Perils Of Being A Caregiver In California

It may start as a loan by the elder or dependent adult to the caregiver to buy out the latter's contract with agency, to be paid back by salary deduction.

Or it may be a loan to the caregiver to pay debts or for other purposes. Once the elder or dependent adult becomes grateful to the caregiver for services beyond the call of duty, such as driving, doing errands, and bringing to casinos, gifts in money or in kind may follow.

If the gifts are of insignificant amount or value, the next of kin of the elder or dependent adult (usually children, nephews or nieces, etc.) may not complain, may not call the police to complain of elder theft/fiduciary, under Section 368(e) of the California Penal Code.

If the gifts amount to thousands of dollars, whether in cash or checks, the next of kin or legal heirs may complain to the police that the so-called "gifts" or loans were taken from the elder or dependent person through theft, embezzlement, forgery, fraud, or identity theft.

Section 368 Of The CA Penal Code On Elder Theft:

Section 368(a) of the Penal Code states the rationale for the crime as follows: "The Legislature finds and declares that crimes against elders and dependent adults are deserving of special consideration and protection, not unlike the special protections provided for minor children, because elders and dependent adults may be confused, on various medications,mentally or physically impaired, or incompetent, and therefore less able to protect themselves, to understand or report criminal conduct, or to testify in court proceedings on their own behalf."

Due to this built-in statutory protection extended to elders and dependent adults, the police and detectives may easily find probable cause to arrest caregivers under Section 368(e) of the Penal Code.

"Elder" is defined as "any person who is 65 years of age or older," under Section 368(g). "Dependent adult" is defined as "any person who is between the ages of 18 and 64, who has physical or mental limitations which restrict his or her ability to carry out normal activities or to protect his or gifts, including, but not limited to, persons who have physical or developmental disabilities or whose physical or mental abilities have diminished because of age," under Section 368(h).

And "caretaker" is defined as "any person who has the care, custody, or control of, or who stands in a position of trust with, an elder or a dependent adult," under Section 368(i).

The crime of theft from elder or dependent adult by a caretaker, in violation of Section 368(e) of the Penal Code, involves a "caretaker (who) committed theft, embezzlement, forgery, fraud, and identity theft with respect to the property and personal identifying information of an elder and dependent adult, said property, moneys, goods and services obtained having a value exceeding $400.00, and knew and reasonably should have known that said person was an elder and dependent adult."

This crime of theft by caretaker/fiduciary exceeding $400 is a wobbler, that is, it is punishable as a misdemeanor by imprisonment in a county jail not exceeding one year, or as a felony by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding one thousand dollars ($1,000).

The District Attorney's Office may file a felony Complaint with one Count of Section 368(e), Penal Code violation against a caregiver. The amount of bail per bail schedule of Los Angeles County is approximately $50,000.00 for one count of Section 368(e) elder theft/fiduciary, but the police may seek a deviation therefrom to increase bail to $200,000.00 or more, depending on the number of counts, the amount taken or received, the defendant being a flight risk, and a danger to society.

The defendant may also seek to reduce bail below the amount established by the bail schedule approved for Los Angeles County, pursuant to Section 1275 of the Penal Code.

Setting, Reducing Or Denying

Bail: Section 1275 of Penal Code:

Indeed, Section 1275(a) of the Penal Code states that: "In setting, reducing, or denying bail, the judge or magistrate shall take into consideration the protection of the public, the seriousness of the offense charged, the previous criminal recordof the defendant and the probability of his or her appearing at trial or hearing of the case. The public safety shall be theprimary consideration.

And "(i)n considering the seriousness of the offense charged, the judge or magistrate shall include consideration of the alleged injury to the victim, and alleged threats to the victim or a witness to the crime charged, the alleged use of a firearm or other deadly weapon in the commission of the crime charged, and the alleged use or possession of controlled substances by the defendant," per Section 1275(a), second paragraph.

Another arsenal of the police or prosecutor, aside from seeking increase of bail as a deviation from the amount established by the bail schedule, is to ask for a Penal Code Section 1275 hearing to determine whether the source of bail was feloniously obtained, through an unlawful act, transaction, or occurrence constituting a felony, under Section 1275.1(k) of the Penal Code.

The procedure for a Penal Code Section 1275 hearing is set forth in Section 1275.1 of the Penal Code, as follows:

"(a) Bail, pursuant to this chapter, shall not be accepted unless a judge or magistrate finds that no portion of the consideration, pledge, security, deposit, or indemnification paid, given, made, or promised for its execution was feloniously obtained.

