Changes and Choices

Changes & Choices - (Text Format)

Legal Rights of Senior Adults

Table of Contents

Introduction †††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Printed Page 2
Disability and Consent
††††††††††††††††††††††††††††††††††††††††††††  Printed Page 3

Guardianship †† †††††††††††††††††††††††††††††††††††††††††††††††   Printed Page 3

Conservatorship †††††††††††††††††††††††††††††††††††††††††††††   Printed Page 6

Durable Power of Attorney †††††††††††††††††††††††††††††   Printed Page 7

Advance Directives †††††                                       Printed Page 9

Civil Commitment †††††††††††††††††††††††††††††††††††††††††††   Printed Page 14

Wills and Estate Planning †††††††††††††††††††††††††††††††††††††††† Printed Page 17

Distribution of Estate if No Will †††††††††††††††††††††††   Printed Page 25

Choosing a Nursing Home ††††††††††††††††††††††††††††††††††††††  Printed Page 26

What to Look For ††††††††††††††††††††††††††††††††††††††††††   Printed Page 27

Services                                                             Printed Page 28

Administration and Routine                                 Printed Page 30

Rights of Nursing Home Residents ††††††††††††††††††   Printed Page 31

Nursing Home Residency                                    Printed Page 33

Medicaid and Medicare Coverage ††††††††††††††††††    Printed Page 35

Applying for Medicaid                                       Printed Page 36

Meeting Medicaid Eligibility Requirements          Printed Page 38

Assets                                                               Printed Page 39

Funeral Expenses                                               Printed Page 41

Income                                                              Printed Page 42

Consumersí Rights †††††††††††††††††††††††††††††††††††††††††††††††††† Printed Page 44

Sales Methods                                                   Printed Page 44

Specific Products/Services                                 Printed Page 45

Scams                                                               Printed Page 48

Remedies                                                           Printed Page 48

Consumer Complaint Form                                 Printed Page 49

Age Discrimination ... †††††††††††††††††††††††††††††††††††††††††††††† Printed Page 50

Civil Rights Complaint                                        Printed Page 52

Pension Rights ††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Printed Page 53
Tax Benefits ††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Printed Page 57
Landlord-Tenant Law                                                Printed Page 60

Mobile Home Parks                                            Printed Page 63

Legal Resources                                                        Printed Page 66
Legal Services and Bar Referral Services †              Printed Page 71
Complaints ††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Printed Page 74
State Government Agencies                                      Printed Page 78
Toll-Free Hot Lines ††††††††††††††††††††††††††††††††††††††††††††††††† Printed Page 80

 

 

This booklet contains information of a general nature concerning the legal rights of older people, but may not apply to all fact situations. It is not meant as a substitute for state or federal law or the decisions of courts or public officials or agencies. It is an informational guide, intended to aid the reader as to the types of issues that should be raised with an attorney or with the appropriate representative of public or private agencies listed in this publication.

 

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Introduction

Changes and Choices: Legal Rights of Senior Adults is a reference guide for seniors and their families. It covers a wide range of topics of special interest to many seniors. The book uses a question and answer format to help clarify issues and ideas. It is divided into chapters, with bold headlines and subheads, to allow for quick referral to specific points.

The legal matters covered in this book deal with a broad array of issues we believe are important and interesting to seniors. It is not, however, an exhaustive legal encyclopedia. We have tried, rather, to give you basic information on subjects you are not likely to find explained elsewhere. Some situations will require the assistance of an attorney or an agency which provides legal aid. Our intention is to give you information, not legal advice.

Many topics covered in this book are subject to change through modifications in laws or administrative policies. We have made the information as accurate and up-to-date as possible, but we recommend that you check with an attorney or other authority before taking any action.

The intention of this book is to help increase your awareness of your legal rights and the state and community resources available to you.

 

Disability and Consent

Guardianship

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What is a guardian?

A guardian is a person appointed by probate court and given power to make some or all decisions about the care of another person. A person for whom a guardian is appointed is known as a ward.

How does the appointment of a guardian affect an individualís rights?

An individual may lose certain rights. A guardian can be given the power to choose where a ward will live; to consent to medical treatment; to receive money and property belonging to the ward; and to apply this money toward the wardís support and care.

Who can petition the court for appointment of a guardian?

An individual on his or her behalf, a family member, a Family Independence Agency worker in cases of abuse or neglect, or any person interested in the welfare of the prospective ward can petition the court.

What should I do if a guardianship is sought and I disapprove?

Consult a lawyer immediately. If you do not know a lawyer seek referral through the county or state bar association, or contact the local legal services office.

What will happen if I donít retain a lawyer?

Probate court will appoint a person, known as a guardian ad litem, to assist you. This person will be chosen by the court, not by the petitioner.

The guardian ad litem must visit you, explain the proceeding, inform you of your rights, and determine whether you wish to contest the proceeding.

What rights do I have when facing potential guardianship?

1. You have the right to object to the guardianship, to the powers of the guardian, and to appointment of a particular person as guardian.

2. You have the right to be present at the hearing.

3. You have the right to be represented by a lawyer. The court will appoint a lawyer if you request one or if you wish to contest any aspect of the proceeding.

4. You have the right to present evidence on your own behalf.

5. You have the right to cross-examine all witnesses.

6. You have the right to have a jury trial.

When can the court appoint a guardian?

The court must be convinced by evidence presented at the hearing that you are not capable of making informed decisions about your own care.

Can a guardian be appointed just because of my age?

No.

Can a guardian be appointed just because I am physically disabled?

No. For example, a guardianship is not appropriate merely because a person is wheelchair-bound due to severe arthritis. A guardianship may only be imposed if a disability substantially affects intellectual functioning.

Who can be appointed as guardian?

The following people may be appointed as guardian: your spouse; an adult child or relative you have lived with; any other adult; or an agency.

Can I choose my own guardian?

Yes. The court must appoint the person chosen if that person is suitable and willing to serve.

Do all guardians have the same powers?

No. If a guardianship is appropriate, the court must tailor the powers of the guardian to the demonstrated need of the ward. A guardian with less than full powers is known as a limited guardian.

Can I handle my own financial affairs?

A court may allow a ward to control part of his or her property to encourage self-reliance. For instance, a court may allow a ward to maintain a checking account.

While under guardianship, do I have the right to make a will?

Yes, if you are aware of property owned and natural heirs, and understand that the document drafted is a will.

Can a guardian commit a ward to a mental hospital?

A person can be involuntarily committed if he or she is mentally ill and dangerous to oneself or others. This determination can only be made after a commitment hearing, often separate from the guardianship hearing.

What are the responsibilities of a guardian?

The responsibilities of a guardian include providing for the care and comfort of the ward, and taking reasonable care of clothing, furniture and automobiles. In addition, a guardian must secure services to help the ward return to self-care as soon as possible.

Can a guardian be replaced?

Yes. You, or any person interested in your welfare, can petition the court to remove a guardian. The court will remove the guardian and appoint another person if it is in your best interest.

How long will a guardianship last?

Oftentimes, a guardianship lasts until death. But the court must review your guardianship one year after it begins and then every three years. You also have the right to request a review.

What if I feel I no longer need a guardian?

You can send a letter to the judge of probate court requesting the guardianship to be ended. Or a petition can be filed by you or by anyone interested in your welfare. In either case, a hearing will be held.

What rights do I have at this hearing?

All rights you had during the initial hearing are retained in a termination hearing, including the right to an appointed lawyer. Presentation of a statement on your behalf from a doctor may be particularly important.

Conservatorship

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What is a conservator?

A conservator is a person or corporation appointed by probate court to manage another personís property and financial affairs, as compared to a guardian, who is appointed by probate court and makes decisions about the care of another person.

When can the court appoint a conservator?

In general, the court must determine after a hearing that you are unable to manage your property and financial affairs effectively. If you need a guardian but have substantial property, a conservator may also be appointed. (Sometimes the same person serves as both guardian and conservator.)

A court can appoint a conservator for you at your own request.

Can a conservatorship be imposed just because of my age?

No.

Can I choose my own conservator?

Yes. If you have the capacity to make an intelligent choice, the court in almost all circumstances must respect this choice.

What powers does a conservator have?

A conservator becomes trustee of all property belonging to the other person. He or she has broad, but not unlimited, power to deal with the property in the interests of the other person. The court may at any time limit a conservatorís power.

Can a conservator decide where someone will live?

Legally, a conservator does not have this power. However, since the conservator controls your money, the conservator might determine where you live.

Can a conservator consent to medical treatment on your behalf?

No.

What are the responsibilities of a conservator?

A conservator must spend funds of the person necessary for support, education and care. He or she must file with the court a list of all property, and keep accurate records of money received and money spent.

Can a conservator be replaced?

Yes. A conservator can be removed by the court if he or she is not properly carrying out his or her responsibilities.

What if I feel I no longer need a conservator?

You, or anyone interested in your welfare, can file a petition with probate court requesting the conservatorship be ended. If a conservator was originally appointed at your request, a hearing may not be necessary.

Upon termination of the conservatorship, title to all property passes back to you.

 

Durable Power of Attorney

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What is a power of attorney?

A power of attorney is a document which gives another person the power to handle some or all your financial affairs. The person to whom you give this power is known as your attorney-in-fact.

What is a durable power of attorney?

An ordinary power of attorney ends when you become mentally incapable because of sickness or injury to handle your affairs. A durable power of attorney does not end in these circumstances. Indeed, you can draft a durable power of attorney which only takes effect if and when you become incompetent (unable to make decisions for yourself).

What powers can I give through a durable power of attorney?

There are two types of durable powers of attorney. One gives your attorney-in-fact power over all property and financial affairs--signing checks and making deposits, paying bills, selling property, investing money. (An attorney-in-fact cannot cash your Social Security check, but can deposit it and then make withdrawals.) You can grant your attorney-in-fact power to deal with only certain property, and be quite specific how you want this property managed.

The second is a durable power of attorney for health care. This will be explained more fully later in this section.

If my spouse and I own everything jointly, might a durable power of attorney still be useful?

Yes. If you become incompetent your spouse can still sign checks and make withdrawals on joint bank accounts, but your spouse cannot sell jointly owned stocks or your jointly owned home without your signature. Your spouse cannot name or change a beneficiary on your life insurance or your retirement benefits.

Who can I appoint as attorney-in-fact?

You can choose any person age 18 or over--spouse, relative, friend--or a bank. It is important to appoint someone you trust, who can handle the tasks, and who is willing to serve.

Can I name more than one person as attorney-in-fact?

Yes. You can name two people to act jointly or name a second person to serve if the first is unable to do so, or name different people to handle different affairs.

What is the legal responsibility of an attorney-in-fact?

An attorney-in-fact is obligated to follow your instructions set forth in the durable power of attorney. To the extent the attorney-in-fact has discretion, he or she must act in your best interest. You can sue the attorney-in-fact for damages if he or she breaches duties owed to you.

Are there advantages and disadvantages to a durable power of attorney?

A person has absolute control as to whom to designate as attorney-in-fact. An individual can grant limited powers. A durable power of attorney can be used to plan for the possibility of future incompetence.

However, a power of attorney is a private agreement and is not overseen by any court. You cannot command an attorney-in-fact to provide an inventory or account without bringing a lawsuit. It is important, therefore, to designate someone you trust as attorney-in-fact.

Can I revoke a power of attorney once granted?

Yes, in most circumstances. In the agreement you may specify how the power be ended. If you wish to terminate a power of attorney, you should give written notice to the attorney-in-fact and send a copy to all persons and institutions the attorney-in-fact was dealing with in your behalf, such as your bank.

Can anyone else revoke a power of attorney I have granted?

Yes. If a conservator is appointed for you by the probate court, the conservator has the right to revoke the durable power of attorney. But if you have drafted a durable power of attorney, it is less likely a conservator will ever be needed.

Does the death of a grantor affect a power of attorney?

Yes. All powers of attorney, ordinary or durable, generally cease when the person granting the power dies.

Is there a method to effect the same ends as a durable power of attorney, but have the power survive death?

Yes. You can have a lawyer draft a document known as an inter vivos or living trust. A trustee would handle your affairs if you became incompetent and the trustee would continue to manage the property after your death. The cost of setting up and maintaining the trust makes this option worthwhile only for larger estates.

 

Advance Directives

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What is an advance directive?

An advance directive is a written document in which a competent individual gives instructions about his/her health care, that will be implemented at some future time should that person lack the ability to make medical decisions for himself or herself.

Must I have an advance directive?

No. The decision to have an advance directive is purely voluntary. No family member, hospital or insurance company can force you to have one, or dictate what the document should say if you decide to write one.

Are there different types of advance directives?

Yes. Two types are a durable power of attorney for health care and a living will. Living wills are not recognized in Michigan law. You may wish to consult an attorney for further information regarding living wills.

What is a durable power of attorney for health care?

A durable power of attorney for health care, is a document in which you give another person power to make medical treatment and related personal care and custody decisions for you.

Is a durable power of attorney for health care legally binding in Michigan?

Yes, based on state law originally passed in 1990.

Who is eligible to create a durable power of attorney for health care?

Anyone who is 18 years of age or older and of sound mind is eligible.

What is the title of the person to whom I give decision making power called?

That person is known as a patient advocate.

Who may I appoint as my patient advocate?

Anyone who is 18 years of age or older may be appointed. You should choose someone you trust, who can handle the responsibility, and who is willing to serve.

Does a patient advocate need to accept the responsibility before acting?

Yes, he or she must sign an acceptance. This does not have to be done at the time you sign the document. Nevertheless, you should speak to the person you propose to name as patient advocate to make sure he or she is willing to serve.

When can the patient advocate act in my behalf?

The patient advocate can make decisions for you only when you are unable to participate in medical treatment decisions.

Why might I be unable to participate in medical treatment decisions?

You may become temporarily or permanently unconscious from disease, accident or surgery. You may be awake but mentally unable to make decisions about your care due to disease or injury.

Who determines that I am no longer able to participate in these decisions?

Your attending physician and one other physician or licensed psychologist will make that determination. If your religious beliefs prohibit an examination to make this determination, and this is stated in the designation document, you would indicate in the document how it would be determined when the patient advocate can act.

What powers can I give a patient advocate?

You can give a patient advocate power to make those personal care decisions you normally make for yourself. For example, you can give your patient advocate power to consent to or refuse medical treatment for you, to contract for home health care or adult day care, arrange care in a nursing home or move you to a home for the aged.

Can I give my patient advocate the authority to make decisions to withhold or withdraw life sustaining treatment, including food and water administered through tubes?

Yes, but you must express in a clear and convincing manner that the patient advocate is authorized to make such decisions, and you must acknowledge that these decisions could or would allow you to die. If you have specific desires as to when you want to forego life sustaining treatment, you should make them clear to your advocate. You may also include them as written instructions in your durable power document.

Do I have the right to express in the document my wishes concerning medical treatment and personal care?

Yes. You might, for example, express your wishes concerning the type of care you want during terminal illness. You might also express a desire not to be placed in a nursing home and a desire to die at home. Your patient advocate has a duty to try to follow your wishes.

