Communication tips and adaptive technologies–quick ideas

It can be very tough for caregivers, family members and spouses, when the capacity to communicate, or comprehend communications, starts to evaporate.  The problems are sometimes easy to solve–if we are lucky.  Usually they are much harder to solve.

One starting point is to see if any adaptive technologies or devices or even practices can be put to use.

A basic look at such things can be found on a federal website, when hearing voice or speech are at issue.  Check this out:  https://www.nidcd.nih.gov/health/assistive-devices-people-hearing-voice-speech-or-language-disorders

For younger and older folks too, there may be sight issues in which adaptive technologies could help–and a brief look at some such items or ideas can be found here:  https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1906924/

Finally, should the issue turn more on cognitive factors and communication, related to dementia or Alzheimer’s disease, the Alzheimer’s Association offers some tips for family and friends and caregivers, and those tips can be found here:  https://www.alz.org/care/dementia-communication-tips.asp

 

Feel free to call us if you think there may be legal issues or barriers you face in regards to issues such as this, or in the event you think long term care may be warranted, and are unsure what programs you might use to help in the journey.

Tough or “Slum” Landlord?

Richard Rooney, an attorney here, has heard from various friends over the years, far too many tales of woe about bad landlords–often from tenants who didn’t really protect themselves properly.  While some landlords will roll their eyes and recount their own tales of bad tenants, or “professional” tenants who play games, this article by Richard is a good reminder that staying on top of things is the best approach:

 

“How to Deal with a Slum Lord”
by Richard K. Rooney, J.D.

Having spent a few years dealing with landlord tenant matters as an attorney has been an interesting process. I have represented landlords as well as tenants. Landlords often must face so called “professional tenants” who manipulate the landlord tenant laws in order to acquire free boarding. On the other side of the ledger, are “slum lords” who skirt their obligations and often rip off their tenants by shifting their burdens onto the tenants.

Landlords should and do expect this behavior as part of the overhead cost of being landlords. Not every tenant is going to pay in full or on time and often landlords have to make use of the courts eviction processes. Sadly, most renters dealing with “slum lords” don’t have the financial means to hire a lawyer and go to court. So what can a tenant do to protect himself?

It probably goes without saying that not renting from a slum lord is the best option. But what if financial circumstances don’t allow for that? Here are some quick tips that can help protect you against slum lord rip offs. That said what article by a lawyer would be complete without some disclaimer. These are my common-sense suggestions and are a starting point. They may not be applicable to your situation, in no way constitute legal advice, and are not a substitute for actually consulting a lawyer.

1. Document the Premises

This advice is a good rule of thumb for all tenants whether or not they suspect their landlord is a slum lord. Fill out the itemized checklist and return a copy to the landlord within the first week of occupancy and inform the landlord of any preexisting conditions to the apartment that need to be addressed. Keep a copy of the list for your records. Take photographs of the premises both before you move into the dwelling and last thing before you turn your keys in, so at the beginning and end of the tenancy. By taking these steps you will have evidence of the actual condition of the apartment.

2. Read the Lease
I know. Really. Who reads contracts besides lawyers? As a tenant this is a vital step to understanding what you are responsible for and what the landlord is responsible for. Under Michigan law, there are obligations that a landlord is responsible for by default. Some of these things, can be altered by the nature of the contract while others cannot. For more information on the details, I strongly urge tenants to consult the publications available on the MSU College of Law website.

3. Make Any Communications Regarding Maintenance of the Premises in Writing
This issue can trip people up but it’s important. If you need something fixed maybe just going down to the office or calling the property manager can get things solved. However, if you see no action within a reasonable time follow up in writing and keep a copy of your correspondence. This is especially important if the issue is a major one that would justify withholding of rent.

4. Know About Constructive Evictions
In residential leases, the landlord is responsible for maintaining a habitable environment. This means if certain things aren’t working properly, the landlord cannot legally charge you rent until they are fixed. This is an obligation that landlords cannot change with language in the lease. Some example issues include malfunctioning plumbing, heating, electrical. No heat, no power, and no water – assuming the reason for lack of the utility is within the landlord’s control – means no rent. This means that you can’t withhold rent because you failed to pay your gas bill or because a transformer went down in a storm. But if there are bad pipes or electrical equipment in your rental and thing stop working your landlord is responsible. Other major examples that constitute a constructive eviction would be flooding of the rental, bad roofing causing internal leaking, and failure of any landlord supplied appliances.
If such a condition occurs it is best to inform the landlord immediately and follow up with a written demand for repairs. If the issue isn’t resolved in a reasonably timely manner, you then have the option to send a second written communication indicating the constructive eviction and inform the landlord that you will be escrowing/withholding rent. While it is not necessary to get a “escrow” account, you should at least park the money in a separate account with no other funds. The purpose is that if a district court finds you owe some or part of that rent, you want to be able to show the judge that you acted in good faith and you want to have the money.

