Helping Victims of Negligent Elder Care
Nursing homes, assisted living facilities and other facilities that take care of the elderly have a responsibility to provide quality care in an appropriate manner. When a caregiver or entity fails to act in a manner that is in the nursing home resident's best interests, serious injury and death can occur. If your family has been harmed by negligent elder care in a California facility, The Law Office of Robert C. Smith would like to help you.
Do you need to discuss a problem regarding negligent elder care with an attorney? Call The Law Office of Robert C. Smith located in Montclair, California toll free at 909-563-8644 to arrange a free and confidential consultation.
Negligent Elder Care Causes Serious Harm to Your Loved Ones
The lawyers at our office have the knowledge and drive to handle highly complex nursing home neglect cases. Our attorneys have the knowledge to readily identify the differences between nursing home neglect and nursing home abuse, recognizing that the two are closely related. Nursing home neglect involves a caregiver's failure to act in a manner that puts the resident's well being first. Factors that contribute to negligent elder care include the following:
- Failure to adequately staff nursing home
- Failure to screen staff
- Falsely claiming to provide superior care while cutting costs
- Operating on tight budgets that only allow for inadequate care
The Law Office of Robert C. Smith is dedicated to protecting the rights of the elderly who have sustained serious injury because of negligent care. These injuries can involve the following:
- Bed Sores
- Bowel and bladder injures
- Malnutrition and dehydration
- Medication errors
- Mismanagement of diabetes
- Repeated falls
- Untreated infections
- Wandering off
Stop Negligent Elder Care
You can take a stand against nursing home neglect. If your loved one has been injured or has died because of negligent elder care, contact The Law Office of Robert C. Smith at 909-563-8644 or complete the Client contact form.
Nursing Home Neglect : Bowel & Bladder
Sometimes families are forced to make the difficult decision to put a loved one into a nursing home or residential care facility. They must trust that the people they choose to care for their loved one will provide adequate services. It can be devastating when those services are not given — when loved ones experience bowel and bladder injuries, severe infections and even death.
At The Law Office of Robert C. Smith, we stand up for the victims of bowel and bladder injuries and their families throughout California.
How Nursing Home Neglect leads to Fecal Impaction and UTI
Elderly adults in nursing homes are vulnerable. They are often unable to move without assistance, even to feed themselves and to use the bathroom. They are completely dependent on nursing home staff to care for them. At the same time, nursing home staff are often overworked and underpaid. Far too often, this combination results in nursing home neglect and abuse.
When elderly adults are not fed enough, when they are not given enough water, when their catheters and adult diapers are not changed, the results can be shocking. More than the intense pain of fecal impaction, patients experience kidney failure, sepsis and death. At The Law Office of Robert C. Smith, we represent the victims of a wide range of bowel and bladder injuries due to nursing home neglect:
- Urinary tract infections (UTI)
- Fecal impaction
- Bowel obstruction
- Abdominal and colon abscesses (diverticular abscesses)
- Sepsis (toxic infections)
- Kidney failure (renal insufficiency / renal failure)
- Wrongful death
Contact our Law Firm
Lack of respect, lack of dignity and lack of care are not part of the aging process. Elder abuse and neglect should never be tolerated. When a healthcare facility has abused or neglected someone you love, contact an attorney. Call The Law Office of Robert C. Smith toll free at 909-563-8644 or fill out the online Client contact form. We offer free and confidential initial consultations.
Sometimes corporations are worried more about their bottom line than the wellbeing of the elderly people they are supposed to care for. They cut costs that lead to dirty facilities, underpaid and overworked staff, and generally dangerous conditions. At The Law Office of Robert C. Smith, we hold them accountable for this business model that deprives our parents and grandparents of their dignity and health.
One of the most frequent problems experienced by nursing home residents is infections. Often these infections are related to decreased immunity from malnutrition and dehydration. They can develop from bedsores, fractures, bowel and bladder infections, like urinary tract infections, as well as a host of other circumstances. If left untreated, infections can lead to sepsis, septic shock and death.
There are several different kinds of common nursing home infections that may be left untreated:
- Streptococcal infections
- Staph infections
Wandering Off, or Elopement
The Law Office of Robert C. Smith protects the rights of the elderly through aggressive and ethical advocacy. Our work includes legal action in situations involving the wandering off, or elopement, of nursing home residents.
Sometimes families do not have a choice but to seek skilled care for their loved one. When a loved one has Alzheimer's or dementia — when they are prone to wandering off — many families must seek care for their loved one so that they will be safe.
