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  • Elder Abuse: Know the Signs and Speak Up


    The National Council on Aging found that one in 10 Americans age 60 or older has experienced some form of abuse; and some estimates show that as many as 5 million seniors are abused each year.

    Late last year, members of Congress came together in bipartisan agreement to pass a law supported by the American Bar Association (ABA) that would enhance the federal government’s response to elder abuse and financial exploitation of seniors.

    Signed by President Donald Trump, the Elder Abuse Prevention and Prosecution Act of 2017 was passed by voice vote in the House and Senate. Both bodies were informed of alarming statistics on elder fraud and abuse—this prompted overwhelming support for the legislation.

    Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) commented, “Exploiting and defrauding seniors is cowardly, and these crimes should be addressed as the reprehensible acts they are.” He sponsored the legislation with Sen. Richard Blumenthal (D-Conn) and 14 other co-sponsors.

    This legislation “sends a clear signal from Congress that combating elder abuse and exploitation should be a top priority for law enforcement,” Grassley added.

    What is Elder Abuse?

    Elder abuse takes many forms: Physical abuse, neglect, financial exploitation, sexual abuse, and emotional or psychological abuse. Research estimates that only one in 14 cases of abuse is reported to authorities. Despite the underreporting of cases, the National Council on Aging found that one in 10 Americans age 60 or older has experienced some form of abuse; and some estimates show that as many as 5 million seniors are abused each year.

    “Elder abuse…is a problem that respects no boundaries,” Thomas M. Susman, director of the ABA Governmental Affairs Office, told Congress. “It’s not defined by socio-economic, racial, or ethnic status, and it occurs with alarming frequency in your states as well as all others.”

    What is Elder Law?

    Elder law is a relatively new concept due to the extended life spans of many Americans. This branch of law serves the needs of the elderly and their families. Why is it so important? Research shows the country’s fastest-growing demographic segment is people 85 and older, and the U.S. Census Bureau predicts people 65 and older will make up approximately 20% of the population by 2030.

    Quite an impressive range of issues are covered by elder law, both legal and financial, and include: Conservatorships, power of attorney, abuse, guardianship, probate and estate administration, estate planning, and end-of-life care.

    North Carolina law protects disabled adults of any age from abuse, neglect, and exploitation. The law states that “any person having reasonable cause to believe that a disabled adult is in need of protective services shall report such information.” Definitions are:

    Abuse: Willful infliction of physical pain, injury, or mental anguish, unreasonable confinement, or the willful deprivation by a caretaker of services necessary to maintain mental and physical health.

    Neglect: A disabled adult who is either living alone and not able to provide for himself the services necessary to maintain his mental or physical health or is not receiving services from his caretaker.

    Exploitation: Illegal or improper use of a disabled adult or his resources for another’s profit or advantage.

    North Carolina law now offers extra protections to combat financial exploitation of adults 65 and older and disabled adults. Under the law, customers of financial institutions can submit a list of people to contact if the institution suspects the customer is a victim or target of financial exploitation. The institution is also required to report any suspected exploitation to local law enforcement. If the suspected victim is a disabled adult, the financial institution is required to report to the contact list, local law enforcement, and the county Department of Social Services.

    Warning Signs of Elder Abuse

    Authors Lawrence Robinson, Joanna Saisan, MSW, and Jeanne Segal, Ph.D. recently provided Helpguide.org an amazing amount of information concerning this topic. They say signs of elder abuse can be difficult to recognize or mistaken for symptoms of dementia or the elderly person’s frailty—or caregivers may explain them to you that way. In fact, many of the signs and symptoms of elder abuse do overlap with symptoms of mental deterioration, but that doesn’t mean you should dismiss them on the caregiver’s say-so.

    Frequent arguments or tension between the caregiver and the elderly person or changes in the personality or behavior in the elder can be broad signals of elder abuse. If you suspect abuse, but aren’t sure, you can look for clusters of the following warning signs.

