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Social Security: What Lawyers Should Know

Posted By James Jones, Tuesday, October 11, 2016
Claimants who apply for Social Security disability benefits, SSI disability benefits, and even retirement benefits can often times utilize attorneys and non-attorneys for their representation. If  the Claimant is under 50 years of age the general rule of thumb is that you must eliminate every single full-time job that exists within the United States in significant numbers. 


This would ordinarily be a job in a region where there is more than one hundred of said jobs available. The Social Security Administration does not concern itself with whether or not the person would be hired, how far the job is from where they live, or whether they would even like the job. The only issue it considers is   whether the person's physical and mental limitations would allow them to satisfactorily perform this job.


The role of the attorney is obviously to try and succeed in your client's case. This entails obtaining all relevant medical evidence, and more importantly, trying to get opinions from the treating physician; treating psychiatrist, treating psychologists, or other medical professionals indicating limitations that would interfere with your client's ability to perform full-time work at a competitive level.


If your client is over 50 years of age and is reduced to sedentary work and has no skills for sedentary work and has never done sedentary work, then a favorable decision can be rendered. This same rule would also apply for light duty work for individuals who are 55 and over.


Unfortunately, the last few years have seen the percentage of hearing decisions that are favorable reduced quite significantly. Most hearing offices have approval rates that are less than 50% where as many years ago the approval rate reached nearly 60%. Thus, it is harder to win the cases and more and more doctors and medical professionals are unwilling to complete treating physician forms that may aid your client in winning their case.


Obviously, if you are trying to build a practice in this area, you must properly screen your cases so that you are not spending a lot of important time on cases that cannot be awarded. You do perspective client a service, in some ways, by letting them know as early as possible if you do not feel that their case can be awarded.


However, you must keep in mind that many times a Claimant may present to you with a particular medical problem that they feel is disabling and the Claimant may have other problems for which they have not been getting treatment that may well be disabling. We often see this in mental health problems where a Claimant may have a physical problem but has an underlying psychiatric problem that has not been properly developed.


Additionally, if a Claimant has been going through special education throughout their life, then you must consider whether or not the Claimant may meet the adult mental retardation rules that the Social Security Administration has issued on such persons.


All in all, representing the disabled can be quite spiritually rewarding by helping people who may have not been able to obtain benefits but for your representation. Fees are limited to 25% and the general rule of thumb is that the 25% cannot exceed $6,000.00. Most often, your fees will either be $6,000.00 or less, depending on how much represents 25% of past due benefits.


There are also offsets that can be applied that can reduce the Claimant's back payment as well as your fee, such as Worker's Compensation benefits, marital assets and income in a SSI disability case, etc.


This content was written by one of our panel members, Lawrence Gordon, an attorney in Atlanta, Georgia.


***If you or someone you know is faced with Social Security issues, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***







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Understanding Healthcare: Tips for Effective Coverage

Posted By James Jones, Tuesday, September 13, 2016


With the Affordable Care Act (ACA) bringing many changes to the way individuals select and use health insurance plans, I have listed some practical tips for those issues individuals will most likely encounter on a daily basis: open enrollment, the individual marketplace and health claim denials.  


As we approach the fall season, many employers will require their employees to choose a health insurance plan for the coming year.  This is commonly known as “open enrollment”.  With the litany of plans often available to choose from, it’s important that individuals carefully study their options before committing to a health plan for the coming year.  First, understand how your deductible and out-of-pocket expenses will be calculated.  Second, insurance companies enter into contractual agreements with certain hospitals and doctors within the plan’s “network”.  If you obtain treatment from an “out of network” provider, the benefits payable under your policy could be decreased or even not payable at all.  Therefore, always check with the insurance company or your primary physician to confirm if services will be covered at a specific doctor’s office or hospital.  Finally, as a general rule under the ACA, insurance companies cannot deny coverage or charge more for people with pre-existing conditions.  However, some health plans which have been “grandfathered in” can still include a 12 month pre-existing limitation exclusion.  Understanding  the exclusions and policy benefits language of any health plan can be a tedious process, however, it’s critical that you know upfront which services will be covered.