Is it important to express my wishes in the durable power of attorney for health care designating document?

Yes. Your wishes might not be followed if no one is aware of them. It can also be a great burden for your patient advocate to make a decision for you without guidance.

Can I appoint a second person to serve as patient advocate in case the first named person is unable to serve?

Yes.

Must a durable power of attorney for health care designation document be witnessed?

Yes. Two witnesses must sign. The witnesses cannot include your spouse, parent, child, grandchild, sibling, presumptive heir, known devisee at the time of the witnessing, physician, or patient advocate; an employee of your life or health insurance provider; an employee of a health facility that is treating you; or an employee of a home for the aged as defined in Section 20106 of the Public Health Code, Act No. 368 of the Public Acts of 1978, being Section 333.20106 of the Michigan Compiled Laws, where you reside.

In general, what should I do before completing an advance directive?

Take your time. Consider who you might choose to be your patient advocate, or to act in your place. Think about your treatment wishes. Discuss the issue with family members and your doctor. Talk with your minister, rabbi, priest, or other spiritual leader if you feel it would be helpful.

Are there issues I should give particular attention to?

Yes. Many people have strong feelings about the administration of food and water. If you are unable to swallow, food and water can be supplied by a tube down your throat, a tube placed surgically into your stomach, or intravenously. You may wish to consider and indicate in what circumstances, if any, you wish such procedures withheld or withdrawn. Also, bear in mind that peopleís opinions regarding their own health care sometimes change over time. Your wishes regarding medical treatment when you are relatively young may be quite different from your wishes when you reach advanced age, so you may wish to review your decisions periodically with your patient advocate.

Is there a standard form for an advance directive?

No. You may use a form designed by an organization, you may hire a lawyer to draft the necessary documentation, or you may write out the documentation yourself. If you write the documentation yourself, make sure that it is legible. Under state law, you must sign the document, date it and have it witnessed as described above. A person accepting the responsibility to act as a patient advocate must sign the designating document.

Note: Under state law, any form evidencing a patient advocateís acceptance of the position must contain the statements in sections A through I, below.
A. This designation shall not become effective unless the patient is unable to participate in medical treatment decisions.
B. A patient advocate shall not exercise powers concerning the patientís care, custody and medical treatment that the patient, if the patient were able to participate in the decision, could not have exercised on his or her own behalf.
C. This designation cannot be used to make a medical treatment decision to withhold or withdraw treatment from a patient who is pregnant that would result in the pregnant patientís death.
D. A patient advocate may make a decision to withhold or withdraw treatment which would allow a patient to die only if the patient has expressed in a clear and convincing manner that the patient advocate is authorized to make such a decision, and that the patient acknowledges that such a decision could or would allow the patientís death.
E. A patient advocate shall not receive compensation for the performance of his or her authority, rights and responsibilities, but a patient advocate may be reimbursed for actual and necessary expenses incurred in the performance of his or her authority, rights and responsibilities.
F. A patient advocate shall act in accordance with the standards of care applicable to fiduciaries when acting for the patient and shall act consistent with the patientís best interests. The known desires of the patient expressed or evidenced while the patient is able to participate in medical treatment decisions are presumed to be in the patientís best interests.
G. A patient may revoke his or her designation at any time and in any manner sufficient to communicate an intent to revoke.
H. A patient advocate may revoke his or her acceptance to the designation at any time and in any manner sufficient to communicate an intent to revoke.
I. A patient admitted to a health facility or agency has the rights enumerated in Section 20201 of the Public Health Code, Act No. 368 of the Public Acts of 1978, being Section 333.20201 of the Michigan Compiled Laws.

Note that some, but not all, of the rights enumerated in Section 20201 include:

A patient or resident in a health facility or agency (including a hospital and a nursing home) shall not be denied appropriate care on the basis of race, religion, color, national origin, sex, age, disability, marital status, sexual preference or source of payment.

Patients and residents are also entitled to:

        inspect, or receive for a reasonable fee, a copy of their medical records, and to have the confidentiality of those records maintained.

        receive and examine an explanation of their bills regardless of the source of payment and to receive, upon request, information relating to financial assistance available through the facility.

associate and have private communications with their physician, attorney, or any other person of their choice, and to send and receive personal mail unopened on the same day it is received at the health facility or agency, unless medically contraindicated as documented by the attending physician in the medical record.

What if there is a dispute as to how my durable power of attorney for health care should be carried out?

If there is a dispute as to whether your patient advocate is acting consistent with your best interest, the probate court may be petitioned to resolve the dispute. The court can remove a patient advocate who acts improperly on your behalf.

 

Civil Commitment

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What is civil commitment?

Civil commitment is a procedure through which you involuntarily become a patient at a private or public psychiatric hospital, a psychiatric alternative treatment program, or a psychiatric unit upon order of a court.

Who may be committed?

To be involuntarily committed, a probate court must find you are a person requiring treatment. The court must determine you are mentally ill and that there is a reasonable expectation of harm to you or others, or an inability to attend to your basic bodily needs, such as shelter, clothing, or food.

Can I be committed merely because of my age?

No.

What is the procedure for committing a person?

Unless paid for privately, the process begins when someone requests hospitalization or files an application with the local community health services program, or files a petition in probate court. The application or petition states you need in-patient psychiatric care and sets forth supporting facts. In most cases, it must be accompanied by a statement from a doctor or psychologist who has examined you, and found you to be a person requiring treatment.

Once you are at the hospital, a psychiatrist will examine you within 24 hours, and certify that you are a person requiring treatment. A probate court hearing to determine whether you are to be committed must be held within seven days, excluding Sundays and holidays. You will probably remain hospitalized until the hearing. Routine treatment will not begin until after the court hearing and you are found to be a person requiring treatment.

What will happen during the time before the hearing?

If you are in the hospital involuntarily, within 72 hours (3 days), you will be visited by your lawyer, a community mental health worker, a hospital employee and a person of your choice. They will inform you of the nature of commitment, the proposed plan if treatment in the hospital or the community, and your right to defer the hearing and agree to accept the treatment offered.

If I choose to defer the hearing, how long will the deferment last?

The deferment will be no longer than 60 days if you remain in the hospital, and no more than 90 days if you accept community treatment or a combination of hospitalization and community treatment as long as you continue to receive the treatment. You retain the right to refuse treatment and to request a hearing during this time.

Who is responsible for my care in community treatment?

The court will designate the appropriate community mental health services program or, if private pay, an independent mental health practitioner to be responsible for your care.

What will happen after the deferment period?

You can choose to remain a voluntary patient if you still need treatment. If you do not wish to remain in treatment, but the director of the hospital or community mental health center believes you still need treatment, additional documentation will be filed with the court and a hearing will be held.

What are my rights at the hearing?

1. The right to be present at the hearing.

2. The right to be represented by a lawyer. If you are indigent and cannot afford a lawyer, the court will appoint one for you.

3. A doctor or licensed psychologist who has examined you must testify. You have the right to cross-examine him or her, and any other witnesses.

4. The right to present evidence in your own behalf.

5. The right to have a jury trial.

6. The right to an independent clinical evaluation.

Under what circumstances can the court order hospitalization or community treatment?

The judge or jury must find there is clear and convincing evidence that you are a person requiring treatment. If this is not shown, you must be discharged immediately.

If it is proven I am a person requiring treatment, what can the court order?

The court may order that you be hospitalized, but only if there is no suitable alternative treatment. The court may order that you undergo community treatment, or a combination of hospitalization and community treatment for a limited period of time.

If the court orders that I be hospitalized, is there a chance I will someday be released?

Yes. The probate court must have a new hearing on your further commitment after 60 days, and again, after an additional 90 days of hospitalization, and then again, annually. Every six months after that, the director of the hospital must review your status, file a report with the probate court, and notify you of the results of the review. If you disagree with the recommendation, you have the right to a hearing.

If the hospital director or the court finds that you are not a person in need of treatment, or in need of treatment but not hospitalization, you will be discharged from the hospital.

What rights do I have concerning medical treatment in the hospital?

You have the right to be informed of your condition and progress. You may have your own doctor if you can afford one. If you are competent to consent and have no guardian, you have the right to refuse surgery.

May I have personal possessions and money?

You may have personal possessions, including your own clothing. This right to personal possessions can be limited by the hospital for a number of reasons, including the prevention of theft.

A hospital can require you to deposit all money on your person in an interest bearing account for safekeeping. You have the right to access your money and to spend it. This right may only be restricted if essential to prevent you from unreasonably spending all your money.

What is the responsibility of the hospital?

You are entitled to mental health services suited to your condition, and to a safe, sanitary and humane living environment. Further, you have a right to be treated with dignity and respect.

 

Wills and Estate Planning

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People often view estate planning only in terms of a will; several other devices can be used. This chapter presents some goals of estate planning and describes methods available to meet these goals.

Why should I plan my estate?

It is beneficial to plan your estate in order to:

1. dispose of property after death;

2. partially or completely avoid probate;

3. realize tax savings;

4. manage your property during your lifetime.

What is probate?

Probate is the process through which a court oversees the distribution of oneís property after death. The court is called probate court.

Does all property go through probate?

No. Jointly held property, trust accounts, pension benefits and life insurance proceeds go directly to the joint tenant or named beneficiary.

Must an estate be probated?

Not necessarily. For example, if all property were held jointly with a spouse and the spouse survived, there would be no probate of an estate.

Is there more than one method to probate an estate?

Yes. There are several procedures for smaller estates. For larger estates, you can specify in your will a preference for either independent or supervised probate. In independent probate there are no formal court hearings. The estate still must be kept open for at least five months to allow creditors to submit claims.

How does one initiate the probate process?

A petition is filed with probate court. The petition can be brought by a surviving spouse, a child, an heir, the personal representative (formerly known as executor) or a creditor (if no petition is filed within 30 days of the personís death).

Forms necessary to probate an estate can be purchased from some office supply stores.

Is one required to have a lawyer?

No, but it is usually helpful to seek such guidance. If a lawyer is retained, there will be attorney fees. These fees are payable by the estate.

Does my estate avoid probate if I have a will?

No. Whether or not you die with a will, your estate may go through probate. If there is a will, the initial purpose of probate is to prove its validity. The person named in the will as personal representative is then appointed to proceed with administering the estate.

What if I die without a will?

If a petition is filed, the probate court will appoint a personal representative to administer the estate. Generally, the surviving spouse (or a person of his/her choice) has first priority; the closest heir has next priority.

What is the role of a personal representative?

A personal representative collects assets of the estate, pays debts and taxes, and distributes property as directed in the will. A personal representative is entitled to be paid from the estate for his or her service.

Is the personal representative responsible for debts of the deceased?

Generally, debts are paid from assets in the estate. The personal representative is only responsible if careless. For instance, a personal representative might be liable if he or she distributes estate assets to beneficiaries before proper debts are paid.

How long does it take to probate an estate?

The time necessary depends, among other factors, on the size of the estate, whether there is a surviving spouse and whether the validity of the will is questioned.

What costs are involved in probating an estate?

The personal representative may charge a fee. If the personal representative seeks legal counsel, there will be attorney fees. A filing fee and an inventory fee (based on the value of the probate estate) must be paid to probate court.

Who is responsible for paying these costs?

Fees are paid by the personal representative from assets of the estate.

What taxes must be paid?

Estate (Inheritance) Tax--Beginning October 1, 1993, the state will no longer collect a separate inheritance tax. Instead only those estates valued at over $600,000 will be subject to tax and decedents will pay a tax equal to the maximum credit given under federal estate tax laws. The federal credit increases progressively to 16 percent.

The filing deadline has also been changed from 105 days from the date of death to nine months. Additionally, estate tax returns will be filed with the State Department of Treasury instead of with local county treasurers and probate courts.

Property held in joint tenancy does not go through probate; it passes directly to the surviving owner(s).

What are some devices that may be used for estate planning?

1. Joint tenancy with full rights of survivorship

2. Trust

3. Gift

4. Will

What is joint tenancy with full rights of survivorship?

This is one way that property can be held by more than one person. A joint owner cannot sell his or her interest without the permission of all other owners. Upon the death of a joint owner, property automatically belongs to surviving owner(s); provisions in a will do not affect it.

What are the rights of tenants by the entirety?

This is a form of joint tenancy. This arrangement is only possible between a wife and husband. Rights of the parties are the same as those between joint tenants with full rights of survivorship.

What are advantages to holding property in joint tenancy with full rights of survivorship?

Property held in joint tenancy does not go through probate; it passes directly to the surviving owner(s). Having property in joint tenancy may also reduce inheritance taxes.

Is there a disadvantage?

Yes, if the joint tenant is not your spouse. Should you decide to sell an asset held jointly (a home, for example), you would need the permission of each joint tenant and the spouse of each joint tenant. While it may be difficult to imagine, the possibility of future disagreement should be carefully considered.

Can I protect myself if property is put in joint tenancy?

Partially. By using a declaration of trust, you decrease the possibility a joint owner will refuse to permit a future sale. The declaration makes clear the joint tenancy is created for estate planning purposes, with no intention to make a gift now.

How do I put real estate in joint tenancy with full rights of survivorship?

A deed must be executed by the present owner or owners. The deed need not be recorded in the county registry of deeds to make the change effective.

Should an automobile be put in joint tenancy?

Probably not. A joint tenant, as partial owner, will be jointly liable if an accident results in a lawsuit.

A trust is a written agreement wherein you give a trustee power to manage certain property for a beneficiary. There are several types of trusts.

Can bank accounts, stocks and bonds be put into joint tenancy?

Yes.

Is there a disadvantage to having a joint bank account?

Yes there is a disadvantage if the account is not with your spouse. Usually, each joint tenant can withdraw money from the account. Substantial withdrawals can be made without your knowledge or approval.

Can I add someoneís name to my bankbook but prevent this person from withdrawing money?

Yes. You can put savings or certificate accounts in trust.

What is a trust?

A trust is a written agreement wherein you give a trustee power to manage certain property for a beneficiary. There are several types of trusts.

What are the purposes of trusts?

Purposes include controlling assets after death, avoiding probate, providing for disability, and reducing taxes.

How would I put a bank account in trust?

Banks have simple forms that can be used. You may name yourself as trustee, and whomever you wish to receive the money at your death as beneficiary. You are free to deal with the funds as you like--you can even close the account. No one else can withdraw money. At your death money in the account will go to your named beneficiary without going through probate.

If you want information about putting other property in trust, consult a lawyer with expertise in estate planning.

What property may I give away during my life?

You may give away any property you alone own. If property is jointly owned, the permission of each joint owner is necessary.

Can I give a house to children but reserve the right to live there?

Yes. The interest retained by you is known as a life estate. An advantage is that the asset will not go through probate. But there are potential disputes. If a gift reserving a life estate is made, a detailed document should be drafted concerning responsibility for taxes, special assessments, and maintenance costs.

What are the purposes of a will?

The primary purposes are to provide for distribution of your property after death, and to designate a personal representative to see that your wishes are carried out. A will may also be used to appoint a guardian for minor children.