    Physical abuse warning signs:

    • Unexplained signs of injury, such as bruises, welts, or scars, especially if they appear symmetrically on two sides of the body.
    • Broken bones, sprains, or dislocations.
    • Report of drug overdose or apparent failure to take medication regularly (a prescription has more remaining than it should).
    • Broken eyeglasses or frames.
    • Signs of being restrained, such as rope marks on wrists.
    • Caregiver’s refusal to allow you to see the elder alone.

     

    Emotional abuse warning signs:

    • Threatening, belittling, or controlling caregiver behavior.
    • Behavior from the elder that mimics dementia, such as rocking, sucking, or mumbling to themselves.

     

    Elder neglect or self-neglect warning signs:

    • Unusual weight loss, malnutrition, dehydration.
    • Untreated physical problems, such as bed sores.
    • Unsanitary living conditions: Dirt, bugs, soiled bedding, and clothes.
    • Being left dirty or unbathed.
    • Unsuitable clothing or covering for the weather.
    • Unsafe living conditions (no heat or running water; faulty electrical wiring or other fire hazards).
    • Desertion of the elder at a public place.

     

    Financial exploitation warning signs:

    • Significant withdrawals from the elder’s accounts.
    • Sudden changes in the elder’s financial condition.
    • Items or cash missing from the senior’s household.
    • Suspicious changes in wills, power of attorney, titles, and policies.
    • Addition of names to the senior’s signature card.
    • Financial activity the senior couldn’t have done, such as an ATM withdrawal when the account holder is bedridden.
    • Unnecessary services, goods, or subscriptions.

    (more…)

  • Update Your Will Before You File for Divorce

    The process of a divorce is one of the most difficult experiences one can face in life. The emotional and financial turmoil of a divorce can take quite a toll on so many aspects of daily life that many neglect to think about possible future complications.

    You may be dealing with child custody issues, questions about alimony, division of property—all extremely important factors to settle during a divorce. But, don’t forget to address something that could seriously affect your family: Your will. If you don’t update this document before your divorce, at your death, your assets could be distributed in ways you neither expect or want—including to your ex-spouse.

    The three big reasons to update your will before divorce are:

    • To avoid your soon-to-be-ex inheriting your assets;
    • To appoint someone to be in charge of things if you’re incapacitated (power of attorney) and ensure your dying wishes are taken care of (an executor); and
    • To make things easier for your heirs.

    Like it or not, death is part of life, so we should all be able to talk about it and prepare for it. You’ll want to have everything in order—especially during a volatile time such as divorce. With just one or two appointments with an attorney, you’ll plan out your wishes and instructions and feel much better about the future. In fact, dealing with your will be relatively painless.

    Decisions, Decisions

    Your attorney will have specific questions for you, so it might be best to decide a few things before your first appointment. Probably the biggest question to address is who will be your executor? This person will be responsible for taking care of assets and make sure your wishes are carried out after your death.

    Your soon-to-be-ex spouse is more than likely your current executor, but that obviously needs to change. A sibling is a good choice if you have one, if you don’t, perhaps a best friend. If they’re in good health, an aunt or an uncle might be a good fit. The one rule here is that it should be someone you absolutely trust.

    The next big decision is who will receive your money and other assets. If you have children, they will automatically inherit these items. If your children are under 21 years of age, you might want to determine at what age they should take possession of those assets. Also decide whether or not they should receive everything all at once or if you’d like to see them given installments for several years.

    Lastly, the issue of life support should be addressed. Do you want to remain on life support if something awful happens or would you rather be disconnected? These wishes should be made very clear in your will as the person given power of attorney will carry out these wishes or make other health decisions on your behalf when needed. Your power of attorney could be the same as your executor, but it doesn’t have to be.

    Be sure to also include details about the type of funeral service you’d like. Specifics can include your choice of cremation or burial, location of burial, funeral location, and the music played. Making such decisions now will save your family a lot of worry and guesswork.