For those individuals shopping for health insurance on the marketplace exchange which was created under the ACA, read the summary of benefits and exclusions for those prospective plans.  Most insurance companies will have that information posted in a .pdf on their website.   Also, if you apply for advance payments of the premium tax credit and cost sharing reductions (subsidy) on your marketplace plan, you must affirm that you either don’t have access to health coverage through your employer, you had access to employer coverage but the coverage wasn’t affordable or didn’t meet the minimum value standard, or you were in a waiting period and unable to enroll in employer coverage.  If it turns out you were not eligible for the premium tax credit/subsidy, your employer will file an appeal with the marketplace and your eligibility for future assistance may be affected.  


If you have a health insurance claim denied, you must file a written appeal within the specific guidelines set forth in the plan.  Obtain a copy of the Explanation of Benefits (EOB), this document shows the charges submitted by the provider and which charges were paid.  If the claim was denied, the EOB will reference a specific denial code.   Contact your provider to obtain any medical records which may be needed to supplement your appeal letter.  Most plans have a time limit on when appeals must be submitted, so act fast.   Appeals should be in writing and include the claim number and reason for the appeal.  Finally, send the appeal letter certified mail to document its receipt as a verbal appeal over the phone can get lost in the shuffle.   Even if the insurance company initially denies your appeal, don’t give up as many plans allow a second appeal and/or an external review of your claim.


Understanding the details of a health insurance plan can be a daunting task, however, individuals must educate themselves about deductibles, benefits, exclusions and network providers.  As we move forward with the Affordable Care Act, it is likely to become even more cumbersome.  Your primary physician’s office and your insurer can be an excellent resource for information, but in the end, it’s your contract that you’re entering into with the insurance company and you must understand what you’ve bargained for.


This content was written by one of our panel members, Daniel Hoffey, an attorney in Atlanta, Georgia.


***If you or someone you know is faced with healthcare insurance issues, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***




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Minority Mental Health: Know the Stats

Posted By James Jones, Wednesday, August 3, 2016

During the month of July, we commemorate National Minority Mental Health Awareness Month following the 2008 resolution by Congress. This resolution honors the legacy of Bebe Moore Campbell, an award winning African-American author, journalist, and teacher, who helped to destigmatize how minorities approach mental health issues in their communities.

Based on the 2000 census, minority groups comprise approximately one-third of the United States population, with an increase from one-quarter in 1990. Anxiety, the most common mental illness in the United States, affects about 18 percent of the population.

Anxiety Disorders include, but are not limited to, generalized anxiety, social anxiety, specific phobias, obsessive-compulsive disorder, and post-traumatic stress disorder for those pursuing social security disability benefits, anxiety disorders are evaluated under Medical Listing 12.06.

At least half of my clients, who have applied for SSI or SSDI benefits based on an anxiety disorder, also have a diagnosis of Major Depressive Disorder, Persistent Depressive Disorder, or Bipolar Disorder.


Anyone with depression seeking Social Security Disability benefits is evaluated under Medical Listing 12.04. People living in the United States have come a long way in addressing mental health issues in recent years, but there is a need for greater outreach to minority communities, since they are less likely than whites to pursue mental health treatment.

Although it is difficult to determine what percentage of Hispanics and Latinos in

the United States suffer from depression and anxiety, Puerto Ricans  reportedly have the highest rate. Only 6.8 percent of Hispanics, compared to twice as many whites, pursue mental health treatment, according to another study.


Fear of ignominy is one reason that Hispanics and Latinos with mental illnesses such as anxiety or depression, will avoid psychologists and psychiatrists in favor of support from family, a local church, a local community, or a local healer providing medical herbs. Latinos’ expression of “la ropasucia se lava en casa” basically translates into “one should not speak about personal business to the public.


