I.        INTRODUCTION

This Handbook has been prepared to help older people in Delaware, their families, caregivers, and concerned others, be aware of their rights and responsibilities under certain federal and state laws. The internet version may be more up to date than the printed version.  Since laws change from time to time, when you need to apply the information in this Handbook, whether from the printed or the on-line version, information should be verified with an attorney or with the agency which administers the law or the benefits that you or a person acting on your behalf is seeking to obtain.  For example, questions about Social Security benefits, eligibility, and consequences of applying for Social Security at different ages should be directed to the Social Security Administration.  In some cases, issues relating to benefits like Social Security can also be addressed by an accountant or a financial advisor.

         A. Protect Yourself

There is a great deal you can do to protect yourself from legal problems or to make legal problems easier to deal with if you encounter problems.  Here are some suggestions:

1.      Read and understand every document you are asked to execute before signing it.  Ask for an explanation of anything in a document that you do not understand, and do not sign the document unless you feel comfortable with the explanation.  When a document is presented for you to sign, if you do not understand anything in the document, ask for a copy of the document to take home and review before you sign it.  Always ask for copies of attorney-prepared documents to review before you make an appointment to sign such documents.

2.      Keep important papers in a safe place. You should save every paper you receive relating to benefits you receive from Social Security, Supplemental Security Income (SSI), Medicare, Medicaid, or other similar benefit programs.  All medical bills, Medicare statements and insurance statements should be saved for several years.  There are occasions when bills which were paid by Medicare or an insurance company are later challenged.

a.      Receipts, canceled checks, and money order receipts should be kept as proof of payment until the payment is reflected in a statement from the payee or as long as necessary to support any claims you might make or which might be made against you.

b.      Bank statements should be saved for several years and documentation supporting deductions on your income tax returns should be saved until the expiration of the period when your income tax returns could be audited.  You can find out the general rules for how long to keep records relating to income, deductions, and income tax returns by going to http://www.irs.gov and searching "How Long Do I Keep Records."

c.       Deposit slips, receipts from automatic teller machines (ATMs), and receipts for credit card purchases should be saved until the transactions are confirmed or reflected on your bank statements and credit card bills. 
d.      Receipts and warranties should be saved at least for the length of the warranty.
e.      Originals of the following documents should be kept together in a fireproof safe or other fireproof place:  deeds to real property or documentation showing that you inherited property when real property is not transferred by  deed; titles to cars, boats, mobile homes, and other state registered property; mortgages, promissory notes, and other loan documentation; wills and codicils to wills; trust agreements and amendments of trust agreements; stock certificates and certificates representing ownership interests in partnerships, limited liability companies, and other types of entities; military discharge papers; birth, marriage, and death certificates; divorce decrees; pre-nuptial (pre-marital) and post-nuptial agreements; property division and separation agreements; property division, separation, or support stipulations and orders relating to a divorce or separation; passports, citizenship papers; and insurance policies; beneficiary documentation that will control distributions of insurance, annuities, retirement benefits, qualified and non-qualified employee benefit plans, IRAs, and similar property interests. 
f.       If such documents are organized and in order where they can be found, you or the person who handles your affairs upon your death or earlier incapacity will be able to easily access the information necessary to take required actions on your behalf during your lifetime or on behalf of the beneficiaries of your property after your death.  In Delaware, a safe deposit box can be used for this purpose.  A fireproof safe in your home can also be used.  You should tell the persons whom you have appointed to take care of your affairs upon your death or incapacity where such documents are kept.  You may also consider giving the person who will handle your affairs if you become incapacitated access to your safe deposit box or to any safe that you keep at your home.  Note that in some states, including Pennsylvania, a safe deposit box is frozen upon any owner's death, even if the safe deposit box is titled in the joint names of a decedent and another person.
g.      A durable power of attorney appointing agents to take care of financial and other non-medical and health-care matters on your behalf should be kept in a fireproof place where the persons you have appointed as your agents can find it, if you become incapacitated, either temporarily or permanently.  You should also consider giving a copy of such power to the agents you have appointed in such power.  In some powers of attorney, agents that you appoint are referred to as "attorneys in fact" who are agents, as compared to "attorneys at law," who are attorneys who are licensed to practice law.
h.      The original of an advance health-care directive and durable power of attorney for health-care decisions should be kept in a fireproof place where the persons you have appointed as your agents can find it, if you become incapacitated.  A copy of an advance health-care directive and durable power of attorney for health-care decisions should be given to your primary physician and any other physicians whom you see on a regular basis.  An advance health-care directive is sometimes referred to as a "living will," an "advance directive for health-care," and similar names, if you signed such documents in states other than Delaware.

