When is a Person Too Incapacitated to Sign a Will, Trust, or Power of Attorney?

As an elder law attorney I am frequently faced with adult children who realize that they simply have to take over for an aging parent. Maybe the parent is falling behind on bills or has trouble dealing with the medical establishment. It is always hard for a "child" to become the caretaker of the once-powerful and dominant parent.

Unfortunately, the parent may be reluctant to sign a power of attorney empowering the child to make legal decisions for the parent, since that act is frequently seen as an admission that the parent may actually need such help. Combine that with the child's reluctance to bring up the subject for fear that it may anger the parent, and you have a recipe for procrastination. Hence the all-too-common situation where the attorney has to decide if a parent (or spouse) is too incapacitated legally to sign a will, trust, or power of attorney.

Let's start with wills. Many people are surprised to find out that a person with Alzheimer's or under a guardianship may still be legally competent to sign a will. That's because under the laws of most states, a person is legally competent to sign a will if at the time of the signing he or she meets the following tests:
knows the natural objects of his bounty (i.e., is aware of his spouse and children, if any) comprehends the kind and character of his property (i.e., knows approximately his net worth and what kind of assets he owns) understands the nature and effect of his act (i.e., realizes that it is indeed a will he is signing, and what that means) is able to make a disposition of his property according to a plan formed in his mind

When is a Person Too Incapacitated to Sign a Will, Trust, or Power of Attorney?

Thus, the lawyer must meet with the parent or spouse and try to discern the above. In some cases, the lawyer may decide that the individual is too incapacitated and thus the lawyer must refuse to prepare a will.

A slightly different test is involved for signing a power of attorney. Here, the individual must be capable of understanding and appreciating the extent and effect of the document, just as if he or she were signing a contract. Thus, the parent may be competent to sign a power of attorney, but not competent to sign a will.

A trust is sometimes deemed to be more like a contract than a will, so that the necessary mental capacity needed to sign a trust may be less than that needed to sign a will. Recognizing that in today's world living trusts are most often utilized as "will substitutes," some recent state statutes have made the test for a trust the same as that set forth above for a will.

The mental capacity to sign the document should not be confused with the physical ability to sign one's name. The law will permit a person to sign an "X" (known as a "mark"), that, so long as properly witnessed, will suffice just the same as a signature. In addition, if even a mark is not possible for the individual to make, then the individual can direct someone else to sign on his or her behalf.

Of course, the best advice is not to wait until it may be too late, but to have those conversations with family members while they are still competent and able to comprehend exactly what they're signing and why.

When is a Person Too Incapacitated to Sign a Will, Trust, or Power of Attorney?
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© 2007 by K. Gabriel Heiser

Attorney K. Gabriel Heiser has devoted his legal practice to Medicaid planning, elder law, and estate planning for the last 23 years.
NOTE: For more information on this topic and other Medicaid planning techniques, see http://www.MedicaidSecrets.com, which describes an exciting new 256-page book written by attorney Heiser, "How to Protect Your Family's Assets from Devastating Nursing Home Costs: Medicaid Secrets." You don't have to go broke to get Medicaid to pay your nursing home bills, you just have to know the rules and planning techniques. For the first time ever, you can learn the inside secrets of high-priced estate planning and elder law attorneys, in attorney Heiser's new book.

Business Law - Drafting Legal Contracts

The whole point of writing a contract is to offer protection between you and the person that you are making the contract with. It is thus very important that the contract is written well and in effect water tight so you will be fully protected should anything go wrong.

As for small businesses, you may not have the time or money to be able to get a solicitor to draw up a contract for you every time you need one. This article will offer some tips and advice on how to write up a good legal contract.

You should always volunteer to make the first draft of a contract. It will be more cost effective and you will be able to draw up terms which a more preferential to you.

Business Law - Drafting Legal Contracts

You don't have to make your contract unnecessarily complex. Use terms that you and the person you are making the contract with understand. Your contract will be more enforceable if it is clear what you are trying to say. If your contract is not clear, then it may be used against you if anything were to go wrong.
You need to ensure that you use all the correct business names when drawing up your contract. This means that if you were doing business with another company, you would use the businesses name in the contract as opposed to the individual that you have been dealing with to arrange the deal.

