ELDER ABUSE AND

THE SANDWICH GENERATION

More than 25% of American Families are involved in some type of parental care, i.e. care for their aging parents. The Sandwich Generation generally delays parenthood until their 30's and 40's so they are wedged between, and committed to, care for their parents and care for their own children.

As our parents age, we are confronted with decisions about their care once they can no longer live in their own home. There is the consideration of becoming a caregiver and bringing your parent(s) to your own home or the difficult decision to place your parent in a skilled nursing facility. For this article, we will focus on the later.

While your parent is within a skilled nursing facility, it is important to note that most skilled nursing facilities have an annual staff turnover rate of greater than 80%. It is important to monitor your family members weight to determine if they are being properly hydrated and being given proper nutrition.  It is also important to monitor your family members skin integrity to determine if there is appropriate hygiene care and that pressure sores (bed sores) are not developing. These issues are especially important if parents can no longer speak for themselves.

When concerns about Elder Abuse arise, family members generally feel a tremendous amount of guilt that their family member has fallen victim to abuse.  It is important to remember that the abuse and neglect are not your fault.

The key issues to look for are:

-Weight Loss
-Dehydration
-Frequent Infections
-Repeated Falls
-Hygiene
-Pressure Sores/Bed Sores
-Skin Breaks
-Inadequate Staffing
-Prescription Errors
-Medication Administration Issues

Many experts indicate that the Nursing Home Industry is the most regulated industry in the United States after nuclear power plants. Nursing Home Administrators, Medical Directors, Nurses and the Support Staff are expected to comply with all state and federal laws and regulations in the care and treatment they provide. Be patient with the care providers and take an active role in the direction of care for your loved ones.

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DIVORCE IN CALIFONRIA AND

RECENT LEGISLATION IN

SAME SEX PARTNER RIGHTS

                                              DIVORCE

In California, there are two grounds for divorce (also known as dissolution):

1)         Irreconcilable differences

You simply check this box on the dissolution petition and the court will grant your divorce.

2)         Incurable insanity (almost never used)

Medical proof that one spouse was insane when the petition was filed and remains incurably insane is required.

In addition to the grounds above, you or your spouse must have lived in California for six months and in your county for three months before filing a petition to dissolve your marriage.

There are several steps that occur after you file for dissolution,

Disclosure:

Each party will have to complete disclosure declarations that provide information about your income, expenses, assets and debts and have them officially delivered to your spouse.  The court will require proof that you served your spouse with a Preliminary and Final Disclosure Declaration.

Temporary orders:

You or your spouse may ask for a hearing so that a judge can decide any temporary child custody, visitation, and support, requests for attorney fees or restraining order disputes. Such hearings are called Order to Show Cause hearings.

Agreement:

You, your spouse or a mediator chosen by the parties may work on permanently resolving the issues raised in the dissolution.  If you reach an agreement, you may not have to appear in court and a judgment based on your agreement can be entered.  You will have to submit a sworn statement to the court saying that the marriage is ending because of irreconcilable differences.

Trial:

If you are unable to reach an agreement, you and your spouse will appear in court for a trial in which a judge will make the decisions.

Default:

If your spouse does not file a Response to the Petition for Dissolution, you may request a default and proceed to a default hearing to obtain a judgment. You will be asking the court to enter a judgment consistent with the requests in your petition.

Judgment:

A judgment ending your marriage can be entered six months from the day your spouse is served with the Summons and Petition for Dissolution.  The court does not automatically end your marriage when the six months have passed.  A judgment must be filed with the court.  Further, you may not legally remarry until you obtain a judgment even if the six months have passed.  If you want to remarry or have some other reason for wanting to be single at the end of six months, a judge can dissolve your marriage even though some property or other issues are not yet settled.

Spousal Support

Spousal support is the term for alimony in California.  Spousal support is money that one spouse pays to help support the other after the filing of a dissolution.  The spouse receiving such support will pay federal and state income taxes on it, and the one making such payments will be entitled to a tax deduction.

To determine the amount of spousal support, the judge will consider such factors as the standard of living during the marriage, the length of the marriage, and the age, health, earning capacity and job histories of both individuals.

It is important to note, if the marriage lasted less than 10 years, it is unlikely that a judge will order spousal support for longer than half the length of the marriage.

Tax Deductibility of Spousal Support in the Dissolution of a Domestic Partnership

Under the California Law, a judge can order one former domestic partner to pay spousal support to the other partner. However, unlike divorcing couples, spousal support payments made by a former domestic partner are not tax deductible in either federal or state income tax returns.

