What is an ERISA Qualified Plan and Why Do I Need it for My Bankruptcy Case?

Bankruptcy Questions About Retirement PlansIf you have recently filed a Chapter 7 bankruptcy or a Chapter 13 bankruptcy it is important that you ensure your retirement plans are ERISA qualified.  The bankruptcy trustee, who represents your creditors, will probably require that you present him or her with evidence at the creditor’s meeting, showing that your retirement plan with your employer (if you have a retirement plan) is a ERISA qualified retirement plan. ERISA is the abbreviation for Employee Retirement Income Security Act of 1974. This law was enacted to protect your retirement accounts from risky speculation by your employer or plan administrator so that when you retire, your money will be in the account and not lost by risky investments.

Most employer retirement plans are ERISA qualified plans. If the plan is ERISA qualified, or an IRA, the bankruptcy trustee cannot normally seize your retirement money to pay off your creditors. However, a very small percentage of retirement plans are not ERISA qualified and/or are not legitimate IRAs, and therefore are not protected. In this event, if you file bankruptcy, the trustee can take your retirement money. Don’t panic, if you work for a legitimate company, it is very likely that the plan is ERISA qualified or protected from your creditors.

Before you sign the official bankruptcy petition (not the worksheets), it is your responsibility to contact your employer or former employer with which you have the 401K, IRA, retirement plan, and obtain verification from the employer that the plan is ERISA qualified. We suggest you contact the employers personnel/payroll or human resources department for this information. They may refer you to the plan administrator, such as Fidelity or Charles Schwab, etc. for the information. It may take several weeks for them to send you this information, so don’t wait until a few days before the creditors meeting to request this information. Start working on it now!

Usually, you will need for your employer to send you documentation, such as a plan summary. This is the booklet you probably received when you originally signed up for the plan, or a letter on company letterhead from the plan administrator, stating that the plan is ERISA qualified and the dollar amount in the plan.

Do not bring only your quarterly statement your employer sends you. This is unacceptable to the trustee. You may bring the quarterly statement, but you must have the statement, usually called a plan summary, stating the plan is ERISA qualified.

You must have this documentation with you at the creditor’s meeting which will be scheduled approximately 4-6 weeks after you file bankruptcy. If you do not have the documentation, the trustee will usually allow you an additional 10 days to provide this to him/her. If you do not provide this documentation to the Trustee, the Trustee could ask the Judge permission to seize your retirement account and pay your creditors with this money.

In conclusion, make sure your retirement account is ERISA qualified before you file the bankruptcy. If you have any questions contact us today.

Signs of Nursing Home Abuse

Too often nursing home abuse or neglect takes place in a nursing home but is never detected until it is too late.

One of the unfortunate realities about growing old is that your body and mind begin to deteriorate. That is a fact of life. However, the excuses that injuries and conditions are caused by old age are too common in nursing facilities. No matter what someone’s age is they should not suffer the consequences of a staff that fails to provide the care that they are being paid to give.

The best way to protect your loved one in a nursing facility is to stay engaged and active in their care. Don’t ever hesitate to ask questions or demand answers if you believe they are not receiving the appropriate care. However, below are some common examples of nursing home neglect and abuse:

Rapid loss of weight without a change in medical treatment

Untouched food on trays that are out of patient’s reach

Extreme hunger when eating with or fed by family

Extreme thirst when fluids are provided by family

Overly medicated, despondent and generally not acting themselves (unless there is a medical reason)

Suddenly fearful or easily spooked

Excessive number of or frequent occurrence of cuts, bruises and other wounds

Frequent hospitalizations

Hesitancy of nursing home to send your loved one to the hospital

Hesitancy of nursing home to seek physician opinion when requested by patient or family

Rarely gets patient out of bed or rarely turns the patient (unless medical condition requires non-movement)

Lack of safety restraints when sitting in a wheelchair

Frequent or unexplained broken bones

Smell or odor coming from the patient may be a sign of bed sores or decubitus ulcers

If you believe your loved one is suffering some form of nursing home neglect or abuse it is important that you contact a nursing home injury lawyer.

What is the Standard of Care?

What is the “standard of care” in a medical malpractice case in North Carolina? Many people have asked us this question at Duncan Law.

In North Carolina to be successful in a medical malpractice action, you must prove to a jury or judge that the defendant healthcare provider deviated from or violated the standard of care. This is usually done by testimony of an expert witness, usually another healthcare provider in the same specialty as the defendant healthcare provider. The North Carolina legislature has defined the standard of care in North Carolina General Statute 90-21.12. The law states:

“In any action for damages for personal injury or death arising out of the furnishing or failure to furnish professional services in the performance of medical, dental, or other healthcare, the defendant shall not be liable for the payment of damages unless the trier of the facts is satisfied by the greater weight of the evidence that the care of such healthcare provider was not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time of the alleged act giving rise to this cause of action.”

You are probably asking what does all of this legal jargon mean?

Basically, the law states that a doctor, dentist, nurse, etc. must act within the same standards as other persons in their profession within the same or similar community at the time of the alleged medical malpractice action. In other words, a heart surgeon should practice and use the same guidelines and procedures as other heart surgeons in similar communities. As an exaggerated example, all heart surgeons do not use chain saws to open a patient’s chest. If a heart surgeon were to use a chain saw and injure the patient, then that doctor would had violated the standard of care. He should have known the use of the chainsaw was not within the standards for heart surgeons.

I have had many clients express to me that if there was a bad outcome for a medical treatment then the doctor must had made a mistake and therefore violated the standard of care. Not necessarily!

An example- sometimes patients are put under anesthesia and they never wake up and die. Did the anesthesiologist violate the standard of care by allowing the patient to die? The key question will be did the anesthesiologist do anything different under the same conditions and circumstances as another different anesthesiologist would had done? Sometimes, under no fault of anyone, patients have a reaction to the anesthesia and die. This would not necessarily be a violation of the standard of care. However, if the anesthesiologist forgot to turn on the oxygen for the patient and the patient died from lack of oxygen, then the failure to turn on the oxygen for the patient is a violation of the standard of care and the anesthesiologist probably committed medical malpractice.

We hope this helps you in understanding the requirement of deviating or violating the standard of care in North Carolina that is required for a successful medical malpractice case. If we can help you with a possible medical malpractice case that you may have contact us today.

Does Bankruptcy Wipe Out Child Support or Alimony?

Unfortunately, alimony and child support cannot be wiped out in bankruptcy.  Alimony and child support are considered “priority” debts that must be repaid.  In other words, the bankruptcy laws view alimony and child support as very important debt that one cannot just wipe out with a bankruptcy.

However, if you are behind on your alimony or child support payments, bankruptcy can be helpful for you.  If you are behind and have been threatened to go to jail, you could file a Chapter 13 Bankruptcy, which is a repayment plan.  In a Chapter 13 bankruptcy, you repay a portion of your debts over a period of three to five years.  At the end of your bankruptcy, you will no longer owe any unsecured debt (credit cards, medical bills) and will be caught up on any debts that you were behind on, such as child support.

A Chapter 13 bankruptcy is helpful for a person who is behind on alimony or child support payments because it helps you get caught up on your payments and will avoid any potential jail time.  Other than completing a Chapter 13 bankruptcy you cannot wipe out alimony or child support in bankruptcy.