Must I have a will?

There is no legal requirement that you have a will, or use any estate planning device.

Your will is not effective until you die. If you have sold or given away property mentioned the will, that provision is simply ignored.

What happens if I die without a will?

Property held in joint tenancy will pass directly to the co-owner(s). Life insurance proceeds and pension benefits will go to the named beneficiary. The personal representative will pay debts and taxes, and distribute the balance of your estate according to Michigan statute.

What are the requirements of a valid will?

There are three types of wills. Each type of will is equally valid.

1. A handwritten will must be dated, and signed at the end.

2. A formal will can be typewritten. It must be signed, and witnessed by at least two people who also sign. A beneficiary under the will should never be a witness to its signing.

3. A statutory will is a form. It is relatively simple to use, but allows limited choices. The form is available from your state legislator at no cost.

How would my property be divided under the terms of a statutory will?

You may leave up to two cash gifts to people or charities. You could write a list, separate from your will, of personal and household items, naming whom you wished to receive each item.

All the rest of your property would go to your spouse; if your spouse died before you, all the property would be divided equally among your children.

Which type of will should I choose?

That depends on the size of your estate and your wishes concerning distribution of your property.

For example, a statutory will is inappropriate if your estate is large enough to merit tax planning and the use of trusts, or if you do not want your children to get equal shares of your property. In such cases, it is usually helpful to consult with a lawyer.

How much does it cost to have a lawyer draft a will?

Before hiring a lawyer, be sure to ask about his or her fee.

Using a formal will, can I give my property by will to whomever I please?

Yes, with two exceptions. First, a spouse has certain rights in the estate, regardless of the provisions of a will. A spouse almost always has a choice of taking a share under the will, or taking a share set forth by law. Second, a will does not affect property held in joint tenancy or life insurance policies with named beneficiaries.

Can I exclude my children from sharing in my estate?

Absolutely. If you decide to exclude one or more children, mention this in the will. You need not state a reason.

Can I give money to grandchildren but require they save it?

Yes. You can establish a trust or custodial account, with grandchildren as beneficiaries. Money is given to each grandchild when he or she reaches the age you specify.

How should property be described in a will?

Property may be described generally, for example, all property that I own; or specifically, for example, my silver watch. If you are specific, describe items sufficiently to avoid confusion.

Is there an alternative to listing personal property in the will itself?

Yes. Whatever type of will you choose, you can make reference to a separate list of items including jewelry, books, automobiles, furniture and other personal and household items. In the list you name whom is to get each item.

You can make this list before you make your will, at the same time, or afterward. You may change the list as often as you wish.

The list must be in your handwriting or signed by you.

If property is specified in my will or on a separate list, can I still sell it or give it away?

Yes. Your will is not effective until you die. If you have sold or given away property mentioned in the will, that provision is simply ignored.

Whom should I nominate as personal representative in any type of will?

The duties of a personal representative were briefly noted earlier. You should nominate someone you trust who can handle the task, and who is willing to serve. It will probably be simpler if the person is a resident of Michigan.

The personal representative can be a relative, a friend or acquaintance, or a bank. It is a good idea to nominate a second person to serve if the first is unable to serve.

Can a beneficiary under the will serve?

The personal representative can be, and often is, a beneficiary under the will. In making a choice, however, you should consider any conflicts of interest.

How can a will be changed?

Once a will is signed (whether the will be handwritten, a form or typewritten) no changes should be made on the document, itself. You can write an amendment known as a codicil or draft a new will.

If a new will is drafted, what should I do with the old will?

The old will and all copies should be destroyed after the new will is signed.

When should I review my will?

You should review the provisions every two or three years, and after events such as births, deaths, marriages, and relocations to another state.

Where should a will be kept?

A will should be kept in a secure place. A will can be filed at probate court. There is currently a one-time filing fee of $25.00.

 

Distribution of Estate if No Will

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(MCL ß700.2102, ß700.2103)

Sec. 2102. (1) The intestate share of a decedentís surviving spouse is 1 of the following:

(a) The entire intestate estate if no descendant or parent of the decedent survives the decedent.

(b) The first $150,000.00 ($165,000.00 in calendar year 2002), plus 1/2 of any balance of the intestate estate, if all of the decedentís surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent.

(c) The first $150,000.00 ($165,000.00 in calendar year 2002), plus 3/4 of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent.

(d) The first $150,000.00 ($165,000.00 in calendar year 2002), plus 1/2 of any balance of the intestate estate, if all of the decedentís surviving descendants are also descendants of the surviving spouse and the surviving spouse has 1 or more surviving descendants who are not descendants of the decedent.

(e) The first $150,000.00 ($165,000.00 in calendar year 2002), plus 1/2 of any balance of the intestate estate, if 1 or more, but not all, of the decedentís surviving descendants are not descendants of the surviving spouse.

(f) The first $100,000.00 ($110,000.00 in calendar year 2002), plus 1/2 of any balance of the intestate estate, if none of the decedentís surviving descendants are descendants of the surviving spouse.

(2) Each dollar amount listed in subsection (1) shall be adjusted as provided in section 1210.

Sec. 2103. Any part of the intestate estate that does not pass to the decedentís surviving spouse under section 2102, or the entire intestate estate if there is no surviving spouse, passes in the following order to the following individuals who survive the decedent:

(a) The decedentís descendants by representation.*

(b) If there is no surviving descendant, the decedentís parents equally if both survive or to the surviving parent.

(c) If there is no surviving descendant or parent, the descendants of the decedentís parents or of either of them by representation.

(d) If there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived by 1 or more grandparents or descendants of grandparents, 1/2 of the estate passes to the decedentís paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of the decedentís paternal grandparents or either of them if both are deceased, the descendants taking by representation; and the other 1/2 passes to the decedentís maternal relatives in the same manner. If there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to the decedentís relatives on the other side in the same manner as the 1/2.

 

Choosing a Nursing Home

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Making a choice to reside in a nursing home is a difficult emotional decision. Nursing homes, however, may provide a level of care that individuals simply cannot provide on their own. Whether you are planning for your own future or assisting relatives in investigating their options, it is important to seek advice from family, friends, and experts. In order to ensure that the decision you make regarding a nursing home is the best choice possible, it is essential to begin your search before a crisis forces you to make a hasty choice. Also, space in a nursing facility is so much in demand that you may find it difficult to immediately find anything available and to your liking. Even with time for hunting, frequently the individualís name may have to be placed on several waiting lists. Thus, in addition to beginning your search as early as possible, it is wise to check out as many nursing facilities as possible.

Although nursing homes used to be categorized by the level of service provided, that is no longer the case due to the Nursing Home Reform Amendments of the federal Omnibus Budget Reconciliation Act of 1987 (OBRA Ď87). Since October 1, 1990, all nursing homes, now known as nursing facilities, must be able to offer the same levels of care. One major advantage to this new definition of nursing facilities is that residents will no longer need to move to another facility if their health deteriorates.

A first step in finding the right nursing home is to consult your doctor or hospital social worker. In addition, you may obtain a list of nursing facilities in your area through your local Long-Term Care Ombudsman Office (see pp. 74-75 for sources of additional information). Michigan Department of Consumer and Industry Services inspection reports may also provide a valuable guide for deciding on an appropriate facility. These reports are available from the department in Lansing and from the local ombudsman office. In addition, talk to people in your community such as your doctor, social worker, clergy, other friends and retirees, and the people in various community volunteer organizations. They may be able to provide important information not readily obvious from reports. Remember, many people have had to make these decisions already, so make every effort to seek out their advice and experience.

Each nursing facility in Michigan must be licensed by the Division of Health Facility Licensing and Certification in the Michigan Department of Consumer and Industry Services. In order to be eligible to accept Medicaid or Medicare residents, a nursing facility must also be certified by the department. If you expect Medicaid or Medicare to assist in paying for nursing facility care, make sure the facility you are interested in is certified. Nearly all Michigan nursing facilities have beds that are certified for Medicaid and many are also certified for Medicare.

 

What to Look For

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Once you have determined which licensed homes are most suitable and conveniently located for your needs, your next step should be to visit the facilities on your list. You should make several visits at different times to assess the quality of the facility. For your first visit, you should call ahead to make an appointment for a full tour. After your first visit, make your visits unannounced. One of your visits should be made during meal hours to see the quality of the food and to see if the residents enjoy the meals. During your visit, talk to the various officials and staff. In addition, talk to the residents and their families about their level of satisfaction. Ultimately, you must be satisfied that the facility will be a pleasant home in which to live.

On your visits to facilities, consider the following questions:

 

General Appearance and Atmosphere

IS THE GENERAL ATMOSPHERE one of warmth and comfort?

IS THERE A FRIENDLY SPIRIT, cooperation, and communication between the staff and the residents? Do the staff members appear to get along with each other as well? Do the residents interact with each other as well as with the staff?

HOW DO THE RESIDENTS APPEAR? Alert? Clean? Well-groomed with hair neat, clean-shaven? Unless they are very ill and bedridden, are they active--involved with each other or taking part in activities? Or do they just sit?

DO THE RESIDENTS look happy?

 

Physical Facilities

Is the building ATTRACTIVE? Outside--if the home is in a residential or country area--is there an area where residents can enjoy a walk or sitting in the fresh air and sunshine?

Is the facility CLEAN and WELL-KEPT? Are there pictures on the walls, flowers and plants about? Comfortable furniture in lounge areas? Are there clocks and calendars around to help residents and staff keep track of time? Does the home seem homelike?

Is the most recent survey report by the Bureau of Health Systems, and any plan of corrections, easily available for your review? Are past reports available for review?

Is the facility FREE FROM ODORS? Bowel and bladder accidents do happen, but permanent odors are not a natural result; prompt attention to cleaning up such accidents prevents odors from lingering.

Is the facility FREE from heavy, cover-up DISINFECTANT ODORS?

ARE THE HALLWAYS WIDE enough to accommodate passage of wheelchairs, food and service carts, and people traffic? Are they well-lighted? Free from obstacles and safety hazards? Are there handrailings on the sides?

Is there a crafts or ACTIVITIES ROOM? Is it actually used by residents?

Is there a LOUNGE AREA for use by residents, guests? Is it homelike?

Is the DINING ROOM ATTRACTIVE? Are the tables so spaced to allow easy maneuvering of wheelchairs and walkers? Are the tables at a comfortable level for wheelchair users?

Are the RESTROOM AND BATHING FACILITIES CLEAN? Are they equipped with grab bars and handrails? Are there nonskid mats on surfaces in the tubs and showers?

Check the RESIDENTSí ROOMS--are they clean and neat? Attractive? Comfortable? Is there enough space between beds and other furniture to allow easy maneuvering with a wheelchair or walker? Does each bed have a privacy curtain and a working nurse call-bell within easy reach of bedridden patients? Is there fresh drinking water and a glass at each bedside? Is there closet and/or drawer space for each residentís personal articles? Is there at least one comfortable chair for each resident?

Are there special THERAPY ROOMS?

Is there a THERAPY STAFF that includes a registered physical therapist and a registered occupational therapist? If the therapy staff is only consulting, how often do they come to the facility?

Are there rooms available and appropriate for meeting PRIVATELY with your spouse, doctor, attorney, family members or friends?

Is there access to a TELEPHONE that can be used without being overheard?

 

Services

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Nursing

 

IS A REGISTERED NURSE RESPONSIBLE for the nursing staff in the facility?

How many REGISTERED NURSES AND LICENSED PRACTICAL NURSES work in the facility each weekday? Each weekend?

How many LICENSED NURSES AND AIDES/ORDERLIES are on duty each day?

STATE LAW requires at least enough nursing staff to provide a minimum of 2.25 hours of care to each resident each day. Most Michigan nursing homes retain enough staff to provide an average of over 3 hours of care per resident per day. What are the figures for this facility?

Are residentsí CALLS FOR ASSISTANCE answered promptly?

Are RESIDENTS ENCOURAGED to do as much for themselves as they can--such as eating, bathing, and dressing?

Are RESIDENTS ENCOURAGED to be up and about during the day? Is assistance given to those who need it in walking?

Are RESIDENTS ENCOURAGED to use dentures, eyeglasses, hearing aids, and orthopedic devices when needed?

Are bowel and bladder RETRAINING PROGRAMS available and followed when needed?

Are bedridden RESIDENTS ENCOURAGED to do whatever they can do for themselves?

 

Medical

 

How is a resident involved in his or her own PLAN OF TREATMENT?

What is the nursing homeís policy in regard to PHYSICIANS? Residents of a nursing home have the right to choose an attending physician. If a residentís own physician is unable to respond, the medical director of the facility is responsible for filling in.

Are OTHER MEDICAL SERVICES, such as dental, optometric and hearing, available regularly? Is there an added cost for these services? Routine eye, hearing, and dental care is essential to maintain relatively good health. Check to see if these services are covered by Medicaid or Medicare before paying for them.

Does the home have a transfer agreement with a nearby hospital for EMERGENCY CARE?

 

Dietary

 

Are MENUS planned in advance, posted in a conspicuous area in the facility, and followed as written?

HOW DO THE MEALS LOOK? Sufficient in amounts and quality? Attractively served? Served promptly and efficiently so that hot foods are still hot and cold foods are still cold when the resident receives them?

Are RESIDENTS ENCOURAGED to use the dining room?

How are BEDRIDDEN RESIDENTS served?

Are residents allowed ENOUGH TIME to eat at their own pace? Is assistance in feeding given when needed? Are self-help feeding devices available and encouraged?

Are SUBSTITUTES freely offered when a resident does not like an item? Are SNACKS served at night?

 

Activities

 

Is there an ACTIVITIES DIRECTOR? If so, is the director full-time or does the director have other responsibilities as well?

Is there a VARIETY of activities?

Are individual residentís PREFERENCES observed?

Are there separate group and individual ACTIVITIES?

Are RESIDENTS ENCOURAGED to participate in activities (but not forced)?

Are there frequent OUTSIDE TRIPS for those who are able?

Is there COMMUNITY INVOLVEMENT with the facilityís programs, such as with school or volunteer groups conducting or assisting with activities?

 

Miscellaneous Services

 

Is there a SOCIAL WORKER in the facility? If so, is this person full-time or does the social worker have other responsibilities?

What type of arrangements are made for residents to WORSHIP as they please?

Are BARBERS AND BEAUTICIANS available for residents regularly?

Does the home provide LAUNDRY SERVICES? In the home or sent out? Is there an additional cost?

 

 

Administration and Routine

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Each nursing home does have certain rules that residents must follow.

What are they? They should be in writing. Do they seem to be REASONABLE?

Are VISITING HOURS convenient and flexible?

Do the administrator and director of nursing show a SINCERE INTEREST in the residents and staff members as people? The attitudes of these two individuals determine the attitudes of the rest of the staff.

Can the resident bring any PERSONAL FURNITURE ITEMS on admission to the facility?

On admission, is an INVENTORY taken of the residentís possessions? Are clothing articles to be labeled for easy identification and to prevent loss? Is reimbursement made for loss or damage?