Property Division

California law recognizes that both spouses make valuable contributions to a marriage. Most property will be labeled either community property or separate property.

1)         Community Property

All property that you and your spouse acquired through labor or skill during the marriage is, in most instances, community property.   You and your spouse may have more community property than you realize.   Examples of Community Property interests include an interest in pension and profit-sharing benefits, stock options, other retirement benefits or a business owned by one or both of you.

Each spouse owns half of the community property.   This is true even if only one spouse worked outside of the home during the marriage and even if the property is in only one spouse’s name.

2)         Community Debts

Further, with few exceptions, debts incurred during the marriage are community debts as well.   This includes credit card bills, even if the card is in your name only.   Please be aware that student loans are an exception and are considered separate property debts.   Community property possessions and debts are divided equally unless you and your spouse agree to an unequal division.

Keep in mind that if your spouse agrees to pay a community debt and fails to do so (or files for bankruptcy and discharges the debt), you may have to pay the creditor.   Please check with a Bankruptcy specialist or with your Tax Advisor on this issue.

Finally, if you and your spouse cannot agree on the division of your debts and possessions, a judge will make the decision for you.   He or she may not split everything in half; instead, the judge might give each of you items of equal value.

3)         Separate property

Separate property is property acquired before your marriage, including rents or profits received from these items; property received after the date of your separation with your separate earnings; inheritances that were received either before or during the marriage; and gifts to you alone, not you and your spouse.  Separate property is not divided during dissolution.

Debts incurred before your marriage or after your separation are considered your separate property debts as well. You will be required to file proof that you delivered your spouse a list of all of your community and separate property, and your income and expenses, which is attached to documents called the Preliminary and Final Declarations of disclosure mentioned earlier in this article.

Determining the character of property can be complicated and mistakes can be costly.  In this area, a Forensic Accountant may be necessary depending upon the size of the estate.

Property Rights in the Dissolution of Domestic Partnerships

The community property laws of California provide law any assets and income that are acquired by a married person is presumptively community property. However, assets acquired by domestic partners while they are in their relationship are not treated as community property when the relationship is terminated. Instead, California Family Code §299.5 provides that any assets jointly acquired by the partners are to be divided "...in proportion of interest assigned to each partner at the time the property or interest was acquired unless otherwise expressly agreed in writing by both parties."

Retirement Benefits (QDRO) and
Surviving Spouse Benefits in Divorce

When a couple divorces and one spouse has a pension, the couple should prepare a QDRO (qualified domestic relations order) for the company's pension administrator. The QDRO will ensure that the company will pay the spouse, who does not own the pension, their share of the pension benefits.

If the pension-owning spouse dies before the other spouse receives their share of the pension, according to a recent 9th Circuit Court of Appeals case, the non-pension-owning spouse must make sure that the QDRO specifically allows for the assignment of surviving spouse benefits.

Effective January 1, 2005, adults who are not married are entitled to most of the legal benefits that are afforded married couples. This is the result of the enactment of the Domestic Partnership Act of 2003 by the California Legislature, which can be found in the California Family Code, commencing at Section 297.

Over the past several decades, same-sex couples have sought societal equality in their relationships. It began in the early 1970's, when same sex couples began applying for marriage licenses, asking courts to allow one partner to adopt the other in attempts to legally cement their relationships. Many of these early efforts failed.

In March of 2000, 61 percent of California voters supported Proposition 22 which amended the California Family Code, Section 308.5, providing that "[o]nly marriage between a man and a woman is valid or recognized in California. The stated purpose of this ballot initiative was to establish that the state of California would not recognize any marriage contracted in another state or country if such marriage were not between a man and a woman.

Each of us should also familiarize ourselves with California Assembly Bill 205, (AB 205) the California Registered Domestic Partner Rights and Responsibilities Act of 2003, which takes effect on January 1, 2005. California’s domestic partner law bestows roughly twenty legal rights upon same-sex couples who register with the state. The rights include hospital visitation, medical decision-making, estate administration, partial inheritance rights, wrongful death standing and the ability to use the stepparent adoption process. By the way, a committed, elderly heterosexual couple where both partners are 62 years or older, may also have the opportunity to register as Domestic Partners and receive the same protection of AB 205.

As many of you may remember, in 1999, California became the first state in the U.S. to allow gay and lesbian couples, as well as elderly heterosexual couples, to register as domestic partners and since then, more than 22,000 California couples have registered the partnership with the Secretary of State.