(b) A hold on the release of a defendant from custody shall only be ordered by a magistrate or judge if any of the following occurs:

(1) A peace officer, as defined in Section 830, files a declaration executed under penalty of perjury setting forth probable cause to believe that the source of any consideration, pledge, security, deposit, or indemnification paid, given, made, or promised for its execution was feloniously obtained.

(2) A prosecutor files a declaration executed under penalty of perjury setting forth probable cause to believe that the source of any consideration, pledge, security, deposit, or indemnification paid, given, made, or promised for its execution was feloniously obtained. A prosecutor shall have absolute civil immunity for executing a declaration pursuant to this paragraph.

(3) The magistrate or judge has probable cause to believe that the source of any consideration, pledge, security, deposit, or indemnification paid, given, made, or promised for its execution was feloniously obtained.

(c) Once a magistrate or judge has determined that the probable cause exists, as provided in subdivision (b), a defendant bears the burden by a preponderance of the evidence to show that no part of any consideration, pledge, security, deposit, or indemnification paid, given, made, or promised for its execution was obtained by felonious means. Once a defendant has met such burden, the magistrate or judge shall release the hold previously ordered and the defendant shall be released under the authorized amount of bail.

(d) The defendant and his or her attorney shall be provided with a copy of the declaration of probable cause filed under subdivision (b) no later than the date set forth in Section 825.

(e) Nothing in this section shall prohibit a defendant from obtaining a loan of money so long as the loan will be funded and repaid with funds not feloniously obtained."

In one case handled by this Author, a Superior Court Judge in Los Angeles County placed a hold on the release of a defendant caregiver prior to holding a Section 1275 hearing, and even though no police officer or prosecutor had filed a sworn declaration of probable cause that the source of the bail was feloniously obtained, in violation of Section 1275.1(b) of the Penal Code.

Invalidity Of Gifts To

Caregivers: Section 21350 Of The Probate Code:

Gifts or donative transfers through any instrument (will, living trust, check, etc.) that are given by the elder or dependent adult to the caregiver are presumptively invalid, pursuant to Section 21350(a)(6) of the California Probate Code.

This statutory invalidity of gifts states as follows: "(a) Except as provided in Section 21351, no provision or provisions, of any instrument shall be valid to make any donative transfer to any of the following: (6) A care custodian of a dependent adult who is the transferor."

Under the Probate Code, the term "dependent adult" includes persons who "(1) are older than age 64 and (2) would be dependent adults, within the meaning of Section 15610.23 (of the Welfare and Institutions Code), if they were between the ages of 18 and 64," per Section 21350(c).

But the Section 21350 invalidity of donative transfers or gifts in any instrument does not apply to caregivers, if any of the following conditions are met, pursuant to Section 21351:

"(b) The instrument is reviewed by an independent attorney who (1) counsels the client (transferor) about the nature and consequences of the intended transfer, (2) attempts to determine if the intended consequence is the result of fraud, menace, duress, or undue influence, and (3) signs and delivers to the transferor an original certificate in substantially the... (prescribed) form...;

(c) After full disclosure of the relationships of the persons involved, the instrument is approved pursuant to an order

under Article 10 (commencing with Section 2580)... (of the Probate Code);

(d) The court determines, upon clear and convincing evidence, but not based solely upon the testimony... (of the care custodian), that the transfer was not the product of fraud, menace, duress, or undue influence; or

(h) The transfer does not exceed the sum of three thousand dollars ($3,000). This subdivision (h) shall not apply if the total value of the property in the estate of the transferor does not exceed (one hundred thousand dollars)...."

Lastly, an action to establish the invalidity of any transfer described in Section 21350 can only be commenced, under Section 21356 as follows:

"(a) In case of a transfer by will, at any time after letters are first issued to a general representative and before an order for final distribution;

(b) In case of any transfer other than by will, within the later of three years after the transfer becomes irrevocable orthree years from the date the person bringing the action discovers, or reasonably should have discovered, the facts material to the transfer."

A probate action to establish the invalidity of any transfer to a caregiver is the proper remedy, not a criminal case of elder theft/fiduciary, when no actual theft is involved.

******

(The Author, Roman P. Mosqueda, has represented numerous caregivers in elder theft cases and in recovery of donative transfers through wills and living trusts to caregivers)

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Employment And Disability Claims

A disability claim refers to the request you can make for income assistance filed with the Social Security Administration. This is usually filed when a person believes that a case of physical or mental disability leads to his or her inability to find a job or live a normal life. This is also referred to as employment & disability claims in various quarters.