 

Financial

 

To apply for Medicaid, contact your local Family Independence Agency (FIA). If a person is eligible, the patient may have to pay part of the charges based on his or her income--this amount is set by the FIA and is known as the patient pay amount.

To find out if a person is eligible for Medicare, contact your local Social Security Administration office.

While visiting the nursing home, find out:

Does the home provide a WRITTEN LIST of charges for such services as haircuts, dental care, foot care, etc.?

Are DEPOSITS required?

If you are going to pay privately for care, do comparison shopping; find out what the BASIC MONTHLY RATE is--and what any EXTRA charges would be.

Does the home ask for a LIFETIME CONTRACT--providing lifetime care for a certain sum of money? Does the home accept Medicaid to cover cost of care given? Not all do. Is it a life-lease home? If such a contract is involved, check it out with a lawyer.

Even after you settle on the best available nursing facility, do not sign anything you do not completely understand. If you do not understand something, ask questions. You should not be pressured into signing anything--take the time to make the right decision.

 

 

Rights of Nursing Home Residents

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Remember, too, that successfully finding the appropriate facility is only the beginning. Residents of a facility may have to change their lifestyle when they move in, but they do not lose any of their rights as individuals. They maintain the same constitutional and civil rights that all citizens have. Federal and state laws and regulations require nursing facilities to have written policies and procedures to implement resident rights and responsibilities. These must be made available to the resident, the residentís family, and the public.

Residents also have the right to complain to the Division of Nursing Home Monitoring in the Michigan Department of Consumer and Industry Services about any condition, event, or procedure without having to cite any specific violation of the law or rules. To file a complaint with the Michigan Department of Consumer and Industry Services, simply call 1-800-882-6006 or (517) 334-8408.

The Michigan Public Health Code (MCL -- 333.20201) provides nursing home residents with a number of specific rights. In summary these include:

A resident will not be denied care on the basis of race, religion, color, national origin, sex, age, handicap, marital status, sexual preference, or source of payment.

A resident is entitled to inspect, or receive for a reasonable fee, a copy of his or her medical records.

A resident is entitled to the confidentiality of his or her medical records.

A resident is entitled, to the extent feasible, to privacy, consideration, respect, and dignity in treatment and in caring for personal needs.

A resident is entitled to appropriate care and to receive information concerning his or her medical condition.

A resident is entitled to refuse treatment to the extent provided by law.

A resident is entitled to his or her rights as a patient or a citizen, free from restraint, interference, coercion, discrimination, or reprisal.

A resident is entitled to information concerning any experimental procedure which may be proposed for his or her care.

A resident is entitled to receive and examine his or her bill, regardless of funding source, and to receive information on financial assistance available through the facility.

A resident is entitled to know who is directly responsible for his or her care, and information concerning his or her health needs and alternative treatments, as well as to be actively involved in his or her discharge planning, if appropriate.

A resident is entitled to associate with his or her physician, attorney, or other person, and has the right to receive personal mail, unopened, on the same day it was received.

A resident is entitled to be free from physical or mental abuse. A physician may authorize physical or chemical restraint in writing and for a specified and limited time.

A resident is entitled to be free from providing services to the facility.

In addition, this section further provides, in part, that patients or residents in a nursing home or home for the aged be permitted to associate with persons of their choice; and have reasonable visiting hours, not less than eight hours per day; reasonable access to a telephone; a private room in which to visit his or her spouse; retain personal clothing or possessions; adequate and appropriate pain management; and the opportunity to discharge himself or herself; as well as have the right to be transferred for medical reasons only, and only under certain circumstances.

A nursing home patient is also entitled to be informed of the services available at the facility; in charge of his or her finances; visited by representatives; and, in the case of terminal illness, to be visited on a twenty-four-hour-a-day basis by parents, children, a spouse, next of kin, or representative.

One final, and probably the most significant, question to ask yourself is, Would you be comfortable living in a particular facility? If you can honestly answer yes, then the facility may provide you with a true home.

 

 

Nursing Home Residency

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Do I forfeit any rights upon entering a nursing home?

Federal and state laws have been passed to help ensure that rights of nursing home residents are respected.

What determines the respective responsibilities of the nursing home and the resident?

 

You must be provided a written contract at the time you enter the nursing home. The contract specifies the services to be provided you, the charge for each service and who is responsible for payment.

Can a nursing home ask or require my child(ren) to pay the private pay rate for a period of time before the home will accept Medicaid payment for my care?

Absolutely not; such behavior is a violation of federal law. A nursing home is also prohibited from soliciting a gift or contribution from a family member as a condition of accepting your application.

Are there special Medicaid eligibility rules for a married couple when one spouse needs nursing home care?

Yes. As a result of a federal law passed in 1988, there are different rules that apply to a spouse at home, when the other spouse is living in a nursing home. The rules allow the at-home spouse to keep more income and more of the couplesí assets. The Family Independence Agency or the Long-Term Care Ombudsman should be able to tell you how these rules apply to you. Phone numbers for these agencies are listed in the back of this book.

Are there any reasons I can be moved to another nursing home against my wishes?

Yes, but only for medical reasons, non-payment of a bill or the threat of physical harm.

If there is no emergency, you must be given notice of the reason for a transfer. If you disagree with this reason you may appeal the decision. Before moving, you must be offered counseling to minimize any adverse effects.

May I know my medical condition and treatment?

Yes. You are entitled to participate in the planning of your medical treatment. You should be fully informed of your medical condition unless the doctor believes itís not in your best interests. You have the right to refuse treatment. You may have your own doctor.

Can I take care of my own money?

Yes. Simply because you are a resident of a nursing home, the nursing home does not gain authority to manage, use or dispose of your money. You can control your monthly personal needs allowance and any other personal funds. You can, if you wish, have the nursing home hold your money in trust, like a savings account. You can withdraw money when you wish. You will receive a statement every three months which shows the amount of money you have, the amount spent, and the source of all funds.

May I keep possessions?

Yes, subject only to limitations of space.

May I wear my own clothing?

Yes. What are my rights concerning visitors? You may see family, friends, a lawyer--anyone you choose. You have a right to meet with any visitor in private.

May I make private telephone calls and send and receive mail unopened?

Yes.

Can I make a will or sign a power of attorney?

Yes, but as always, you should fully understand any document before signing it. Consult a lawyer or trusted friend if questions arise.

May I vote in local, state and federal elections?

Yes.

What is a patientís representative?

A patientís representative is a friend or relative you may appoint to assert many rights in your behalf. You have the right to speak for yourself and/or appoint a representative to speak for you.

How can I find out what other rights I have?

You must be given a copy of your rights when you enter the nursing home. A copy should also be posted on a bulletin board of the nursing home. Ask if you do not understand any of your rights.

To whom should I complain about a violation of my rights?

If you encounter problems requiring immediate action such as physical abuse, neglect or improper diet, speak with the director of nursing or the administrator of the home, or call the Department of Consumer and Industry Services Nursing Home Patient Rights Investigation Hot Line, 1-800-882-6006. For non-emergencies, get the support of a trusted aide or a family member. If a residentsí council exists, consider bringing the issue up for discussion.

If you are not satisfied, call or write the Michigan Department of Community Health. You may also contact the Long-Term Care Ombudsman office for your county. Addresses and phone numbers for these agencies are listed at the back of this book.

For additional information on nursing homes, contact the local FIA office. It should be listed under Family Independence Agency in the state government pages of your telephone directory.

 

Medicaid and Medicare Coverage

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Medicaid pays for stays in a Medicaid-certified nursing facility. There are, however, financial eligibility standards. These standards allow an individual, couple, or family to keep some of their income and some property such as a home, car, personal and household items, and other resources. Other assets, called countable assets, are considered when determining Medicaid eligibility. That is, such assets may have to be spent on nursing care before Medicaid will pay for that care. Keep in mind that this is done because Medicaid is intended for low-income persons. Persons with more money or property than Medicaid guidelines allow are considered to have the ability to pay for nursing care even though relatively few people can afford to pay for such care for very long on their own.

An additional concern in choosing a nursing facility is in a situation where one spouse needs to enter a facility while the other remains in the family home. In such a case, a noninstitutionalized spouse may keep enough of the coupleís earnings to keep their income from falling below 150% of the federal poverty level for a couple, while an institutionalized spouse may keep a small portion of their income for monthly personal expenses. In addition, the noninstitutionalized spouse may keep part of the coupleís countable assets. It is allowable, under certain circumstances, to transfer resources of an institutionalized spouse to a noninstitutionalized spouse in order to maximize the amount of property and resources that the couple may keep.

Medicare Part A, a program for the elderly and disabled, may also provide assistance in paying for stays in nursing facilities. Generally speaking, this aid is intended to assist with temporary nursing home stays in order to properly recover following hospitalization. Specifically, this assistance will not be provided unless the person had a previous hospital stay of at least three days within the thirty-day period prior to admission to the nursing facility. Once eligible, Medicare coverage expires after 100 days of benefits per benefit period. Those who need to stay in a nursing facility beyond 100 days may have some of their care paid for by Medicare Part B. This subsequent coverage would not, for example, apply to room and board or nursing services. Note that a benefit period is defined as a period of consecutive days that begins with a hospitalization and ends when the patient has not been an inpatient of a hospital or nursing facility for sixty consecutive days. A beneficiary may have more than one benefit period per year. In addition, a beneficiary may have to make a coinsurance payment. In 2002, there is no coinsurance payment for days 1-20 in a nursing facility, while days 21-100 require a coinsurance payment of $101.50 per day, for example.

As with Medicaid, if you wish to apply for Medicare assistance, make sure the facility is certified for Medicare. If you are also eligible for Medicaid, that program will pay your coinsurance if it is more than your Medicaid patient pay amount.

 

Applying for Medicaid

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This section is intended for patients in a medical facility--hospital or nursing home--who have a spouse at home. The rules are based on Section 1924 of the Social Security Act.

Medicare and health insurance may not cover all your nursing home costs or other medical expenses. If you qualify, Medicaid may be able to help with the amounts they do not pay.

Medicare is the federal program administered by the Centers for Medicare and Medicaid Services.

Medicaid is the state program administered by the Michigan Department of Community Health (DCH) in cooperation with the Michigan Family Independence Agency.

A word of caution: rules and financial limits change from time to time, so be sure to check with your local Family Independence Agency (FIA) office about your eligibility before making any decisions.

Limits are placed on the amount of income and countable assets you may have to be eligible for Medicaid. The income rules apply to all persons expected to remain in a long-term care facility for at least 30 consecutive days regardless of admission date.

If at any time during the process described in this section you feel an action or decision was improper, talk with your FIA worker or the workerís supervisor. If you still believe the action is improper, you may request a hearing. A hearing request must be filed within 90 days of notice of an action. Hearing requests must be in writing and signed and dated by you or your representative. Send your request to your local FIA office.

When should I apply for Medicaid?

Anyone may apply for Medicaid at any time. However, even if you do not wish to apply for Medicaid now, you should still contact your local Family Independence Agency office if you expect to be in a long-term care facility for a 30-day continuous period. (A continuous period is not interrupted by transfers between a hospital and a nursing home.) Once you notify the FIA, they will complete an initial assessment of your financial and medical eligibility for Medicaid.

An initial assessment is the total amount of countable assets owned by you and/or your spouse at home on the day you entered a long-term care facility for the first 30-day continuous period. This amount will be part of determining your asset eligibility when you actually apply for Medicaid.

It is recommended that you request an initial assessment as soon as you are admitted to a long-term care facility if you expect to be in the facility for 30 days or more before you return to your home. You will probably be able to give the FIA more accurate information for the initial assessment at the beginning of your stay rather than at some future time.

How do I apply for Medicaid?

Contact the local FIA office. It should be listed under Michigan Family Independence Agency in the state government pages of your telephone directory.

There is at least one in each county. Ask for an application form. You can pick up the application or have it mailed to you. You may authorize someone to act for you. You or your representative may be asked to come to the local office. Tell the local office worker if you need help with medical bills. Tell the local office worker if you need help filling out the application.

Medicaid eligibility is usually effective the first day of the month in which you applied, but if you have past medical bills, tell the FIA worker. You may also qualify for eligibility for as many as three months earlier.

 

Meeting Medicaid Eligibility Requirements

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What will I be asked?

The Family Independence Agency worker asks about your:

Income and assets

Age

Medical expenses

Social Security checks

Medical insurance

Ability to work if you are under age 65

The FIA will ask about your spouseís assets. They will also ask about the income of your spouse and dependents at home.

Will I need proof?

The FIA worker will need proof of income and assets. If you are under age 65, they may need doctor reports. They will need proof of medical expenses. These are some of the proofs the FIA worker will ask you for:

Bank books or statements, including joint accounts

Pension checks

Social Security checks

Real estate value (not your home)

Recent medical bills

You must have a Social Security number. We must see your Social Security number card or other proof. If you do not have a Social Security number, the FIA worker will help you apply for one.

After I apply for Medicaid what happens?

The local FIA office decides if you are eligible for Medicaid. You are notified of the decision:

Within 60 days if you are disabled

Within 45 days in other cases

The Michigan Department of Community Health notifies the FIA of the type of care you need when you are in a nursing home. The nursing home must be qualified to provide the care you need and the care must be medically necessary.

If I am eligible for Medicaid--what happens next?

You get a Medical Assistance Authorization Card. It shows how much, if any, you are expected to pay towards the cost of your care. A new card is mailed around the first of each month. You must present the card each time you request medical services. The card may only be used for the eligible person listed on the card.

The medical facility bills you for the amount you are expected to pay towards the cost of your care and bills Medicaid for the rest.

The Family Independence Agency does not provide or pay for estate planning.

 

Assets

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How is my asset eligibility determined?

This is a complicated process, but it may be easier to understand if we first define a special term.

 

PROTECTED SPOUSAL AMOUNT: The protected spousal amount is the amount of assets protected for use by the spouse at home. The protected spousal amount is one-half of the initial assessment amount but not less than $17,856 nor more than $89,280. These amounts are for 2002. The minimum and maximum amounts change each year. (See the first question on page 37 regarding the initial assessment amount.)

The ASSET LIMIT is $2,000.

To determine your asset eligibility, the Family Independence Agency subtracts the protected spousal amount from the countable assets owned by you and your spouse for the month you apply for Medicaid. The amount of the remaining assets are considered to be your countable assets. You meet the asset limit for Medicaid eligibility if your countable assets for that month are equal to or less than $2,000.

Once you are determined to be asset-eligible for the current month, you remain asset-eligible for 12 months unless you are discharged for 30 days or more or your assets are increased above the $2,000 limit. (If you are discharged for 30 days or more, the process begins over when you again enter a long-term care facility. To be asset-eligible, you and your spouseís assets, minus the protected spousal amount, must be equal to or less than $2,000.)

At the end of the 12-month period your asset eligibility is determined by counting only your assets. Your countable assets must be equal to or less than $2,000. You need to transfer enough assets to your spouse so that at the end of the 12-month period the value of your countable assets is equal to or less than $2,000.