Assembly Bill 26 created Domestic Partnership separate and distinct from marriage in 1999. AB 26 set forth that a domestic partnership may be established between 2 adults of the same sex, or, if both persons are over the age of 62...opposite sexes, who have a common residence...and would provide for registration with the Secretary of State. (California Family Code Section 297-299-6, et. seq., Government Code Section 22867-22877, et. seq. and Health and Safety Code Section 1261.) To be eligible, neither person may be married and a public, notarized declaration must be presented when they register with the Secretary of State. Preceding AB 205, Assembly Bill 26 gave domestic partners the rights of hospital visitation equal to those of spouses and health insurance benefits for government employees of domestic partners.

In October of 2001, former Governor Davis signed Assembly Bill 25 which provided further protections for domestic partners in basic employment, health care and estate/inheritance rights. Assembly Bill 25, signed after AB 26, provides in part the right to sue for wrongful death of a partner (California Probate Code, Section 2504) and the right to sue for negligent infliction of emotional distress in connection with a partner’s injury (California Civil Code, Section 1715.01). Domestic Partners can also maintain a cause of action for loss of consortium.

The New Act (AB 205) provides same sex couples the evidentiary "marital privilege," as it is commonly known, providing them with the election of refusing to testify against their partner. Further, same sex couple may exercise the privilege to maintain confidential communications among partners. The Act also expands same sex couples’ right to recover damages against an employer liable for partner's wrongful death and, in the realm of intellectual property, the right to sue for violation of right of publicity of deceased partner. On some specific topics, the California’s Domestic Partner Law (AB 205) will include many of the rights and responsibilities of spouses under state law including the following:

Inheritance Rights

AB 205 provides community property rights and same sex partners gain the right to protection against disinheritance by a partner similar to heterosexual couples. Domestic partners may also avoid probate of jointly owned property under the legislation and avoid estate and gift taxes. However, distinct from heterosexual married couples, same sex partners will not obtain rights to property interests governed by federal law, such as patents and copyrights.

Financial Rights

AB 205 expands to include joint/mutual responsibility for debts and access to the family courts to resolve disputes regarding child custody of born or adopted child, financial and child support rights upon dissolution of the union.

Nonetheless, same sex couples will not obtain the ability to file joint California state income tax returns; nor, will same sex couples receive treatment as a couple under federal tax law. Further, the California Domestic Partners Act does not qualify same sex couples for federal Social Security benefits, Veterans’ benefits or Veterans’ pensions. Same sex partners may however receive death benefits for surviving partners of firefighters and police officers in California.

Medical/Insurance Rights

Under the Act, same sex couples gain the right to authorize medical treatment for a domestic partner’s children and the Act also provides domestic partners the right to be covered under each other’s auto insurance if they so choose.

Obviously, this legislation impacts our practice in how we conduct discovery and in the exploration of special damages. In general, we are all strongly encouraged to create legal and other documents articulating our intentions and expectations about the families that we have and are creating; but, this is of great importance in the gay and lesbian community. The documents created among same sex couples may include co-parenting agreements, estate planning documents, or other types of agreements between the partners.

In our practice, a secondary benefit of such agreements is that the process of unearthing such an agreement can uncover areas where the understanding among the parties is unclear, or where there is outright disagreement among the partners.

In conducting discovery in a matter involving a domestic partners, look for a healthcare living will, healthcare directive or healthcare proxy. A health care proxy (sometimes called a "health care power of attorney") empowers a trusted representative (called an "agent") to make decisions about your health care in the event you become ill and are unable to communicate your wishes about medical treatment.

As you know, doctors and hospitals traditionally seek the next of kin (the patient’s biological family) should the patient become incapacitated unless a health care proxy form specifies a desired representative. In a domestic partnership, this will likely exist. Unlike a health care proxy, a living will does not empower another person to make important medical decisions if the patient is incapacitated; instead, it provides direction to the healthcare provider or chosen representative, including what measures the patients wants to take to prolong life or discontinue life saving measures.

In conducting discovery, it would be interesting if the desired or appointed representative on these documents is not the plaintiff in your action. Such a document can give you insight into the relationship between the partners and be valuable when working up any loss of consortium claim.

On the issue of damages, as indicated above, California government employees, police officers and firefighters enjoy the same benefits as married couples so this is a fair area of exploration in discovery with gay partners.

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