It's possible to file a disability claim depending on your financial and medical history. There are normally 5 stages involved in the filing process. It begins with the initial reconsideration stage and then proceeds to the hearing and later on to appeals council hearing and the federal district court appeal. The initial reconsideration involves the filing out of an SSI or SSDI application for the claim. However, this application can be approved or denied by the Social Security claims representative within a space of 3 to 5 months.

Now, if it happens that your disability claim is denied, you still have up to 60 days to file for reconsideration. You don't need to take the denial personal since almost over 60% of disability claims are usually denied. You can always do something about the denied claim.

A number of reasons can lead to the denial. It may be because that the claim is not legitimate or because you filled wrong details in the application form. You can file for reconsideration in order to correct the errors if you discover that's the reason for the denial. While re-filing the claim, you need to present better information in the details you give. You can add additional documents and medical records to support the claim.

Normally, your request for reconsideration can take up to 2 weeks to 6 months before it can be approved. It all depends on how many pending cases, the Social Security Administration is handling as at the time you filed the claim again. It also depends on the quality of the new details you're presenting. You have to make sure you find out the actual reason why the claim was denied. You can make proper inquiries from experts in the field. You have up to 60 days to file for the claim again; otherwise the case will be thrown out.

Meanwhile, if your request for reconsideration is also denied, you can then proceed to the next appeal. When you do this, your case will be brought before an appeal judge. You'll stand in front of the judge while your case is argued verbally. In order to succeed in this, you need to engage the services of a disability lawyer to help you out. If for any reason your disability claim is denied at this level, you can take it to the Social Security Administration Appeals Council. If it's denied again, you have to proceed to the Federal District Court. You may win the case at this stage. However, if the claim is denied at this final stage, you have to forget about it. The most important thing is for you never to lose hope. You have to fight for the disability claim to the last point. In order to win the case, always make sure you have enough evidence to support your claim.

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Labour Laws in India

Labor laws in India not only regulate employment terms but also provide labor rights to the employees. They are specifically targeted towards the employer-employee relationship, and guarantee legal rights to the workers as well as promote workers' interests. The main aim of labor laws is to address the demands and needs of employees. These laws actually work towards bringing specific improvement in areas like working conditions, wages, working hours, protection of rights etc., to the employees.

The responsibility to protect and defend the interests of employees in general lies with the Ministry of Labour. The Ministry also has the liability to safe guard the welfare of those who constitute the underprivileged and the trivial classes of society. They particularly have to create a strong work atmosphere for higher production and efficiency. The Ministry tries to attain this intention by passing and applying labour laws standardizing the provisions and conditions of service and employment of employees.

Labor Laws can be broadly classified into two major categories as below:

Defining the relationship between employers, employees and trade unions.

Determining the laws relating to the rights of employees at their place of work.

Major laws which deal with labor issues especially with regard to the rights of workers are as below

Industrial Disputes Act 1947

Workmen's Compensation Act 1923

Minimum Wages Act 1936

Payment of Bonus Act, 1965

Payment of Gratuity 1972

Payment of Wages Act, 1936

Child Labor (Prohibition and Regulation) Act, 1986

Trade Unions Act, 1926

Maternity Benefit Act, 1961

Factories Act, 1948.

The Equal Remuneration Act, 1976

The Employee's State Insurance Act, 1948

Labor Law: Things to Know

The Industrial Disputes Act, 1947

This Act came into effect in 1947 and was provisioned for formation of works committees and Industrial tribunals, for promoting industrial peace. The committee consists of employers as well as representative of workers. The main aim is to enhance communication and the relationship between employers and employees; and to provide solutions for their disputes. This Act provides not only for the investigation and settlement of industrial disputes, but also focuses on the mechanism essential for settlement of differences between the employers' and the employees'. It has the right to lay down conditions to be observed before any termination or layoff is affected. Specific conditions before termination like one month notice and 15 days average pay as compensation are some of the rules of this act.

Workmen's Compensation Act 1923

This Act provides for issues related to compensation in case of any injuries arising out of or in course of employment. Accordingly, if the injury is deadly, resulting in an employee's death then his dependents have to be compensated. This Act also lays down the rates of compensation and the mode of calculating it.

Minimum Wages Act 1936

Minimum wages for the employees is specified in this act. Only the central and state Government has the rights to revise minimum wages specified in the schedule.

Payment of Wages Act 1936

This act concentrates on the time limits to be set, within which the wages should be dispersed to the employees. Only deductions authorized by the Act should be deducted.