What assets are counted to be eligible for Medicaid?

This is a list of the most common assets.

A. Money in:

Cash, savings and checking accounts

Credit union share and draft accounts

Certificates of deposit

U.S. Savings Bonds

Individual retirement accounts (IRA) and Keogh plans

Nursing home trust funds

Prepaid funeral contracts which can be cancelled

Trusts, depending on the terms of the trusts

B. Equity in:

Real estate (other than your primary home) including property that you own by yourself or with other people

More than one car

Boats or recreational vehicles

Stocks, bonds and mutual funds

Land contracts or mortgages held on real estate sold

What assets are NOT counted?

Home in Michigan

Personal belongings and household goods

One car

Income-producing real estate. The annual income after expenses must equal at least 6% of your equity (Income that equals more than 6% of your equity may be considered an asset)

Burial spaces and certain related items for you, your spouse and members of your immediate family*

Up to $1,500 designated as a burial fund for you or your spouse*

Irrevocable prepaid funeral contract*

Value of life insurance if face value is $1,500 or less*

Assets which you and your spouse do not have the legal right to use or dispose of

Assets you and your spouse have been unable to sell. The asset must have been up for sale for at least 30 days during the last 3 months. The asking price must not have been more than fair market value. You must not have received a reasonable purchase offer.

What if I have a joint account with someone other than my spouse?

The entire amount is counted as yours unless you prove some of the money belongs to the other person. This rule applies to cash assets such as:

Savings and checking accounts

Credit union share and draft accounts

Certificates of deposit

U.S. Savings Bonds

What about other assets I own with someone else?

Each owner is assumed to own an equal share unless the ownership document specifies otherwise.

Can I give my assets or income away?

Giving away or transferring assets or income for less than fair market value may result in a penalty. This restriction applies to you and your spouse. Transfers include:

allowing another person to take your (or your spouseís) assets or income by setting up a joint account, and/or

limiting the availability of your assets or income or your spouseís through a trust or similar device.

The penalty is that Medicaid will not pay for your nursing home care or equivalent home care for the time the uncompensated value would have met your care cost. The Family Independence Agency looks at transfers that occur up to 36 months before, or any time after, your date of application for Medicaid or your date of admission to a nursing home, whichever is later. The FIA looks back 60 months regarding transfers to or from a trust. However, there is no penalty if assets are transferred:

between spouses; or

by you or your spouse to your blind or disabled children (regardless of age or marital status).

In addition, you or your spouse may transfer your home without penalty to:

your children under age 21, or

your children age 21 or older who lived in your home and provided care that allowed you to remain at home for at least two years immediately before you entered the nursing home, or

your brother or sister who is a part owner of the home and lived in your home for at least one year immediately before you entered the nursing home.

What can I do if my assets are over the limit?

You can use your assets to pay medical expenses, living costs and other bills. You can use your assets to buy things that are not countable assets. You may be asked to verify how you used your assets (see pages 39 and 40).

 

Funeral Expenses

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What about funeral expenses?

There are several ways you can prearrange for a funeral and still be eligible for Medicaid. How much money you can protect and for whom depends on what arrangements you choose. Arrangements commonly used are listed below.

Buy a prepaid funeral contract

A contract can be made irrevocable and not counted for Medicaid when the price is $2,000 or less and the contract is for your expenses. Your spouse may also have an irrevocable contract if he/she is also applying for Medicaid.

Assign life insurance proceeds

Michigan law allows you to assign proceeds from your life insurance for your funeral expenses. There is a limit to the amount you can assign. The limit changes yearly based on cost-of-living increases.

Medicaid does not count the insurance if you permanently transfer ownership so that no one can use money from the insurance for anything other than your funeral expenses. This arrangement is frequently made by permanently transferring ownership to a trust when you purchase the insurance.

You may also protect funds for your spouseís funeral expenses.

Buy burial space items

You can buy items and services for interment such as a casket, burial plot, vault, headstone and opening and closing the grave site.

Medicaid does not count these items when purchased for yourself, your spouse or members of your immediate family.

Designate a burial fund

The burial fund is to pay for funeral expenses not covered by the burial space exclusion.

Medicaid does not count certain assets, such as a separate savings account, designated as a burial fund for you or your spouse. The limit is $1,500 for each person. The $1,500 limit is reduced by:

The face value of life insurance not counted by Medicaid.

The amount paid for an irrevocable funeral contract.

The amount of insurance designated for burial expenses.

You may wish to discuss your options with someone in the funeral or insurance business or with your Family Independence Agency eligibility worker or caseworker.

 

Income

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Do I have to repay Medicaid?

If you receive more benefits than you are entitled to, whether through your fault or through an error on the part of the agency, you may have to repay any extra benefits received.

Is there a limit on income?

You may get help when your income is not enough to pay your medical expenses. Usually, if you are eligible for Medicaid, you will pay part of your medical expenses and Medicaid will pay the rest.

What income is counted?

The income you receive such as:

Social Security benefits (only your portion of a joint check)

Pensions

Rent income (minus expenses)

Veterans benefits

How much of my income can I keep?

The Family Independence Agency deducts the following from your income to determine how much you must pay each month toward your long-term care facility costs:

$60 for your personal needs

Health insurance premiums you pay

Guardianship fees and expenses you pay (limited)

An allowance for your spouse at home (called the community spouse income allowance). The amount allowed is $1,452* plus certain shelter costs minus your spouseís income. The basic allowance of $1,452* plus shelter costs cannot exceed $2,232 in calendar year 2002. You may choose to contribute less to your spouse.

An allowance for you and/or your spouseís dependents living at home with your spouse (called the family allowance). The allowance for each dependent is--$1,452* minus that dependentís countable income--divided by 3.

This amount changes each year.

Is there a limit on my spouseís income?

No. However, if your spouse gives you money regularly, that money is counted as your income.

The Family Independence Agency will ask about the income of your spouse and other dependents at home to determine if they should deduct a spouse allowance or a family allowance from your income.

 

Consumersí Rights

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Consumers face problems such as inadequate information, undue pressure, and fraud when dealing with the marketplace. Following a general discussion, a few issues of particular concern are discussed.

What can I do to prevent consumer problems?

1. Take time in making decisions; comparison shop whenever possible.

2. Be skeptical of advertising claims; never expect something for nothing.

3. Donít rely on oral promises; get guarantees in writing.

4. Read thoroughly and understand all papers before signing them.

Are there laws to protect me?

Yes. There are more than 25 state and federal laws regulating consumer transactions. Some of these laws create a limited cooling off period during which you can change your mind; others make a merchant provide you with information; some require a seller to tell the truth if information is given out; still others prohibit certain activities.

 

Sales Methods

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Is there a law against false advertising?

Yes. The Michigan Consumer Protection Act prohibits false advertising as well as several other types of fraud.

What are examples of types of advertising or fraud prohibited by the Michigan Consumer Protection Act?

A jewelry store has a sign in the window reading gold necklaces 40 percent off or necklaces 40 percent off the regular price, but the store has inflated the regular price.

An appliance store mentions in a radio advertisement a sale on a certain model refrigerator without disclosing it has only four available.

A department store advertises a low-priced sewing machine in a catalogue with the intent to lure you into the store, then pressure you to buy a higher priced model.

A food manufacturer puts an advertisement on a cereal box implying that a free t-shirt is inside, but details in small print indicate you first have to buy six boxes of the cereal.

A car dealer states in a newspaper advertisement that all models are available for immediate delivery when in reality some models would have to be traded for or ordered.

 

Must I pay for merchandise received by mail unsolicited?

No. Such items are considered gifts under Michigan law and need not be returned.

Can I change my mind after making a purchase from a door-to-door salesman?

Yes. If the product or service costs $25 or more, you generally may have three business days to cancel the transaction by delivering written notice to the seller. This three day period also applies to goods and services sold by telephone. It is the sellerís obligation to return your money and to pick up the goods.

If the product purchased is health insurance, you have thirty days after receiving the policy to return it for a full refund.

 

Specific Products/Services

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Prescription Drugs

What are generically equivalent drugs?

Several drug companies might manufacture a drug with the same chemical composition but a different name. These products are generically equivalent.

May a pharmacist substitute a generically equivalent drug for one prescribed?

Yes. Michigan law allows a pharmacist to substitute a generic equivalent if itís less expensive, and if the doctor doesnít indicate dispense as written on the prescription. With the same qualifications, a pharmacist must so act if requested by the purchaser.

How can I comparison shop for prescription drugs?

A pharmacist is required to provide you with price information upon your request by telephone or in person. Ask the pharmacist for a price comparison of the name brand and any generic equivalents available. The latter are often substantially less expensive.

 

Hearings Aids

How should I go about purchasing a hearing aid?

Federal regulations prohibit sale of a hearing aid without a written statement from a doctor. While you can waive this requirement, it is still best to see a doctor (preferably an ear specialist) to determine the cause of any hearing loss.

If a doctor finds I may need an aid, what is the next step?

Visit a reputable hearing aid dealer. Before selling you an aid, a dealer must provide a user instructional brochure. He or she must review its contents with you and give you time to read it. The brochure contains information on how to use the aid and includes a statement that a hearing aid will not restore normal hearing or prevent further hearing loss.

Can I try out a hearing aid before purchasing it?

Some dealers have a trial-rental program; you can try the aid for a short time at a nominal charge before deciding whether to purchase it.

What should I look for in a purchase contract?

Read the entire contract carefully. For example, note whether the cost of the ear mold is included, how long free service is available, and the details of the written warranty. If not satisfied with the contract, do not sign it.

Where can I complain about sales or service?

Contact the U.S. Food and Drug Administration or the Michigan Board of Hearing Aid Dealers.

 

Funeral/Burial

What choices are available in funeral and burial arrangements?

Insofar as ceremony, one may have a funeral, a memorial service, or no service at all. The body may be buried or entombed, cremated or donated to medical science.

Is embalming necessary?

Embalming is not required if the person didnít suffer from a communicable disease, and the body is buried or cremated within 48 hours of death.

Is a casket required if a body is cremated?

No, only an inexpensive container. Nor is an urn necessary to hold the ashes. If a body is buried, a grave vault is not required; a cemetery might insist on a grave lining.

Can I pre-arrange a funeral and burial?

Yes. There are obvious emotional and financial advantages: you can compare prices and make a choice without guilt or pressure. A funeral and burial can also be paid for in advance through a prepaid funeral contract. This type of contract is extensively regulated through state law.

Even if you do not pre-arrange a funeral, it is a good idea to write down your preferences and let relatives know of these wishes.

Must a funeral home itemize prices for service, flowers and casket?

Yes. If you wish this information over the telephone, the funeral home must provide it. This gives you an easy opportunity to comparison shop. If you inquire in person, the funeral home must give you an itemized price list of each item and service offered. You have the right to purchase only those specific goods and services you want.

What happens after one chooses certain goods and services?

The funeral home must give you an itemized statement which includes the total cost of the goods and services you have selected. Once you see this total, you can change your mind about any items if the total cost is more than you wish to pay.

Can one avoid dealing with a funeral home?

Not entirely. In order to bury or cremate a body, a burial transit permit must be signed by a funeral director or mortuary science licensee. The body must be transported by, or under the supervision of, a funeral home.

A funeral director does need the permission of a family member to move a body from a hospital or nursing home.

Where can I complain if a funeral home does not comply with these rules?

Write the Michigan Department of Licensing and Regulation, and the Federal Trade Commission.

 

Scams

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What is a scam?

A scam is a way to take people by convincing them to participate in a fraudulent scheme.

How can I avoid being taken?

First, be aware of specific scams. Second, never accept a sales pitch that promises something for nothing.

What are some scams?

Bank examiner--A person calls claiming to be a bank investigator. He asks for your cooperation in helping catch an embezzler. You are supposed to help by withdrawing money from your bank account and giving it to him.

Pigeon drop--A person approaches you, claiming to have found a large sum of money. He promises to share it if you first give him money to prove your good faith.

Pyramid/Ponzi--A salesperson offers you an opportunity to receive money or goods for convincing other people to participate in a sales scheme. Some of these promotions are illegal in Michigan.

When else may fraud occur?

Fraud may occur in any consumer transaction. Be particularly wary of home improvement offers, work-at-home schemes, and the sale of vacation or retirement real estate.

 

Remedies

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What should I do if I have a consumer problem?

The first steps you should take depend on the type of problem. If you feel you are the victim of false advertising or other disreputable sales tactics, visit the store. If you donít receive satisfaction, consider calling the local Chamber of Commerce or the Better Business Bureau.

If a product you have purchased does not work as it should, take it back to the store. If they will not replace it or give you a credit or refund, write the manufacturer. Send a copy of your receipt. Keep a copy of the letter you send.

If you are the victim of a scam, immediately contact the police and prosecuting attorney. If the scam involved real estate, home improvement or an investment, also call the Michigan Department of Consumer and Industry Services.

What if my problem is not resolved after those steps?

File a complaint with the Consumer Protection Division of the state Attorney Generalís office.

At the same time, consider filing a lawsuit. You can sue in small claims court for up to $3,000 without hiring a lawyer. Even if you have only a few dollars in damage, you can recover $250 plus costs of the claim for a violation of the Michigan Consumer Protection Act.

If your damages are substantial or you believe many other people have had the same problem, it may be best to contact a lawyer.

 

 

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JENNIFER MULHERN GRANHOLM

Attorney General

State of Michigan

CONSUMER PROTECTION DIVISION

PO BOX 30213

Lansing, Michigan 48909

 

Complaint Form

 

DAG 008-001

Authority: 1976 PA 331

 

Company Complaining Against

Street Address or PO Box

City

State

Zip

Companyís Telephone, Fax, County

Approximate Monetary Value

Did you sign a contract? Yes ______ No ______ If yes, attach a copy.

Where did you sign this contract: __________________________________________________

Name of salesperson: __________________________________________________

If advertised, when: ______________________ Where? ___________________

Date you complained to company: _______________________ How? ____________________

Person complained to: __________________________________________________

Is there a court action pending? __________________________________________________

Motor Vehicle Complaints:

VIN No: __________________________

Model & Year: ___________________________________

Dealer Name and Address: ___________________________________________________________

 

Last Name, First Name, Business Phone

Street Address, Home Telephone

City, County, State, Zip,

Your signature, Date

 

 

Age Discrimination

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An employer, a real estate agent, or a government agency cannot discriminate against you because of your race or sex. In many instances, it is also illegal to discriminate on the basis of your age.

Age discrimination is often subtle and people may not be aware of their rights.

What are some examples of age discrimination in employment?

A prospective employer will not hire you just because you are 60.

A present employer discharges you solely because you reach your 65th birthday.

An employer or employment agency specifies in a classified advertisement that a younger person is sought for employment.

An employer permits people over 70 to work only part-time when younger employees are given the opportunity to work full-time.

Do age discrimination laws only apply to employment?

No. Examples of other conduct that may be prohibited are:

A college or public school will not permit you to apply, or counts your age against you in the admissions process.