Unfortunately, the very place that families often trust for their loved one’s safety sometimes causes that person harm. Healthcare facilities can lose residents through their own negligence:
- Failure of door alarms
- Failure of Wander Guards
- Under staffing / staff neglect
When the WanderGuard Doesn't Work
WanderGuard bracelets are designed to be worn by patients. Technology in the bracelet is supposed to trigger an alarm if the patient wanders too far. While the WanderGuard is designed to prevent resident elopement, it doesn’t always work. Sometimes nursing homes fail to maintain WanderGuards properly. They do not put them on the patients or they are negligent in maintaining the alarm system. Sadly, this can lead to residents walking off.
Malnutrition & Dehydration
Malnutrition is more than simply not getting enough to eat. It means starvation, not getting enough vitamins and minerals. It often means being seriously weakened, being at higher risk for fractures, bedsores and even death. It should never happen in nursing homes, but it develops because staff fails to provide basic feeding for people who depend on them.
Dehydration occurs from not getting enough water to sustain healthy function. Like malnutrition, it can lead to a wide range of serious problems and even death. Like malnutrition, serious dehydration should not happen in a nursing home.
Has your loved one lost significant weight? Are they experiencing other injuries related to malnutrition and dehydration?
Contact The Law Office of Robert C. Smith, located in Montclair, by calling toll free at 909-563-8644 to talk with us about elder negligence or submit your questions on our online Client contact form. At The Law Office of Robert C. Smith, we offer free and confidential consultations.
Elder Financial Abuse
You have the right to expect that the person caring for your elderly loved one will provide the appropriate respect. Whether the caregiver is a relative, an independent care provider, or a nursing care facility, you trust that they will protect your loved one. When a caregiver violates that trust and commits financial abuse against an elder relative, you have the right to seek compensation. We can help.
Contact the Law Office of Robert C. Smith at 909-563-8644 to discuss your elder financial abuse case.
Caregiver and nursing home neglect can take the form of a wide variety of financial frauds. Many involve some form of coercion or falsehood. Others are outright stealing. Some of them include:
- Theft of property or cash
- Forging checks (check fraud)
- Credit card fraud
- Coercion to get written into an elderly person's will
- Falsely transferring deeds to a house
- Falsely transferring car titles
We are caring attorneys who are dedicated to fighting elder financial abuse. When you choose us to represent you, we will work hard to hold the guilty party responsible for his or her actions. Whether we can resolve your case through settlement negotiations or it takes a trip to court, we will do what it takes to get what is right for you and your loved one.
The Law Office of Robert C. Smith provides small firm attention paired with the results you might expect from a larger firm. We aim for nothing less than success in your elder financial abuse case.
Estate Planning: Wills & Trusts
A last will and testament (more commonly known as a will) can help protect your family and your property. A will can be used to:
- leave your property to people (or organizations)
- name a trusted person to manage property left to minor children
- name a personal guardian to care for your minor children, and
- name an executor, the person entrusted with carrying out the terms of your will.
What happens if I don't have a will?
Should you die without a will, state "intestacy" laws will dictate how your property will be distributed. California's intestacy law gives your property to your closest relatives, beginning with your spouse and children. In the absence of a spouse or children, your grandchildren or your parents will get your property. This list continues with increasingly distant relatives, including siblings, grandparents, aunts and uncles, cousins, and your spouse's relatives. If the court exhausts this list to find that you have no living relatives by blood or marriage, the state will take your property.
Do I need a lawyer to make a will?
You may, however, want to consult a lawyer in some situations; for example, if you suspect your will might be contested or if you want to disinherit your spouse or a child or are'nt sure if you have other heirs who may come back and contest the will, you should talk with an attorney
A trust is an arrangement under which one person, called a trustee, holds legal title to property for another person, called a beneficiary. You can be the trustee of your own living trust, keeping full control over all property held in trust.
A "living trust" (also called an "inter vivos" trust) is simply a trust you create while you're alive, rather than one that is created at your death.
Different kinds of living trusts can help you avoid probate, reduce estate taxes, or set up long-term property management. For more details and a free initial consultation call the Law Office of Robert C. Smith at 909-563-8644.
Why should I make a living trust?
The big advantage to making a living trust is that property left through the trust doesn't have to go through through probate court. In a nutshell, probate is the court-supervised process of paying your debts and distributing your property to the people who inherit it.
The average probate drags on for months before the inheritors get anything. And by that time, there's less for them to get: In many cases, about 5% of the property has been eaten up by lawyer and court fees.
Still, not everyone has to worry about probate, and some people don't need a living trust at all.