5. Know How to Get Your Security Deposit Back
Often, slum lords just assume the security deposit is theirs and find creative ways to keep it. By law landlords are holding that money but it’s the tenant’s money. In fact, if they fail to return that money unjustly, they can be required to pay back double or even triple based on statute and common law causes of action. But, to make the process a smooth one, tenants have certain steps they need to follow.
Those steps are 1. fill out the itemized checklist and return a copy to the landlord the first week of tenancy, 2. provide the landlord with a new address within 4 days of moving out, and 3. mail the landlord written dispute detailing what damages are not the tenant’s responsibility and why within 7 days of receiving the itemized list of damages from the landlord. (For more information on disputing charges against the security deposit see the publication linked above). Know what you are and are not responsible. Security deposits can be held for unpaid rent and damages to the dwelling, not as cleaning fees or for ordinary wear and tear to the apartment.
Often, slum lords will make up bogus charges knowing that most tenants won’t be legally sophisticated and won’t know they aren’t responsible for certain things or they won’t timely provide a sufficiently detailed dispute the itemized list of damages in writing. Slum lords also know that hiring a lawyer to collect even triple the cost of the security deposit is not worth it for tenants to bother.
The following suggestion is somewhat controversial and you should at least talk to a lawyer or legal aid if you think you may end up in this situation. If you are legitimately concerned about a landlord trying to stiff you on the security deposit, you might consider putting your last month’s rent in escrow. Because security deposits can be up to 1.5 times your monthly rent, this doesn’t fully protect you and it opens you up to possible eviction proceedings.
However, if you have good reasons that would convince a judge and you set that money aside as a show of good faith, you can protect yourself. This is the game that “professional tenants” play. Most leases have a 3-5 day grace period. Not until that period has expired can a landlord send what’s known as a notice to quit for non-payment of rent.
A notice to quit for non-payment is a document letting you know that if you do not pay or voluntarily vacate within 7 days, the landlord can then go to court and get a date for an eviction hearing. The hearing will therefore at a minimum not occur until close to halfway into your last month of tenancy. You can further request the hearing be adjourned to acquire a lawyer which already gets you near the end of the month.
While the second hearing cannot typically be adjourned, you have an opportunity to present your reasons to the judge as to why you have that last month’s rent parked in escrow. If you have compelling evidence, the judge might allow the rent to remain in escrow. If not, the landlord must wait another 10 days before they can have you forcibly removed from your dwelling, by which time your lease probably expired anyway. You’ve essentially shifted the burden of who must go through the pain and expense of litigating security deposit issues for the small amount of money involved. Of course, following this track means that you should have all your documentation and follow all the security deposit law requirements.

6. When in Doubt, Talk to a Landlord Tenant Attorney
If you have concerns about provisions of your lease, about getting your security deposit back, about repairs and constructive evictions, or other landlord related concerns, consider talking to an attorney familiar with landlord tenant law. Sometimes, just a strongly worded demand letter from an attorney can get you your money back and those don’t cost nearly what filing a court case would.
I hope these suggestions help anyone faced with a dishonest landlord but remember the best option is to avoid such individuals if possible.

MiABLE account or Special Needs Trust for a Disabled Child?

Now that the MiAble accounts have been launched in Michigan, just this week, families have even more options.  Setting up a MiABLE account might be just the right thing for some families.  But as attractive as such accounts might be, using a special needs trust is still the smarter way to go for other families.

MiABLE or Special Needs Trust?

Some families, for various reasons, will still want to establish a special needs account on their own for a disabled child, but you should also know Michigan’s ABLE program (MiABLE) went live November 1, 2016.  You can enroll online https://www.miable.org/  and you can find more general information at

http://www.michigan.gov/mistudentaid/0,4636,7-128-60921_74426—,00.html.

It’s the fifth program nationally and the fourth that Michiganders can enroll in (Ohio, Nebraska, and Tennessee being the others) says attorney Christopher Smith, of Chalgian and Tripp, who has followed these developments closely.  However, it is the first program to launch without any budget allocation from the state government he notes.  The Michigan Department of Treasury got this up and running without a financial allocation—and the TSA Consulting Group stepped up and seems willing to take the substantial financial risk of administering MiABLE.