The most important thing when writing a contract is to make it as detailed as you possibly can as to leave no margin for interpretation. You should not leave anything up to assumptions but instead make sure that you have got down in writing what you expect to happen. You should include all the rights and obligations of the parties involved and write down anything that has been agreed on verbally in order to make it official.

If you need to make any changes to the contract you will need to make a separate amendment to attach to the contract, you cannot rewrite the contract from scratch. You will need to make sure that any amendments are initialed by all the parties involved in the deal. You should also make sure that you include all the details surrounding payment and make sure that you use explicit amounts, you must be very clear. You should also include what the method of payment will be, the date of the expected payment and what will happen if the payment is late. You will also need to include clauses in which the contract may be ended. It is also important to include a section on how disputes will be dealt with if they arise.

If the person or company that you are doing business with is based in another country, you will need to decide which countries laws will govern what is written in the contract. This will be the place in which legal action will take place in the event of any problems.

Business Law - Drafting Legal Contracts
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For more legal advice and information, and for free legal resources visit lawontheweb.co.uk

Identity Theft Law - The Legal Implications and Consequences of Identity Fraud

Identity Fraud is a serious offense and identity fraud law has been enacted in the United States of America to curb this growing menace. Lawmakers and law enforcement agencies became aware of the growing incidence of identity theft and passed the Identity Theft and Assumption Deterrence Act (ITADA) in 1998 to bring identity thieves to justice and protect the victim.

More often than not identity fraud involves online transactions and the culprit is anonymous and faceless. The process of tracing the culprit is therefore tedious and difficult but not impossible. With increasing use of the internet in day-to-day activities there has been a proportional increase in the number of identity fraud cases.

Tracking down the criminal requires coordination between various federal organizations like the FTC, postal inspection service, United States secret service, Federal Bureau of Investigation, Department of Justice and the credit report agency

Identity Theft Law - The Legal Implications and Consequences of Identity Fraud

Identity fraud law vests the Federal Trade Commission (FTC) with the task of receiving complaints from victims of identity theft and providing them the necessary information. The FTC processes the complaint and then refers it to an appropriate authority for further necessary action.

ITADA passed by the United States Senate in 1998 identified identity thefts associated with mortgage, credit card, loans, services and commodities as punishable. With the complexity of identity thefts increasing, the Senate amended the ITADA in 2003.

The ITADA in its amended form makes it illegal for any individual to be knowingly in possession of another person's identity without lawful authority. If the identity is used to commit, aid or abet any activity that is a violation of Federal law it is a serious federal crime and appropriate legal measures will be initiated.

The ITADA recognizes identity fraud as a serious felony and if guilt is proved in a court of law the culprit could serve up to thirty years in prison in addition to penalties.

California and Wisconsin are two states in the USA that have created an office of privacy protection entrusted with the responsibility of educating citizens about avoiding identity theft and assisting them to cope with and recover from an identity fraud.

California also enacted a data breach notification law that was later emulated by many states. This law stipulates that a company must notify all its customers of any breach of data that is identified.

Currently most states in the United States have enacted special laws to fight identity theft. Most states also have a special section within the Attorney General's office that deals exclusively with identity theft.

You should intimate the FTC immediately after coming to know about identity theft. You can do this through email or calling up their toll free number or making a personal visit to the local FTC office. You should also inform the credit reporting agency and local police department.

Identity fraud law is relatively new and amendments will be made as conmen devise newer ways of swindling money. Being well informed and prevention is the best way to fight identity fraud.

Identity Theft Law - The Legal Implications and Consequences of Identity Fraud
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Find out more on identity fraud law and hire an identity theft lawyer to seek compensation for this criminal act.

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Law Protection For Landlord and Tenants Through Legal Forms

Lease contract is a legal form made and executed by the lessor and the lessee. In preparing a contract of lease it should clearly state the place where the contract was executed and date when it was executed. It should also state the complete name of both the lessor and the lessee, age, status, the name of spouse if married, the citizenship and the residence address in separate paragraph, and clearly indicating therein who is the lessor and the lessee between the contracting parties.

