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Creative Dispute Resolution…Tough Litigation

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By Strich Law Firm, Jul 14 2017 04:24PM

Many parents wish to remain involved in the medical and financial decisions of their children after they turn 18. However, once a child reaches the age of majority, he or she becomes a legal adult with new rights to control their private property and medical care. Parents are prevented from accessing their health care information and financial accounts unless they are given legal permission, and it can become very costly and time-consuming for them to help in times of need. Normal children can provide permission with a properly drafted power of attorney to their parents. While such a power of attorney is the best way to accomplish getting needed information and decision making power, a young adult may not want to grant such broad powers.

Parents of disabled children should file for guardianship to continue to manage their disabled child’s personal property and medical care after they turn 18. Disabled children with mental limitations cannot sign a power of attorney or health care proxy because they do not have capacity. While able-bodied children likely do not require this same level of care, there are a number of important steps they can take to ensure that they can receive parental help when needed.

The health records of a child become private under the Health Insurance Portability and Accountability Act (HIPAA) when the child turns 18. Information regarding their medical history, current conditions, and future health care cannot be accessed by a parent unless a HIPAA release form is signed. The young adult can choose to sign the waiver on a case by case basis. This form gives a parent access to the child’s private medical information and must be signed by the child voluntarily. If a child is incapacitated before this form is signed, parents cannot easily receive information about their child’s medical state. Even if the young adult has signed a HIPPA release, the parent cannot make medical decisions for the child without a health care proxy (a power of attorney limited to health care decisions) or a full power of attorney. Becoming a health care proxy with a HIPAA release form allows parents to continue to support their children in times of emergency or even if the child does not have the privacy to make medical arrangements.

If a young adult is hesitant to grant a health care proxy or power of attorney, they can make it conditional on the young adult’s disability as defined by the state of their residence. The difficulty with this option is that the parent’s will have to prove disability to the health provider’s satisfaction, though there are times the disability is self-evident.

A child’s finances also become private when they turn 18. To give a parent access to their accounts, a child can grant them a durable power of attorney. A durable power of attorney allows an appointed individual access to the financial accounts of another when they are incapacitated or when other circumstances, such as traveling, prevent them from handling the accounts themselves. In the alternative, the parent can be listed on the young adult’s accounts as a joint account owner.

In the tragedy that a child predeceases his/her parents, their funds may be subject to probate and will likely be passed on to their heirs. A Will grants a child greater control over to whom their property is given and helps parents avoid making difficult decisions in times of grief. Parents should strongly consider how a health care proxy and/or durable power of attorney and Will can better prepare them to help their children after their child is over 18.

Call us at 609-924-2900 if you have a possible case.

Disclaimer: Any and all information contained on this site is for informational purposes, and should not be utilized as a substitute for a full, in-person consultation with a lawyer in your State and familiar with your circumstances. Strich Law Firm PC is in NJ and the comments relate to NJ only. Strich Law Firm, P.C. assumes no responsibility for any information contained on this site, and disclaims all liability in respect of such information. In addition, no part of this site shall be deemed to form any contract between Strich Law Firm, P.C. and anyone viewing this site.

By Strich Law Firm, Jul 5 2017 02:24PM

Individuals with disabilities in New Jersey will soon have access to a new type of savings account through The Achieving a Better Life Experience (ABLE) Act. Signed into federal law by President Obama in 2014, the ABLE Act establishes an alternative to special needs trusts with unique provisions and limitations. To be eligible for an ABLE account, individuals must have a documented disability before the age of 26. Any individual, including friends and family, can contribute to an ABLE account. However, individual contributors are limited to annual sums of $14,000. Individuals with an ABLE account remain eligible for SSI benefits if the sum within their ABLE account does not exceed $100,000. The individual does continue to be eligible for Medicaid if the account exceeds this amount until the state’s permitted maximum amount for a 529 account is reached. In New Jersey, this limit is $305,000. Individuals are additionally restricted to establishing only a single ABLE account.