    Taking Care of Those You Love

    The main takeaway here is that you don’t want the wrong people to benefit from your death. Divorce can put you on the path to this scenario, but if you plan accordingly, you can ensure the ones you love are well taken care of and get what is deserved.

    Take the time to meet with an estate planning attorney, in addition to a divorce attorney, before ultimately filing for divorce. It’s important for you to understand exactly how the divorce proceedings will affect you and/or your children, especially if you become incapacitated or pass away suddenly during the process.

    Death is a fact of life, so why not talk about it and prepare for it? You’ll want to have your “ducks in a row” especially during a volatile time such as divorce. There’s enough to worry about without adding this to the list. You’ll feel much better once it’s dealt with. Just one or two appointments with an experienced attorney should get the job done. Most dread thinking about a will, but the process is actually pretty painless and definitely worth the time.

    For more information or to schedule a consultation, please contact Oliver & Cheek, PLLC by calling (252) 633-1930 or visiting www.olivercheek.com.

    (Sources: North Carolina General Assembly; North Carolina Wills and Trusts; Forbes Magazine; Life After Divorce by Dr. Karen Finn; Huffington Post; and LGBT Family Law.)

  • Do You Have a Wrongful Termination Case?

    Do You Have a Wrongful Termination Case?

    In the United States, employment relationships are presumed to be “at-will” in all states except Montana. Our country is one of only a handful where employment is predominantly at-will.  Most countries throughout the world allow employers to dismiss employees only for cause.   Some of the reasons given for our retention of the at-will presumption include respect for freedom of contract, employer deference, and the belief that both employers and employees favor an at-will employment relationship over job security.

    At-Will Defined

    At-will means that an employer can terminate an employee at any time for any reason—except an illegal one—or for no reason without incurring legal liability. Likewise, an employee is free to quit a job at any time for any or no reason with no adverse legal consequences.

    At-will also means that an employer can change the terms of the employment relationship with no notice and no consequences. For example, an employer can alter wages, terminate benefits, or reduce paid time off. In its unadulterated form, the U.S. at-will rule leaves employees vulnerable to arbitrary and sudden dismissal, a limited or on-call work schedule depending on the employer’s needs, and unannounced cuts in pay and benefits.

    North Carolina law generally presumes that you are employed at-will unless you can prove otherwise, usually through written documents relating to your employment or oral statements your employer has made. Normally you are at-will unless there is a contract for a specific period of time or you work for a governmental employer or in a union shop where just cause is required for termination.

    Were You Wrongfully Terminated?

    To be able to sue for wrongful termination, you’ll need to show your termination violated a specific law or terms of a contract, not just that it was unfair. If your employer fires you for discriminatory reasons, in violation of an employment contract, or in retaliation for exercising your rights, you may have a legal claim against your employer for wrongful termination.

    There are several ways you can bring a wrongful termination lawsuit in North Carolina:

    Discrimination (Federal)

    Discrimination is prohibited by federal laws including Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1866, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA). These protect classes of individuals from termination based on their membership in that class.

    Title VII covers discrimination based on race, color, religion, sex, and national origin. The ADA and ADEA cover disability-based and age-based discrimination, respectively. All complaints under any of these laws must be filed with the United States Equal Employment Opportunity Commission (EEOC) within 180 days of the discriminatory event.

    The Civil Rights Act of 1866 only covers race-based discrimination, but has the advantage of a four-year statute of limitations and no EEOC filing requirement. This is helpful if you miss your filing deadline with the EEOC on a racial discrimination case.

    Family Medical Leave Act (Federal)

    The Family Medical Leave Act (FMLA) covers private employers with 50 or more employees. To qualify, an employee must have worked for his or her employer for at least 12 months (although not consecutively) and must have worked 1,250 hours for that employer in the preceding 12 months.

    The FMLA grants employees up to 12 weeks in any 12-month period. This leave can be used for taking care of a serious health condition, family military leave, or expanding the employee’s family.