Employees Provident Fund and Miscellaneous provisions Act 1952

This act ensures the employees financial security, by providing a system of compulsory savings. It states that the establishment should also contribute same amount as that made by the employee. As per the Act, 10-12% of the total wages should be contributed and is payable after retirement or as advance in case of any emergency.

Payment of Bonus Act 1965

This Act states that establishments who have more than 20 employees must pay bonus to their employees. The amount is calculated either on profits made or on productivity basis.

Payment of Gratuity Act 1972

Gratuity Act is applicable to those factories and other establishments who employ ten or more persons. When an employee completes 5 years of service then he is entitled for gratuity at the rate of 15 days salary for every year of service completed.

Maternity Benefit Act 1961

This Act provides for maternity and other benefits to female employees. It regulates employment of women for certain period prior to and following child-birth.

Industrial Employment Act 1946

This act requires that employers should define the terms and conditions of employment, and issue orders which are certified. This order should cover aspects relating to holidays, shifts, wages payment, leaves etc.

As soon as one completes the registration of a company in India it would be wise enough to appoint a professional who is aware of all the laws connected with labor so that no problems arise once the company starts its operations.

Several of the laws pointed out above relate to the unstructured sector also. Sometimes a separate notice may be obligatory to widen the relevance of a particular law to a fresh sector. It is helpful to perceive that some portion of legislation are more universal in character and effect across the panel to all sectors.

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Facing a Challenge With Employment Disputes?

If you've got issues at work, it can rapidly turn a place you enjoy going to to a place that brings on sweats, panic attacks or anxiety before you step in the door every morning. Employment disputes can be incredibly costly, before you seek legal advice. We spend a lot of our days working with others, and if it become an unpleasant or tense place to be, it not only makes your life unhappy, it will reduce productivity, hurt the business' reputation and in the end effect the profit margins.

It is sometimes tempting to ignore issues and hope they'll go away. It's part of the New Zealand way - to just go with a "She'll be Right" attitude and hope everything is going to be ok. However if you've got employees who are not happy, or are not working the way you should, it can quickly steamroll from a small issue into one that may need a little extra help to manage.

For many of us, seeking external help to manage employment issues can feel a little unnecessary. However it's a good idea to seek legal advice on what your rights and responsibilities are as an employer, and make sure you are not accidentally reneging on the rights of your employees. Many problems can be resolved with just a little legal clarification on both sides, or, if necessary, some mediation. If it is not resolved after that point, you will need to use a court of law to help resolve the problem. Most lawyers can help you not get to that point, provided you see them early on in the piece, and provide them with all the information they may need to look after your affairs.

Of course most issues can be resolved by looking at the original contract and checking everything is in line with that. If you've employed someone without a contract you are open to problems later down the track. If you want to preempt any problems, take legal advice about what should and shouldn't be in your individual contracts, so you can avoid any preventable employment disputes.

It can become a very costly venture to fight an unfair dismissal case, or trying to talk through problems with workplace bullying and other common problems. It's a good idea to have external help, so that you can be protected and not say anything or do anything that causes you to get into more trouble. It is easy to say something in the heat of the moment that can impact negotiations later down the track. Get help with your employment dispute before it costs you more than it should have.

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Sports Arbitration

While legal disputes may seem to be somewhat unsportsmanlike, the fact is that it is a major part of modern professional sports. Sometimes it seems like the days of ole, when a sport was just a simple pastime engaged in by 'the guys' during leisure hours, are just a thing of the past. Is there anyone who still plays sports for the love of it? The answer is of course, yes, but when it comes to professional sports teams, leagues, and games are more than fun and entertainment, they are businesses. Business means money, and money means, power, and power means conflict.

The types of disputes that can arise in professional sports are numerous, but the salaries are very often the point of difficult conflicts. Sometimes there are acrimonious disputes that end up in court, a situation in which there is seldom an amicable solution. Either one side wins and the other is left discontented, or the court orders a compromise, which usually satisfies neither.

An Alternative to Traditional Dispute Resolution in Sports

But there is another way - arbitration. In recent years arbitration has been used more and more as an alternative to litigation for settling sports disputes. As in all arbitration proceedings arbitration in sports needs to be agreed to by both parties from the get go. Often the arbitration hearing is conducted by, not only one arbitrator, but an arbitration panel, consisting of three arbitrators. In the case of a three-person panel, each party chooses one of the two arbitrators and then those arbitrators appoint the third arbitrator.

