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.
- Page 6
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 estate planning 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, and 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 the 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.
Can I hold the owner liable after a dog bites me?
Both Illinois and Missouri take a strict stance when it comes to owning a dog. In both states, the pet owner can be held liable if a dog bites an individual. While some other states offer a “one-bite rule,” which gives owners a second chance after an initial incident, Illinois and Missouri dog owners are subject to what is known as strict liability. In short, pet owners in these states are responsible for any injuries caused by their pets, regardless of the circumstances surround the bite or other injury.
Requirements for Dog Bite Liability
- The animal caused the bite or injury. In Missouri, the law covers only dog bites. In Illinois, any injury caused by a dog could be considered.
- The injured person was on public property or had a legal right to be in the place where the attack occurred.
- The injured person did not provoke the dog.
In Missouri, an injury caused by a dog related to something other than a bite is also possible, but the injured person would have to pursue negligence charges against the pet owner.
Related Charges and Possible Defenses
It is also possible that criminal charges can be filed against the dog owner. If a dog attacks a person without provocation on more than one occasion or causes serious injury or death, it could be classified as “dangerous” or “vicious.” Dangerous and vicious dog owners could be subject to criminal charges, fines, probation, or even jail time.
Finally, not every dog bite or injury case is reasonable. Dog owners in Illinois and Missouri would not be held responsible if they prove that the injured person was either trespassing or provoked the animal. Provocation could include poking, teasing or abusing a dog, or attempting to get close to a mother’s puppies. Trespassing would occur if the injured person was unlawfully on the dog owner’s property.
If you or someone you love has suffered injuries related to a dog attack, the experienced legal team at the Tapella & Eberspacher Law Firm can help. Contact our office today at 855-522-5291 for a free, no-obligation consultation.
What are off-label medications, and is it safe to take these drugs?
In the United States, we have many prescription medications available to treat virtually every disease. Physicians have the freedom to prescribe any medication they see fit to aid a patient. The U.S. Food and Drug Administration (FDA) does not govern medical practice. So, while they hold manufacturers to strict guidelines about who marketing campaigns may target, physicians are not held to those same mandates. They may select any medication for any patient.
What Are Off-Label Medications?
Mayo Clinic researchers define off-label prescribing as “prescribing currently available and marketed medications but for an indication that has never received FDA approval.” This means the drug has been tested and approved for some use, but it is then prescribed to treat a disease for which it does not have approval, in a different dosage than standard or in a different patient population than intended.
Studies state that off-label prescribing is very common, with one study claiming that as many as 20 percent of prescriptions are off-label.
These medications are often used safely outside their intended purpose, and physicians may prescribe a drug off-label for many reasons. Some reasons include:
- Last resort. In some cases, the patient is suffering from a terminal illness, and his doctor will try any treatment that may ease symptoms or possibly improve health.
- Other medications in the class are approved for that use. If another drug in the same class does have FDA approval for an additional use, physicians may proceed to prescribe any drug in the class for that use.
- Lack of population data. The drug may not have specific approval for a specific population, such as children, pregnant women or elderly patients. For example, the narcotic morphine is not FDA-approved for use in children, but it is very commonly used by pediatric doctors.
- Anecdotal evidence. Information from other doctors in the field could prompt a physician to try an off-label prescription.
Are Off-Label Medications Safe to Use?
While there have been few reports of off-label medications causing serious harm, there is usually just not enough scientific research available to say with certainty whether off-label drugs are safe or not. In many cases, only financial considerations have kept manufacturers from pursuing additional FDA approval.
However, researchers acknowledge that due to the uncertainty, physicians could be held liable for complications that occur when a patient is prescribed an off-label drug.
Experts encourage patients to ask physicians if a medication is being prescribed to them off-label. If it is, patients should find out why specifically their doctor wants to prescribe the medication and if there are any FDA-approved drugs that could be alternate options.
While many commonly prescribed off-label drugs are considered safe, others can cause complications and harm. If you or someone you love suffered injuries after taking an off-label drug, you may be entitled to make a claim. Chat live with a member of the experienced legal team at the Tapella & Eberspacher Law Firm to learn more today.
Do I need a lawyer for my workers’ compensation claim?
Injured workers are not required in Illinois or Missouri to retain a lawyer for workers’ compensation claims. However, these cases are legal proceedings, and most employers and insurance companies will have an attorney present at all events.
If an employee is filing a workers’ compensation claim, it means he or she has been injured or suffered an illness that will affect his ability to work and earn income, potentially for the rest of his life. The outcomes of these cases are legally binding and can seriously affect the future for the injured worker and his family.
Why Hire a Workers' Compensation Lawyer for an Illinois or Missouri On-the-Job Injury Case?