A bank or loan company denies you a home improvement loan because you are 68.

A department store will not open a charge account in your name because you are 72.

You cannot secure approval for elective surgery payable by Medicaid because of your age.

A community mental health center provides you fewer services than are available to younger people.

A landlord refuses to rent an apartment to you, stating that you are too old.

Are there both federal and state laws prohibiting age discrimination?

Yes.

What areas are covered by these laws?

Employment--including employers, employment agencies and labor unions.

Credit--including banks, charge plans, retail stores and finance companies.

Federally funded services--examples are Medicaid, community mental health, vocational rehabilitation, legal services and education.

Housing--including both sales and rentals.

Public accommodations--including business establishments, hospitals, entertainment, recreation and transportation facilities.

Michigan law prohibits discrimination in employment, education, housing, public accommodation, law enforcement, or public service based on religion, race, color, national origin, age, sex, marital status, height, weight, familial status, or disability.

What if I am the victim of age discrimination?

Consult a lawyer for advice, and/or contact the Michigan Department of Civil Rights. (See page 76 for address and phone number information.)

If you believe you have been the victim of discrimination and the alleged discrimination has occurred within the past 180 days, you may file a complaint at any of the district offices of the Michigan Department of Civil Rights, alleging a violation of civil rights protected by state law or the Constitution.

What civil rights are guaranteed by Michigan law?

Michigan law, Public Act 220 (the Persons With Disabilities Civil Rights Act) and Public Act 453 (the Elliott-Larsen Civil Rights Act), prohibits discrimination in employment, education, housing, public accommodation, public service, and law enforcement on the basis of religion, race, color, national origin, sex, age, weight, height, marital status, disability, or familial status.

However, the ability of a person with a disability to perform a job or utilize facilities which cannot be reasonably altered, can legally be considered.

The Michigan Department of Civil Rights accepts complaints based on any of the forms of discrimination covered in Public Acts 220 and 453 as amended.

 

 

civil rights complaint

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How do I file a complaint?

A complaint may be filed at any of the Michigan Department of Civil Rights offices if the alleged act of discrimination has occurred within the past 180 days, or the past 300 days if the complaint is filed with both the department and Equal Employment Opportunity Commission (EEOC). The complaint must be in writing and notarized. If the alleged discrimination is of a continuing nature, and one of the acts of discrimination occurred within the last 180 days, you may be able to include those charges in your complaint as well.

It will facilitate the process, but is not necessary, for the claimant to provide the department with written records supporting the allegations of discrimination and the names, addresses, and phone numbers of witnesses with first-hand information of the alleged discrimination.

Department colleagues receive and investigate complaints of discrimination, and provide referrals and education and outreach. They can answer questions concerning the protections guaranteed by law. Translators are also available.

What happens to complaints?

Many complaints are resolved during informal resolution attempts. However, if the complaint cannot be resolved, and there is evidence supporting the claimantís allegations, the respondent is invited to a conciliation conference in an effort to resolve the issues. If the matter cannot be resolved at this level, the department may issue a charge; and schedule a full public hearing.

The Michigan Civil Rights Commission has the power to order appropriate remedies, including measures to prevent future occurrences, after a finding of unlawful discrimination at a public hearing.

 

Pension Rights

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In times past, people participating in pension plans often discovered upon retirement they could not collect any benefits. A federal law--Employment Retirement Income Security Act (ERISA)--now provides certain protections.

Other protections are found in the Internal Revenue Code and in laws passed by the state.

Due to this complexity, you should consult a lawyer with expertise in employee benefits if you donít receive your expected pension. Pension Rights

What protections does ERISA afford?

The law protects employees under many pension plans by setting minimum standards for eligibility for benefits, by providing insurance for certain plans that fail, and by requiring information be given to plan participants.

Does ERISA require an employer to provide a pension plan?

No. Nor does the law require minimum dollar benefits if a plan is made available.

Are all pension plans covered by ERISA?

No. Some plans are not covered by all or part of the law. For example, government and church plans are not covered. Individual account plans and plans requiring no employer contributions are not insured.

ERISA also does not apply to anyone who retired before January 1, 1976.

Is there any protection for one who retired before 1976, or whose plan is not covered?

Yes. The Taft-Hartley Act applies to plans governed by collective bargaining and jointly administered by union and employer. Courts have interpreted language of the act to require that pension plans not be arbitrary or unreasonable in their exclusion of workers.

Someone who retired before 1976 may also have protection under state law.

Can I be denied the right to participate in a pension plan because of older age?

Before 1988, you could have been excluded from participation in a defined benefit plan if you began working for the employer within five years of normal retirement age.

Once participating in a plan, you may not be dropped from a plan due to your age. Under many plans, you will continue to earn pension credit for work beyond normal retirement age.

How are an individual account plan and a defined benefit plan different?

In an individual account plan (also known as a defined contribution plan), your pension benefit depends on the amount contributed by you and/or your employer. Profit sharing, stock bonus and money purchase are examples of individual account plans.

In a defined benefit plan, there is a set benefit; you accrue a percentage of that benefit for each year of participation.

What circumstances determine my pension rights?

The most important factors are the number of years of service you have with an employer, and the years of participation you have under a particular plan.

What is a year of service?

A year of service is a 12-month period during which you work for your employer at least 1000 hours. Regardless of hours worked, a plan need not count work done before a pension plan was started.

A plan may require more than 1000 hours for you to earn a full year of participation.

Can years of service be lost?

Yes. The most likely way is through certain breaks in service.

What is a break in service?

This is a 12-month period during which you work for your employer 500 hours or less. No break in service less than five years will lead to a loss in years of service.

You cannot lose vested benefits through a break in service.

If I change employers do I ever maintain years of service?

Yes, but only if the two employers operate under the same multi-employer plan or if their separate plans provide reciprocity. You can lose credit if you participate in plans of different union locals, even if locals are part of the same national union.

What are vested benefits?

These are benefits you have a right to draw at some time, regardless of future service. All employee contributions vest immediately. Employer contributions vest at retirement age or sooner, according to a formula based on years of service. Under some multi-employer plans, you must have either 10 years of service or work until retirement age for any employer contributions to vest.

Can I lose vested benefits?

Yes. The most likely way is if you die before reaching retirement age and you have no spouse. Benefits based on employee contributions will not be lost.

Will I lose vested benefits by leaving a job before retirement?

No. But you will usually have to wait until the retirement age specified in the plan to receive your benefits.

Can I withdraw any benefits before I retire?

Employee contributions can be withdrawn, although this may cause the loss of other vested benefits.

Do some plans provide for early retirement?

Yes. Some plans provide for an option of early retirement with reduced benefits. You may have to get the signature of your spouse to choose early retirement benefits.

What if I die before retiring?

Plans covered by ERISA must offer a pre-retirement annuity payable to your spouse should you die with vested benefits before you reach retirement age. Payments begin when the worker would have reached early retirement age. This option can be waived in writing if both worker and spouse agree.

Can I choose a joint and survivor annuity?

Yes. Plans covered by ERISA that provide benefits through periodic payments must provide a joint and survivor annuity, unless this option is waived in writing by both the worker and spouse.

If you have a joint and survivor annuity, you accept lower monthly payments in return for further reduced payments to your spouse should he or she outlive you.

What are a spouseís rights in case of divorce?

In a divorce proceeding, the court can provide that a share of pension benefits goes to the spouse. The court can require that the spouse receive those benefits when the worker reaches the earliest retirement age allowed in the plan, even if the worker doesnít retire.

A spouse will receive survivorís benefits if the court awards them, or if the divorce occurs after retirement and a joint and survivor annuity has already been chosen.

Will I receive pension benefits immediately upon retirement?

Probably not. If a plan doesnít provide for early retirement, payment must begin within 60 days of the end of the plan year when the latest of these occur: a) termination of employment; b) normal retirement age (or age 65, if earlier); and c) tenth anniversary of your participation.

Can the amount of my pension be reduced because of the Social Security benefits I receive?

Yes, if the plan provides for the integration of benefits. No more than 50% of pension benefits earned after 1988 can be lost through integration.

Once your pension benefit amount is calculated, future Social Security increases will have no effect on that amount.

Will payment of pension benefits be suspended if I go back to work?

Payment can be suspended if you return to the same employer. Payment can be suspended under a multi-employer plan if you return to work in the same industry, in the same geographical area.

What information am I entitled to?

If a plan is covered by ERISA you should automatically receive a summary plan description within 90 days of becoming a plan participant. Information is included on vesting, accrual and forfeiture of benefits, and claims procedure.

Once a year, you may request in writing a statement from the plan administrator setting forth your accrued and vested benefits as of a specific date.

Upon termination of employment you should receive a statement detailing vested benefits.

How do I apply for pension benefits?

Every covered plan must establish a reasonable claims procedure. The summary plan description will state whether a claim is to be submitted to the plan administrator or to the insurance company which pays benefits.

If a claim is denied, you must receive written notice giving reason for this decision. Upon receiving a denial, immediately contact a lawyer. You have a right to a full and fair hearing by the administrator or insurance company, and a right to appeal to court.

Where can I direct complaints or requests for information?

Contact the Pension and Welfare Benefits Administration (202) 866-4693, of the U.S. Department of Labor. If a plan should fail, contact the Pension Benefit Guaranty Corporation.

 

Tax Benefits

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Many older people do not take advantage of federal and state tax provisions designed specifically for them. The purpose of this chapter is to outline these provisions.

What are the types of tax benefits?

A credit reduces tax to be paid, in the amount of the credit. Some credits can result in cash rebates.

A deduction or exemption results in a tax saving by reducing the income upon which tax is figured.

A deferral is not a reduction in tax, but a postponement of the date when a tax is due.

State of Michigan

What tax credits are available?

Property (Homestead) Tax Credit--A rebate is available if the amount of property tax exceeds a specified percentage of household income. Special rules apply to a person age 65 or older and to the unremarried spouse of a person who died after reaching age 65.

You need not own a home to qualify for the rebate. Renters are eligible, as are residents of nursing homes, life-lease facilities, and government-subsidized housing (if the development pays taxes or service fees).

You may apply for a rebate until December 31 of the fourth year following the tax year. Appropriate forms are available from Michigan Department of Treasury.

What tax deductions are available?

Extra Exemption--In figuring Michigan income tax, each taxpayer can deduct an amount from income as a personal deduction. If you are age 65 or older, you can claim an additional amount, increasing the deduction.

Exemption for Pension Income--All pension benefits received from a public retirement system are exempt from Michigan income tax. Depending on the size of a private pension, all or part of it will not be taxed.

Under certain circumstances, persons over age 65 can take advantage of a deduction for interest, dividend and capital gain income.

What taxes and assessment may be deferred?

Special Assessment--This assessment is commonly levied to pay for installation of curbs, sidewalks and sewers. A homeowner, age 65 or older with a 2001 income of up to $17,429, or totally disabled, may postpone paying this assessment if certain criteria are met.

Application must be made to the township or city assessor. The tax will not be due until one year after your death, or until the homestead is sold. Interest will be added at 6% per year.

Summer Tax--Any taxpayer age 65 or older, or blind, or totally disabled, whose household income is $25,000 or less, may postpone paying summer taxes until February 15 of the next year. There will be no penalty or interest charged for the period ending February 15.

Application must be made to the treasurer of the city, village or township by September 15 of the tax year.

Winter Tax--If your county board of commissioners permits, a taxpayer age 65 or older, or blind, or totally disabled, may postpone paying winter taxes until April 30. To qualify, you must apply for a homestead tax credit by February 15, not receive the refund by March 1, and present a copy of the tax credit form to the county treasurer.

Are there other tax breaks available from the state?

Yes. Home heating tax credits and others may be available to you. The Michigan Department of Treasury or a private tax preparer can provide you with eligibility details.

Federal Government

What tax credits are available?

Credits for the Elderly--This credit is designed for elderly or permanently disabled citizens who are 65 years of age before the end of the tax year or who are under age 65, retired on disability, and were permanently and totally disabled when they retired. The maximum credit of $1,125 may be available to those filing jointly with no Social Security and a gross income of $7,500 or less. The credit will only be subtracted from taxes otherwise owed; no cash rebate will be given.

What tax deductions are available?

Items Exempt From Tax--The following are deductions because there is no tax on them; you generally neednít report them on a tax return.

1. Social Security benefits (50% to 100% of your benefit is tax exempt, depending on amount of your other income.)

2. Railroad Retirement benefits (Part of Tier 1 benefits is subject to the same rules as Social Security benefits.)

3. Veterans benefits

4. Pension income (Portion attributable to employee contributions is not taxable.)

5. Health and life insurance proceeds

6. State home heating credit

7. Gifts and inheritances

Higher Standard Deduction--In figuring federal income tax, each taxpayer who does not itemize deductions can deduct an amount from his or her income as a standard deduction. If you are age 65 or older, you can claim a higher standard deduction.

Gain on Sale of Home--If a home is sold for more than its adjusted basis (the price paid for it plus the cost of improvements made), the gain is ordinarily subject to tax. This provision allows a taxpayer to exempt up to $250,000 ($500,000 on a joint return) of the gain if certain conditions are met.

Are there programs available to help me figure my taxes?

There are a variety of free programs, including Tax Counseling for the Elderly and Volunteer Income Tax Assistance. Call the Internal Revenue Service at 1-800-829-1040 or the local agency on aging for the nearest location.

 

Landlord-Tenant Law

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Must a lease be in writing?

There is no requirement that a residential lease be in writing if it is for a period of one year or less. A residential lease for a period longer than a year must be in writing. However, it is always better to have a written lease in case a dispute arises.

What information should be included in a lease?

1. Name and signature of landlord and tenant(s).

2. Amount of rent.

3. Address of the property.

4. Beginning date. For long-term tenancies, an ending date should also be included.

5. Truth in Renting notice.

6. Amount of security deposit.

7. All other terms of the lease, including responsibility for utilities, maintenance, snow removal and repairs, etc.

Must a tenant sign a form lease just as it is?

No. A tenant can bargain with a landlord as to many lease provisions. If a change is made in a form lease, both tenant and landlord should initial the change. If a tenant has questions about anything in a proposed lease, he or she should contact a lawyer before signing it.

Can a landlord charge a security deposit?

Yes, a security deposit can be charged for an apartment, a room, a mobile home space, or a house. The deposit can be no more than one and one-half times the monthly rent.

How does a tenant get back a security deposit?

Michigan law sets up procedures for a landlord and tenant to follow:

1. Upon moving in, a tenant completes an inventory checklist as to the condition of each room.

2. When the tenant moves out, both landlord and tenant complete another inventory checklist.

3. Tenant provides a forwarding address to landlord within four days of moving out.

4. Within 30 days, landlord either returns deposit or a list of damages for which tenant is responsible together with the balance of the deposit, if any.

For what reasons can a landlord keep all or part of a security deposit?

All or part of a security deposit may be kept to cover unpaid rent, unpaid utility bills, and damage to the rental unit beyond normal wear and tear.