3.      If you receive any kind of notice, court papers, or other legal document requiring you to take some action within a certain time limit, be sure you meet the deadline.  Failure to do so can mean that you give up important rights that are available to you.  For example, by failing to appeal a Social Security decision before the deadline specified in a decision or notice that you receive, you usually will be legally bound by the decision, even if you believe the decision is wrong.  In most legal matters, it is prudent to consult with an attorney to ensure that you do not forfeit your legal rights by failing to respond by a deadline.  You may be able to request and be granted an extension of time to appeal the decision giving you more time to evaluate your options, if you make the request before the stated deadline.

4.      If you receive a summons to appear in Court, or have a complaint in a lawsuit delivered to you or served on you, you should consult an attorney as soon as possible.  If you ignore a summons to appear in Court and/or do not respond to a complaint filed against you, you may lose the right to dispute the claim made against you and the Court may enter a judgment against you, whether or not you were responsible for what the lawsuit claims you did or did not do and whether or not the claim made against you could have been successfully defended.

B.      If You Need an Attorney

If you think you need an attorney to handle a legal matter for you, you should first determine the type of legal matter and service that you need.  Attorneys practice in different areas of law.  It should not be assumed that all attorneys will be qualified and experienced enough to handle your type of legal matter or that an attorney who has handled one type of legal matter competently and successfully will be qualified to represent you in a legal matter in another area of the law.  Therefore, it is always advisable to evaluate an attorney’s qualifications, credentials, and experience that are relevant to your type of legal matter, just as you would evaluate the qualifications of a doctor you would use to treat a particular type of illness or medical condition and the qualifications of an applicant you would hire for a particular type of job.

1. Professional Qualifications

You should choose an attorney based upon, among other things, the attorney’s education in, and particular experience with, your type of legal matter.  A good way to begin your search for a qualified attorney is by talking to friends, relatives, business colleagues, clergy, and others about attorneys providing services for legal matters similar to your legal matter.  You also have the right to ask an attorney for a résumé and/or a summary of his or her professional credentials and experience with your type of legal matter.  The attorney’s professional activities and participation in committees of state bar associations, the American Bar Association, and other legal professional groups in the areas of law related to your legal matter and articles and publications the attorney has authored related to your legal matter will usually indicate appropriate knowledge of and experience in a specific area of the law.

In addition, you should determine if the attorney maintains legal malpractice insurance. In Delaware attorneys are not required to carry malpractice insurance, which would compensate you for damages that might be caused if an attorney fails to handle your claim in a reasonable manner under all of the circumstances.  An attorney cannot be expected to succeed in every lawsuit.  However, an attorney could be considered to have committed malpractice: (i) if the attorney fails to file a lawsuit before the time limit for filing the lawsuit (the statute of limitations) expires, or (ii) the attorney fails to answer a claim in a law suit filed against you by the deadline set for filing the answer to the complaint.  Malpractice could be found if the attorney's failure prevented you from obtaining damages or other benefits that you may have been able to obtain if your lawsuit had been timely filed (filed before the statute of limitations expired) or you are exposed to liability that could have been avoided by filing an answer with the court.  If an attorney failed to represent you properly, and the attorney has no malpractice insurance, you could only obtain damages for the attorney’s failure from the attorney’s personal assets, which may or may not be sufficient to satisfy the damages awarded to you in a lawsuit against the attorney.

