Delaware Business Lawyer Blog

As an attorney in Delaware who prepares Wills for my clients, there are some questions that seem to come up over and over. Let's take a look at some of them.

Q. When the word “issue” appears in a Will, what exactly is it referring to?
A. The term “issue” means all of your lineal descendants of all future generations. Included would be your children, your great grandchildren, your great, great grandchildren, etc.

Q. I have a Will that leaves everything to my wife, but a few years later, we got a divorce. If I die before I change my will, does my ex-wife get everything?
A. The answer is “no.” Once you’re divorced, your Will is interpreted as if your ex-wife died before you did.

Q. Should I include burial instructions in my Will?
A. Most Wills are not read until after a person is buried or their remains are otherwise disposed of. It’s therefore important to make your wishes known to the immediate members of your family. In Delaware, you can actually make a written declaration of the disposition of your last remains.

Q. Can you explain who gets what if I die without a Will? As you can see below, the answer depends on which family members are living at the time of your death.
(1) if you are survived by a spouse and you have no living issue or parents, your spouse gets it all.
(2) if you are survived by issue or your parents, your spouse gets the first $50,000 of your personal property, plus half of the rest of your personal property, plus a life estate in your real estate that’s in your name only.

Whatever doesn’t go to your surviving spouse, gets distributed as follows:
(1) to your issue
(2) If there are no surviving issue, to your parents
(3) if you are not survived by issue or parents, to your brothers and sisters (and the children of a deceased brother or sister)
(4) If there are no issue, parents, or siblings, to your next of kin.

Keep in mind that the rules listed above apply only if you die without a Will. By preparing a Will, it’s you who decides how your assets will be distributed upon your death.

No matter how much you might love your dog, under the laws of Delaware, a dog is considered personal property. As a Delaware lawyer who loves dogs, I don't like it but I guess we have to live with a recent court opinion that explains the significance of this.

A bloodhound went into a neighbor’s yard and attacked the neighbor’s Yorkshire terrier. The poor Yorkie was seriously injured, and the neighbor spent more than $14,000 in vet bills.The neighbor then sued the owner of the bloodhound for the vet bills she already incurred plus any future bills, and her emotional distress.

The court ruled that because a dog is personal property, its owner cannot sue for medical bills as an injured person could. Instead, the measure of damages would be the same as used for a damaged sofa, car or other inanimate object. If the bloodhound had chewed up an oriental rug, the most the neighbor could recover is the market value of the rug. Therefore, the most the neighbor could recover for her injured “Yorkie” is the market value of the dog.

The judge’s written opinion contains the following instructions:

“While the Court is mindful that dogs are often beloved family members, and that many owners will spend inordinate sums of money to keep their pets healthy, the law in Delaware has not advanced to the point where it has carved out a personal injury action for injured dogs, wherein expert veterinary witnesses would testify, medical expenses would be placed in evidence, and pain and suffering and the degree of permanency would be measured by a jury. Obviously, the animal cannot be deposed, there is no provision for independent veterinary examinations, a pet dog is not likely to have lost earning capacity, and there is no loss of consortium claim (as dogs do not marry), nor are there any other similarities between a personal injury case involving an injured human plaintiff and an owner's loss of her dog, as in this case. If a change in the law is to occur, it is up to the Legislature, not the Courts, to decide that a dog named Fido, a cat named Boots, a hamster named Harry, or a fish called Wanda can have some new species of personal injury action brought on their behalf.”

In dismissing the claim for emotional distress, the Court said:
“while the Court is mindful that loss of, or injury to, a pet may be a devastating emotional experience, under our law the dog is property, not a person, no matter how great an effort has been made on the part of the owner to humanize it.”

Under Delaware law, if an employee of a nursing home has “reasonable cause to believe” that a patient is being mistreated, she is required to immediately call the Department of Health & Social Services and report it. The employee is also required under Delaware law to follow up the phone call with a written report within 48 hours. The penalty for failing to make the phone call and file the written report is a fine of up to $1,000 for each violation.

In the preceding paragraph, I used the word “mistreated” to describe what must be reported. As a Delaware attorney who is very concerned about the mistreatment of nursing home residents, I'd like to discuss what’s covered by the reporting requirements:
(1) abuse
(2) mistreatment
(3) neglect
(4) financial exploitation

Each of these terms is defined under Delaware law.

Abuse can be physical or emotional. Physical abuse is defined as unnecessarily inflicting pain or injury to a patient by such things as hitting, kicking, pinching, slapping, puling hair, sexual molestation, etc. Emotional abuse is defined as ridiculing or demeaning a patient, making derogatory remarks to a patient, threatening to inflict physical harm, etc.

Mistreatment includes such things as the inappropriate use of medications, isolation, or physical or chemical restraints on or of a patient.

Neglect includes lack of attention to the physical needs of the patient, including toileting, bathing and meals, failure to carry out a treatment plan that was prescribed for a patient, and a failure to provide adequate staffing.

Financial exploitation means the illegal or improper use of a patient’s resources.

The rights of patients in nursing homes are protected by both federal and state laws. This is the first in a series of articles that discuss the laws in Delaware as they apply to nursing home patients.