What if a landlord does not comply with the security deposit law?

A tenant may sue the landlord for double the amount of money still held by the landlord after 45 days.

Does a landlord have the right to enter a leased house or apartment?

A landlord can enter at reasonable hours to inspect and to make repairs. The landlord should notify the tenant beforehand, except in emergencies.

For what repairs is a landlord responsible?

A landlord has a general obligation to keep the place in good repair. However, a landlord does not have a duty to repair damage that is the tenantís fault. If there is something which needs repair, a tenant should tell the landlord about it; the landlord then has a reasonable time to make the repair.

What if the landlord does not respond?

It is important for the tenant to then send a letter to the landlord detailing necessary repairs.

Is help available elsewhere?

Yes. If there may be a health or safety code violation, a tenant should send a letter to the local building department and/or health department requesting a housing inspection.

What if a landlord still refuses to act?

A tenant has several choices. If there is a danger to health or safety, a tenant should consider moving out immediately. If there is no danger but the repair problem is serious, a tenant can consider withholding the rent, or repairing the problem and deducting the costs. Before taking either of these actions a tenant should discuss the matter with a lawyer.

How much notice must a tenant give before moving out?

A lease may have a provision for giving notice. If not, one weekís notice must be given for a lease that is renewed weekly; one monthís notice for a lease renewed monthly. For a year lease, a tenant should give notice one month before the end of the lease. Notice should always be given in writing. Notice should always be given prior to the next rental period.

Can a tenant move out in the middle of a year lease?

Maybe. A tenant should first ask the landlord to cancel the lease. If the landlord will not agree, the tenant can try to sublet (if not prohibited in the lease). If the tenant moves without first having the lease canceled or subletting, the landlord can sue. If the landlord is unable to re-rent the apartment or room, the tenant will be responsible for all rent due during the remainder of the lease. If the landlord does re-rent the unit, the prior tenant will be responsible for rent until the new tenant moves in.

Can a landlord evict a tenant without going to court?

No. During the period of a lease, a landlord cannot simply order a tenant to move out, nor can a landlord remove possessions, disconnect utilities, or change locks to force a tenant to move. A landlord cannot evict a tenant because the tenant has complained to the landlord or to governmental agencies about the need for repairs.

Can a tenant be evicted because the building is being converted into a condominium project?

Michigan law provides certain protections. All tenants have the right to stay during the term of their lease or for 120 days after notice of condominium conversion, whichever is longer. All tenants age 65 or older have the right not to move out for at least one year. Many older people are eligible to remain in their apartments for periods ranging from four to ten years.

What procedures must be followed by a landlord to evict a tenant?

1. Tenant is given or sent a Notice to Quit (for failure to pay rent), or a Notice to Terminate Tenancy. (Tenants in federally subsidized housing, unlike other tenants, cannot be evicted simply because their landlord wants them to move.)

2. After waiting a period of seven or thirty days a landlord can bring an eviction action in district court. Tenant is served with a summons and complaint. (A tenant should immediately see a lawyer at this point.)

3. Court hearing. Both landlord and tenant should attend to present their respective arguments.

4. If tenant loses, tenant can appeal. If there is no appeal, court will order tenant to move within ten days.

5. If tenant refuses to move, court may give sheriff permission to physically remove the tenant and his/her possessions from the house or apartment.

What points should tenants and landlords remember?

1. All agreements should be put in writing.

2. It is important to keep records--lease, rent receipts, letters, court papers.

3. Letters should be sent by certified mail, return receipt requested. Copies of all letters should be kept.

 

Mobile Home Parks

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If I live in a mobile home in a mobile home park, what are my rights as a tenant?

Most mobile home residents own their own homes, but are tenants in a park. They usually rent a space from the park owner. Mobile home park tenants enjoy the same legal rights as any other tenants.

What are the advantages and disadvantages of having a written lease in a mobile home park?

With a lease, the conditions, rules and rent are fixed during the term of the lease agreement, and the lease usually cannot be cut short or extended except by mutual consent or breach of the contract (i.e., the tenant or landlord fails to keep his/her promises or fails to discharge his/her obligations).

Can I be evicted from a mobile home park without a reason?

No. State law generally prohibits without cause evictions for mobile home owners.

What fees may mobile home parks charge?

Park owners and operators may charge certain fees and charges incidental to the installation of the mobile home or a park charge for site preparation to accommodate a specific mobile home. They may also require a security deposit of up to 1-1/2 times the monthly rent. Upon leaving the site, a mobile home park tenant may be liable for any damages to the site that are a direct result of his/her negligence, which would normally be deducted from the security deposit. A park may also charge for the number of people, including children, living in the home, over and above the normal monthly rent.

Entrance and exit fees, whether refundable or nonrefundable, and whether charged directly or indirectly, are specifically prohibited by the Mobile Home Commission Act.

A list of all charges included in the rent must be conspicuously displayed in the park office. Potential park tenants should read it carefully before signing a lease.

May a mobile home park operator impose rules governing park tenantsí behavior?

Yes. Most park operators have rules governing pets, maintenance, automobiles, and other matters. The Mobile Home Commission Act requires mobile home park operators to make copies of park rules available to potential tenants and to provide copies to park tenants upon occupancy. Before moving into a park, potential tenants should closely examine these rules to decide whether they will be comfortable living under their terms.

How can a park tenant bring a complaint against a mobile home park operator?

A tenant may notify the Bureau of Construction Codes, Office of Local Government about any complaint by calling 517-241-9347. Whenever possible, the park tenant should first notify the park owner in writing of his/her intent to file a complaint with the Bureau. If the complaint falls within its jurisdiction, the Bureau will follow up and conduct any necessary investigation or inspection. If the matter is not within the Bureauís jurisdiction, a park tenant should ask the Bureau for referral to the proper authority. Under certain circumstances, a park tenant may also be able to bring a legal suit. Check with an attorney or contact the Consumer Protection Division of the Office of the Michigan Attorney General for advice (telephone 517-373-1140).

Am I allowed to sell my mobile home without moving it out of the park I am currently in?

Yes, under P.A. 337 of 1988, effective on May 1, 1989, you may sell your mobile home on the site, if you meet the rules and regulations of the park. The law states that the age or size of a mobile home shall not be used as the sole basis for refusing to allow an on-site, in-park sale. Conversion of the park to other uses (such as a shopping center) is allowed as a reason to refuse to permit on-site, in-park sales under the law.

May mobile homes be placed on private property outside of a mobile home park?

Yes. Local governments may set standards for all housing units concerning such features as minimum square footage, a permanent foundation, and certain roof lines. These standards may also apply to mobile homes, as well as other types of homes. A local government may restrict the location of a mobile home if it fails to satisfy standards designed to ensure that the mobile home will compare favorably with other housing that would be allowed on that site. However, these standards may not single out mobile homes, but must be applied uniformly to all types of housing. Local governments may also impose additional regulations concerning installation and anchoring of mobile homes. Those located outside of parks must also comply with laws governing smoke detectors and multiple fire extinguishers.

 

Legal Resources

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A competent, honest and affordable lawyer, and other legal resources available in the community can be helpful to you in appropriate circumstances. If you believe you have a legal problem, act quickly to determine your rights, and to protect them.

Is there a means to have my legal questions answered by telephone?

Yes. A free statewide legal hot line for people age 60 or older is now available. The program is particularly interested in reaching the homebound, those in rural areas, and others with limited access to a lawyer. Telephone consultation with a lawyer is available during normal business hours by calling 1-800-347-5297.

Do I always need a lawyer if I have a legal problem?

No. For example, you can sue in small claims court for damages up to $3,000.

What are examples of cases that can be brought in small claims court?

You might sue a dry cleaner for damaging your clothing, or an automobile repair person who doesnít fix your car properly, or an appliance store which refuses to repair a television set under warranty.

Are there cases that cannot be brought?

Yes. In small claims court you cannot sue for fraud, libel or slander. Also, you cannot sue to make someone do something (like tear down a fence), or stop doing something (like trespassing).

What if the amount involved is more than $3,000?

You may still sue in small claims court, but you give up the right to collect any amount over $3,000.

How is small claims court different from other courts?

Small claims court is designed to avoid long delays and high court costs. People involved in a small claims lawsuit give up three rights:

1. You cannot have a lawyer.

2. You cannot have a jury trial.

3. You cannot appeal to a higher court.

It is important to realize that a case will not be heard in small claims court unless both parties agree to this forum.

How do I start a lawsuit in small claims court?

You must file a claim in the court district where the person or business you are suing lives or does business, or where the action giving rise to the dispute occurred.

Tell the district court clerk you want to file a small claim. You will be given a form called an affidavit. Complete the form, giving the exact name of the person or business you are suing, how much you are suing for, and the reason you believe you are owed money.

Should I bring anything with me when I file?

Yes. Take with you any written evidence, such as receipts, bills and contracts. It may be necessary to attach copies to the claim form.

What is the cost of bringing a small claim?

There is a filing fee and a fee for serving papers on the person sued; together, these fees will run from $15 to $25. If you win the lawsuit, the person sued will have to pay you back for these expenses.

What happens when the person or business sued receives the claim?

If the person sued wishes to be represented by a lawyer or have a jury trial, he or she can move the case to a regular session of district court. Should this happen, consult a lawyer. (If you are sued in small claims court, see a lawyer for advice on whether to defend the case in small claims court or move it to a regular session of district court.)

What should I bring to the hearing?

Bring any witnesses who can help your case. Also bring all papers, documents, bills, canceled checks, photographs or other relevant evidence.

What will the hearing be like?

The trial will be informal. If you started the case, you will speak first. You tell the judge your story, have witnesses testify, and present written evidence. The person being sued can ask you or your witnesses questions.

When you have completed your case, the person being sued presents his or her case in the same manner. After hearing both sides the judge will make a decision.

What happens if I win my case?

The judge will sign a paper stating the person or business you sued owes you a specified amount in damages plus court costs.

What if the defendant will not pay?

There are several legal procedures you can follow in an attempt to collect the money due. You will have to return to court.

Are there other procedures available where a lawyer is not necessary?

Yes. Mediation, whereby a neutral party seeks to help settle a dispute without the necessity of court action may be available.

Are there legal services available at no cost?

There may be. Several counties have programs funded under the Older Americans Act. Anyone age 60 or older is eligible regardless of income, but the program may not handle all types of legal problems. A list of agencies is included at the end of this chapter.

If you work for, or have retired from, Chrysler, Ford or General Motors, you, among others, may be eligible to participate in a prepaid legal services plan. Certain legal problems will be handled at no cost to you. The telephone number for the United Auto Workers Legal Services Plan is 1-800-572-1383.

Are there different types of private legal practice?

Yes. Some lawyers work by themselves, others work in small or large firms or in legal clinics. Some lawyers handle a variety of legal issues; others specialize in such areas as family law, real estate, criminal law, tax or corporate law.

If I wish to hire a lawyer in private practice, how can I find a good one?

There is no sure-fire way. Here are some suggestions:

1. If you have dealt with a lawyer in the past and were satisfied, go back to that person. If he or she does not handle the present type of problem, he or she can recommend someone who does.

2. Ask friends, neighbors or relatives for someone they have been pleased with.

3. Ask a person you respect, such as a religious leader, or call an organization such as a consumer group or a civic organization.

4. Call the county or state bar referral service, which will provide you with the names of one or more lawyers. A list of bar referral services is included at the end of this chapter.

5. Consult the yellow pages or newspaper classified section.

Are lawyers certified as specialists as doctors are?

No. If you receive names of lawyers through a bar referral service for a certain type of case, it is only because those lawyers have requested referrals in that type of case. The lawyer may or may not have substantial experience.

If you see an advertisement stating a lawyer specializes in a certain area of the law, it does not mean any group has certified or licensed the lawyer in that specialty. Expertise among lawyers is self-proclaimed.

You might check the experience and reputation of a lawyer by asking her or him for references.

How do private lawyers charge for their services?

Lawyers charge clients in one of three ways: flat fee, hourly, or contingency. Under a flat fee arrangement you are charged a specific amount for the service, e.g., $90 to draft a simple will.

Under an hourly fee you are charged an amount, e.g., $80 for each hour the lawyer spends on your case. A lawyer may ask for a retainer, which is similar to a down payment.

If you have suffered a personal injury, a lawyer may handle your case for a contingent fee. She or he will receive a percentage, often one-third, of any settlement or court judgment you receive. If you lose the case, you donít owe your lawyer any attorney fees.

How do I know how much my lawyer will charge?

Although it is often uncomfortable for both lawyer and client, it is important to discuss financial arrangements at the outset. Some lawyers will talk about this over the telephone. Other lawyers may discuss it at an initial consultation, for which they charge only a nominal amount. Do not deal with any lawyer who refuses to talk about money.

If a lawyer charges you by the hour for a case, he or she will not be able to tell you exactly how much it will cost, but he or she should be able to provide some estimate. Make sure you know what the hourly fee includes. Some lawyers charge for items such as long distance telephone calls, secretarial time and photocopying in addition to their hourly rate.

Whatever the fee arrangement, you are responsible for court filing fees.

If I speak to a lawyer, do I have to hire that lawyer?

No. Do not hire a lawyer unless you are comfortable, you have confidence in his or her ability, and you can afford his or her services.

What is the role of a lawyer?

A lawyer is supposed to lay out your legal options in given circumstances, advise you of the possible effects of each legal alternative, and pursue the alternative you choose. The authority to make these decisions is exclusively yours. You should neither allow nor expect a lawyer to make such decisions for you.

How can I make best use of my lawyer?

First, prepare ahead of time. Collect and organize all relevant papers. Have in mind what you want to accomplish. Second, be open and honest with your lawyer. The lawyer cannot divulge to others what you tell her or him.

Third, ask your lawyer to keep you informed about the progress of your suit or legal problem, but do not expect immediate results. Delay is sometimes out of your lawyerís control. Finally, donít sign any paper until you understand all its language.

Always remember, you have hired a lawyer to work for you.

Can I fire a lawyer if I am not satisfied?

Yes. But you may still owe the lawyer for services he or she has already rendered to you.

What if I feel a lawyer has been careless or dishonest?

As in any business, there are some lawyers who are not ethical. Some may use disreputable tactics or charge you for unnecessary services. Do not pay a bill unless it is itemized, and unless it is according to your original agreement. Try resolving honest disagreements about fees by talking to the lawyer.

If you feel a lawyer has been dishonest, careless or incompetent, you can complain to the Michigan Attorney Grievance Commission. A lawyerís license can be suspended or revoked. You can also file a lawsuit against the lawyer and seek damages.

 

Legal Resources

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STATEWIDE

State Bar of Michigan

(517) 372-9030

 

State Bar Lawyer Referral Service

306 Townsend Street

Lansing 48933

1-800-968-0738

 

ALPENA COUNTY

Northern Michigan Legal Services

123 N. 2nd Ave.

Alpena 49707

(989) 356-9081

 

BAY COUNTY AND SURROUNDING COUNTIES

Henry Sefcovic, P.C.