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On the succeeding paragraph, it should be stated therein the type of structure and/or property being leased and its location, and also the terms and conditions both the lessor and lessee had agreed upon. Usually, landlord has proforma landlord forms ready and all they need to do is just filling in the blanks for the vital information. Terms and conditions that should be included in the agreement is the purpose for which the premises is being leased, and thereby prohibiting lessee to use the property other that what is expressly agreed. Violation of said agreement would mean automatic revocation and/or cancellation of the contract without prejudice to its other rights under the law.

Initially, lease contract is good for one year. Upon its expiration, if the lessee still desires to continue leasing the premises, a written notice of intent to renew the lease contract should be sent to the lessor prior to the expiration of the lease period agreed upon. The lessor will be the one to decide whether to allow renewal of the lease contract or eventually terminate upon its expiration. The lessor may agree to renew the lease contracts under same terms and conditions that had been mutually agreed upon. Monthly rate for the leased premises shall also be indicated in the lease contract. All rental payments in the form of check should be made payable to the lessor, who in return should issue a corresponding for all the payments made by the lessee may it be check or cash.

Law Protection For Landlord and Tenants Through Legal Forms

The lessor upon signing of the lease contract would require the lessor to pay for the deposit as agreed upon. Most lessor requires three months deposit, wherein the 2 months deposit shall be applied as rent for the 11th and 12th months and the remaining one month deposit for other obligations for utilities such as water, electricity, telephone, association dues which should be paid by the lessee during the duration of the lease and for the damages resulting from violations of any of the provision of the lease contract.

The lessee cannot be held liable for the whole or any part of the leased premises which had been destroyed or damaged by fortuitous event such as fire, flood, lightning, typhoon, earthquake, storm and other unforeseen event. In case the occurrence of the above mentioned event rendered the leased premises during the term substantially unfit for use and occupation, then the lease contract may be terminated without compensation by the lessor or by the lessee.

Law Protection For Landlord and Tenants Through Legal Forms

James is an expert in writing about legal forms and documents that may help you when your in the search of the right legal document. He writes many articles about forms ranging from, power of attorney forms, landlord tenant forms, and most any legal form that you are searching for.

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What You Need to Know About Train Accidents

Whenever anyone is involved in a train accident, the results can be devastating and apart from causing extensive injuries, they can cause death. As such, anyone who is involved in one should contact lawyers who specialize in this area and who have extensive knowledge in dealing with such cases. Several factors make this move the most logical one. For starters, such lawyers have several resources such as medical experts and wreck experts who are able to analyze the accident area and aid in making a good case that favors the victims.

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When it comes to this type of train accident, settlements are an important matter and for this reason, there are certain individuals who will be responsible for seeing the process is completed effectively. These include the insurance company covering the train company, the plaintiff, the train company and their attorney and the plaintiff's attorney. As the plaintiff, it is therefore important to ensure that you get the best lawyers who are able to deal with litigation that involve big insurance companies and who have experience in negotiating ideal settlements. This is important as it ensure that as an individual, you are dully covered and do not suffer in silence.

While trains are considered very secure, it is important to note that they also have room for errors like any other mode of transport. For this reason, it is important to ensure that you understand some of the factors that cause the accidents. This way, you will be better placed to understand what you should do when either you or a loved one is involved in an accident. For starters, there is human error. This might be caused by either the conductor or the operator. If this is the case, then you can be compensated for damages. However, if it is established that the mistake was on your part, then you might be overlooked from being compensated.

What You Need to Know About Train Accidents

The second major reason known to cause train accident is derailment. This happens when the train veers off the track leading to malfunction, crashing or instability. This is often caused by collision with any blocks placed on the rail, exceeding speeds, faults on the train wheels and misaligned wheels among others. Another major cause is on board explosions. This is ranked as the most popular cause and is caused by boiler explosion. For this reason, train operators are warned to be on the look out for excessive boiler heating.

There are several other factors known to cause these accidents. It is precisely for this reason that it is advisable to learn more about the causes of these accidents and how you can safeguard yourself effectively. This will ensure that you are aware of the dangers posed by trains and consequently protect yourself and your loved ones. To cap it all, as stated earlier, it is important to ensure that you get the right legal representation. In this regard, make sure that you contact a personal injury lawyer and that you are well educated on personal injury law.

