Elderly Woman Can Sue Law Firm for Unfair Debt Collection

An 85-year-old New Jersey woman who missed her final mortgage payment because she was hospitalized can sue a law firm for unlawful debt collection, even though the law firm contacted her lawyer about the debt and did not contact her directly, a federal court has ruled.

Dorothy Rhue Allen missed her final mortgage payment of $432 on the house she had owned since 1976 because she was in the hospital. The mortgage company began foreclosure proceedings against Ms. Allen through a law firm. When Ms. Allen's lawyer asked how much she would have to pay to resolve the problem, the bank and law firm told her the total charges would be $5,797, including nearly $2,400 in legal fees.

Ms. Allen sued in federal court, alleging these charges were much higher than allowed under the Fair Debt Collection Practices Act. A district court judge dismissed the case, finding that the charges were not covered by consumer protection law because they were sent to Ms. Allen's lawyers. However, a federal appeals court found that the communication to Ms. Allen's attorney was an indirect communication to Ms. Allen and sent the case back to the district court to revisit. Other appeals courts have been divided on this question.

Ms. Allen's attorney, Lewis Adler, who has described his client as "just a wonderful little old lady that got sick," has asked the court to certify the case as a class action, alleging that what happened to Ms. Allen is part of a pattern of systemic abuses by lenders handling foreclosures during the recent real estate bust.

For an article on the case from the Washington Post, click here.
To read the full text of the decision, click here.

Proposed Chinese Law Would Require Adult Children to Visit Elderly Parents Regularly

  
Adult children in China would be required to visit their elderly parents on a regular basis under a proposed amendment to the nation's Law on Protection of the Rights and Interests of the Aged.
Wu Ming, an official with the Ministry of Civil Affairs, is reported as saying that the amendment would allow elderly parents ignored by their children to go to court to claim their legal rights to be physically and mentally cared for.

China has 167 million citizens over age 60, half of whom live alone without children and 20 million of whom cannot take care of themselves. In traditional Chinese culture, filial piety -- respect for one's parents and ancestors -- is one of the paramount virtues. But the longstanding tradition of children caring for aged parents is being challenged by history's largest human migration, in which 130 million Chinese have moved to cities in search of jobs, leaving nearly 60 million growing up apart from one or both parents, according to a recent article in the New Yorker. In effect, capitalism appears to be undermining traditional values, and the state's attempted solution is to legislate morality.

Wang Shichuan, a news analyst quoted by the site CriEnglish.com, questioned whether a moral issue is susceptible to a legal solution. Wang noted that many adult children work outside their hometowns and have little opportunity to visit their parents due to all-consuming jobs and few days off.

The Ministry of Civil Affairs is set to submit the proposed amendment to the Legislative Affairs Office of the State Council in the near future, according to the news site Global Times.

HAVE A HAPPY!

AND A MERRY TOO!

Avoid Disagreements Between Your General and Health Care Power of Attorney Agents

A general power of attorney and a health care power of attorney are two very important estate planning documents. Both allow other people to make decisions for you in the event you are incapacitated. Because the individuals chosen will have to coordinate your care, it is important to pick two people who will get along.

A general power of attorney allows a person you appoint -- your agent  -- to act in your place for financial purposes when and if you ever become incapacitated. A health care power of attorney is a document that gives an agent the authority to make health care decisions for you if you are unable to communicate such decisions.

While the health care agent is the one who makes the health care decisions, the person who holds the general power of attorney is the one who needs to pay for the health care. If the two agents disagree, it can spell trouble. For example, suppose your health care agent decides that you need 24-hour care at home, but your general power of attorney agent thinks a nursing home is the best option and refuses to pay for the at-home care. Any disagreements would have to be settled by a court, which will take time and drain your resources in the process.

The easiest way to avoid conflicts is to choose the same person to do both jobs. But this may not always be feasible -- for example, perhaps the person you would choose as health care agent is not good with finances. If you pick different people for both roles, then you should think about picking two people who can get along and work together. You should also talk to both agents about your wishes for medical care so that they both understand what you want.

If you have questions about whom to name for these roles, or you haven't yet executed these all-important documents, contact my office for help.

Charitable Remainder Trusts: Income for Life and a Good Deed at Death

Many people like the idea of leaving bequests to favorite charities in their wills. But instead of leaving money to a charity in your will, you can put that money into a charitable remainder trust and collect income while you are still alive. Charitable remainder trusts have many other advantages, including reducing your income and estate taxes and diversifying your assets.

