The basic estate planning questionnaire that we provide to our clients ask questions that will allow us to determine whether they might need to use a trust in their estate planning. Not all Estates need to have a trust created. However, there are many reasons why at rest is a good idea. The purpose of this blog post is to not talk about the uses of a trust, but rather to talk about what a trustee does when a trust is created.
WHAT IS A TRUSTEE
We have now had some time to reflect on the adoption of the Sixth Edition of the AMA Guides to the Evaluation of Permanent Impairment. There were criticisms to the Fifth Edition in that it awarded too much impairment that was actually disability. One of the biggest changes from the Fifth to the Sixth Edition was a greater emphasis on the functional assessment as a component of the impairment rating. The doctors working on the Sixth Edition also tried to remove as much ambiguity as possible to improve the inter-examiner consistency. We have seen the biggest adjustments made in the spinal chapter of the Sixth Edition. These impairment ratings are now much lower. The writers of the Sixth Edition did this by assigning lower numbers to each of the classifications, which are driven by the severity of the injury. The writers of the Sixth Edition further attempted to drive down the impairment ratings by developing a grid system, which then subtracted or added to the overall impairment.
This development is of major concern to many Idaho Workers’ Compensation claimants. Most of the more serious Idaho Workers’ Compensation claims arise out of low back injuries. With the lowering of the impairment ratings, injured Idaho workers now receive less in the form of impairment rating monies because their impairment ratings are now lower. The way to work around this problem is to make sure that the disability portion of your Idaho Workers’ Compensation claim is developed by having evidence of your restrictions and documentation of your wage loss. These are the two largest non-medical factors that drive your disability claim. If your Idaho Workers’ Compensation claim is properly developed by an experienced Idaho Workers’ Compensation lawyer, you can make up for these lower impairment ratings by having a stronger disability claim from the non-medical factors in your Idaho Workers’ Compensation case.
In Green v. Industrial Special Indemnity Fund (Second Injury Fund), the Claimant was a sawyer who was struck by a falling tree. The Second Injury Fund appealed from the Idaho Industrial Commission’s determination that Green was totally and permanently disabled and that his disability was due to the combined effects of a lumbar fusion and cervical fusion related to the industrial accident and a preexisting thoracic fusion. The Second Injury Fund argued that the Idaho Industrial Commission made a mistake regarding the application of the “but for” test for determining Second Injury liability.
The Idaho Supreme Court specifically held that in applying the “but for” test, it is not necessary for a claimant’s physician to use magic language in rendering an opinion regarding the effects of the prior condition and the last industrial accident. The Second Injury Fund focused on two sentences in the Commission’s decision to argue that the Commission failed to apply the “but for” test. But those two sentences are: “Therefore, per Drs. Ganz and McNulty, the fact that Claimant has a preexisting T12-L1 fusion increases the risk that he will have further problems from L3-5 fusion unless he observes certain prophylactic limitations/restrictions. We believe this demonstrates that Claimant’s preexisting thoracic spine condition does combine with the effects of the work accident to contribute to Claimant’s total and permanent disability.”
A few days ago, the Idaho Supreme Court issued a decision that reaffirms an Idaho rule concerning property descriptions. The Court held that a conveyance deed is not enforceable unless the property description in the deed describes the property so that it is possible for someone to identify exactly what property is being conveyed. This description must be written in so that quantity, identity, or boundaries can be determined. The description must stand alone, without support from outside evidence.
In this recent decision, The David and Marvel Benton Trust v. McCarty, McCarty asserted that the following legal description in a quitclaim deed was sufficient:
On March 7, 2012, the Idaho Supreme Court decided the case of Brown v. The Home Depot. In this case the claimant had slipped on the snow covered steps while working for Home Depot and hurt his back. This Idaho Workers’ Compensation claimant had significant preexisting medical issues which included two prior back surgeries and the removal of his left lung. The claimant contended that he was totally and permanently disabled and sought recovery from both his employer and from the State of Idaho Industrial Special Indemnity Fund (ISIF). The Commission found that the claimant to have permanent disability of 95%, which meant that they did not find him to be totally and permanently disabled.
The Claimant appealed the Commission’s decision to the Idaho Supreme Court and argued the Commission correctly evaluated the permanent disability at the time he reached Maximum Medical Improvement (MMI) for his last injury as opposed to the actual date of the hearing in his Idaho Workers’ Compensation case. This was significant because his MMI date was in late 2005, which occurred during a job market boom as opposed to 2009, when his hearing was held and Idaho was in the midst of the Great Recession.
By Lane V. Erickson, Attorney
Federal law has made an effort to protect those who serve in our Armed Forces. Particularly, federal law concerning the employment of members of the military provides protections above those normally given to regular employees.
According to the Federal Department of Labor:
Estate planning does not have to be complex. In fact, many of my clients are surprised when We complete their estate planning for them and they can see how simple it really was. Below is a simple three-step estate plan that anyone can accomplish through a qualified estate planning attorney.
MAKE A LIST OF WHAT YOU OWN AND WHAT YOU OWE
As reported by the New York Post, a tenant of a famed Bowery flophouse has been banned from suing his landlord. Roland Davis, 65, had already sued the Whitehouse Hotel at 338-340 Bowery 23 times in seven years, losing every time, when Manhattan Judge Kelly O’Neill took the unusual step of barring him from pursuing any more litigation against its past and current owners.
“I am both relieved and excited, not just for me, but for the fact the courts are willing to recognize that nobody should be permitted to use the system as a weapon,” said Meyer Muschel, a former owner of the building who had been sued.
Employers are often covered by federal employment laws that provide certain protections for employees. One of the laws that exist that is applicable to many employers is the Family and Medical Leave Act (FMLA). The FMLA is designed to provide certain employees with up to 12 weeks of unpaid, job-protected leave per year. It also requires that their group health benefits be maintained during the leave. Essentially this means that an employee who is covered by the FMLA can take up to 12 weeks of leave, that is unpaid, with an assurance that their job will be open and remaining for them when they return.
The FMLA is designed to help employees balance their work and family responsibilities by allowing them to take reasonable unpaid leave for certain family and medical reasons. It also seeks to accommodate the legitimate interests of employers and promote equal employment opportunity for men and women.
I’ve been an estate planning attorney now for nearly two decades. One of the first things I discovered about estate planning when I first began practicing was how flexible estate planning can be. Flexibility in estate planning is really important because a person’s circumstances are changing all the time. Below are three of the basic areas that illustrate how flexible estate planning can be.
OWNERSHIP AND USE OF PROPERTY
Idaho Law Blog