703 Washington, Suite 301

Bay City 48708

(989) 892-1200

1-800-833-0113

 

BERRIEN, CASS, AND VAN BUREN COUNTIES

Senior Law Center

16 S. Third

Niles 49120

(616) 684-2920

 

CALHOUN COUNTY

Legal Services Organization of Southcentral Michigan

70 E. Michigan Avenue, 2nd Floor

Battle Creek 49017

(616) 965-3951

 

CLINTON COUNTY

(See Ingham County)

 

DELTA COUNTY AND ENTIRE UPPER PENINSULA

Davis, Olsen, Filamaro

504 Ludington Street

Escanaba 49829

(906) 786-1403

 

EATON COUNTY

(See Ingham County)

 

GENESEE COUNTY

Lawyer Referral Service

436 S. Saginaw St.

Suite 100

Flint 48502

(810) 232-6000

 

Legal Services of Eastern Michigan

547 S. Saginaw

Flint 48502

(810) 234-2621

1-800-339-9513

 

GRAND TRAVERSE AND NINE SURROUNDING COUNTIES

Senior Citizens Legal Assistance

P.O. Box 1958

Traverse City 49685-1958

(231) 922-4713

 

INGHAM COUNTY

Lawyer Referral and Information Services

(517) 482-8816

 

Sixty-Plus Elder Law Center

300 S. Capitol Ave.

Lansing 48901

(517) 334-5760

 

JACKSON COUNTY

Legal Services of Southeastern Michigan

180 W. Michigan Avenue

Jackson 49201

(517) 787-6111

 

KALAMAZOO, BARRY, BRANCH, AND CALHOUN COUNTIES

Western Michigan Legal Services

201 W. Kalamazoo Avenue

Kalamazoo 49007

(616) 344-8113

 

KENT, ALLEGAN AND IONIA COUNTIES

Grand Rapids Bar Association

(616) 454-9493

 

Legal Aid of Western Michigan

89 Ionia N.W., Suite 400

Grand Rapids 49503

(616) 774-0672

 

LAKE, MECOSTA, MONTCALM, AND OSCEOLA COUNTIES

Legal Aid of Western Michigan

203 S. Third Street

Big Rapids 49307

(231) 796-4878

 

LIVINGSTON COUNTY

Oakland/Livingston Legal Aid

204 W. Grand River Ave.

Howell 48843

(517) 546-8555

 

MACOMB COUNTY

Macomb County Bar Association

(586) 468-8300

 

Lakeshore Legal Aid

21885 Dunham Road

Clinton Township 48036

(586) 469-5185

 

MONROE COUNTY

Senior Citizen Legal Services

502 West Elm Street

Monroe 48161

(734) 241-7644

 

MUSKEGON, MASON, AND NEWAGO COUNTIES

Legal Aid of Western Michigan

450 Morris, Suite 302

Muskegon 49440

(231) 726-4887

 

OAKLAND COUNTY

Oakland County Bar Association

(248) 338-2100

 

Oakland/Livingston Legal Aid

35 West Huron

Pontiac 48342

(248) 456-8861

 

Counsel Advocacy Law Line

16130 Northland Dr.

Southfield 48075

(248) 569-9658

 

SAGINAW COUNTY

Legal Services of Eastern Michigan

(517) 755-4465

 

ST. CLAIR COUNTY

Lakeshore Legal Aid

803 10th Avenue

Port Huron 48060

(810) 985-5107

 

ST. JOSEPH COUNTY

Berrien County Legal Services

901 Port St.

St. Joseph

(616) 983-6363

 

WASHTENAW COUNTY

Washtenaw County Bar Association

(734) 996-3229

 

Legal Services of Southeastern Michigan

420 N. Fourth Avenue

Ann Arbor 48104

(734) 665-6181

 

WAYNE COUNTY

Detroit Bar Association

(313) 961-3545

 

Detroit Legal Aid Project

645 Griswold

Detroit 48226

(313) 964-4700

 

 

Complaints

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LANSING Area

Citizens for Better Care

4700 Ardemore

1002B Professional Building

Okemos, MI 48864

(517) 336-6753

1 (800) 292-7852

fax: 1-517-336-7718

Serving: Clinton, Eaton, Hillsdale, Ingham, Jackson, and Lenawee counties

 

GRAND RAPIDS Area

Citizens for Better Care

2130 Enterprise SE #201

Grand Rapids, MI 49508-5084

(616) 281-3343

fax: 1-616-281-3486

Serving: Allegan, Berrien, Cass, Ionia, Kent, Lake, Mason, Mecosta, Montcalm, Muskegon, Newaygo, Oceana, Osceola, Ottawa, and Van Buren Counties

 

GRAND TRAVERSE Area

Citizens for Better Care

1609 Park Drive

Traverse City, MI 49696

(616) 941-1399

No Toll-Free (Call GR for referral)

fax: 1-616-938-0560

Serving: Antrim, Benzie, Charlevoix, Emmet, Grd Traverse, Kalkaska, Leelanau, Manistee, Missaukee, and Wexford Counties

 

KALAMAZOO Area

Kalamazoo City Human Services Department

Rm. G17

P.O. Box 42

Nazareth, MI 49074-0042

(616) 373-5157

1 (800) 332-4802

fax: 1-616-373-5354

Serving: Barry, Branch, Calhoun, Kalamazoo, and St. Joseph Counties

 

DETROIT Area

Citizens for Better Care

4750 Woodward Avenue, Ste. 410

Detroit, MI 48201-1308

(313) 832-6387

1 (800) 833-9548

fax: 1-313-832-7407

Serving: Livingston, Macomb, Monroe, Oakland, St. Clair, Washtenaw, and Wayne Counties

 

SAGINAW Area

Citizens for Better Care

6722 E. Curtis #2

Bridgeport, MI 48722-9726

(517) 746-9216

1 (800) 284-0046

fax: 1-517-746-9251

Serving: Bay, Clare, Genesee, Gladwin, Gratiot, Huron, Isabella, Lapeer, Midland, Saginaw, Sanilac, Shiawassee, and Tuscola Counties

 

UPPER PENINSULA

UPCAP Services, Inc.

2501 14th Ave. South

P.O. Box 606

Escanaba, MI 49829

(906) 786-4701

fax: 1-906-786-5853

Serving: Alger, Baraga, Chippewa, Delta, Dickinson, Gogebic, Houghton, Iron, Keweenaw, Luce, Mackinaw, Marquette, Menominee, Ontonagon, and Schoolcraft Counties

 

ALPENA Area

NE MI Community Services Agency

2375 Gordon Road

Alpena, MI 49707-4627

(517) 356-3474 Ext. 230

No Toll-Free (Call Lansing for referral)

fax: 1-517-354-5909

Serving: Alcona, Alpena, Arenac, Cheboygan, Crawford, Iosco, Montmorency, Ogemaw, Oscoda, Otsego, Presque Isle, and Roscommon Counties

 

Michigan Department of Consumer & Industry Services Patients Rights Investigation

1-800-882-6006

P.O. Box 30195

Lansing, MI 48909

 

Health Facilities Complaint Hotline

1-800-882-6006

 

Centers for Medicare and Medicaid Services

1-800-447-8477

 

Health Care Association of Michigan

P.O. Box 80050

Lansing, MI 48908-0050

(517) 627-1561

 

American Association of Retired Persons State Office

309 N. Washington Square

Suite 110

Lansing, MI 48933

(517) 482-2772

 

Michigan Association of Homes and Services for the Aging

6512 Centurion Drive, Suite 380

Lansing, MI 48917

(517) 323-3687

 

Health Insurance

Office of Financial and Insurance Services

(517) 373-0240

P.O. Box 30220

Lansing 48909

 

Consumers (General)

Adult Well Being Services

4750 Woodward, Suite 212

Detroit, MI 48201

(313) 833-3783

 

Michigan Attorney General

(517) 373-1140

 

Consumer Protection Division

525 W. Ottawa

Lansing 48913

 

Federal Trade Commission

(877) 382-4357

6th Street and Pennsylvania Avenue, N.W.

Washington, D.C. 20580

 

Hearing Aids

Board of Hearing Aid Dealers

(517) 241-9288

P.O. Box 30018

Lansing 48909

 

U.S. Food & Drug Administration

(313) 226-6260

1560 E. Jefferson

Detroit 48207

 

Funerals

Department of Consumer & Industry Services

(517) 241-9252

Bureau of Commercial Services & Licensing Division

P.O. Box 30018

Lansing 48910

 

Cemetery Regulation

(517) 241-9252

Lansing 48909

 

Scams

Michigan Department of Consumer & Industry Services

(517) 241-6470

Corporation and Securities Bureau

P.O. Box 30222

Lansing 48909

 

Michigan Attorney General Consumer Protection Division

(517) 373-1140

 

Health Care Fraud Hot Line

1-800-24-ABUSE (22873)

 

Age Discrimination

Michigan Department of Civil Rights

1-800-482-3604

 

Detroit Service Center

(313) 256-2663

State of Michigan Plaza Building

1200 6th Avenue, Detroit 48226

 

Lansing Service Center

(517) 334-9335

741 North Cedar Street #101

Lansing 48913

 

U.S. Equal Employment Opportunity Commission

(313) 226-7636

231 W. Lafayette

Detroit 48226

 

U.S. Department of Health and Human Services

1-800-368-1019

300 S. Wacker Drive

Chicago, Illinois 60606

(federally funded services)

 

Taxes

Michigan Department of Treasury

(517) 373-3200

Treasury Building

Lansing 48922

 

U.S. Internal Revenue Service

1-800-829-1040

477 Michigan Avenue

Detroit 48226

 

Pensions

U.S. Department of Labor

(313) 226-7450 or

(859) 578-4680

Labor and Management Services Administration

231 W. Lafayette

Detroit 48226

 

U.S. Department of Labor

Pension and Welfare Benefits Administration

(202) 866-4693

 

State Government Agencies

Department of Agriculture

North Ottawa Building

P.O. Box 30017

Lansing, MI 48909

Phone: (517) 373-1104

 

Attorney General

525 West Ottawa Street

G. Mennen Williams Building

7th Floor

Lansing, MI 48909

Phone: (517) 373-1110

 

Auditor General

Town Center Building, Suite A

333 South Capitol Avenue

Lansing, MI 48913

Phone: (517) 373-8050

 

Department of Career Development

Victor Office Center, 7th Floor

201 N. Washington Square

Lansing, MI 48913

Phone: (517) 241-4000

 

Department of Civil Rights

Capitol Tower Building, Suite 800

Lansing, MI 48913

Phone: (517) 335-3165

 

Department of Civil Service

400 South Pine

Lansing, MI 48909

Phone: (517) 373-3030

 

Department of Community Health

Medical Services Administration

6th Floor, Lewis Cass Building

320 S. Walnut

Lansing, MI 48913

Phone: (517) 373-3500

 

Department of Consumer & Industry Services Bureau of Health Systems

525 W. Ottawa

P.O. Box 30004

Lansing, MI 48909

Phone: (517) 334-8408

Patient Rights: (800) 882-6006

 

Bureau of Commercial Services & Licensing Division

2501 Woodlake Circle

Okemos, MI 48864

Phone: (517) 241-9221

 

Bureau of Employment Relations

Phone: (517) 373-3580

 

Wage and Hour Division

P.O. Box 30476

Lansing, MI 48909

Phone: (517) 322-1825

 

Department of Corrections

Grandview Plaza

P.O. Box 30003

Lansing, MI 48909

Phone: (517) 335-1426

 

Department of Education

Hannah Building

608 West Allegan

P.O. Box 30008

Lansing, MI 48909

Phone: (517) 373-3324

 

Department of Environmental Quality

P.O. Box 30473

Lansing, MI 48909

Phone: (517) 335-2419

 

Department of Management & Budget

P.O. Box 30026

Lansing, MI 48909

Phone: (517) 373-1004

 

Department of Military Affairs

2500 S. Washington Ave.

Lansing, MI 48913

Phone: (517) 483-5500

 

Department of Natural Resources

Stevens T. Mason Building

7th Floor

P.O. Box 30028

Lansing, MI 48909

Phone: (517) 373-2329

 

Family Independence Agency

(formerly the Department of Social Services)

Grand Tower

235 S. Grand Avenue

P.O. Box 30037

Lansing, MI 48909

Phone: (517) 373-2000

 

Department of State

General Information

430 W. Allegan

Lansing, MI 48918

Phone: (517) 373-2510

322-1447 (TDD)

 

Department of State Police

714 South Harrison Road

East Lansing, MI 48823

Phone: (517) 332-2521

 

Department of Transportation

Highway Building

425 West Ottawa Street

P.O. Box 30050

Lansing, MI 48909

Phone: (517) 373-2090

 

Department of Treasury

Treasury Building

430 W. Allegan Street

Lansing, MI 48922

Phone: (517) 373-3200

 

Bureau of State Lottery

101 E. Hillsdale

P.O. Box 30023

Lansing, MI 48909

Phone: (517) 335-5600

 

Michigan Department of Career Development

Victor Office Center

7th Floor

201 N. Washington Square

Lansing, MI 48913

Phone: (517) 241-4000

 

Toll-Free Hot Lines

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One very important problem in resolving the needs of older adults is the necessity of keeping them informed, of communicating with government officials, and generally educating them about government and how it affects them.

In an effort to open government to its citizens and create accessibility, several departments of federal and state government maintain hot lines which allow callers to telephone agencies, without cost, for assistance or information. Here is a list of hot line numbers that you may want to use now or in the future:

Travel Bureau--provides information on upcoming events, campsites, and accommodations.

Phone: 1-800-543-2937 (in Michigan and from out of state).

Natural Resources--to report poaching and other violations of conservation laws. Phone: 1-800-292-7800

National Highway Traffic Safety Administration--receives reports on auto safety problems; provides information on autos recalled, and complaints received about specific makes and models.

Phone: 1-800-424-9393

 

Bureau of Automotive Regulation--for problems dealing with auto repairs, auto dealerships, etc., except for those problems with automobiles that are still under warranty (contact the Attorney Generalís office with these problems). Phone: 1-800-292-4204

Utilities (Public Service Commission)--handles complaints on utility services; assists with rates and billings. Phone: 1-800-292-9555

Medicare (Blue Cross-Blue Shield)--Monday through Friday, 8:30 a.m. to 5:00 p.m., answers all Medicare questions. Phone: 1-800-482-4045 or 1-800-482-4046

For any other consumer-related problems, contact the Attorney Generalís Consumer Protection Division for assistance or referral. Phone: 1-877-765-8388

Other hot line numbers you might find useful are:

State

Long-Term Care Ombudsman

1-866-485-9393

 

Michigan Bar Association

Legal Hot Line

1-800-347-5297

 

Legal Hotline for Michigan Seniors

1-800-347-5297

 

FIA Home Heating Energy Assistance Hotline

1-800-292-5650

 

Federal

Consumer Product Safety Commission

1-800-638-2772

 

Federal Government Ripoff & Fraud Hot Line

1-800-424-5454

 

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