A few reminders:

  • MiABLE accounts will be charged a fee of $45/year, plus the investment expense associated with the individual’s chosen investment option(s). This is in line with most such accounts available around the country so far.
  • There are several investment options open including “conservative” to some “aggressive” fund choices.
  • You can alert the world about the account, which may make it easier for other individuals to donate.
  • Only one account is allowed, and participants should be mindful to not exceed the fund account limits, or else some of the very benefits meant to be protected could be lost.

 

Clients should check out the state site.  For many with modest needs this may well work, even though any leftover money reverts to the state(s) for any benefits paid, and the type of investment options are limited.  Since these options are opening up, a bit of study is called for. Instead of setting up a special needs trust (with our help) for a disabled child, now families can balance the costs of taking that route and compare it to the relative ease (even with some constraints) of using a MiABLE account. Feel free to set up an appointment with us if you need to explore these options.

Bradley Vauter & Associates, P.C.

912 Charlevoix Drive.  Ste. 120

Grand Ledge MI

517 853-8015

Thanksgiving-November (5% give-back to charities)

During the month of November 2016, for all new business only, the firm, mindful of Thanksgiving traditions in the US, will donate 5 % of legal fees generated and paid this month to the firm, to a bona fide charity of your choice.  This will not affect your total costs or fees, nor will it cover any out-of-pocket expense. But let’s say you have a trust created in November, and our fee would be $1300.00  You’d pay us the $1300, and we’d make a donation in your honor of $65 to the bona fide charity organization or project (those recognized, say, as tax exempt by the IRS, sometimes also known as a 501 (c) (3) organization).

Also, early this week, there was a snippet about us on the local Morning Blend Television Show on Fox 47, and you can find that here:

http://www.fox47news.com/entertainment/shows/the-morning-blend/brad-vauter-associations-pc

 

Lopsided Arbitration Provisions in Nursing Home Contracts Will Be Barred

Here in our office in Grand Ledge, we were happy to learn about federal rulemaking that will eliminate most arbitration provisions in nursing home contracts.

Nursing home provider contracts have typically used a “take-it-or-leave-it” approach.  A family or person entering the nursing home typically signs a many page contract with the home, and binding private arbitration is often included in the contract.  Folks signed away their rights to have a trial or jury trial or even to consider a trial (some folks might like arbitration if it was an even playing field, but this was not typical of the nursing home admission contracts).

Unlike some business-to-business contracts where the parties have more freedom and time  to negotiate the contract, most people needing a nursing home contract are not negotiating much of anything, and they in fact, are often in a very “rushed” situation.  You know, the hospital discharge planner says they are releasing grandma tomorrow afternoon, or the caregiving spouse of a person with Alzheimer’s just fell and broke their own hip, and now we need a place for the parent with Alzheimers. And so on.  You can picture the stress and rush that goes with most nursing home admissions.

In such tight, almost “pressure cooker” situations, virtually no consumer  could  argue about the  arbitration provision.  And that meant, for at least some folks, a real injustice was done.

On top of this, there had been a bit of confusion about who really could bind a nursing home resident to a contract.  If they were mentally sharp but just physically frail, upon entry, one might argue, such provisions were not too different than other “standard” contracts and the nursing home resident/patient/person involved could have tried another place, or tried negotiation.  They can sign the contract themselves, after all. So such contracts likely were binding on the nursing home resident.

But what of the person with Alzheimers who is actually signed in by a spouse?  Is the spouse’s signature binding on the nursing home resident or patient?  Under what authority? What if signed by an agent under a durable power of attorney?  Or signed by a guardian but not a conservator?

So this idea of  eliminating many of these arbitration provisions in most homes, is a good thing–we’ll see how the issue sorts itself out in the coming months.

You can learn more about this development from Modern Healthcare News here:   http://www.modernhealthcare.com/article/20160928/NEWS/160929906 and if you have the courage to wade through this regulation and others, and wonder how much fun it would be to skim 700 some pages of regs, you can go here:  https://s3.amazonaws.com/public-inspection.federalregister.gov/2016-23503.pdf

Other aspects of these new federal regulations or rules make improvements in regards to some other tough nursing home issues, that faced consumers.  These include such things as  the  right of nursing home residents to have visitors, tighter restrictions against involuntary transfers, a different view or approach to care planning, and tougher rules for nursing homes refusing to readmit a nursing  home patient after they have been hospitalized.   The regs apply to homes that accept federal payment sources (such as Medicare or Medicaid) and that means most nursing homes will fall under the new rules/regs.  The rules actually emerged from the federal Centers for Medicare & Medicaid Services.

 

And remember, if you need help qualifying for assistance to pay for a long term care stay, or if you have issues with a nursing home, you can call our firm to see how we might help.

Brad Vauter  Grand Ledge, MI  Elder Law

517 853-8015

 

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