During the proceedings each party presents the details of the dispute to the arbitration panel.

Advantages

During the arbitration process both parties have the option of allowing the details of the proceedings to be kept private or to allow them to be made public. Therefore details of the disputes and the arbitration decisions are only publicized on condition that both sides agree. Arbitration is usually much faster than a court procedure, which may be critical if the new season is about to begin, or there is some other looming deadline. Another big advantage of arbitration is that it is considerably cheaper than going to court.

Arbitration Details

The parties may agree to arbitration only after a dispute arises, or there may be an arbitration clause built into the initial contract. Sports arbitrators may simply be individuals with a background in labour law or they could even be arbitration firms who specialize in arbitrating sports disputes.

Popularity of Arbitration as a way of Solving Sports Disputes

Arbitration has become such a popular method of dealing with sports disputes there are now even established organizations centred around sports arbitration. For example, there is even an arbitration court that was established specifically for sports disputes, which was established to settle international sports-related disputes. The court is called the Court of Arbitration for Sport (CAS), which is an international body headquartered in Lausanne. And that's not all folks, when city hosts the Olympic Games it also hosts a temporary arbitration court before and during the duration of the games.

Types of Sports Related Disputes

They may be caused by:

• Conduct related issues: Match fixing, drug use or other forms of cheating can give rise to players being banned. Appeals against lengthy bans often end in arbitration.

• Commercial agreements: Disputes often arise between players and sponsors about lack of expected payments.

• Point deductions: These can have an effect on promotion and disputes arise because of their impact on the player's future career.

• Injuries: Disputes may arise over settlements.

Great Arbitration Example

A famous, and well publicised, arbitration case involved the South African sprinter Oscar Pistorius who was born without the major bones in his legs. Both of his legs were amputated and he was fitted with prosthetics before he learned to walk. In 2008 the International Association of Athletics Federations ruled that his high-tech false limbs gave him an advantage over runners whose legs were only composed by inferior flesh and bone. Later, the same year, the decision of the International Association of Athletics Federations was overruled by the CAS, and he became eligible to participate in the Olympic Games in 2008. After all of that well earned publicity Pistorius failed to qualify for the 2008 Olympics, but, stay tuned because he plans to compete in the upcoming trials for the upcoming Olympics in London.

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What on Earth Is Workers Compensation?

Workers compensation is an extremely important discipline of the law; also, it is the oldest insurance plan in the United States and ended up being amongst the first social insurance programs adopted broadly all through the United States. The great thing is it isn't really off-limits due to the fact you may be an employee that is more mature, weaker, or have been injured previously. It had been really created to aid anyone who has ever been injured while at work.

Worker's compensation is the duty of the employer, although a Workers Compensation Lawyer can advise you in connection with various other differences concerning a civil law suit and a workers' compensation claim. Worker's compensation laws are created round the concept of zero fault. This means fault on the part of the actual employee or even the employer is really immaterial. Keep in mind there are a few examples, including intoxication, where fault does indeed come into play.

The actual impact of a claim will go far beyond infirmary and doctor expenses. It may also give you lost earnings, health benefits and therefore the capability to live life just like you once did. The best strategy should be to find an experienced workers compensation lawyer immediately after a physical injury occurs or possibly when you first become aware of an important potential workplace compensation issue, along the lines of a diagnosis of any sickness linked to your work place. Laws and regulation could have time limitations for action and you could possibly lose your legal rights by waiting around.

Engaging a good Workers Compensation Lawyer who's got practical experience negotiating with insurance providers can certainly make a big difference in the claim end result. Any insurer's objective is always to help save the insurance company funds. Their particular priority is never your health and / or financial stability and so an individual's attorney is going to be certain to obtain the highest compensation payout owing to you. Using a qualified Lawyer levels the playing field. The insurance provider is represented by professional, trained adjusters. Although they are usually pleasant, they also are working just to save their own company money. Regularly they may carry out things that violate the actual compensation protocols, for example communicating directly to your doctor. Getting a lawyer or attorney that can assist you isn't a law suit and additionally it won't suggest there'll be a fight, but it really does mean that the playing field will be even, you will be safeguarded and you may deal with getting better.

Lots of seriously injured employees needlessly pay for medical charges from the settlement funds they are given from the third party insurance vendor when most of these bills could have been settled through the workers' compensation insurer. Do not forget to ask your personal injury lawyer whether you should be attending a doctor who's on your worker's compensation provider listing so the medical expenses aren't deducted from your personal injury settlement deal.

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