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January 2007 (News Archive)
Personal Injury Cases: Who pays your medical bills if you are injured in an automobile collision.
Even if you have been injured in an automobile collision that is not your fault, the law does not require the other driver’s insurance company to pay your medical bills as they are incurred. Rather, initially, you are required to pay your medical bills by using your own insurance. If you have Medical Payments Coverage as part of your automobile liability policy, by law, your automobile Medical Payments Coverage must be used first. After you have used up any Medical Payments Coverage you have, you next must use your own health insurance, including Medicare if that is your primary health insurer. If you have no health insurance, some health care providers will accept monthly payment arrangements or Letters of Protection from our office. An important responsibility of our office is to assure that applicable insurance is accessed or other payment arrangements are made for the medical bills you incur.
Medicaid Planning: There still are important asset protections for a husband and wife if only one spouse requires long term care.
The 2006 legislative changes that I wrote about last year do not have any effect on Medicaid’s spousal asset protection rules. A very important protection concerns the family home. If one spouse is in a nursing home (“Institutionalized Spouse”) and the other spouse remains at home (“Community Spouse”) the family home is an excluded asset. That means the ownership of the home by either spouse does not affect the Institutionalized Spouse’s eligibility for Medicaid. With proper planning, it also means the State may not place a lien on the home for Medicaid benefits paid on behalf of the Institutionalized Spouse. In addition to the excluded status of the home, the Community Spouse is allowed to keep a car and ½ of the couple’s other non-excluded assets, but subject to a maximum of $101,640.00. The maximum increases every January 1. Even if one spouse is in a nursing home, appropriate planning allows the spouse in the community to keep the family home, a car, and up to a maximum of $101,640.00 in other non-excluded assets.
Wills, trusts, and estate planning: Living Wills and Health Care Representatives.
A Living Will expresses your desire not to be kept alive by a mechanical device if you are in a persistent vegetative state or in the final stages of a terminal illness. The Living Will also designates the individuals authorized to communicate your wishes to health care providers. Prior to October 1, 2006, the Connecticut Living Will statute called those authorized representatives, “Health Care Agents” and limited their authority to end of life decision making. A law passed by the Connecticut legislature that became effective on October 1, 2006 now calls the authorized representative a “Health Care Representative” It also expands the authority of the Health Care Representative to communicate your wishes for non end of life health care decision making. A Living Will signed before October 1, 2006 remains valid according to its terms. A Living Will signed after October 1, 2006 will include the expanded authority of the Health Care Representative. As with all estate planning documents, a periodic review to accommodate changes in the law or in your family or financial situation is advisable.
Real Estate Transactions: The importance of adhering to time limitations specified in the inspection contingency.
Residential real estate Purchase and Sales Agreements almost always contain an inspection contingency. The purpose of the inspection contingency is to allow the buyer time, after signing the Agreement, to have a professional inspect the property and report on actual or potential problems discovered. The reported results of the inspection often lead to additional negotiations, and, on occasion, an adjustment of the sales price. The Agreement will contain strict time limitations for conducting the inspection and reporting the results. Failure to adhere to the time limitations specified in the Agreement
may constitute a waiver of the Buyer’s right to conduct the inspection or request a price adjustment based on the results.
Whether you are a Buyer or a Seller, it is our responsibility to assure that the applicable time limitations are adhered to so that your rights pursuant to the Agreement are protected.
Business Entities: If you are a Connecticut company be cautious about choice of law provisions in any business Agreement you enter.
Almost all business Agreements contain language that says the law of a particular State governs the interpretation and enforcement of the Agreement. Since business transactions increasingly are conducted across state lines, the choice of law provision in a business Agreement has become extremely important. There are significant variations in the substantive and procedural law from one state to another. If you are a Connecticut business, you always will want to try to negotiate a provision stating that Connecticut law governs the interpretation and enforcement of the Agreement. If we represent you in a business transaction, it is our job to do our best to assure that any Agreement you sign states that Connecticut law governs the interpretation and enforcement of the Agreement.
Insurance Company Bad Faith: Contra proferentem can help you.
Contra Proferentem! Yes, it is an ancient Latin expression, but it can help you in disputes with your insurance company. Your insurance policy is a contract. The doctrine of contra proferentem is a rule of law that applies to the interpretation of contracts. It states that if there is an ambiguity or inconsistency in your insurance contract, the ambiguity or inconsistency is construed against the insurance company and in your favor. This is true whether the insurance contract is a life insurance policy, disability policy, homeowner’s policy, health insurance policy, automobile policy, or long term care policy. The doctrine was reaffirmed in several cases decided in 2006 by the Connecticut Supreme Court. If you have been turned down by your insurance company for a claim you have submitted, a careful review of the policy may allow us to help you obtain coverage.
Very truly yours,
STEVEN P. FLOMAN
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