Monthly Archives: October 2013

Disability Claims and Unemployment Compensation

Alberts Law, Social Security Disability, ,

At first glance, a disability claim filed with the Social Security Administration and a claim for Unemployment Compensation benefits would seem to be contradictory. After all, when a person files for disability, the individual basically is stating that she is unable to work for health reasons. To file for Unemployment Compensation, that same person is saying that she is “able and available” to work. However, the current position of the Social Security Administration (SSA) is that these two claims can coexist, allowing one person to file for both benefits at the same time.

This policy is found in a memorandum, dated November 15, 2006, which was written by Frank Cristaudo when he was the Chief Administrative Law Judge for the Office of Disability Adjudication and Review (ODAR). He issued the policy to clarify an issue with which some of ODAR’s Administrative Law Judges continue to struggle, even after this directive. There may seem to be something inconsistent when a person collects Unemployment Compensation, reporting to Pennsylvania’s Department of Labor and Industry that they can work, while the same person tells a federal agency that he or she is entitled to benefits because a disability prevents work. However, the issue is not as simple – or inconsistent – as this would seem.

Disability, according to the definition of the Social Security Administration, does not mean that someone is not capable of doing any work. Basically, what disability means when an individual in terms of a claim for benefits filed with the SSA is that the person cannot perform work activities on a full-time basis, which is termed “substantial gainful activity.” This does not mean that this person is unable to do any work at all.

As for Unemployment Compensation in Pennsylvania and many other states, when a person is able and available for work, this includes part-time work and not necessarily a full-time job. In this situation, there are two definitions of work being used, and neither definition actually rules out the other one.

The memorandum does advise Administrative Law Judges that Unemployment Compensation and the work being sought to qualify of this benefit should be considered in determining whether a person is disabled, but it is only one of many factors. In part, the Chief Administrative Law Judge acknowledged the reality that disability determinations by the Social Security Administration generally involve a lengthy process that can force an individual to make the decision to apply for both benefits just to survive the financial hardships that can occur while awaiting a final decision regarding a disability claim.

In fact, one of the SSA’s own regulations directs individuals who apply for Supplemental Security Income (SSI) to apply for all benefits, which includes Unemployment Compensation, for which they could be eligible. To force a person to apply for this and then automatically deny the disability claim because the individual did what was required would lack logic, at the very least.

A final note for the moment involves how receiving Unemployment Compensation affects someone who is receiving SSI, which is a needs-based program (akin to federal welfare), versus someone who gets Social Security Disability (SSD), which is based on a person’s work record. The person who receives SSI and has received Unemployment Compensation will lose some of the SSI payments that would have been received because there is a deduction from the federal payment when there is additional income, such as Unemployment Compensation, available to the individual because this means that there is less need for the SSI, which is based on need.

However, SSD benefits are not tested against a person’s additional income or resources when determining monthly payments. Therefore, the level of Social Security Disability paid to the disabled individual will not be adjusted due to the receipt of Unemployment Compensation. Also, certain other types of income – for example, Worker’s Compensation – cause an offset that is deducted from SSD benefits because Pennsylvania that would require repayment of Worker’s Compensation benefits in this instance if the recipient later is found to have been disabled by the Social Security Administration during the period that the other income was received. Since eligibility for Unemployment Compensation is not based on injury or illness, it does not trigger an offset involving disability benefits.

As always, if there are questions or any need for clarification regarding what can seem to be a complicated system of rules and regulations, you can contact me about these issues.

Diligent Preparation Is Essential When Filing for Bankruptcy

Alberts Law, Debt Relief & Bankruptcy, ,

Preparation is necessary in any area of law, but even the simplest of bankruptcy cases involves a tremendous amount of collaborative preparation between clients and attorneys. A client must provide detailed and extensive information that the attorney must review thoroughly in order to discuss the client’s options, including non-bankruptcy debt relief. Without this, the attorney cannot understand a person’s financial situation and give advice on the range of options to be considered prior to any work in preparation of a bankruptcy filing, if this action would be the best way to achieve a client’s reasonable objectives.

When bankruptcy appears to be the best choice after a thorough assessment of all possibilities, even more preparation and collaboration is required to successfully navigate this process. At its most basic level, bankruptcy involves the interplay among a person’s debts, assets, and budget. A bankruptcy should not be filed unless there is sufficient debt that can be handled through one of the various types of bankruptcy. This amount of debt is somewhat relative as it would depend on your financial situation viewed as a whole because, for example, the less income that you receive in an average month, the fewer non-bankruptcy options that will be available at any level of debt.

Meanwhile, your necessary monthly expenses (such as shelter, utilities, and food) also must be examined closely because, if these expenses generally are larger than income on average during the prior six months or more, then you need to address this problem prior to pursuing a bankruptcy. Again, this means preparation by you to provide all of the information about these financial matters so that the attorney can prepare an accurate analysis of what benefits and problems are likely if you file for bankruptcy.