An attorney’s credentials are also available on websites for the attorney or the attorney’s law firm and through the Martindale-Hubbell Law Directory, a national legal registry which maintains attorney ratings, and which attorneys use to register their credentials and information about their areas of practice.  See www.martindale.com .  Finally, to find an attorney, you may look in the business pages of your local phone book and contact lawyer referral programs such as the Lawyer Referral Service, a service of the Delaware State Bar Association, and Legal Help Link.  Contact information for lawyer referral programs in Delaware is listed in Paragraphs 3 and 4 below.  

NOTE:  If you have a personal injury case, a medical malpractice case, or a similar type of case which you believe entitles you to sue for damages and receive money for an injury to you or a family member, you will not be eligible for free legal services described later in this Handbook.  However, attorneys who handle personal injury cases, medical malpractice cases, or similar types of cases are generally paid on a contingent fee basis, meaning attorney compensation is based on a percentage of any money you are eventually paid or awarded as damages.  Attorneys who handle these types of cases generally will meet with potential clients at no charge and will be compensated only if you are paid or awarded money as damages.  However, even if you are not required to pay attorney fees, you may have to pay costs relating to your lawsuit.  Even if you do not have to pay attorney fees, you should review the qualifications of such attorneys just as carefully as you would if you were paying such attorneys for legal services on an hourly or other non-contingent basis because an attorney's qualifications are likely to indicate if he or she has successfully litigated lawsuits similar to the claim you wish to pursue in a lawsuit.

2.      Initial Consultation

When you are satisfied with an attorney’s qualifications, if your matter will involve work on an extended basis or is based on complex personal or financial matters, it may be advisable to schedule an initial consultation with the attorney before you retain the attorney, even if a fee is charged for such consultation.  If legal representation is limited to a specific service, the attorney should be able to give you an estimate of the cost of services for your matter during an initial consultation or before you agree to retain the attorney.  In other cases, it may not be possible to give an estimate of legal costs because there may be many factors that may not be known at the time of your initial discussions.

3.      Contact Information:  Paid Legal Services

Lawyer Referral Service (LRS), a Service of the Delaware State Bar Assoc.

New Castle County

Kent or Sussex County

(302) 478-8850

(888) 225-0582

The services of the LRS of the Delaware State Bar Association are made available to the community through the Legal Help Link administered by Delaware Volunteer Legal Services, Inc.  The LRS is a referral service for persons seeking legal services that are not available to persons on a free basis.  Referrals by the LRS are obtained by calling the LRS and having a telephone interview or leaving a message with all of the information about your legal issue or problem.

Based on the information you provide, for a fee of $35.00, the LRS will contact an attorney who is registered with the LRS and with whom you can meet to discuss your legal issue or problem.  The LRS attempts to contact an attorney who is convenient to you who practices in the area of law that matches your legal need.  The attorney contacted by the LRS for your case will call you to schedule a limited initial consultation.  The selected attorney will consult with you for 30 minutes.  If the attorney and you agree that the attorney will represent you in your case, the attorney and you will make arrangements for you to pay additional fees and costs. 

NOTE:  Contacting the Legal Help Link and completing the intake process does not guarantee representation.  Representation is offered on a case by case basis after evaluation of the merits of the case and the resources available at that time.

4.      Contact Information:  Free Legal Services

To be considered for free legal services, you may contact Legal Help Link, a centralized intake system that enables a person seeking free legal services to make one phone call to determine if he or she has a case that is handled by one of four legal service organizations: Delaware Volunteer Legal Services, Inc., Delaware Community Legal Aid Society, Inc. (CLASI), Legal Services Corporation of Delaware, and Widener University Delaware Law School.  Except for the Elder Law Program of CLASI, each of the free legal services programs connected by Legal Help Link requires that your income and assets not exceed certain levels tied to poverty guidelines set by the federal government.  As explained earlier in this section of the Handbook, if you have a personal injury case, a medical malpractice case, or any case which you believe entitles you to sue for damages and receive money for an injury to you or a family member, you will not be eligible for any of the free legal services described below.