    If the employee is able to return to work before his or her FMLA time is exhausted, he or she must be returned to the same or a nearly identical position. If the company does not allow this and tells the employee that he or she cannot return, the employee may bring suit under the FMLA.

    North Carolina Retaliatory Employment Discrimination Act

    North Carolina’s Retaliatory Employment Discrimination Act (REDA) protects employees from retaliation when they participate in certain activities. The main activities covered are filing, participating in, or testifying in a worker’s compensation claim or a complaint relating to the state’s Occupational Safety and Health Act.

    REDA complaints are brought to the Department of Labor. The complaint must be filed within 180 days and will result in action by the Department or the issuance of a right to sue letter. This letter allows you to bring your case to court.

    North Carolina Public Policy Exception

    North Carolina recognizes a public policy exception to its at-will employment doctrine. No employer is allowed to fire an employee in violation of state public policy. Employers are not allowed to terminate their employees for complying with a legally-required duty such as jury duty giving truthful testimony in court. Several laws which have been recognized as expressing North Carolina public policy are the North Carolina Workers’ Compensation Act, the North Carolina Wage and Hour Act, and the North Carolina Constitution.

    The North Carolina Equal Employment Practices Act (EEPA) acts as a miniature Title VII, stating that it is against North Carolina public policy to discriminate based on “race, religion, color, national origin, age, sex, or handicap” if an employer has 15 or more employees. This is enforced by bringing a public policy claim with the EEPA as the public policy basis.

    What’s Not Considered Wrongful Termination?

    Unfortunately, at-will employment protects your boss’s right to fire you for any reason (or no reason at all) including that he’s simply in a bad mood, she doesn’t like you, or you made a one-time mistake. Unless your contract or the law specifically prohibits your boss from firing you for a specific reason, your termination is probably completely legal—no matter how unfair it may seem, no matter how long you’ve worked for them, and no matter how good you are at your job.

    If your employer’s not being discriminatory, she can handle your employment however she wants. That may be bad business, but it’s not illegal. The following examples are completely legal:

    • Asking you to work overtime or weekend hours.
    • Making unreasonable demands or requiring you to complete projects you don’t have sufficient time to complete.
    • Requiring you to complete tasks you dislike.
    • Denying a promotion when the reason for the denial is not discriminatory.
    • Being difficult to work with; such behavior is only illegal when it rises to the level of harassment or becomes so threatening that it’s covered under other laws, such as laws against assault or stalking.

    It’s important to remember that, in many instances, a wrongfully terminated employee can recover lost wages, other incidental related monetary damages, attorney’s fees, and costs of court. Of course, not outcome is guaranteed, so working closely and cooperatively with your attorney is crucial.

    If you’re not sure if you’ve been the victim of an unlawful dismissal, it’s time to talk to an attorney who specializes in employment law. Whether you want to get your job back, negotiate a settlement, or file a lawsuit, Oliver & Cheek, PLLC can help you assert your legal rights. For more information, call (252) 633-1930 or visit www.olivercheek.com.

    (Sources: North Carolina Bar Association; North Carolina State Human Resources; North Carolina Justice Center; North Carolina Department of Labor; National Conference of State Legislatures; United States Department of Labor, and Craig Patrick Hensel.)

  • Don’t Leave Anything to Chance: Why a Will is So Important

    A poll conducted by Gallup in 2016 revealed that only 44% of Americans have a will—a percentage much lower than those discovered in polls conducted in 2005 (51%) and 1990 (48%). Why do so many of us ignore such an important document?

    Gallup says the likelihood of having a will depends largely on a person’s age and socioeconomic status: Sixty-eight percent of those aged 65 and older have a will, compared with just 14% of those younger than age 30. Of those who report an annual household income of $75,000 or greater, 55% have a will, compared with 31% of those with incomes of less than $30,000. And while 61% of those with a post-graduate education have a will, only 32% with a high school education or less do.

    Given the relationships between age and income and having a will, Gallup says the percentage who say they have a will rises to 75% among upper-income Americans aged 55 and older.

