Archive for November, 2019

How to Spot Elder Abuse in Dementia Patients

Wednesday, November 27th, 2019

How to Spot Elder Abuse in Dementia Patients

There are many times when dementia patients, who often suffer from paranoia, accuse people of stealing from them or abusing them when no such abuse took place. However, the sad reality is that there are plenty more cases in which dementia patients are abused. Many who would seek to manipulate or defraud the elderly choose dementia patients as a target because the patients may not remember what happened or, because dementia often comes with paranoia and false beliefs, may not be believed. So how can you tell if your loved one is being abused? What are some of the signs? Here are some of the most common signs of elder abuse in dementia patients.

Unexplained Physical Anomalies

Look for unexplained physical injuries like bruises or cuts that shouldn’t be there. Often, these might be on the arms or legs. Sometimes, they will show up on the face or chest. Be sure to look underneath sleeves and pant legs, as well, since sometimes abusers will take pains to cover up their crimes. Look for signs of restraints, such as band-like injuries on the wrists or ankles. Physical anomalies don’t have to be on the person, though. They can also be on property the person owns. Broken eyeglasses, torn clothing, or clothing that has odd stains can all be indicators that abuse has taken place.

Strange Caregiver Behavior

You’re allowed to spend time with your family member unattended in almost every case. If you’re dealing with a caregiver who refuses to let you see your loved one without them present, or who tries to deny you access at all, that’s a huge red flag. Make sure to take note of threatening glances and more subtle signs of intimidation, as well, since that can often be a sign of abuse, as well.

Unexplained Withdrawal

If your loved one is typically outgoing and social and suddenly becomes withdrawn and reclusive, it could be a sign of abuse. While many dementia patients do become more withdrawn as the illness progresses, this behavior could also be a sign that they’re being abused and are starting to develop depression. They may also be avoiding an area where their abuser often frequents. Pay particular attention to withdrawn behavior that seems to manifest overnight. A slow and consistent withdrawal might just be the illness taking its course, but a sudden shift in behavior is relatively uncommon and might be a sign that something is going on.

Child-like Behaviors

Rocking, thumb sucking, and swaying can also be signs that abuse is taking place. Often, these repetitive behaviors are soothing, so dementia patients who can’t articulate their words very well or who might not want to talk about the abuse because of fear sometimes revert to these behaviors as a way of self-soothing.

Missing Money

If you start noticing unusual withdrawals or missing cash, financial abuse might be happening. Usually, when people think about elder abuse, they focus on physical, emotional, or sexual abuse. However, financial abuse is an extremely common form of elder abuse that often goes unnoticed. Make sure to keep tabs on your loved one’s financial situation and look for large, frequent, or simply unusual patterns of spending.

Unpaid Bills

Another sign of financial abuse could be unpaid bills. Make sure that all of your loved one’s bills are being paid on time and that they’re not dealing with situations like the power being shut off or the phone being disconnected. Unpaid bills could be an indication that someone else is using their funds.

A New Best Friend

Abusers aren’t always overtly abusive. Sometimes, their way of manipulation is to be overly nice. They might become incredibly close to someone they want to take advantage of in order to gain their trust. If you’re noticing other potential signs of abuse, particularly financial, and you notice that around the same time your loved one developed a new best friend, you might want to take a closer look at the situation. Of course, it could be a total coincidence, so you don’t want to assume abuse immediately, at least not by that person, but it’s worth keeping an eye on.

Changes in Wills, Trusts, or Accounts

Other forms of financial abuse can come to a point where the new best friend, or the abuser, convinces your loved one to add their name to will, trusts, or bank accounts. There might be a change in the will such as large amounts of funds being left to this new friend that previously had been reserved for family, an organization, or some other appointment. Make sure to keep an eye on these important documents and accounts so you can quickly figure out when someone is getting a little too close for comfort.

This is by no means a complete list of everything that could indicate elder abuse. However, these are some of the most common signs that elder abuse is taking place. Unfortunately, dementia patients are easy targets and often find themselves the victim of abuse that goes unnoticed because of the tendency of dementia patients to believe false things about others as well as their tendency to have unreliable memories. That being said, never dismiss a claim of abuse outright, and keep tabs on all the factors mentioned here so you can catch elder abuse early on. Additionally, and perhaps most importantly, if you have a good reason to believe elder abuse is taking place, call an elder abuse attorney in your area right away so you can get the best help possible protecting your loved one.

Ninth Circuit Holds California’s “ABC” Independent Contractor Test Applies Retroactively

Friday, November 22nd, 2019

Ninth Circuit Holds California’s “ABC” Independent Contractor Test Applies Retroactively

The Ninth Circuit has issued a concerning ruling for California employers that hire independent contractors. After the California Supreme Court’s decision in Dynamex Operations, Inc. v. Superior Court (link), in which the court ruled that subcontractor classification for the purposes of California’s Industrial Welfare Commission’s (IWC) wage orders was subject to the ABC test, many wondered whether this decision would apply retroactively. Despite business’s hopes that the decision would apply only to future cases, the Ninth Circuit held in Vazquez v. Jan-Pro Franchising International, Inc. (link) that the Dynamex decision would apply retroactively. This is (rightfully) a cause of concern for businesses that employ independent contractors as part of their business. Below, a breakdown of the background and implications of the legal decisions.