How does a living trust avoid probate?
Property you transfer into a living trust before your death doesn't go through probate. The successor trustee -- the person you appoint to handle the trust after your death -- simply transfers ownership to the beneficiaries you named in the trust. In many cases, the whole process takes only a few weeks, and when all of the property has been transferred to the beneficiaries, the living trust ceases to exist.
12 Point checklist care of your family by making a will, power of attorney, living will, fal arrangements, and more.
- Make a will.
In a will, you state who you want to inherit your property and name a guardian to care for your young children should something happen to you and the other parent. For more information, call 909-563-8644.
- Consider a trust.
If you hold your property in a living trust, your survivors won't have to go through probate court, a time-consuming and expensive process.
- Make health care directives.
Writing out your wishes for health care can protect you if you become unable to make medical decisions for yourself. Health care directives include a health care declaration ("living will") and a power of attorney for health care, which gives someone you choose the power to make decisions if you can't. (In some states, these documents are combined into one, called an advance health care directive.) For more information, consult the Law Office of Robert C. Smith.
- Make a financial power of attorney.
With a durable power of attorney for finances, you can give a trusted person authority to handle your finances and property if you become incapacitated and unable to handle your own affairs. The person you name to handle your finances is called your agent or attorney-in-fact (but doesn't have to be an attorney). For more information, see the Law Office of Robert C. Smith at 909-563-8644.
- Protect your children's property.
You should name an adult to manage any money and property your minor children may inherit from you. This can be the same person as the personal guardian you name in your will.
- File beneficiary forms.
Naming a beneficiary for bank accounts and retirement plans makes the account automatically "payable on death" to your beneficiary and allows the funds to skip the probate process. Likewise, in almost all states, you can register your stocks, bonds, or brokerage accounts to transfer to your beneficiary upon your death.
- Consider life insurance.
If you have young children or own a house, or you may owe significant debts or estate taxes when you die, life insurance may be a good idea.
- Understand estate taxes.
If you and your spouse together own assets worth at least $1.5 million, you may want to consider taking steps to reduce federal estate tax that will be due at the second spouse's death. You may want to make tax-free gifts now or consider an AB trust.
- Cover funeral expenses.
Rather than a funeral prepayment plan, which may be unreliable, you can set up a payable-on-death account at your bank and deposit funds into it to pay for your funeral and related expenses.
- Make final arrangements.
Make your wishes known regarding organ and body donation and disposition of your body -- burial or cremation.
- Protect your business.
If you're the sole owner of a business, you should have a succession plan. If you own a business with others, you should have a buyout agreement.
- Store your documents.
Your attorney-in-fact and/or your executor (the person you choose in your will to administer your property after you die) may need access to the following documents:
- Insurance policies
- Real Estate Deeds
- Certificates for stocks, bonds, annuities
- Information on bank accounts, mutual funds, and safe deposit boxes
- Information on retirement plans, 401(k) accounts, or IRAs
- Information on debts: credit cards, mortgages and loans, utilities, and unpaid taxes
- Information on Totten trusts or funeral prepayment plans, and any final arrangements instructions you have made.
Guardians and Conservators
The traditional distinction between guardians and conservators is as follows:
- Guardians - A guardianship is a legal right given to a person to be responsible for the food, health care, housing, and other necessities of a person deemed fully or partially incapable of providing these necessities for himself or herself.
- Conservators - A conservatorship is a legal right given to a person to be responsible for the assets and finances of a person deemed fully or partially incapable of providing these necessities for himself or herself.
In some jurisdictions, a conservatorship may be referred to as a "guardianship of the estate", or by some similar alternative name.
There are many circumstances where a person is still able to live an independent life, but may require assistance with his or her assets due to failing health or disability. Thus it is not unusual for a petition to be made for the appointment of a conservator, even where the allegedly incapacitated person does not require a guardian.
When Is A Conservatorship Required
It may be necessary to petition a court to appoint a legal guardian for persons:
- Who have physical or mental problems that prevent them from managing their own financial affairs;
- Who have no person already legally authorized to assume responsibility for them; and
- Where other kinds of assistance with financial management will not adequately protect them.
How is a Conservator Appointed?
The precise procedure will vary to some degree from jurisdiction to jurisdiction. The typical steps are as follows:
- The person seeking the appointment of a conservator files a petition with the probate court for the jurisdiction where the allegedly legally incapacitated person resides. This petitioner is often a relative, an administrator for a nursing home or health care facility, or other interested person. A petition is ordinarily accompanied by medical affidavits or other sworn statements which evidence the person's incapacity, and either identifies the person or persons who desire to be named conservator or requests the appointment of a conservator.
