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February 2018

NO FAMILY’S PERFECT (No matter what your best friend says)

By Norma A. T. Jett


Do you have one of those friends who is always bragging on her family? Her children are perfect. Her husband is perfect. Even her mother-in-law is simply perfect. You know she’s lying, right? The truth is, as long as families are made up of humans, there is no such thing as the perfect family. And, as long as families are imperfect, these issues will impact many aspects of our legal lives. Family members who are addicted, mentally ill, or just plain difficult or poorly behaved can affect estate planning, family business ownership and management, and land transactions. Divorce may result. A loved one may end up in jail. At Ness & Jett, LLC, we know there are all sorts of loving families adapting to all sorts of stresses. We would like to assist you in planning the most perfect solution for your imperfect family.

Estate Planning

We can assist you in drafting wills and trusts to manage your assets during your lifetime and to facilitate the distribution of your assets after your death. Children with special needs may require special provisions to ensure that your generosity does not deprive them of much needed public assistance. A family member who is much loved but not very good at managing money may require a trustee to oversee his share of the estate. Blended families bring their own issues to the estate planning process. Whatever your need or special issue, we can assist you in determining how best to deal with that in your estate plan.

Life Management

Who will make and express your healthcare decisions when you are unable to do so for yourself? We can assist you with a Healthcare Power of Attorney or Living Will. These items are more than simply forms. Using one of these documents off the internet, or purchasing a “kit” for such needs, deprives you of the legal advice, wisdom, and insight of attorneys who can guide you through the decision-making process. After all, once you’re mentally incapacitated, you can no longer choose your substitute decision maker.

Perhaps you would like to authorize your loved one to conduct your business at times when it is impossible or simply inconvenient for you to do it. A Power of Attorney can achieve this goal, and we can guide you through this process. If you become incapacitated and do not have such a document, it may fall to your family and the Probate Court to decide who will govern your affairs and how they will do so. A Power of Attorney puts you in charge of that decision, while you are able to decide.

Family Business and Assets

Family dynamics can complicate business and asset ownership and management. Perhaps an asset should be in trust. Maybe your family business requires a more structured organization and management agreement. We at Ness & Jett, LLC, would be glad to discuss these issues with you and help you search for solutions that accommodate your family and business needs.

Family Court and Criminal Representation

Sometimes, there is no perfect solution. If divorce is the only option, or your loved one has found himself on the wrong side of the law, we handle criminal matters, as well as certain Family Court cases, and would be honored to discuss those with you.

Call Ness & Jett, LLC, today, to put our team to work to meet your family’s legal needs.

MEDICAL MALPRACTICE – WHAT IS IT AND WHAT IS REQUIRED?

By Norma A. T. Jett


In our line of work at Ness & Jett, LLC, no one ever comes into our office to tell us, “Mom had surgery last week and everything went great.” No, the folks who visit us about a medical matter are often devastated. Something went wrong. The surgery that was to fix everything ended in death or disability. A nurse got the medicine wrong. A doctor cut what should not have been cut. The monitor that was to beep if the patient’s heart rate was wrong, simply didn’t. So, when it goes wrong, what should be done? How is the patient or the family to be compensated? Sometimes, the right course is a medical malpractice case.

Medical malpractice is a broad term that basically means improper care or conduct by a doctor, nurse, pharmacist, physical therapist, hospital, or other healthcare provider, that harmed a person. Medical malpractice, or medical negligence, can be the doing of something that should not have been done, a failure to do that which should have been done, or just doing something in the wrong way. A medical malpractice case is rarely simple. In 2005, in South Carolina, it became even more complicated, as “tort reform” measures came into law, requiring persons injured by healthcare professionals to jump through additional legal hoops to achieve justice. This is where the assistance of a skilled lawyer is crucial.

Our work in a medical malpractice inquiry begins with talking with the client. This person may be the one who was injured by a healthcare provider or may be a loved one of the patient. The discussion may be by phone, in our office, in the office of an attorney colleague in another city, or even in the family home.

Next, if our discussion leads us to believe medical malpractice occurred, we review the records of the care. These may be provided by the client or obtained by us. We are not doctors, but we review the records with a view toward what is required of a medical malpractice case, considering whether we believe we can prove medical malpractice based on the records.

If the review of the records indicates a case of medical malpractice, we must have an expert review the records. Depending on the type of care in question, this person may be a nurse, a doctor, or some other healthcare provider. The expert must be qualified within the definitions and boundaries set forth in the South Carolina statutes. To pursue a case, the qualified expert must state under oath, in an affidavit, that there was a standard of care applicable to the care provided, that the care provided fell below that standard of care in at least one specific way, that the violation, or “breach,” of the standard of care harmed the patient, and that the harm would not have occurred but for that breach. If the expert determines this is the case, the affidavit is obtained. Sometimes, the expert tells us there is no case. Perhaps nothing was done wrong, or the wrong did not cause the problem.