The funds within an ABLE account can be used towards a wide range of expenses related to the individual’s disability. These expenses include education, housing, transportation, employment training and support, assistive technology and personal support services, health, financial management and administrative services, legal fees, funeral and burial expenses, and other expenses.

The ABLE Act was signed into New Jersey state law on January 11th, 2016 by Governor Chris Christie. Although it was intended that the program would be up and running by the end of the year, the State has yet to finalize the details regarding its implementation. It’s likely that this hold-up is due to cost of implementation, though twenty three states have already been successful in implementing ABLE programs. Hopefully, this number will soon increase to twenty four.

Call us at 609-924-2900 if you have a possible case or visit our web site at www.strichlaw.com.

Disclaimer: Any and all information contained on this site is for informational purposes, and should not be utilized as a substitute for a full, in-person consultation with a lawyer in your State and familiar with your circumstances. Strich Law Firm PC is in NJ and the comments relate to NJ only. Strich Law Firm, P.C. assumes no responsibility for any information contained on this site, and disclaims all liability in respect of such information. In addition, no part of this site shall be deemed to form any contract between Strich Law Firm, P.C. and anyone viewing this site.

By Strich Law Firm, Oct 18 2016 03:31PM

27 years after a failed engagement, the woman Plaintiff in this case is seeking a Final Restraining Order under the Protection Against Domestic Violence Act. After many years of no contact, the Defendant contacted the Plaintiff online and continued communications via text messaging. Plaintiff asserted that she told the Defendant to stop contacting her and to go back to his wife. However, she was unable to produce supporting text messages. The court read selected “insulting” text messages that were on record, none of which were disputed by Defendant. The Defendant referred to the Plaintiff as “pig,” “liar,” and other more derogatory insults such as the “b” word and “c” word. Additionally, the Plaintiff testified that she was confronted by the Defendant and his new wife at a private club function, where she was allegedly lunged at and threatened to be assaulted. With respect to Domestic Violence, the Plaintiff also asserted she was approached while seated on a bench in the hallway on the second day of trial by the Defendant, and was grabbed on the arm over the course of conversation.

At the request of Plaintiff, one of her former boyfriends intervened on her behalf and sent a text to Defendant to cease contacting her. The two former boyfriends exchanged text messages.

Defendant denied all allegations of Domestic Violence, and asserted that the parties maintained cordial text communications for months without the Plaintiff ever telling him to stop texting her. The Defendant admitted that he sent nasty text messages using “foul language,” but maintained he was provoked by threats by the Plaintiff’s former boyfriend.

While the court found the purpose of harassment to be legitimate, because the trial court failed to properly apply both prongs to the test established in Silver v. Silver, the court’s finding that the need for the Final Restraining Order was unsupported by any explicit findings regarding a history of domestic violence. Due to the sole basis of the Final Restraining Order being verbal harassment in the form of name calling, absent any credible physical threats of violence against the Plaintiff or her Property, a remand for a re-hearing on the issue was deemed most appropriate.

See L.I. v. C.M. III, App. Div. 4/5/16.

Comment: The key is meeting the two prongs of Silver v Silver: 1) A Final Restraining Order (“FRO) is necessary to protect the victim from “immediate danger or to prevent further abuse;” 2) That the communication and/or behavior was of a harassing nature. Here, the Appellate Court felt that he first prong was not met; while the language was harassing, there was no showing of immediate danger or to prevent further abuse. The Court did not address Defendant’s assertion that his communication with Plaintiff had stopped. Question: Did the communication only stop after being served with the TRO? This matter was sent back to the trial court to determine whether Plaintiff met the prong of needing protection.

Call us with questions on your case at 609-924-2900 or visit our web site at www.strichlaw.com.

Disclaimer: Any and all information contained on this site is for informational purposes, and should not be utilized as a substitute for a full, in-person consultation with a lawyer in your State and familiar with your circumstances. Strich Law Firm, P.C. assumes no responsibility for any information contained on this site, and disclaims all liability in respect of such information. In addition, no part of this site shall be deemed to form any contract between Strich Law Firm, P.C. and anyone viewing this site.