Workers’ compensation cases can be complicated, with laws constantly updating and changing. Additionally, members of the commission and the judge are impartial parties and are forbidden from offering any legal advice. If you don't hire a workers' compensation lawyer, then it becomes your responsibility to:
- File appropriate paperwork,
- Track the claim's status,
- Talk with the legal team for the employer or insurance company,
- Appear at hearings,
- Present evidence to support his case if necessary.
An experienced workers’ compensation lawyer can handle all these issues for the injured worker while he focuses on recovering from his illness or injury.
Complications That May Require Legal Counsel
Some simple workers’ compensation cases may be resolved quickly if the injury is not severe and little or no time off work was required. However, most cases involve some complication that could make it more difficult for an employee to handle on his own. Officials in both Illinois and Missouri suggest retaining an attorney in many situations.
Scenarios Where a Workers' Compensation Attorney Is Helpful:
- If an employer denies the claim,
- If the case must go to trial,
- If medical bills are not being paid,
- If the injured worker receives Social Security or qualifies for Medicaid or Medicare,
- If the employer or insurance company offers a settlement contract,
- If the employee has been fired, demoted or harassed at work due to the claim,
- If the injured worker feels at all uncomfortable proceeding with the case.
Ready to Learn More? Talk to Our Workers' Comp Lawyers for Free
If you or someone you love has been injured at work, the experienced workers' compensation attorneys at the Tapella & Eberspacher Law Firm want to help. If you are ready to take the next step we invite you to fill out a contact form for a free, no-obligation consultation.
Are companies required to offer workers’ compensation benefits?
Illinois law requires all employers to provide workers’ compensation benefits to employees. Employers can either purchase workers’ compensation insurance from a third party or self-insure, with permission from the state.
The Workers’ Compensation Act Protects Employees
In addition to securing workers’ compensation insurance or approval to self-insure, state law mandates that employers must:
- Post a notice in the workplace naming the insurance carrier and explaining employees’ rights
- Keep records of any workplace injuries and report to the state commission if any injury results in an employee missing more than three days of work
- Not discriminate against an employee in any way for filing a workers’ compensation claim
- Not charge an employee for any premiums the employer pays to workers’ compensation insurance carriers
If employers fail to fulfill these requirements, they could be subject to penalties. Negligent failure to provide benefits is considered a misdemeanor and could result in up to one year in jail and $2,500 in fines. If an employer knowingly fails to provide benefits, it is a felony punishable by up to three years in jail and thousands of dollars in fines.
The employer could also be subject to civil penalties, citations, and even stop-work orders for failing to provide workers’ compensation. Most seriously, the employer could lose the protections of the Workers’ Compensation Act. This means that the injured employee could sue the employer, which is a key protection of the law.
When the Employee Is Not Protected Under Workers’ Compensation
While the law does require companies to provide these benefits, there are situations when an employee is not eligible to receive them. Employers do not have to pay workers’ compensation benefits if:
- The injury or illness is not work-related
- The employee does not provide medical information regarding his medical status and fitness to work
- The employee was under the influence of drugs or alcohol at the time of the injury
- The injury was the result of horseplay or behavior in violation of company policy
- The injury was sustained by an independent contractor
Our Workers' Comp Lawyers Are Here to Protect You After an Accident
Laws exist to protect workers and employers from the serious consequences of workplace injuries. If you have been injured at work, you need a workers' compensation attorney to defend your rights. Tapella Law may be able to help you secure the benefits you deserve. Contact us to chat live with a member of our team.
What can I do to ensure my special needs child is taken care of after my death?
All parents understand that a special needs child will require lifelong care. That child may never be able to live alone without assistance. Often, parents worry about what will happen to their child when they can no longer take care of him, and they want to be especially proactive in planning for the future. One of the most important actions in these cases is to establish a special needs trust.
What Is a Special Needs Trust?
A special needs trust is an arrangement in which a third party manages assets for a beneficiary who is physically or mentally disabled. The trust fund is administered by a chosen trustee who is in charge of the money and spends it on the child’s behalf. There are two types of special needs trusts:
- Individual. An individual trust is administered by a trustee selected by the parents or legal guardians of the child and supports only that child.
- Pooled. A pooled trust is a collective or community trust that many families can contribute to. This trust is administered by a nonprofit organization, although each beneficiary does have an individual account and trustee appointed by the nonprofit. This is a common option when parents feel they do not have a good choice for an individual trustee or are leaving the child a modest sum of money.
Both types of trusts are set up by parents, grandparents, or legal guardians of the special needs child. Additionally, trustees for both types of trusts are legally bound to follow the terms of the trust document to benefit the child.
The Benefits of a Trust
Special needs trusts allow parents or other trustees to leave money to a child while still protecting the child’s eligibility for government assistance. Most government programs will disqualify candidates with assets worth more than a set limit. To receive supplemental security income or health benefits in Illinois, a person cannot have income greater than three times the poverty level or receive more than $2,000 per month. Often, when a child is left an inheritance or receives a legal settlement, these amounts of money are greater than the state-mandated income limit.