What You Need to Know About Train Accidents

You can visit a personal injury Lawyer now. Alternatively, you can reach us on 800-300-0001
©2010 Ledger Law Firm, Los Angeles Personal Injury Attorney PC - We have the legal right in many cases to represent personal injury and wrongful death accident victims in other US states as pro hac vice attorney associates, or we can also help you locate a local attorney in some cases, who may be better suited to your particular case. 100 Bayview Circle Suite# 315 Newport Beach, CA 92660 Ledger Law Firm; 811 Wilshire Blvd Suite 1000 Los Angeles, CA 90017; Law Offices of Ledger & Associates 101 California Street San Francisco, CA 94111; Ledger Law Firm 8880 Rio San Diego Drive San Diego, CA 92108

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An Experienced Accident Attorney Protects Your Rights and Assets

If law enforcement or insurance investigators have found you responsible for a major traffic accident, you definitely need effective legal counsel. An experienced accident attorney protects your rights, your reputation, your assets, and your driving privileges. 

Whether or not authorities have filed criminal charges against you, responsibility for a traffic accident puts all of your assets at-risk. Unless you mount an aggressive defense, you may lose just about everything for which you have worked and struggled. Moreover, despite investigators' claims, literally hundreds of details in your accident's circumstances may mitigate your responsibility or exculpate you completely. Alternate interpretations of the scene and the conditions easily may prove that you, too, are a victim in the collision. Your accident lawyer is especially skilled at reconstructing your collision and examining it from every possible perspective and vantage. 

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A skilled accident attorney has specialized tools and resources.

An Experienced Accident Attorney Protects Your Rights and Assets

The best accident attorneys work with forensic engineers and media specialists to reconstruct your collision in precise detail, analyzing the conditions and circumstances with the benefit of science and technology. In the same way compelling forensic evidence frequently proves criminal defendants' innocence, so every detail of every scratch and ding reveals nuances in the facts that contribute to proving you did everything in your power to act responsibly. In traffic law, accident scene pictures do speak thousands of words, and your veteran accident lawyer puts the words to the images, demonstrating how time, place, and circumstance colluded in ways you could not possibly anticipate or control. Just as importantly, using state of the art technology, your accident attorney can use computer animation to bolster your case. This will help your case a good deal. 

An experienced accident attorney has sophisticated negotiation and courtroom skills.

Ninety per cent of traffic accident cases do not go to trial; the parties to your case probably can reach equitable out-of-court settlements. In settlement negotiations, however, attorneys for all the parties to your accident may take depositions from witnesses, investigators, and experts. Your accident lawyer's cross-examination skills figure as prominently in depositions as in the courtroom. Your attentive, fiercely analytic accident attorney knows how to impeach the testimony of even the most credible witnesses, and she knows how to develop explanations and interpretations that put key exhibits in question. You may not come out of the experience unscathed, but your accident lawyer works to assure that you emerge with your assets and good name intact.

An Experienced Accident Attorney Protects Your Rights and Assets

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ACO Myopia: Why CMS Should Focus on Removing Provider Barriers to Entry

At the start of next year analysts widely expect that CMS will hand down regulations dictating the rules behind setting up and running an Accountable Care Organization, as authorized by the new Medicare Shared Savings Program and established by the Patient Protection and Affordable Care Act. In short, the regulations will outline the precise ACO formation rules as well as the system through which CMS will appropriate shared savings to providers. However, on the eve of this important event certain commentators are focusing on the wrong issues. Calls from both federal and private organizations to increase provider risk and tighten ACO credentialing will only deter providers from participating in the voluntary program.

Public health policy experts lauded the Shared Savings Program after the passage of the Affordable Care Act because of its power to tackle the broken fee for service Medicare system. If CMS wants the program to usher in a patient-centered era of healthcare delivery, it should remain true to the program's flexibility. Only by attracting the biggest pool of participating providers will CMS be able to determine if the ACO model works in practice. That is, after all, what a pilot program is all about.