The American Civil Liberties Union of Delaware (ACLU) may also be contacted for free legal services for certain types of cases. 

The following section includes contact information and descriptions of the types of matters that may be available through the four organizations connected to the Legal Help Link referral service or the types of matters that may be available by contacting the ACLU.

Legal Help Link, Referral Service for Persons Seeking Free Legal Services

New Castle County

Kent County and Sussex County

(302) 478-8850

(888) 225-0582

Legal Help Link makes referrals to the following four organizations.

Community Legal Aid Society (CLASI) and Elder Law Program (ELP) (www.declasi.org )

New Castle County

Kent County

Sussex County

(302) 575-0666/0660              (800) 292-7980

(302) 674-3684                   (800) 537-8383

(302) 856-4112              
(800) 462-7070

CLASI is a private, non-profit law firm that provides representation in non-criminal cases, also known as civil cases.  CLASI represents persons who have disabilities and who have income and assets under certain amounts tied to federal poverty guidelines.  In addition, the Elder Law Program (the ELP) of CLASI provides legal services to persons age 60 and over.  The ELP provides assistance with consumer problems, such as debt collection and home repair issues, housing problems, such as eviction, and benefits issues related to Medicaid and Social Security.  The ELP also prepares powers of attorney and advance health-care directives for persons age 60 or over.  Advance health-care directives may be referred to as living wills or other names in jurisdictions other than Delaware.  The ELP does not prepare wills.  There are no financial eligibility requirements for the ELP.  However, the ELP may not be able to handle all requests for services and therefore, does give priority to persons who are socially and economically needy.

Delaware Volunteer Legal Services, Inc. (DVLS) (www.dvls.org )

New Castle County

Kent or Sussex County Office

(302) 478-8680

(888) 225-0582

DVLS provides free services provided by volunteer attorneys for persons who have non-criminal cases, also known as civil cases, in any issue an older Delawarean may have, including among other issues, the following:  guardianships; the preparation of wills, powers of attorney for financial matters, powers of attorney for health-care decisions, and advance health-care directives; housing issues when there is a legal excuse for not paying rent; and protection from abuse and other family law matters for victims of domestic violence.

Legal Services Corporation of Delaware, Inc. (LSCD) (www.lscd.com )

New Castle County

Dover Office

(302) 575-0408

(302) 734-8820

LSCD provides free legal services in certain types of non-criminal cases, also known as civil cases, including cases involving the following:  bankruptcy cases; private landlord-tenant cases; debt collection; repossession; deceptive trade practices; fraud; breach of contract cases; and unemployment compensation cases.

Widener University Delaware Law School (www.law.widener.edu )

You may be eligible for legal services through one of the clinics at the Delaware campus of Widener University Delaware Law School.  The Delaware Civil Law Clinic represents victims of domestic violence and custody and visitation matters in conjunction with DVLS.  There may be other clinics at Widener University Delaware Law School which will provide free legal services to you based on your type of legal issue and your financial situation.

American Civil Liberties Union (ACLU) of Delaware (www.aclu-de.org ) (302) 654-5326

          The ACLU is a non-profit, non-partisan organization devoted exclusively to the defense and promotion of individual rights and liberties guaranteed to every person in the United States by the Constitution and laws of the United States.  The ACLU represents all people, including older people, on all ACLU issues, including among other issues, the following: prison conditions; free speech; religious freedom; immigrants' rights; racial justice; discrimination; and privacy issues.

          If you think that your legal issue or the legal issue of a family member may be the type of issue that the ACLU handles, you must contact the ACLU directly.  The ACLU is not one of the organizations to which Legal Help Link makes referrals.