A Latino legal assistant stated that “in all my years, I do not think I ever heard anyone in my family nor community talk about mental health.” Hispanics and Latinos may also have limited access to mental health information due to the language barrier. Families, for example, may not have an English speaking member to help talk to a mental health professional or may not understand the American culture. Additional reasons why Hispanics and Latinos may not seek medical treatment include the fear of deportation of oneself or a family member, inability to afford health insurance, and the possibility of misdiagnosis.

In my experience, African-American male clients have been the most reluctant to pursue mental health treatment for shame of how they will be perceived by their families and friends.  The limited dialogue concerning mental health treatment in the African-American community can be linked to the under-representation of black mental health professionals. Fewer than two percent of all American Psychological Association members are African American.  Thus, African-Americans may not seek counseling because discussing mental health issues with professionals who do not understand their culture is viewed as pointless.


From the perspective of an African-American legal assistant, “systemic economic inequality adds to the continuing stigmatization of mental illness. A grave amount of Blacks live

in poverty and this can result in the lack of access to mental health resources in our neighborhoods.” In 2011, 54.3 percent of adult African- Americans with a major depressive episode received treatment, compared with 73.1 percent of adult white Americans in Georgia, those without insurance can receive free state-funded mental health treatment by calling the Georgia Crisis Line at (800)715-4225.

 The sharing of personal stories of ethnically diverse celebrities such as Patty Duke, Nina Simone, and Demi Lovato, whose tumultuous lives improved with mental health treatment, has broadened the discussion, which must continue. 

This content was written by one our panel members, Kathleen Flynn, an attorney in Decatur, Georgia.


***If you or someone you know is faced with mental health issues, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***

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Immigrants, Say NO to Notarios!

Posted By James Jones, Tuesday, June 21, 2016

Finding legal representation can be a daunting task. In 2015, the state of Georgia had an estimated 31,340 licensed attorneys. Advertisements are everywhere – on TV, on billboards, on placemats at restaurants; law offices can be found at pretty much every corner, especially in the city. While having options is a good thing for the consumer, trying to find the best attorney to help with your case can also be a burden.


The struggle is no different when trying to find an immigration attorney. Nowadays, it seems like every attorney in the market practices immigration law. To add insult to injury, it is very common to see people with no legal expertise attempting to “help” immigrants by filling out application forms, and charging them for that service. These people are known as notarios, and they prey on unsuspecting immigrants who believe them to be qualified lawyers.


The general confusion – especially for Spanish speaking immigrants – comes from the Spanish term “notario público” (a highly trained legal professional in Latin American countries) and the English “notary public” (a licensing official with witnessing duties). In the United States, notarios are not lawyers and are not authorized to provide immigration advice. Even if they are licensed to practice law in other countries, that does not authorize them to provide immigration services within the United States.


These notarios may represent themselves as lawyers, or say that they work with a lawyer who happens to be out of the office. Others might officially work with different areas, such as tax services, but still offer to help with filling out immigration forms. However, even filling out forms requires providing legal advice, and by doing so these notarios are practicing law without a license. Aside from attorneys, the only other group authorized to provide assistance in immigration matters is “accredited representatives,” who must first receive approval by the Board of Immigration Appeals to represent aliens, and work for a specific nonprofit, religious, charitable, social service, or similar organization. Notarios are not included in either group.


Even when the immigrant understands that the notario is not a licensed attorney, he or she might consider that his or her case is “simple enough” that the help of an attorney should not be required. This is a very dangerous misconception. Immigration laws are very complex, and possible pitfalls might only be discovered and avoided upon a thorough evaluation by an expert in this area of law. Cases that have been damaged to the point of no return, even resulting in a deportation that could have been avoided if the case had been handled correctly, are more common than you might think. And all because the immigrant decided that it was okay to hire a notario instead of a licensed attorney.