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Brief History and Overview

ACO Myopia: Why CMS Should Focus on Removing Provider Barriers to Entry

Soon after the Affordable Care Act was signed into law this past March, much attention was given to the insurance mandates, coverage reforms, health insurance exchanges and the like. Yet, as the attention to these provisions started to wane, many policy experts turned their attention to the Shared Savings Program. The ACO model, if properly nurtured, could serve as the model for change in healthcare delivery - a model that private payers could adopt should the Medicare model prove successful.

An ACO in theory works fairly simply. In an ACO groups of providers - including groups of physicians or groups of physicians and hospitals - are held accountable for the health of a defined population of patients. If that group of providers increases the overall level of care of the patient population using various quality measuring factors over a defined period of time and does so at a lower cost than expected, then that group of providers gets to enjoy part of the financial savings it produces. In a way an ACO is similar to a managed care model with a pay for performance aspect, though the two crucially differ in that an ACO provider does not take on additional risk. In other words, an ACO is not paid under a capitation model - even if the cost of care comes in over the expected estimate, the providers are not penalized as a result. Thus the underlying system can be characterized as a conditional bonus payment system, not an equity-modeled system.

As applied to Medicare through the Shared Savings Program, the ACO assumes a prominent place in Medicare payment administration. The program is voluntary and allows participating providers to share in additional savings it produces when treating a defined population of Medicare patients. The bonus payments, however, are in addition to standard fee for service Medicare payments, making participation in the program potentially lucrative. Nonetheless, the model as structured by the Affordable Care Act maintains its separation from a capitation system, as it does not penalize providers that miss financial or quality targets other than disqualifying those providers from capturing extra bonus payments (though, notably, it does leave CMS the discretion to alter this portion of the model to its liking in the future). Finally, as the program is voluntary providers must assume all costs of forming an ACO network. If the ACO meets the guidelines soon to be released by CMS, it is allowed entrance into the program once it goes live on January 1, 2012.

Recent Developments

Because the Affordable Care Act leaves much of the Shared Savings Program details to be determined by CMS, healthcare consultants and attorneys have been eagerly awaiting the pending regulations. However, other organizations have taken a more proactive role in the process by suggesting to CMS what the ACO program needs to assume viability.

An organization currently advising CMS to such lengths is the Medicare Payment Advisory Commission. In a letter sent to CMS last month, MedPAC suggested that CMS implement a two-sided risk aspect to the ACO model. Essentially, this suggestion would completely alter the ACO delivery model. In this instance providers would expose themselves to cost overrun risk, where they would be penalized for charges above the ACO's financial target. What, then, this would boil down to is a pure capitation model - precisely the type of model that managed care built itself around, and the same model that failed in the 90s.

Other groups have made suggestions as to what criteria an ACO must meet, beyond the criteria that CMS puts out later this year, in order to seek accredited status. One such organization is the National Committee for Quality Assurance, a private, nonprofit healthcare accrediting organization. In a released draft stating qualifying and monitoring standards for ACOs in October of this year, the NCQA advocated a process where each ACO would be graded on a tiered system, based on existing infrastructure and other qualifications criteria. Though the organization still has yet to put out the final draft of its criteria, adding a further credentialing process will only deter providers from voluntarily joining or forming an ACO. Providers are already expecting to comply with what projects to be a long list of requirements set out by CMS. Forcing them to comply with more accrediting requirements will turn some away from embracing the ACO model.

Conclusion

As things currently stand, providers in the process of forming an ACO are already facing large startup costs. These costs range from the nonfinancial, such as retraining their staffs and learning a new electronic health record software system, to the financial, such as legal and consulting fees paid to create a new accountable entity. Nonetheless, many providers have considered the above and moved forward with the hope that the additional savings payments will more than offset the investment cost.

Adding a burdensome credentialing process will undoubtedly deter some of the willing providers from joining an ACO. Moreover, injecting a substantial risk of absorbing losses in a two-sided risk model will have an even greater effect of preventing providers from joining the program. If CMS wants the Shared Savings Program to succeed, it will remove as many barriers as possible in order to attract the largest number of providers it can. Only then will it know if expanding the program in the future is a good idea.

ACO Myopia: Why CMS Should Focus on Removing Provider Barriers to Entry

Minimize Risk. Maximize Profit. Wagner Healthcare Consulting [http://www.wagnerhc.com]

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