The money in a special needs trust is not managed by the child, so the assets are not counted by the government, ensuring it has no impact on the amount of services a child can receive from federal sources. Without the trust, the child could lose supplemental services and have to pay for everything out of pocket. Additionally, special needs trusts allow grandparents or other loved ones to gift the child money directly into the trust.
If you are the parent, grandparent, or caregiver of a special needs child, contact the experienced legal team at Tapella Law to help you protect his future. Call us today at 855-522-5291 for a free consultation.
How can I ensure my loved one with Alzheimer’s disease is safe in a nursing home?
By 2030, over 7.5 million Americans will be living with Alzheimer’s disease, according to the National Center on Elder Abuse (NCEA). For the many families of those who suffer from the disease, decisions on how to care for a loved one can be difficult. Often, the patients require more assistance than the family can offer alone. Many times, families turn to skilled care facilities to provide their loved ones with a safe, healthy environment. However, Alzheimer’s and dementia patients are often the victims of abuse by their caregivers. An NCEA survey showed that 47 percent of surveyed caregivers had abused or neglected a patient with dementia.
Patients With Alzheimer’s Are Vulnerable to Abuse
Alzheimer’s disease is the most common type of dementia—a condition that causes memory loss, confusion, social withdrawal, mood changes, and decreased judgment. These symptoms worsen over time and leave dementia patients especially vulnerable to abuse, as they may prevent the abused patient from recognizing or reporting the abuse.
It is important to be vigilant and involved in the care of loved ones with Alzheimer’s disease, as they may not be able to communicate abuse. Symptoms of abuse may include:
- Aggressive behavior by the patient and fighting between the patient and caregiver—noted by the NCEA as the best indicator that abuse is taking place
- Physical symptoms such as bruises, welts, burn marks, or bedsores
- Sudden changes in health
- Sudden changes in finances
Finding the Best Care for Your Loved One
There are many care options available for those who suffer from Alzheimer’s or other forms of dementia. While it can feel like a daunting decision to place your relative in a care facility, experts suggest:
- Talking to medical professionals and social workers about local care facilities.
- Visiting the different types of facilities to get a feel for each place and what it can offer your loved one.
- Being involved. Once your loved one has entered a facility, check on him often and build a relationship with the staff.
What to Do If You Suspect Abuse
If you suspect your loved one is being abused, it is important to take action. Speak to a doctor and the staff of the care facility. In Illinois, the Department of Public Health investigates cases of abuse, neglect, or exploitation of an older person living in a long-term care facility. Additionally, hiring an experienced personal injury attorney can aid in preserving evidence, preventing future instances of abuse, and securing compensation for medical expenses.
If you suspect someone you love has suffered nursing home abuse, you may choose to take legal action. Contact the experienced legal team at Tapella Law for a free consultation at 855-522-5291.
If I’ve suffered an injury at work, can I get worker’s compensation?
If you suffer an injury at work, your employer may be required to compensate you under workers’ compensation—a type of insurance nearly all employers are required to carry. Workers’ compensation is a no-fault system of benefits paid by employers to workers who suffer job-related injuries or illnesses and protects both employees and employers. Employees are able to receive benefits regardless of who was at fault for the injury or illness, while employers are shielded from lawsuits.
Steps to Take When You’re Injured At Work
If you are injured at work, it is important to take action quickly. Here are some guidelines to follow:
- Obtain medical treatment. First, seek medical aid for an injury—even a minor one. In rare cases, minor injuries can develop into more serious problems if they go untreated. Additionally, keep all medical bills related to the injury or illness.
- Report the injury to your employer. Submit notice of the injury to a supervisor. Illinois law states that employees should give notice of the injury as soon as possible, but no later than 45 days after the incident. Workers’ compensation rules only require the employee to offer a written or an oral report of the incident, but some employers may ask for submission of an official accident report.
- Consider hiring an attorney. Workers’ compensation is not a lawsuit; rather, it is a way to file for a benefit, much like a health insurance claim. However, the process can be complicated, and some employers will dispute a worker’s claim. Additionally, there are some exceptions in which the worker is still eligible to sue the employer outside workers’ compensation.
- File a claim with the Commission. Employers will typically provide the paperwork for the injured employee to file a claim with the Illinois Workers’ Compensation Commission, as well as information about the program and how to file the claim.
What Constitutes a Work-Related Injury
Workers’ compensation covers work-related injuries and illnesses, but these may not always be caused by an accident or occur at the job site. While workers’ compensation covers an injury from a specific accident, it may also cover repetitive stress injuries and aggravation of an existing condition if caused by the job. Additionally, employees can file a claim for injuries occurring out of the office on work-related errands or on travel for business.
If you were injured at work, you may be eligible to receive workers’ compensation benefits. You need a workers' compensation attorney from Tapella Law. Contact us today for a free, no-obligation consultation at 855-522-5291.