Do your homework. Do not hire notarios. Seek the help of a licensed and experience attorney to avoid permanent damage to your case.



This content was written by one our panel members, Fernanda Hottle, an attorney in Atlanta, Georgia.


***If you or someone you know is faced with immigration issues, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***


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Administering Assets for the Care of Incapacitated Adults

Posted By James Jones, Thursday, May 26, 2016

Many individuals suffer from varying degrees of cognitive dysfunction during their later years. One avenue to address this is a court appointed conservatorship. This is time-consuming, cumbersome, and unnecessarily expensive. It should be a last resort.  A Probate Court has discretion over appointment of a conservator regardless of who petitions the court for a conservatorship or whom the petitioner requests as conservator.


The court is to consider the list of preferred conservators provided by law. Although a family member is listed first, he or she may not to be named for many reasons, particularly if there is a conflict of interest. Something as simple as the requested conservator and the ward having a joint bank account can disqualify the conservator named in the petition.  The court may move down the list of preferred individuals to a court-appointed attorney with whom the court may have a pre-existing relationship. Georgia Law permits the conservator to collect annual fees up to six percent or more from a ward’s funds.


Conservators who are attorneys can also bill for legal services they provide on behalf of the ward. Moreover, the sale of assets to produce liquidity to meet expenses of the ward requires court approval resulting in more time and expense. This can prove particularly cumbersome when the ward’s real estate is the subject of the sale. It can result in extensive delays that may be unacceptable to the buyer and generate additional fees to the conservator. The conservator, if not covered by the court’s blanket bond, must purchase a bond to protect the value of the ward’s funds for all but the ward’s real property. Conservators must also maintain meticulous records of income and expenditures to report to the court at least annually, or more often if the court so directs.


Powers-of-attorney, once a practical tool to manage an incapacitated adult’s personal financial affairs, may not be effective. Financial institutions occasionally refuse to accept the document because the principal could have revoked the authority of the attorney-in-fact without the institution’s knowledge leaving the institution with ultimate liability if the agent commits a fraudulent transaction.


A solution to this is to use the institution’s form to name a trusted individual to sign checks drawn on the account for the benefit of the account holder. It is never a good idea to establish a joint account for convenience of paying the impaired individual’s expenses unless it is intended that the surviving person have the proceeds of the account upon the death of the other account holder. The law books are filled with cases wherein the person added as a joint account owner uses the funds for his or her personal use and/or claims the proceeds upon death of the depositing account holder. Listing an adult child as the joint account holder can be problematic, frequently causing friction among siblings.


A thoughtfully drafted revocable trust is frequently the optimal solution to manage the assets and provide the authority to address the financial needs of an aging adult. If a “living trust” is created, it is essential that the estate planning attorney work with the clients to ensure that title to all their assets, e.g., real property, individual investments, investment accounts, annuities, and life insurance policies belonging to the grantors are transferred to the trust. It is unwise to provide instructions to the grantors and depend upon them to transfer title to the assets. They rarely transfer all the assets, and often assets are not transferred correctly. The trust can be named as the beneficiary for assets whose title cannot be changed.


The grantors are usually named as their own trustees with trusted family members or friends stepping into the role if the survivor of the trustees becomes incapacitated. A bank or other trust institution may also be named as the successor. If a court declares the grantors or the surviving grantor incompetent, the document should be drafted to suspend certain grantor powers.


Suspension or termination of the grantor’s authority to revoke the trust or to remove property from the trust makes it effectively irrevocable.  The conservator cannot then gain control over the trust assets. Instead, the successor trustee will continue to administer the assets as directed in the trust document. The trust can also be drafted to distribute to, or continue to hold remaining assets for future beneficiaries eliminating the need for probate of the trust assets



This content was written by one our panel members, A. H. "Dusty" Branson, an attorney in Atlanta, Georgia.


