bell’s Palsy Due to Negligence?

    As a parent, it’s natural to wonder if there was any way to have prevented Bell’s palsy from happening to your child. And the answer is “not really.” There is no definitive way to prevent this type of pressure injury; however, it is the responsibility of the doctor and medical staff to mitigate the risk of this type of birth injury. By properly using forceps (this has reduced the number of Bell’s palsy injuries) and ensuring that maternal infections aren’t passed from mother to child, medical personnel can reduce the risks.

    If your child’s Bell’s palsy is due to a birth injury, don’t hesitate to seek legal action. At Tapella Law, we’ll help determine the cause of the injury, if doctors and medical staff were at fault, and if this situation could have been prevented. We’ll work hard to get you any compensation your child and family deserve. Contact our offices to get a free consultation either via phone or through our website.

     

  • Is it a good idea to have my older parent name me on a joint bank account?

    As our loved ones age, they may need increasingly more help meeting their daily needs. They may begin to rely on children and other relatives to offer care, complete household chores, provide transportation and even pay bills. In these situations, it may seem to make things easier for both sides to name an adult child as the co-owner of a joint bank account with an aging parent. Though it does make funds more easily available to the child to take care of the parent, it is accompanied with a few important and usually unforeseen complications.

    Complications of Naming a Child on a Joint Bank Account

    Most families assume that sharing a bank account with an adult child is safe. The child can access the money to pay bills or take care of the parent when they cannot do so any longer. However, there are a few common problems that can arise, including:

    • Arguments among children. When a parent has more than one child, this is especially dangerous. When a person adds a co-owner to a bank account, the money in the account is legally the property of both parties. Upon the death of one person, the funds automatically transfer to the other person. This would bypass a will and can cause strife between siblings if the other siblings feel the named sibling is not being fair with the money.
    • Financial abuse. As previously stated, once a person is named on a joint account, he has a legal right to the money in the account. He may withdraw funds any time he wants, which can be a strong temptation and can lead to the child taking advantage of the parent through the bank account.
    • Opens the funds to creditors. Once a child is named on a joint account, it is considered an asset to the child as well as the parent. This can open the funds up to claims from creditors, even though the money was earned by the parent who has no involvement in the credit dispute.
    • Gift tax issues. In some cases, when the parent dies and the money is transferred solely to the child, it can be considered a gift. As such, it would be subject to a gift tax.

    Alternatives to Joint Bank Accounts

    Rather than add an adult as a full co-owner of a joint bank account, aging parents can take other, less risky steps to make funds more readily available for their care. Parents can give a child signatory powers, which would allow a child to use the account much like an employee would use a business account. Other options exist as well, such as using durable power of attorney or setting up a payable on death account. A skilled estate attorney can help a family assess their unique needs and determine the best way to move forward.

    If you and your family are ready to get started in planning for the future and protecting your family’s assets, the experienced lawyers at the Tapella & Eberspacher Law Firm can help. Take a moment to fill out our online contact form for a prompt response from a member of our team.

     

  • What is a “reasonable standard of care” in medical malpractice cases?

    According to the Journal of the American Medical Association, over $3 billion was paid out in 2012 in medical malpractice cases, A Stethoscope and a Gavel on a Wooden Surfaceand medical errors and negligence continue to be a top contributor to negative patient outcomes.

    Medical malpractice occurs when a physician or other healthcare provider is negligent in treating a patient. Malpractice can also occur in cases where treatment was not administered when it should have been. Whether or not a provider acted in a negligent manner is typically based on what is known as the reasonable standard of care.

    Defining Reasonable Standard of Care

    Reasonable standard of care is a legal term, not a medical term. It is used to describe the actions of a healthcare provider. Essentially, it examines whether a provider’s actions were similar to what another provider with the same skills, in the same community, and using the same knowledge would take. Would a competent healthcare professional offer the same level or kind of care under the same circumstances? Were the provider’s actions in line with what other similar providers could and would do under the circumstances?

    Determining If Standard of Care Was Met

    In these cases, the knowledge of expert witnesses helps to determine if a medical malpractice has occurred. In many states, including Illinois and Missouri, plaintiffs are required to file an affidavit of merit along with the complaint. An affidavit of merit is a statement from an expert in the field stating that in his or her opinion, the standard of care was not met.

    It is important to note two significant factors concerning reasonable standard of care:

    1.Standard of care does not ensure only positive outcomes. Bad results or complications do not automatically equate to negligence.

    2.Not every doctor will use the same treatment plan in the same cases. Even if a physician’s method of treatment is different from what an expert witness may offer, the physician could still be within the reasonable standard of care.

    Determining reasonable standard of care can be difficult, as every case is unique. If you have questions about whether you or your loved one is a victim of medical malpractice, a skilled attorney can help. Call the Tapella & Eberspacher Law Firm today at 855-522-5291 to discuss your case and determine if you are eligible to make a claim.

     

  • What happens if I die without a will?

    Though it is not always easy to think about, we cannot live forever. What will happen with the things and people we leave behind? Whether you have a large estate and many heirs or a small estate and no heirs, it is important to plan for the future. Too many times, people fail to draft a last will and testament. As a result, valuable assets are lost, precious time wasted and family relationships damaged.

    Dying Intestate in Illinois and Missouri

    When a person dies without a will, this is known as dying intestate. Each state has specific laws and rules about how to address Last Will and Testament With a Penthe intestate succession of an estate. The laws in Illinois and Missouri divide an estate up among surviving relatives. In the rare cases where no surviving blood relatives can be located, the assets will be turned over to the state.

    The only assets that are not subject to intestate succession are those with named beneficiaries or shared accounts. A life insurance policy with a beneficiary, a joint bank account, a home owned with another person or any account with transfer-on-death stipulations fall to the person named on the account and are not considered intestate property.

    Why Draft a Will If the State Will Divide the Assets?

    With intestate succession, the state is in charge of dividing the assets. This can create a number of issues, including:

    • The deceased person does not get to decide who inherits. In both Illinois and Missouri, intestate succession goes down the line from spouse to children to parents and siblings to other blood relatives. Close friends or loved ones cannot inherit, and blood relatives inherit even if they had no social or personal relationship with the deceased.
    • The deceased person does not get to decide how much a person inherits. Additionally, the state determines how much is given to each person who stands to inherit. In cases where the deceased was married with children (from that marriage or other relationship), the estate is divided with half going to the spouse and the other half divided among surviving children. A husband may want his wife left with more than half the estate, or issues can arise when the children are from previous relationships.
    • The state will determine an executor. The state will appoint a person to act as executor for the estate. This person may not be the most qualified nor the person the deceased would want to manage his assets.
    • Family relationships can be damaged. When assets are not left specifically to individuals, disputes can arise. Children may fight over assets with each other or a surviving spouse. Other blood relatives may seek a portion of the estate. This can lead to family rifts that may never be resolved.
    • Assets can be lost in legal disputes. When the assets are disputed, costly legal action may take place. Probate is a common practice and can bleed an estate of valuable assets, in addition to taking time to resolve.

    Wills are appropriate for any type of estate. They are relatively inexpensive to draft and can save families time, money and discord during an already challenging time. If you have questions or are interested in devising a will to protect your family’s future, contact the experienced legal team at the Tapella & Eberspacher Law Firm today at 855-522-5291.