By Strich Law Firm, Oct 18 2016 03:29PM

After a 25 year marriage ended in divorce, the Defendant agreed to pay the Plaintiff $250 per week in permanent, non-modifiable alimony. However, the Defendant appealed the order enforcing the alimony and filed a cross-motion to reduce alimony due to his retirement brought on by illness (change of circumstances). The Defendant’s central argument is that he was entitled to relief pursuant to the language regarding retirement in the new alimony statue (9/11/14), stating “There shall be a rebuttable presumption that alimony shall terminate upon the obligor spouse or partner attaining full retirement age.”

The Judge determined that the Defendant’s income has steadily increased from approximately $51,000 to $108,000 since the divorce, and that the Defendant’s argument is misguided. The parties made clear in their agreement that the agreed upon $250 per week would continue permanently, regardless of Defendant’s loss of employment “for whatever reason.”

Comment: Not only does the 2014 Alimony Statute provide for no retroactive relief on existing agreements, this Judgment of Divorce specifically provided for non-modifiable alimony, regardless of any change of circumstances. Non-modification provisions are usually upheld. It is noted that the Defendant enjoyed the benefit of the non-modification language during the time his income doubled, but then wanted relief when his income decreased. Generally, I do not recommend non-modifiable alimony.

Call us with questions on your case at 609-924-2900 or visit our web site at www.strichlaw.com.

Disclaimer: Any and all information contained on this site is for informational purposes, and should not be utilized as a substitute for a full, in-person consultation with a lawyer in your State and familiar with your circumstances. Strich Law Firm, P.C. assumes no responsibility for any information contained on this site, and disclaims all liability in respect of such information. In addition, no part of this site shall be deemed to form any contract between Strich Law Firm, P.C. and anyone viewing this site.

By Strich Law Firm, Oct 18 2016 03:27PM

After ending a nearly 44 year marriage, the Dual Judgment of Divorce (“JOD”) ordered the parties to resolve all disputes related to the divorce through binding arbitration rather than going back to the Court. In the JOD, the Husband retained the beauty salon business and agreed to pay $650 per week in non-taxable equitable distribution to Wife. There was no provision for a share of the business to Wife if it was sold or for alimony in the event that equitable distribution was no longer payable. When Husband sold the business, he no longer paid equitable distribution monies to the Wife. Wife filed for arbitration to get alimony instead of the former equitable distribution monies. The arbitration award denied the Wife’s request for alimony even though the Plaintiff earned more money throughout most of the marriage. The Arbitrator explained that modification of alimony requires proof of a substantial change in financial circumstances of the parties. The Wife appealed the Arbitrator’s decision, but the Court still found against her, stating, “an increase in support becomes necessary whenever changed circumstances substantially impair the dependent spouse’s ability to maintain the standard of living reflected in the original decree or agreement.” Upon review, the Court found that the Wife failed to show substantial evidence of change of circumstances and rejected her claim of modification.

Comment: The negotiated JOD failed to foresee or provide for the sale of Husband’s business. Based on the limited information available in the Court’s decision, it would have been better to argue that the intent of the agreement was to provide for a share of the business to the Wife as equitable distribution. As such, an argument could be made that it would be inequitable to let the Husband sell the business and keep all the proceeds before Wife got her fair share of the value of the business. Of course, as aforestated, it would have been better to negotiate a more complete JOD.

It is further noted that the spouse is generally entitled to a bigger share of the business in a long term marriage. Businesses owned by one spouse are not generally divided equally, unlike other assets accrued during the marriage.

Call us with questions on your case at 609-924-2900 or visit our web site at www.strichlaw.com.

Disclaimer: Any and all information contained on this site is for informational purposes, and should not be utilized as a substitute for a full, in-person consultation with a lawyer in your State and familiar with your circumstances. Strich Law Firm, P.C. assumes no responsibility for any information contained on this site, and disclaims all liability in respect of such information. In addition, no part of this site shall be deemed to form any contract between Strich Law Firm, P.C. and anyone viewing this site.

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