***If you or someone you know is faced with Incapacitated Adult issues as an elderly citizen, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***


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Elder Law and Reasonable Accomodations

Posted By James Jones, Wednesday, May 18, 2016

Reasonable Accommodations under the Fair Housing Act

By Debra Scott, JD, MPH

Many elderly disabled individuals are unaware that under the Fair Housing Act it is illegal for a landlord to refuse to make reasonable accommodations for persons with disabilities. It has also been shown that persons with disabilities are frequently denied their requests for reasonable modifications or accommodations needed to make available housing fully accessible for them. As such, discrimination in housing against the disabled, especially those with emotional or mental challenges, is a major obstacle for persons with disabilities. 


In a series of studies led by the U.S. Department of Housing and Urban Development, it was found that persons in wheelchairs face extremely high levels of discrimination and adverse treatment. In one study, it was found that persons using wheelchairs receive less information about available rental units and less information about the application process than non-disabled renters. Likewise, there is evidence of landlords denying housing to persons with mental disabilities for reasons that appear to be pretext (pretext is established by a direct showing that a discriminatory reason more likely motivated the defendant or by an indirect showing that the defendant's explanation is not credible).   


Because of the existence of discrimination in housing, in 1988 the United States Congress passed the Fair Housing Amendments Act (FHAA) making it illegal for a landlord to refuse to rent to a person because of a known or perceived disability – including an emotional or mental disability.  These laws also make it illegal for anyone to retaliate against any person who exercises his or her rights under the fair housing laws.  


The Act defines discrimination on the basis of disability to include “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a person with a disability] equal opportunity to use and enjoy a dwelling.” 


Most courts have held that the plaintiff must show a sufficient nexus between the reasonable accommodation or modification requested and the disability. Elderly individuals who have “a physical or mental impairment which substantially limits one or more of such person’s major life activities” are considered disabled under the Fair Housing Act. Disabled individuals should seek legal advice from a disability rights or elder law attorney if they believe they have been discriminated against under the law.  


This content was written by one our panel members, Debra Scott, an attorney in Atlanta, Georgia.


***If you or someone you know is faced with reasonable accomodations issues as an elderly citizen, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***

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Human Trafficking

Posted By Emily Ghant (Johnson), Tuesday, January 12, 2016
Updated: Tuesday, January 12, 2016

by Jillian LaBranche, Associate at Human Trafficking Center

A discussion on sex trafficking necessitates a conversation on rape culture. Rape culture is broadly defined as an environment characterized by dominant cultural ideologies, social practices and media images that condone sexual assault by normalizing and trivializing sexual violence. While rape and sex trafficking are not necessarily synonymous, parallels between the treatment of victims of rape and sex trafficking do exist due to underlying rape culture.


Rape culture perpetuates the myth that a victim needs to be “perfect” in order to be worthy of empathy and care.

When someone is raped questions like “what was she wearing” and “was he drunk” surface, implying the victim might bear some blame for what happened. Society is more concerned with the circumstances surrounding the rape than the ramifications — as if rape is a consequence of poor behavior, rather than a result of systemic issues of sexual violence.

Rape victims are faced with a hostile climate due to the perpetuation of rape myths. They are expected to have “known better” and held responsible for their actions. The perfect example is the Steubenville rape case, in which the victim was blamed for the consequences her rapists faced.

Conversations surrounding sex trafficking also tend to focus on the palatability of victims. Questions surface: “was he illegal?” or “did she ever use drugs?”  As with rape culture, these questions ignore systemic causes of trafficking and instead focus on the actions of the victim.

Furthermore, trafficking victims that do not fit the illusion of the perfect victim, such as LGBTQ survivors, often face barriers to accessing treatment. Polaris Project reports “high rates of service denial, as well as violence from breach of confidentiality and unsafe and discriminatory treatment, by staff and other recipients of these services on the basis of their sexual orientation, gender identity, [or] gender expression.