The “ABC” Test: Dynamex Operations, Inc. v. Superior Court

In April 2018, the California Supreme Court addressed whether California workers would be presumed employees or independent contractors in disputes under California’s Industrial Welfare Commission’s wage orders.  The California Supreme Court concluded that there was a presumption that workers are employees, and that for workers to be considered independent contractors, contractors must show that the independent contractors meet an “ABC” test. 

The ABC test requires that for an individual to be considered an independent contractor rather than an employee, the hiring company or individual prove all the below factors:

(1) the hiring entity does not have any control or direction of the worker connected with work performance, both in fact and under the work contract;

(2) the work performed by the worker is outside the hiring entity’s business’s usual course; and

(3) the worker customarily engages in a trade, occupation, or business that is independently-established and the same nature as the contracted work.

After the Dynamex decision was issued, many California employers worried about whether the decision would apply to classification disputes arising prior to the decision. While employers could take care to meet the standards set forth in Dynamex going forward, they were understandably concerned about whether subcontractors could be reclassified as employees in past cases where the test did not yet apply.

Ninth Circuit Makes “ABC” Test Retroactive: Vazquez v. Jan-Pro Franchising Int’l, Inc.

In May 2019, the Ninth Circuit took up the question of Dynamex’s retroactive application in Vazquez v. Jan-Pro Franchising Int’l, Inc. (link). The case concerned janitors of a California company who argued that they were actually employees rather than independent contractors, as they did not meet the ABC test set forth in Dynamex. The plaintiff’s claims arose prior to the Dynamex decision, so, naturally, the defendant’s principal argument was that the decision did not apply retroactively.

The Ninth Circuit disagreed with this argument, and concluded that the Dynamex decision applies retroactively to decisions preceding the Dynamex ruling. This means that the ABC test for classifying subcontractors applies to all California subcontractor classifications, even if the subcontractor was hired prior to the application of the ABC test by the courts.

What Does This Ruling Mean for Businesses with Independent Contractors?

The decision in Vazquez raises concerns for California companies that utilize independent contractors in their business. Because of the Ninth Circuit’s ruling, companies face legal disputes from subcontractors hired before the Dynamex decision. This means that a company may find itself the subject of litigation for not meeting a test that was not even in existence at the time the subcontractor was hired.

This should be concerning to California businesses that utilize independent contractors in their work, especially if they were hired before the Dynamex decision. If you are a hiring entity who is facing this situation, please contact the experts at Legalinfo.com for advice and help. We can use our legal knowledge to help defend your case, and we can advise you on the best hiring practices going forward so that you remain in compliance with all requirements.

Are You Eligible for Social Security Disability Benefits?

Friday, November 15th, 2019

Are You Eligible for Social Security Disability Benefits?

If you’ve become disabled and you’ll be out of work for an extended period of time, Social Security Disability (SSD) benefits can help you get through it without suffering undue financial hardship. However, just because you’ve been paying into Social Security doesn’t mean that you’ll automatically get them just because you apply. You have to be eligible. So how do you know if you’re eligible for Social Security Disability benefits? Here are some of the factors that the Social Security Administration (SSA) will use to determine whether or not you can apply.

You’ve Worked in Jobs Covered by Social Security

In order to obtain Social Security Disability benefits, you have to have worked at a company that is covered by or pays into Social Security. For most workers in the United States who had to file a W2, that will be true for you, since almost all employers have to deduct a certain percentage from their employees’ checks for SSA purposes. However, it gets a little trickier if you’re self-employed or if other situations made it so that your job wasn’t covered by Social Security. It’s a little bit like unemployment insurance. In order to obtain it, you had to have paid into it at your last employer.

Your Medical Condition Meets the SSA’s Definition of a Disability

There are lengthy explanations in the law about what does and does not constitute a disability that would warrant the dispersion of SSD funds. However, for the most part, if what you’re dealing with will put you out of work for longer than a year, it’s a disability. There are also some other factors you have to take into consideration, which you’ll read about in a few moments.

Your Condition is Severe

Beyond just having a disability, in order to obtain SSD benefits, your condition has to be severe. Typically, as mentioned above, that means you’ll be out of work for at least a year. For instance, if you were diagnosed with a terrible stomach flu, you might be out of work for an inconvenient amount of time, but it’s not a disability and it’s not severe. Let’s say that you were hurt in a car accident, but you can still walk on crutches and get around if you had to. Again, even if that incident put you on crutches for over a year, you could probably still work, so it might be hard to get SSD benefits.

You’re Not Working Now

If you’re working at the time of your application, or your desire to apply, and you’re working, you will probably not be eligible. This is especially true if you’re making a certain amount per month. For 2019, that amount is $1,220 a month, but be sure to check with the SSD website to make sure you get the most updated amount. The SSA will assume that if you’re working and making at least that much, you’re not disabled enough to need benefits.