    No matter your age, education level, number of assets, or income, you should have a will in place to ensure those you love are taken care of after you’re gone. No one wants family members to be dragged through legal battles in the months after a significant loss. Make a difficult time for those you love easier by leaving detailed instructions of your wishes after death.

    Why So Important?

    It can all come down to a ridiculous argument over a ridiculous item.

    “When a member of your family dies there’s a lot of emotion involved, and I have seen families split apart over a spoon,” says Tim Estes, CEO and founder of Estes Financial Services. Two sisters wanted possession of a single spoon that had been in their family for generations. “One sister got the spoon, and the other didn’t. They haven’t spoken for 15 years.”

    Let’s face it: Life is complicated and sometimes messy. With blended families, second marriages, adopted children, pets, etc., distribution of assets can become tricky. Be honest about the makeup of your family, their future needs, and where assets should really be going.

    What Happens in North Carolina?

    When someone dies intestate—without a legal will—the estate goes into probate, a judicial proceeding that decides the rightful heirs and the distribution of holdings. Going through probate can eat up more money than the cost of creating a will, or result in a less fair distribution of assets.

    If you die without a will in the state of North Carolina—after the payment of your debts, funeral expenses, probate, and administrative fees—the remainder of your possessions will be divided based on statutory law found in the Intestate Succession Act. Under North Carolina statutes, if you are survived by:

    No spouse or children, with parent(s) living: Your entire estate will pass to and be divided equally among your parents. If only one parent is still living, then everything will pass to the living parent.

    Your spouse and parents, but no children: Your spouse will receive the first $50,000.00 of personal property, one-half of the remaining personal property and one-half of all real estate.  Your parent(s) will receive one-half of the remaining personal property and one-half of all real estate.

    Your spouse only, no children or parents living: Your spouse will receive all property which could pass under a will.

    Your spouse and one child: Your spouse will receive the first $30,000.00 of personal property, one-half of the remaining personal property and one-half all real estate. Your child will receive one-half of the remaining personal property and one-half of all real estate.

    Your spouse and two or more children: Your spouse will receive the first $30,000.00 of personal property, one-third of the remaining personal property and one-third of all real estate. Your children will evenly split the remaining two-thirds of personal property and real estate.

    One or more children, no spouse surviving: All of your property and possessions will be divided evenly among your children.

    Neither spouse, nor children, nor parents surviving: The intestacy laws provide additional rules for distributing your assets to more remote relatives. In the event you have no other legal heirs (blood relatives), your assets will pass to the State of North Carolina (this is referred to as “escheat”).

    As you can see, the Intestate Succession Act is very mechanical and orderly, but estate planning should never be a “one size fits all” proposition. Every family is unique and what works well for your loved ones won’t be the solution for just any other family.

    Get Busy

    The bottom line is this: You should have a current will in place to protect your loved ones and ensure your wishes are carried out—no matter your age. Even with no relatives to benefit, wouldn’t you rather be able to leave assets to your favorite school or local charity rather than to an account for the state of North Carolina?

    A living will is also an important document to have on file as it lets family and health officials know your wishes about end of life care if you are unable to speak for yourself. You can even give a friend or family member the authority to make any healthcare decision for you (for a set time or indefinitely) with a power of attorney. As always, speak to your legal counsel to learn all your options.

    For more information or to schedule a consultation, please contact Oliver & Cheek, PLLC by calling (252) 633-1930 or visiting www.olivercheek.com.

    (Sources: North Carolina General Assembly; Forbes; Gallup News; Money Crashers; CNN Money; Nolo Network; and Huffington Post.)

  • Trump’s New Tax Code and Your Paycheck: Will You See More or Less?

    Beginning today, Thursday, February 15, employers are required to start complying with new tax withholding tables released recently by the U.S. Department of the Treasury. We should all begin to see changes in our paychecks as soon as late February or early March.