The “perfect victim” is an illusion, yet the media continually perpetuates this portrayal. So what is the perfect victim? This victim is virtuous, proportionately weak, and most importantly — blameless. They do not engage in risk taking behavior (such as being intoxicated or migrating to another country for a job one knows little about). People’s ability to empathize with a victim is contingent upon the victim being perceived as “perfect.”


TV crime and drama shows such as Law & Order: SVU perpetuate rape culture by validating the myth that rape is largely committed by strangers.

In fact, rape is largely committed by acquaintances. This stranger-danger mythology suggests that victims are those taken advantage of by strangers, rather than those attacked by intimate associates.

The popular movie “Taken” about sex trafficking continues to perpetuate the myth and idea of a perfect, kidnapped victim. It suggests that victims are largely “taken”  — ignoring a large population that is groomed by traffickers known to victims. Traffickers can be parents, friends, trusted relatives or even an intimate partner.  Presuming victims of sex trafficking are forcibly abducted by strangers ignores the agency the victim may have had in trying to secure a better life before finding him or herself in a trafficking situation. Admitting the victim has agency makes the victim “imperfect.” This presumption also obscures the intersectional nature of factors like lack of education, opportunity, or security that can lead to vulnerability- much more so than being snatched by a stranger trafficker.

Both rape and sex trafficking signal a depreciation and devaluation of humanity, with both types of victims often blamed by society unless they can be perceived as “perfect.” In many sex trafficking cases in the US, victims are arrested and charged with prostitution while pimps and traffickers go free.  In fact, many traffickers are known to victims and have established relationships, complicating a victim’s ability to understand the situation as trafficking or testify without fear of retribution.


While the federal anti-trafficking legislation states that individuals engaged in forced prostitution are trafficking victims, law enforcement officers continue to arrest and charge them with crimes- even if they are committed as a result of being trafficked.  Colorado only recently passed a bill to allow victims of sex trafficking an affirmative defense for such charges- but only for prostitution charges.

It is worth noting that 97 percent of rapists do not see the inside of a jail cell. Rape is a difficult crime to prosecute — a rare crime where the victim must prove they are innocent.

Similarly, incentives are greater for traffickers to trade in sexual exploitation, rather than other illicit commodities, such as drugs. For them, it is less dangerous to sell people than drugs — especially since human trafficking is largely under-prosecuted globally. Additionally, because many people can be working together to carry out the act of sex trafficking, it too, is very difficult to prosecute.

This miscarriage of justice furthers public perception that there is something inherently wrong with rape victims or victims of trafficking.

Furthermore, many sex trafficking victims do not self-identify as trafficking victims. The same is true of rape victims, because our culture has normalized rape — many people fail to realize that their experience qualifies as rape or trafficking, limiting cases that can be brought before the court

A parallel between rape culture and sex trafficking certainly exists. But where is the nexus? More research needs to be done to uncover the intersection between these two forms of sexual violence, as rape culture appears to be perpetuating the dehumanizing treatment of those in sex trafficking in both courts, media, and public perception.


**This content was provided by Human Trafficking Center Associate, Jillian LaBranche. We do not endorse the content of this blog or any attorney. If you are in need of an attorney, please contact us at 404-521-0777**

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National Reunification Month

Posted By Emily Ghant (Johnson), Thursday, June 4, 2015
Updated: Thursday, June 4, 2015



The effect is negative in almost every circumstance.  Convicted felons leave behind family and friends who oftentimes had nothing to do with the inmate’s crimes.  


By far, the most devastating impact is on the children.  Many of these children come from a culture of incarceration.  They grow up seeing their uncles, brothers, and cousins going to prison.  For some kids, it is almost a normal occurrence. But, what about when their parents are incarcerated?  This has a chilling effect on almost every facet of a child’s life.  This includes, but is not limited to the following truths:

1.       A father cannot be a father when he is locked away in a remote prison or even in the county jail.  There is absolutely no parenting whatsoever.  A child with an incarcerated parent is lucky to have another involved parent or other family members who have “stepped up” to raise the child.  Sadly, many of these children are in DFCS custody.