As for assets, most people want to protect what they have. The attorney needs full disclosure in order to determine what might be lost if you seek the protection under a particular bankruptcy chapter. For example, a basic objective of a Chapter 7 bankruptcy is to discharge debt while protecting property through the use of exemptions. The other common type of bankruptcy for individuals involves Chapter 13 of the Bankruptcy Code. You may have fallen behind on payments of a debt for which specific property of yours acts as collateral, essentially. This could be mortgage debt that is secured by your home. What can you do? It depends on the facts of your situation. Your preparation of these facts for the attorney’s review must be thoroughly for the attorney to be able to present the realistic options that are available to you.

There is a reason that detailed preparation by both you and the attorney is emphasized here. At the beginning of any discussion of a person’s financial problems, the attorney has to see various documents to have solid foundation for developing the set of possible actions that you need to consider. Meanwhile, the attorney has to help you with this preparation by requesting the necessary information. Billing statements, loan documentation, tax returns, paystubs, bank statements, and credit reports are some of the pieces that are required to understand the situation. You and your attorney must work together to put all of the necessary pieces together.

The attorney must take the time to be sure that you are aware of the need for full and accurate disclosure. Debts owed to friends and family are debts that have to be included in a bankruptcy. The inventory of assets has to be complete so that your property can be protected to the greatest degree possible, and the attorney needs to explain how you should go about the process of placing value on all of these items, including clothing and worn-out furniture. Here, the preparation begins with the attorney and ends with you in order to get a complete picture before various schedules and forms that are included in a bankruptcy filing can be drafted. Accuracy and attention to detail are crucial during this collaborative process. Your property may be exempted, allowing you to protect it in a Chapter 7 bankruptcy. However, the attorney has to emphasize the importance of including everything that you own because anything that is not listed generally is not exempted, which means that you may lose it if you decide to file. The attorney has to be observant that things that might be overlooked are included here. Again, preparation is responsibility that falls to both you and your attorney.

In addition to information supplied by the client, the attorney has to look at outside sources, such as public records, to verify and supplement as much as possible. Also, while reviewing the provided information, the attorney must be able to spot inconsistencies in order to know what questions to ask to clarify this situation. For the attorney, preparation goes beyond filling out the forms – finding information, obtaining additional information, and explaining why this is so important are responsibilities that the attorney owes to you as the client as well as to the court. It takes a collaborative effort for end result to be successful.

The Self-Proving Affidavit: A Valuable Addition to Your Will

Alberts Law, Estate Planning, Probate & Estate Administration, , , ,

Most people are aware of the benefits of having a Last Will and Testament. It can make the flow of your property to your chosen beneficiaries proceed much more smoothly as well as allowing you to decide who you want in charge of the process. There are other potential benefits from having this estate planning tool in place when the time comes for the administration of your estate, but the process involved in the preparation of your Last Will holds a key to getting the probate of a Will started smoothly. This involves the inclusion of a self-proving affidavit. 

Once your attorney has finished drafting your Will, you need to sign it at the end of the last page. After doing so, you have a valid legal document that will set forth your estate plan. The absence of witnesses does not affect this because Pennsylvania law does not require anyone to be present when you sign to show that you are the testator and that the document is your Last Will and Testament. However, there have to be two people who can verify that your signature appears at the bottom of the Will when the probate process is being started. The person named as executor in your Will would have to find two people to do this if you did not have witnesses at the time that you signed the Will. If there were witnesses, the executor needs to attempt to find them and, if not possible, would have file an affidavit of diligent search and look for a substitute for each missing witness to take the oath verifying your signature when your Will is to be submitted for probate. If no one who can make the identification can be found, then proof of the signatures of the original witnesses will be satisfactory. A self-proving affidavit makes these possible problems disappear.

This reduces the stress and difficulties at some future time and is easily accomplished if your witnesses are ready to sign after they watch you add your signature at the end of your Will. A self-proving affidavit simply involves the witnesses acknowledging that they saw you do this. In general, the witnesses then sign the self-proving affidavit in front of an officer authorized to administer oaths in Pennsylvania – usually, this person will be a notary public. However, if the testator’s signature and this self-proving affidavit signed by two witnesses are undertaken with only an attorney present, then the attorney must prepare a certification of attorney to be included as part of your Will. In either situation, no one will need to hunt for witnesses in the future.

This is main benefit of having a self-proving affidavit attached to a Will. Your executor can take the Will for probate at the appropriate time without any need to try to find witnesses at a time that may be many years after you first was executed this document, when it can be difficult to find these people for any number of reasons. This makes the executor’s job – w犀利士
hich may be quite involved and could require years to complete – a little easier at the beginning, at least.