In Delaware, a nursing home is defined as “a residential facility that provides shelter and food to more than 1 person who because of their physical or mental condition require a level of care and services suitable to their needs to contribute to their health, comfort, and welfare.” This definition applies not only to nursing homes, but also the following:
(1) assisted living facilities
(2) intermediate care facilities for persons with mental retardation
(3) neighborhood group homes
(4) family care homes
(5) rest residential facilities

Each year, nursing homes are inspected by the State to make sure thay are in compliance with all regulations. Interestingly, each nursing home is required by law to prominently and conspicuously post for display in a public area in the nursing home a summary of the State’s most recent inspection report. In addition, the nursing home must also post a sign that outlines complaint procedures and gives the “1-800" hotline number for complaints that can be called in 24 hours a day, 7 days a week.

The law protects patients who complain from retaliation and discrimination. Violations of this law carry fines of up to $10,000.00.

In my next article, I’ll discuss the specific rights that patients in nursing homes have.

Times are tough enough these days. They’re even tougher when your employer fails to pay you for overtime work. Employees across the country are submitting complaints to the government or filing lawsuits against their employers to recover overtime pay.

As a Delaware attorney who helps workers collect the money they earned, let me share with you what the law requires. Under the Fair Labor Standards Act, an employer is required to pay overtime pay to employees who work more than 40 hours in a work week. The amount owed to employees for overtime pay must be at least one and one-half times the employee’s regular pay.

The general rule is: For covered, nonexempt employees, the FLSA requires overtime pay at a rate of not less than one and one-half times an employee's regular rate of pay after 40 hours of work in a workweek. There are exceptions to the general rule, hence the use of the term “nonexempt employees.” One of the exemptions is for employees who work in any of the following three capacities:
(1) bona fide executive
(2) bona fide administrative, or
(3) bona fide professional.

A "bona fide executive" is an employee (1) who is paid a salary of not less than $455 per week, (2) whose "primary duty is management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision therof," (3) who "customarily and regularly directs the work of two or more other employees," and (4) who "has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight.

A worker is employed in a bona fide administrative capacity if she performs work "directly related to management policies or general business operations" and "customarily and regularly exercises discretion and independent judgment." Work directly related to management policies or general business operations consists of "those types of activities relating to the administrative operations of a business as distinguished from `production' or, in a retail or service establishment, `sales' work." Employment may thus be classified as belonging in the administrative category, which falls squarely within the administrative exception, or as production/sales work, which does not. the border between administrative and production work does not track the level of responsibility, importance, or skill needed to perform a particular job

In order to qualify as a bona fide professional an employee's primary duties must consist of:
work requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual, or physical processes. Examples of professions included in the "learned professional" exemption are the fields of law, medicine, nursing, accounting, actuarial computation, engineering, architecture, teaching, various types of physical, chemical, and biological sciences, including pharmacy.

Elderly patients in hospitals and nursing homes are often the victims of medical malpractice. They go in for one reason, and while they’re there, they become malnourished and dehydrated. They develop urinary tract infections, acute renal disease, bed sores, etc.

As a delaware attorney who protects the rights of the elderly, I've found that one type of malpractice that doesn’t receive much publicity is overmedication. It’s so common that it’s been given a name: “polypharmacy.” The patient is given a lot of drugs, many of which have side effects which cause new problems. Then, the doctor prescribes medication to treat the side effects.

If an elderly person goes into a hospital or a nursing home, and while there shows signs of cognitive impairment, the doctor or nurse usually assumes it’s a sign of dementia. Very often, however, this would be a misdiagnosis. Why? Because the side effects of many of the drugs that elderly people receive in hospitals and nursing homes include drowsiness, confusion, and impaired alertness. And so instead of suffering from dementia, and receiving treatment as a patient with dementia, what’s really going on is too much medication.

Mortgage interest rates are still at all-time lows, and so a lot of people who refinanced a few years ago are doing it again. One question that comes up a lot is: “Because I refinanced not too long ago, is there anything I can save money on this time around?”

The simple answer is “yes.” The first thing that should be reduced is the cost of the title search. Last time, a full search was necessary, going back way before you became the owner. Now that you’re refinancing again, all that needs to be searched is the period of time between the date you became the owner and the date of settlement.

The second thing you can save money on is title insurance. When you refinance, you won’t need to get owner’s title insurance again. Instead, all that’s required is lender’s title insurance. Assuming the amount you’re borrowing is not greater than the amount you borrowed last time, you will save 40% off the cost of title insurance. If your new loan amount is higher than your old loan amount, then you save 40% on what the premium would be for the same amount, and then you pay regular rates for the excess.

Here’s an example. Let’s say that the premium for lender’s title insurance for a $300,000 loan is $650. If you borrowed $300,000 or less last time, you would save 40%. Instead of paying $650, the cost would be $390. However, if you borrowed $300,000 last time and you’re borrowing $375,000 this time, you would pay the discounted rate on the first $300,000, or $390, and you would pay the full rate for the difference between $300,000 and $375,000.