2.      Taking children to “visit” parents in jail is common.  However, I disagree with this practice.  It further “normalizes” the situation; 

3.      A father cannot financially support his children in jail.  This is obvious.  While many inmates are unemployed, some are hardworking productive members of society when they are clean and sober.  The darkness of addiction envelops many men and women in this category;  

4.      Hate and fear develop within many of these children.  They will be much more likely to commit crimes themselves, become involved in the juvenile justice system, and eventually go to prison themselves.  

Fortunately, Governor Deal has lead the way in instituting non-violent drug offender reforms, promoted drug and mental health courts, and has put some offenders back to work while on parole via earlier release dates.   


This content was written by one our panel members, Jason Swindle, a Criminal Defense attorney in Carrollton, Georgia.


***If you or someone you know is faced with a custody issue while a parent is incarcerated, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***

Tags:  crime  families  family  fathers  felonies  Governor Deal  incarceration  inmates  jail  offender  prison  reforms  reunification 

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Signs of Nursing Home Neglect

Posted By Emily Ghant (Johnson), Tuesday, May 12, 2015
Updated: Tuesday, May 12, 2015


 Is Your Loved One At Risk?

        One of the most frequent questions I am asked about loved ones in nursing homes is how you determine if someone is being neglected. My experience with neglect in nursing homes is informed by both my legal practice and my work in nursing homes as a certified nursing assistant for over eight years. I have seen firsthand the day to day activities, care, and treatment of nursing home residents.  I have witnessed some of the best nursing care and some of the worst.

The four main concerns that people generally have about their family members living in nursing homes relates to bruising, wet diapers, weight loss, and bed sores. Based on my experiences in the trenches and as an attorney I typically tell people the following:


It happens. The elderly are much more prone to bruising than other demographics. This is especially true if they are taking a blood thinning medication like Coumadin. Many times staff members can cause bruising by simply helping a resident get out of bed or take a shower. It is not a definitive sign of neglect. This does not mean that bruising should go unquestioned. For example, bruising around the face could indicate a fall. If your loved one has bruising speak with the charge nurse to determine what happened.

Wet Diapers

Many elderly living in nursing homes are incontinent (unable to hold in urine or waste).  The protection they wear is simply an adult version of infant diapers. These diapers are absorbent and designed to wick fluids away from the skin and keep the wearer dry until changing. It would be mathematically and physical impossible for the nursing staff to immediately change every wet diaper in the nursing home. However, there are some signs to look for regarding hygiene neglect. Is the front of the diaper yellow? Is the bed underneath the resident wet?  Either of these could mean that it has been hours since the resident soiled themselves.  If you discover one or both of these conditions you need to speak with the charge nurse immediately and voice your concerns.

Weight Loss

Many families are rightly concerned with the loss in weight they observe in their loved ones. However, like bruising, losing weight is commonplace even absent negligence. Weight loss can possibly be tied in with trouble swallowing food. If the resident has trouble swallowing they may be put on a diet that involves food thickeners. It may also be caused by depression or medication. Even when the staff does everything they can to get someone to eat and drink you have to remember that these are human beings and have the privilege and ability of refusing. Nevertheless, there may be grounds for negligence if the nursing home failed to follow dietary guidelines or report weight loss to the doctor.  

Bed Sores

I have saved this one for last because it is a red flag.  Nursing homes typically place bed bound residents on a strict turning schedule to prevent decubitus ulcers.  These types of ulcers are commonly caused by the prolonged exposure of an area of the body to one spot on the bed.  The pressure on that body part will cause the skin to breakdown. What will begin as a painful, red area, can quickly turn into a gaping wound capable of severe infection.  The nursing staff should be on high alert anytime they notice a pressure wound forming. There is no excuse for a pressure wound to spiral out of control.  If the sore is bad enough it could be a clear indication that the nursing home staff has routinely failed to ensure proper turning.  If you see this you need to speak with the charge nurse and call an attorney to help you investigate the matter.