Once the expert signs his or her affidavit, a Notice of Intent to Sue is filed and served upon the healthcare provider. That Notice invites the provider, his insurer, and his attorney to mediate the case with the patient and us in an attempt to settle the matter. The cases are rarely settled at that stage, but the process is a requirement imposed by the 2005 tort reform legislation. If no settlement occurs as a result of the Notice, the next step is to file the actual lawsuit in a court.

Once the lawsuit is filed, the parties, through their lawyers, engage in a process known as “discovery.” As it sounds, discovery is the process by which each party learns the other’s case. That is when we learn who each party believes are the witnesses, or persons with knowledge of the matter. We disclose expert witnesses, the persons qualified to give opinions in the case. We exchange documents. Depositions are taken. A deposition is sworn testimony in advance of a trial, so that the attorneys may learn what the witness knows and would testify to at trial. Eventually, again, the case is mediated. If no settlement occurs, the case presses on toward trial. These cases are not readily settled. They are almost always hard fought battles. Throughout these processes, we guide and advise our clients, and work diligently to achieve justice in the form of compensation to the patient or family members. The process is neither quick nor easy, and skilled legal representation is a must.

Clients with potential medical malpractice cases don’t just walk in with a bag of money and say, “Use what you need.” In a medical malpractice case, we are not paid up front. We take no fee unless we achieve compensation for the client. We front the costs of the expert witness review and the discovery process, and these costs are reimbursed to us, and our fees are paid, from any settlement or verdict paid in the case. For this reason, we are choosy about the cases we take, and we pride ourselves on taking valid cases, in which we give quality work. If we take your case, these matters will all be set forth in writing in a written agreement.

TIME LIMIT

Like all civil cases, there is a time limit for bringing a medical malpractice case to court. That limit, or statute of limitations, generally runs from the date of the negligent conduct. For private, nongovernment, providers, the limit is three years. For government providers, the limit can be two years or as little as one year. A few legal circumstances can extend the limit. This is a short time in which much must be done to pursue a medical malpractice case. If you believe you have a case, do not delay. Contact an attorney immediately.

LET US HELP

If you or a loved one has been injured or killed by the mistake of a healthcare provider, call Ness & Jett, LLC, today, and schedule an appointment to talk with one of our excellent attorneys.

WILLS - WHO GETS THAT WHEN YOU DIE?

By Norma A. T. Jett


Once upon a time, a family member, when first visiting my getaway cottage on a holiday, asked me, "Who gets it when you die?" I'd like to be able to say this was a question from a naïve child, but, no, it was an adult, and not even as close as spouse, child, or parent. God willing, none of your relatives will be so bold in remarks to you. Rudeness aside, however, what's the answer? Who gets it when you die? If you want to be in charge of the answer, you need a will. You don't need it later. You need it now. No one likes to think of his or her own death. Many folks think, "If I make a will, I might die." Well, with or without one, you will die, eventually, sooner or later. Again, you need a will. You need it now.

So, what's required to make a will? First, competence. You need to be mentally competent to make a will. If you are reading this, odds are we can check off Requirement 1. Second, an appointment with an attorney of your choice. Don't simply "pop in." When you just "pop in," you set both you and the lawyer up for a disadvantage. The attorney is not focused on you to the exclusion of other work, as she did not know you were coming, and did not come into the meeting with you in mind. Third, when you come for your appointment, bring any will you already have. This allows the attorney to review your prior plan and to evaluate any changes you want to make. Lastly, come to the appointment with at least some ideas of what you own (just in general, not a detailed inventory), what you would like to happen to the assets you own, who you would like to manage your affairs in the immediate aftermath of your death, and special considerations required for your family.

Assets

For your first appointment, your attorney won't need a detailed itemization of all you own, but you should be prepared to describe, in basic terms, the addresses or locations of homes and lands you own, life insurance, valuables, and general information about bank or brokerage accounts. Other information may be needed later. Your attorney may ask whether your net worth, or even your and your spouse's joint net worth, exceeds $11.2 million, which, for 2018 through 2025, is the current amount of an estate that can be left by one person with no estate taxes. (This is an increase from 2017's limit of $5.49 million. For 2026, the exemption level will revert to $5 million, adjusted for inflation, unless Congress acts to change that.) Your attorney is not merely being nosy; she needs to know if specialty advice is needed from an estate tax attorney. If your estate does not exceed the exemption, you likely do not have an estate taxation issue. At Ness & Jett, LLC, we do not practice estate taxation law, but we can obtain consultation and collaboration from any specialists needed to assist us with your estate planning.


Management Decisions

Assets of a deceased person are initially managed through an estate administration in the Probate Court. If the deceased person had a will, it is filed with the Court. (We are often asked whether wills are filed during the lifetime of the signer. They are not, as they are subject to change during life.) The person in charge of the estate is known as the Personal Representative. (This person was formerly called an Executor or Executrix if there was a will, or an Administrator or Administrix if the person died without a will. All of these are now known as Personal Representative.) The Personal Representative is the Probate Court's contact for management of the estate. This person lists the property owned, receives and handles creditors' claims, and, ultimately, distributes property to those named in the will, or, if there is no will, to the heirs established by law. When you meet with your attorney to make a will, you should come to the appointment ready to discuss the person who should assume this role, and, if at all possible, at least one alternate in the event the primary person named is unavailable to serve at the time of your death.

