6 THE QUEENS COURIER • QUEENS BUSINESS • JUNE 2017 FOR BREAKING NEWS VISIT WWW.QNS.COM
queens business
The Elder Law Minute TM
Elder Law and Personal Injury Actions
BY RONALD A. FATOULLAH, ESQ.
AND DEBBY ROSENFELD, ESQ.
Several years ago, Mrs. Flower entered
a nursing home because she could no
longer care for herself in the community.
At the time, she was in her early 90s
and had basically gone through most of
her assets. Th e nursing home administration
applied for Medicaid on her
behalf in order to cover the cost of her
long term care. It was a very straight
forward case because she was essentially
eligible for Medicaid from the get-go.
Medicaid is a means-tested program;
it will cover the cost of an individual’s
long term care provided such person’s
assets do not exceed a certain amount.
In 2017, one cannot own more than
$14,850 in non-exempt assets.
What made this particular case stand
out is what ensued aft er Mrs. Flower’s
admission. Several months later, she
scheduled a doctor’s appointment to
address some pain in her wrist. Her
family arranged for a taxi to transport
Mrs. Flower to the doctor. On her
way to the appointment, another car
rammed into the taxi causing serious
injuries to Mrs. Flower. She was hospitalized
for several months with broken
ribs, and eventually returned to
ELDER LAW
the same nursing home for rehabilitation
and continued custodial care.
Mrs. Flower’s children initiated a law
suit against the other driver due to the
extreme pain and emotional distress
that their mother endured. Ultimately,
the case was settled and the driver
agreed to pay Mrs. Flower $500,000.
While many might think that personal
injury law has virtually nothing
to do with elder law, the above
scenario is a good illustration of why
the two areas are sometimes connected.
Th e problem with Mrs. Flower
receiving the $500,000 settlement is
that she would no longer be eligible for
Medicaid. Further, if all the proceeds
from the settlement would ultimately
be applied towards Mrs. Flower’s nursing
care, what was the point of bringing
a law suit? In such a situation, an
elder law attorney can do planning to
preserve potentially half of the individual’s
assets. Th rough a strategy that is
oft en referred to as a gift /promissory
note plan, a signifi cant portion of the
proceeds can be salvaged.
Th ere are other issues that must be
addressed in a personal injury action.
Typically, when the injured individual
is permanently disabled, a certain portion
of the settlement funds will have
to be allocated to Medicare. Over the
course of the person’s life, Medicare
will have to lay out funds directly attributable
to the medical care required for
the personal injury. Accordingly, an
elder law attorney will be able to determine
if Medicare has a valid lien against
any of the proceeds and whether a
Medicare set aside is necessary.
If an individual is under the age of 65
and will require nursing care as a result
of a personal injury, a trust can be utilized
to protect the proceeds from the
settlement. If the funds are transferred
to a special needs trust, the individual
can remain on Medicaid without any
penalty or interruption of services. A
special needs trust will essentially provide
for all of the “extras” for that individual.
Th e trustee of the trust cannot
use the funds to pay for any medical
expenses, but he/she can use the trust
funds for anything else that personally
benefi ts the disabled individual.
Sometimes, an injury is so severe that
it results in the incapacity of the injured
party. In such a case, a guardianship
proceeding may also be in order. A
guardianship allows another person to
step in and manage the personal and
fi nancial aff airs of the alleged incapacitated
person (“AIP”). Th e attorney handling
the guardianship must be familiar
with Medicaid planning and other entitlements
that the AIP might need.
Based on the above discussion, it is
clear that an elder law attorney should
be consulted at some point in a personal
injury action in order for the settlement
to properly address all the needs
of the injured party.
Ronald A. Fatoullah, Esq. is the
principal of Ronald Fatoullah &
Associates, a law firm that concentrates
in elder law, estate planning,
Medicaid planning, guardianships,
estate administration, trusts, wills,
and real estate. Debby Rosenfeld,
Esq. is a senior staff attorney at the
firm. The law firm can be reached
at 718-261-1700, 516-466-4422, or
toll free at 1-877-ELDER-LAW or
1-877-ESTATES. Mr. Fatoullah is
also a partner with Advice Period, a
wealth management firm, and he can
be reached at 424-256-7273.
RONALD FATOULLAH
ESQ, CELA*
editorial
Managing confl ict in the workplace
Dear Mindy: I had always
thought that confl ict in the
workplace was the sign of
a poor manager. However,
since becoming a manager
I am beginning to think
diff erently. How can I manage
the confl icts that seem
to arise daily? Questioning
in Queens
Dear Questioning: You
are correct that confl ict in
the workplace is as common
as coff ee breaks. Th e more
employees you manage, the
more opportunities for confl
ict. Here are a few myths
about confl ict and how you can manage
confl ict while keeping morale high.
Myth #1: Th e presence of confl ict
is a sign of a poor manager. Th is is
not true. Confl ict is inevitable whenever
more than one person is working
in the same organization. Confl ict
oft en occurs when people have diff erent
perspectives or when communication
breaks down.
Myth #2: Confl ict, if
left alone, will take care
of itself. Th is is not true.
Confl ict is rarely resolved
without some intervention.
Simple confl icts oft en
become more complicated
when they are ignored
or when complaints are not
addressed.
Myth #3: Conflict is
always destructive in an
organization. Th is is not
true. Confl ict can be either
destructive or constructive
in an organization.
Destructive confl ict undermines
morale and polarizes people and
groups. Constructive confl ict can clarify
important issues, result in innovative
solutions to problems and build
cooperation between people.
Follow these guidelines to eff ectively
manage confl ict in your workplace:
Chose the right time and place to
manage confl ict. Surrounded by colleagues
at 5 pm on Friday aft ernoon
is not the best time or place to try
to resolve a confl ict. Be smart about
where and when to have sensitive conversations.
Focus on specifi c behavior or
events. Don’t generalize or focus on
personalities. Focus on specifi c behaviors
or events and deal with one issue
at a time.
Use active listening skills. Active listening
skills include asking good questions
to clarify your understanding and
really listening to what the other person
is saying instead of getting ready to
react. Encourage respect for each side’s
point of view.
Create a plan to manage the confl
ict. Start discussing and diff using the
most important area of confl ict and
schedule future meetings to follow up
and set goals.
Identify points of agreement.
Summarize the areas of agreement and
disagreement and ask each person if
he or she agrees with your assessment.
Th ere are times when the parties simply
cannot agree. If that is the situation,
it may be best to agree to respectfully
disagree.
Build on Success and Strengths.
Look for opportunities to point out
progress and compliment each person’s
strengths and insights. Be observant
and recognize every step towards
improvement in the situation.
When people work together, conflict
is often unavoidable because of
differences in work goals and personal
styles. If you create a collaborative,
trusting work environment, conflict
can be resolved quickly and effectively
and can build on each employee’s
strengths.
Mindy Stern, SPHR, SHRM-SCP,
ACC is a trusted HR advisor, leadership
and career coach, author, speaker
and president of AIM Resource
Group Inc. Visit the website at www.
aimresourcegroup.com or call 718-
217-1074 if you would like to learn
more about how to manage confl ict or
provide leadership development for
your staff .
EMPLOYMENT
MATTERS
MINDY STERN
SPHR, SHRM-SCP,