You Can’t Do the Job You Previously Did

Furthermore, in order to apply for SSD benefits, you have to be incapable of doing the job you did before. Needing sufficient assistance does not quality as being unable to do your job. However, let’s say you were a truck driver and you ended up with a head injury so severe that your doctor told you not to drive, you would be incapable of doing the job you did before.

You Can’t Do Other Work

If you can’t do the job you did before but you could do other work, you probably won’t be able to get SSD benefits. For instance, if you lost a leg and your recovery means you can’t go back to your job in a warehouse, you’d meet the criteria for not being able to do your previous job. However, if you could sit in an office and do some administrative work, you probably won’t be eligible for SSD benefits because work of some kind is, at least in their mind, still available to you.

Regardless of what your disability is, if you’ve paid into Social Security through your employer and you need benefits, call a Social Security Disability attorney in your area as soon as possible. Only a qualified and experienced SSD attorney will be able to adequately defend your case should your request for assistance be denied. An SSD lawyer can help you through the process, make sure you qualify, help you avoid pitfalls, and be by your side in the event that you have to go to a disability hearing. Don’t take a chance on doing it alone when what’s at stake are the benefits you need and deserve.

Involuntary Bankruptcy 101

Thursday, November 7th, 2019

Involuntary Bankruptcy 101

Involuntary bankruptcy is a rare form of bankruptcy, but it’s talked about often enough that it’s worth understanding the basics of the policy. Bankruptcy is usually a voluntary process. If you file for bankruptcy, you’re probably filing under Chapter 7 or Chapter 13, and you choose to do it on your own. However, there is a process called involuntary bankruptcy wherein the person, company, or entity who owes the money is forced into bankruptcy by a creditor. Involuntary bankruptcy exists to protect creditors who would otherwise be out large sums of money. However, it is very rare and can only be filed against a debtor in certain circumstances.

When is an Involuntary Bankruptcy Usually Filed?

Most of the time creditors will choose to file an involuntary bankruptcy if they have reason to believe a debtor is able to repay a debt, but is refusing (or simply failing) to do so. It usually occurs when a debt of a substantial amount has been overdue for a long time and collection efforts have been unsuccessful. However, collections processes can last for years, and involuntary bankruptcy is usually a last resort.

Can Individuals Be the Subject of an Involuntary Bankruptcy?

While it’s technically possible and legal for creditors to push individual consumers into an involuntary bankruptcy, it’s extremely rare. An involuntary bankruptcy case still pushes the debtor into bankruptcy. At that point, the automatic stay of a typical bankruptcy still goes into effect. That means the creditor or creditors filing the involuntary bankruptcy motion are simultaneously agreeing not to pursue any collections efforts. Since most consumers with debt high enough to warrant an involuntary bankruptcy usually earn a low income and/or have little to no disposable income, filing an involuntary bankruptcy against them would be pointless. Not only would the creditor be likely to gain nothing out of the process, but the creditor would also be unable to pursue any collections activities during the process. For this reason, individuals are almost never filed against unless they are extremely wealthy and/or own a great deal of property.

How Does the Process Work?

The creditor or creditors pursuing the involuntary bankruptcy file with the court, just like an individual or business filing for voluntary bankruptcy would. At that point, the debtor has 20 days to respond. If the debtor doesn’t respond, they’re automatically forced to go through the process. However, if the debtor does respond they have the right to go to a hearing where the validity of the involuntary bankruptcy case will be decided. If the judge decides that the creditor or creditors filing the involuntary bankruptcy did so in good faith and that the debt in question is not being paid, the bankruptcy will move forward. However, if the judge rules in the debtor’s favor, not only will the bankruptcy be dismissed, but the creditor or creditors filing the bankruptcy will likely be forced to pay, at a minimum, the court and legal fees of the debtor.

What Are the Qualifications?

The circumstances under which a creditor or creditors can file an involuntary bankruptcy claim against an individual or company are as follows:

  • If the debtor owes money to 12 or more creditors, at least three of those creditors must come together and mutually decide to file the involuntary bankruptcy claim.
  • The grand total of the debt owed to the creditors filing the involuntary bankruptcy claim must meet or exceed $14, 425.
  • A single creditor may only pursue an involuntary bankruptcy claim against a debtor if the debtor owes that creditor at least $14, 425, and the debtor has less than 12 creditors.

Exempt Companies and Entities

Bankruptcies cannot be filed against certain types of entities and companies, including insurance companies, nonprofit organizations, family farmers, farmers, banks, and credit unions. Also, if a creditor decides to pursue an involuntary bankruptcy against a debtor they can only do so under Chapter 7 or Chapter 11. Chapter 12 and Chapter 13 bankruptcies are always voluntary.

Involuntary bankruptcies happen infrequently, and for good reason. There are usually much more efficient ways for creditors to obtain any debt owed to them than to pursue an involuntary bankruptcy. However, it’s helpful to know that involuntary bankruptcies exist, and to know your rights regarding them. If you’re the subject of an involuntary bankruptcy, be sure to contact a bankruptcy attorney in your area as soon as possible. Only a reputable bankruptcy lawyer can help you navigate the legal waters and obtain the most favorable and fair outcome for you or your business.