- The court arranges for any necessary evaluation of the allegedly legally incapacitated person. Often, this will involve the appointment of a "guardian ad litem", a person who is appointed to provide an independent report to the court on behalf of the allegedly legally incapacitated person. If appointed, the guardian ad litem will meet with the allegedly incapacitated person, inform that person of his or her legal rights, and report back to the court on the person's wishes. The guardian ad litem may also speak to the petitioner, to health care providers, and to other interested individuals in order to provide the court with full information about the allegedly incapacitated person's condition and prognosis. Depending upon state law, the court may appoint a doctor or professional to examine the allegedly incapacitated person.
- If the allegedly incapacitated person contests the appointment of a conservator, a trial is scheduled during which sworn testimony will be given, and at the conclusion of which the judge will decide if the petitioner met the requisite burden of proof for the appointment of a conservator. The allegedly incapacitated person is ordinarily entitled to appointed counsel, if unable to afford a private attorney.
- If the allegedly incapacitated person consents to the petition, or is unable to respond to inquiries due to disability, the court will hold a hearing at which witnesses will provide sworn testimony to support the allegations in the petition. If the evidentiary basis is deemed sufficient, the conservator will be appointed.
- If a conservator is appointed, the judge will issue the conservator legal documents (often called "letters of authority") permitting the conservator to act on behalf of the legally incapacitated person.
A conservator will ordinarily receive compensation, subject to court oversight, for performing duties for the estate. This is often charged on an hourly basis, and is ordinarily paid from the estate of the legally incapacitated person.
What Are a Conservator's Duties?
The first duty a conservator has is to take an inventory of the legally incapacitated person's assets, and to report those assets to the court.
If the conservator will be paying money on behalf of the legally incapacitated person, it will be necessary to open a special checking account reflecting the conservatorship (e.g., in the name of "John Doe, as Conservator for the Estate of Jane Smith"). Courts often require that the checking account return the actual physical checks after they are processed, and that those cancelled checks be maintained as part of the conservator's records.
The conservator will be responsible to account for all expenditures, and for the assets of the estate, typically on an annual basis or more frequently if ordered by the court.
If the legally incapacitated person has assets that must be maintained, or which are not in use, the conservator may seek court permission to rent or sell those assets. For example, if the legally incapacitated person has a home but will never be able to return home due to illness or disability, it may be wise to sell the home. If the legally incapacitated person is expected to return home, but not for an extended period of time, it will be necessary to maintain the home, and in some circumstances may be appropriate to rent the home during the period when the legally incapacitated person is absent. Similarly, rather than leaving a motor vehicle parked in a garage for years, it may be in the best interest of the legally incapacitated person to sell the vehicle before further depreciation or deterioration from non-use.
If the legally incapacitated person is capable of participating in financial decisions, the conservator is ordinarily required to permit the legally incapacitated person to participate to the extent he or she is able. In some circumstances, a court may appoint a conservator to perform a certain set of tasks which are beyond the ability of the legally incapacitated person, while permitting that person to manage his or her own affairs for other financial tasks which remain within his or her ability.
A conservator is typically required to post a bond, unless the requirement is waived by the court. In most jurisdictions where bond is required, waivers are common.
The Purpose of Court Supervision
The court supervises the conservator's actions by requiring that permission be obtained in advance of certain major transactions (such as the sale of a legally incapacitated person's home), and through annual accountings, in order to ensure that the legally incapacitated person's assets are being properly managed, bills are being paid, nobody is misappropriating funds, and the estate is not being wasted.
How Can a Conservatorship Be Ended?
A conservatorship can be terminated by the court which created it. This ordinarily happens if the legally incapacitated person recovers from the incapacity that necessitated the conservatorship. A particular conservator's role may be terminated by the court or by resignation, in which case the court will ordinarily appoint a successor conservator to take over management of the legally incapacitated person's assets. A conservatorship also ends upon the death of the legally incapacitated person.
It is possible to avoid the necessity of a conservatorship through estate planning. A good estate plan will include a general durable power of attorney to permit a trusted individual to manage your personal affairs in the event of your incapacity. You may also create a more limited power of attorney, which protects your assets in the manner you desire rather than leaving their management to the discretion of a conservator or court. In most cases, when this document has been executed in accord with the laws of your state, it will not be necessary for your loved ones to seek the appointment of a conservator should something happen to you.
You may also choose to place your assets into a living trust, such that they are automatically under the management of a designated trustee in the event that you become disabled.