Be vigilant

The best practice is to visit your loved one often. Let the staff know that you are interested in your family member’s care and want notifications of all accidents and problems. Most of the nursing staff are considerate loving people who want to make life for the residents as comfortable as possible.


            This list is provided by Attorney Will Smith, partner at Schenk Smith LLC, to give guidance in placing a loved one in a nursing home. It is not legal advice and does not create an attorney client relationship. If you or a loved one believe you have been injured by a nursing home please contact the Atlanta Bar Lawyer Referral & Information Service at 404-521-0777

Tags:  Abuse  Atlanta Bar Association Elder Law Section  Attorney  bed sores  bruising  Law  Neglect  Nursing Homes  wet diapers 

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Plea Bargain vs. Trial

Posted By Emily Ghant (Johnson), Monday, March 23, 2015
Updated: Monday, March 23, 2015

Plea Bargain or Trial?

Every week I get calls from people who want to withdraw their guilty plea.  Over and over I hear “I didn’t want to plead guilty, but my lawyer made me.”  Unfortunately, these people think that they have the right to withdraw their guilty plea, but they are wrong.  You only have the right to withdraw your guilty plea before the Judge sentences you.  Once your sentence is pronounced, it is within the Judge’s discretion whether to allow you to withdraw your guilty plea.  And, once the “term of court” has passed, the Judge does not have the authority to allow you to withdraw your guilty plea and the plea must be attacked through a petition for habeas corpus (which is a difficult and expensive process).  What this means is that you should never enter a guilty plea with the mindset that you will just withdraw your guilty plea at a later date.


You also need to understand that your lawyer cannot force you enter a guilty plea.  As best stated by one of the judges I practiced before when I was a prosecutor, “Lawyers don’t tell you whether to plead guilty or go to trial.  They tell you about your options and the consequences of the decisions you make.  Ultimately, you’re the one who decides whether to enter a guilty plea or go to trial.”  These are true words of wisdom that every criminal defendant must know and understand; your lawyer can give you his opinion about whether you should take a plea offer, but you, and only you, decide whether to take the plea offer or take your case to trial.

Some clients come into my office and say, “I just want to plead guilty, get me a good deal.”  Others tell me that they will “never enter a guilty plea.”  Regardless of whether a client wants to enter a guilty plea or go to trial, I have a constitutional duty to get the client the best possible plea offer and then let the client decide whether he wants to take that plea offer or go to trial.

There are many factors to consider when deciding whether to enter a guilty plea or go to trial.  Some of the factors include: the terms of the plea offer, the leniency or harshness of the plea offer, whether the plea is negotiated (both sides agree on a certain sentence), whether it is a “blind” plea (both the prosecutor and your lawyer make recommendations to the Judge, who ultimately decides the sentence), the Judge’s sentencing propensity, the county where your case is pending, whether there is any mandatory minimum punishment, and most importantly the strength of the evidence that that State has against you.  It is critical to discuss these factors with your attorney so you can make an informed decision about your case.  That is why I sit down with all my clients and say, “Here is the offer.  These are the things you need to consider.  This is the evidence the State has against you.  These are your options.  These are the consequences of the decisions you make.” 

Whatever your decision, think long and hard before deciding to enter a guilty plea.  In all likelihood your decision to enter a guilty plea will be final and you will have to live that decision for the rest of your life.

Noah H. Pines is a partner at Ross & Pines, LLC and has been practicing criminal law, both as a former prosecutor and criminal defense attorney, for the past 20 years.

Tags:  court  crime  criminal defense  criminal law  law  plea  sentencing  trial 

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