Minor Children or Adult Children with Special Needs

This is one of the toughest issues in making a will. If you die, leaving a minor child whose other parent is also deceased, who will raise the child to age eighteen? This person is known as a testamentary guardian. You should come to the attorney meeting ready to discuss this issue. You will need to give your attorney at least one name, and, if possible, an alternate, for this role.

Who will manage your child's inheritance if you die while she is too young to manage it herself? This person will be a trustee. You will need a name and an alternate for this role, also. Do you want your child to have control of her money at age eighteen (something we generally do not advise) or older? Your attorney may have suggestions regarding the age of distribution of assets, or even a plan to distribute the assets to the child at different ages or life stages, to avoid the risks presented by a young adult who has not matured into good money management.

Some families are blessed with a person who would be great for raising the child and managing his money. In other families, there is a great candidate for guardian and a great candidate for trustee, and they are not the same person. This is okay. Your attorney can draft your will accordingly.

Be ready, also, to discuss any special needs of your child, even for an adult child, in case special trust language is needed in the will.

Blended Families

Families come in all shapes and sizes. Some are blended families, formed when other families are torn by divorce and death. If your family includes stepchildren or property issues arising from these situations, we are here to listen and assist you in forming a plan that takes these matters into consideration.

LET US HELP

The attorneys of Ness & Jett, LLC, are skilled in drafting wills, and are ready to help put your personal estate plan into writing. As I always say, "I hope you don't need it any time soon." But, better safe than sorry. Let's get it done.

BE CAREFUL WITH THAT GIFT! GENEROSITY HAS CONSEQUENCES

By Norma A. T. Jett


Did you know that giving someone a gift may have bad consequences? At Ness & Jett, LLC, we often meet with parents or grandparents who have decided to make a gift of a house, land, stocks, money, or other valuable assets to their child or grandchild, or even a non-relative. While well-intended, such gifts can have unwanted consequences. At Ness & Jett, LLC, we do not practice tax law, but we can advise you, and consult and collaborate with tax professionals, as needed, to assist you to carry out your generous wishes without harming your own interests. If you are considering such a gift, you may need to consider the following:

Gift Taxation

A gift made in one year, exceeding the federal annual gift tax exclusion ($14,000 for 2017), can trigger gift taxes for the giver, or may at least require the filing of a gift tax return. There are exemptions and solutions to deal with this issue, and we can collaborate with a tax professional to assist you in choosing the best course. Just a few of the options include:

Spreading the gift over multiple years: A gift of value exceeding the exclusion can be given in installments beginning in Year 1 and ending in a future year.

Teaming with a spouse to double the gift tax exclusion: A married couple can give up to twice the exclusion amount. If the asset is owned by one spouse, she can give her spouse an interest, and then both can make the desired gift, thus doubling the amount that can be passed in one year without tax consequences. For example, a married couple with a married child could give $56,000 in value into the child’s household, simply by making the gift in four parts, with each donor spouse making separate gifts to the child and child’s spouse.

Filing a gift tax return without paying tax: A return can be filed to apply the gift to the donor’s lifetime gift tax exemption (the estate value a person can pass to his heirs without estate taxes, which, for 2017, is $5.49 million). If the giver expects to have a nontaxable estate at her death, this is often a good solution.

Other transfers which are tax exempt include gifts to a spouse, certain gifts of tuition and medical expenses, and gifts to political organizations.

Income Taxation

A gift of property likely to be sold in the recipient’s lifetime may eventually result in income tax which could be avoided. Example: Ninety year old grandfather gives to grandson land he has held for fifty years. Odds are good that the land is now worth much more than Granddad paid for it. If Grandson sells the land, his basis, used to calculate income tax on the sale, is Granddad’s long ago purchase price, and his income on the sale is the difference between that basis and the sale price. He will pay taxes on this amount. If, instead, Granddad holds the title to the land until his death, and left it to Grandson in his will, Grandson’s basis in the land is “stepped up” to the amount of the current market value at Granddad’s death, regardless of what Granddad paid for the land. Then, a sale for that value would be tax-free.

Medicaid

Many older persons believe that giving their house, lands, or other assets to their loved ones will assist them to become eligible for Medicaid assistance with nursing home or medical care, and will shield those assets from recovery by Medicaid after their deaths. This area is fraught with consequences, as Medicaid employs a five year “look back” analysis of assets when determining eligibility. Transfers to achieve Medicaid eligibility can be penalized. Giving away assets may leave the family with the dilemma of paying for nursing home care up to the value of the assets given away. Some Medicaid planning actions have been deemed unethical or even illegal.

We Can Help

Ness & Jett, LLC, can assist you in making your gift while avoiding financial perils to yourself. Give us a call today and schedule an appointment with one of our attorneys.