A charitable remainder trust is an irrevocable trust that provides you (and possibly your spouse) with income for life. You place assets into the trust and during your lifetime you receive a set percentage from the trust. When you die, the remainder in the trust goes to the charity (or charities) of your choice

A charitable remainder trust has many benefits:

•At the time you create the trust, you will receive an income tax deduction for charitable giving.

•Any profit from the sale of investments within the trust are not subject to capital gains tax, which means the trustee may have more freedom in managing the assets.

•When you die, the assets in the trust will pass outside your estate and be eligible for the estate tax charitable deduction.

The downside of a charitable remainder trust is that it is irrevocable, meaning once you create the trust, you can't cancel it. While you can't revoke the trust, you may have the ability to change the beneficiary if you decide to give to a different charity. You may also serve as trustee, giving you control over how the trust assets are invested. In addition, note that any income you receive from the trust will be subject to income taxes.

To find out if a charitable remainder trust is right for you, talk to a qualified estate planning or elder law attorney.

Prevent Your Power of Attorney from Being Ignored

A durable power of attorney is one of the most important estate planning documents there is. It allows someone you appoint -- your agent or "attorney-in-fact" -- to act in your place for financial purposes when and if you ever become incapacitated. However, many people experience difficulty in getting banks or other financial institutions to recognize the authority of an agent under a power of attorney.

Banks are often reluctant to accept powers of attorney for fear of being sued if the power of attorney isn't valid. A certain amount of caution on the part of financial institutions is understandable. Still, some institutions go overboard, for example requiring that the attorney-in-fact indemnify them against any loss.

To prevent problems later, contact your bank when you execute your power of attorney to find out what information it needs to accept the document. Many banks or other financial institutions have their own standard power of attorney forms. If this is the case, get the bank's form and sign it in addition to your own power of attorney form. While, it isn't legally necessary, signing the bank's form can save your agent a lot of trouble and time down the road. In addition, you can provide the bank with copies of your power of attorney. It is also a good idea to update your power of attorney frequently so the bank knows it is current.

If a bank is giving you a hard time about accepting a power of attorney, you can try talking your way up the chain of command. You can also have the lawyer who prepared the power of attorney call the bank. If that doesn't work, you may have to have a lawyer deal with the bank.

Nursing Home Residents Have Rights

Many people incorrectly believe that once someone enters a nursing home, their freedom is over. In fact, nursing home residents have many rights, and it is important to know those rights and to be able to enforce them.


Nursing home residents' rights are protected under federal law. In broad terms, nursing homes are required to ensure that every nursing home resident be given whatever services are necessary to function at the highest level possible. Following are some of the specific protections that residents have:

• Nursing home residents have the right to privacy in all aspects of their care. This means phone calls and mail should be private, and residents should be able to close doors and windows. In addition, residents may bring belongings from home, and nursing home staff is required to assist the residents in protecting those belongings.

• Residents have the right to go to bed and to get up when they choose, eat a variety of snacks outside meal times, decide what to wear, choose activities, and decide how to spend their time. The nursing home must offer a choice at main meals, because individual tastes and needs vary.

• Residents have the right to leave the nursing home and belong to any church or social group they wish to.

• Residents must be allowed to participate in planning their care. Residents may also manage their own financial affairs.

• Residents may not be moved to a different room, a different nursing home, a hospital, back home or anywhere else without advance notice and an opportunity for appeal. For more information on fighting a nursing home discharge, click here. click here

For a full list of nursing home resident rights, click here

If a disagreement with the nursing home does arise, there are a number of steps you can take to enforce the resident's rights. The first step would be to talk to the nursing home staff directly. This may be all it takes to solve the problem. If that doesn't work, then you may need to talk to a supervisor or administrator. The next step is to contact the ombudsperson assigned to the nursing home. He or she should be able to intervene and get an appropriate result. Contact information for the Ombudsman Program in your state can be found at: www.ltcombudsman.org/ombudsman. Additional steps include reporting the nursing home to the licensing agency and hiring a geriatric care manager to intervene. If the direct approach isn't working, you may need to hire a lawyer to try and resolve the issues. The last resort is to move the resident to a different facility.

For more information on resolving nursing home disputes, click here.