    “With this guidance, most American workers will begin to see bigger paychecks. We estimate 90 percent of wage earners will experience an increase in their take home pay,” said U.S. Treasury Secretary Steven T. Mnuchin.

    The new guidance, developed jointly by the Office of Tax Policy and the IRS, was designed to work within the constraints of the existing payroll withholding system to deliver the benefits of the tax cuts as soon as possible and with as little disruption as possible. Specifically, the new withholding tables are designed to work with the W-4 forms already filed by employees for 2018 to hopefully minimize the burden on taxpayers and employers.

    The new law makes a number of changes for 2018 that affect individual taxpayers. The new withholding tables reflect the increase in the standard deduction, repeal of personal exemptions, and changes in tax rates and brackets.

    As the IRS makes clear in their release, the new tables are designed to produce the correct amount of tax withholding. The tables are also aimed at avoiding over- and under-withholding of tax as much as possible.

    What Kind of Changes Will You See?

    As with most of the tax changes made by the recently passed tax-reform bill, the answer is, “it depends,” advises The Motley Fool. If you’d like to calculate how much you can expect your paycheck to increase, follow these steps:

    Locate your most recent pay stub and determine how much was withheld for federal income taxes. Keep this number handy.

    Start with your gross (before tax) income. You can find this on your pay stub, or by dividing your annual salary by the number of times you get paid each year.

    Subtract the number of allowances you claimed on your W-4 times the appropriate payroll-frequency factor, which you can find on the front page of the new withholding tables. (If you aren’t sure how many allowances you claimed, your payroll department should be able to tell you.) This is the amount of wages you’ll use to determine your new withholding amount.

    Use this number with the table that corresponds to your filing status and payroll frequency in the new withholding tables to calculate your new per-paycheck withholding amount.

    Subtract this number from your current per-paycheck withholding, which you determined in step one. This number is how much your paycheck could increase.

    Let’s Look at the Numbers

    The Motley Fool sets up this scenario: Say you’re a single taxpayer and you earn $50,000 per year, paid bi-weekly. For each pay period, you earn $1,923.08 before any taxes are withheld. When you filled out your employment paperwork, you claimed two allowances.

    For each withholding in 2017, a bi-weekly paid employee’s wages are reduced by $155.80. This reduces the $1,923.08 figure to $1,611.48, which is the number used to determine your withholding. Using 2017 withholding tables, $264.53 should have been withheld from each paycheck for federal income taxes. (Note: If you’re calculating your own, you can probably skip this entire step. Just look on your recent pay stub to see how much is being withheld for federal taxes.)

    With the changes for 2018, each allowance reduces your wages for withholding purposes by $159.60, so your income is reduced to $1,603.88. Using this amount, along with the 2018 withholding tables based on the new tax brackets, your per-paycheck withholding should drop to $168.09. Your paychecks should go up by about $96.44 because of the lower federal withholding called for by the tax-law changes.

    New W-4s Are on the Way

    The IRS has also announced the agency is in the process of designing a new W-4 form, which will more accurately reflect changes in the tax law that could impact workers’ appropriate withholdings, such as the increased child tax credit and changes to itemized deductions. And for 2019, the IRS “anticipates making further changes involving withholding.”

    In short, while your federal withholdings are likely to change shortly, there’s a good chance they’ll change again in 2019 once forms and procedures are better adapted to the new tax law.

    The IRS says the new tables should result in approximately 90% of workers seeing an increase in take-home pay. Other adjustments to taxes should result in roughly 80% of tax filers getting a cut in 2018, according to the Tax Policy Center. The organization also says the size and percentage of Americans getting a cut will decrease over time.

    For more information, or to receive assistance preparing your personal or business taxes, please contact the respected attorneys at Oliver & Cheek, PLLC by calling (252) 633-1930 or visiting www.olivercheek.com.

     

    (Sources: U.S. Department of the Treasury; Internal Revenue Service; Business Insider; USA Today; The Motley Fool; and Tax Policy Center.)

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