Wednesday, March 23, 2016

Older Drivers -- To Drive or Not To Drive

The New York State Department of Motor Vehicles has the authority over the issuance or suspension of a driver's license.  Believe it or not, there does not exist any specific rules pertaining to drivers based on the age of the driver.  While some other states have rules and regulations for older drivers, New York State is silent.  In some states, should a driver of advanced years seek a renewal of their license, they might have to submit to an actual road test; a vision test or maybe more frequent renewal periods.

In New York, license renewal is required first, five years after the first license and then every eight years after that.

But New York State's Vehicle and Traffic Law does have a catch-all:  "If the Commissioner [of Motor Vehicles] has reasonable grounds to believe that a person holding a license is not qualified to drive a motor vehicle, the Commissioner may require such person to submit to an examination to determine their qualification."

While there is no mandate to report someone to the Department of Motor Vehicles, typically, such reports come from physicians, police or concerned family members.  If you are a family member who has concerns about the abilities of an elderly driver suffering from poor and uncorrected vision, dementia or related cognitive conditions, or just plain bad driving, you can report to the Department of Motor Vehicles on a form DS-7.  A physician may make a report to the DMV on form DS-6.


There is no definitive standard to prove or disprove that an elderly person should have his or her license revoked.  Family members are very reticent to contact the DMV to have a mother, father, aunt or uncle or grandparent approached by the Department of Motor Vehicles and have their license revoked.  There is a tremendous loss of control and elderly driver necessarily confronts once the license is lifted.  Social contacts and independence becomes a challenging way of life without the freedom that driving one's own car brings.

Moreover, physicians in New York State are seemingly under added pressure to report obvious cases of elderly drivers who are incapable of driving but still choose to drive.  Recently a Court of Appeals case, Davis v. South Nassau Community Hospital found that a medical professional was liable to the public at large.  Similarly in the State of California an 85 year old woman was driving and steering her car into oncoming traffic.  The doctor treating her for dementia did not contact California's DMV about the dementia.  The family brought suit against the doctor for failing to take action against the driver's license of the 85 year old.

Our firm can assist you if you have been hurt by a driver who just should not have been in control of a car.  We serve Northern New York State, which includes Watertown, Massena, Canton, Potsdam, Tupper Lake, Saranac Lake, Malone, Chateaugay, Plattsburgh and all villages in between.


As a proud card carrying member of AARP, I'd suggest that if you or a loved one, or a patient or a friend have doubts about someone's ability to drive you read this fine article by clicking on this link:

Joe Nichols



Tuesday, March 22, 2016

Suing Lawyers -- Legal Malpractice


Legal Malpractice:  the breach of duty of care by a lawyer that damages a client.  

If you feel that you have been victimized by legal malpractice it is no time to abandon the legal profession and give up.  You should see an attorney, as counter-intuitive as that may seem.

The legal profession is unique in its determination and effectiveness in cleaning up the profession, something attorneys should be very proud of that.  The various Bar Associations throughout the State of New York have grievance  and the Committee on Professional Standards operates through the four Appellate Divisions of New York State to protect the public from unethical attorneys.  These committees not only seek to protect the public, but also to deter attorney misconduct and preserve the reputation of the attorneys throughout the state who work hard and ethically for their clients.

If you are the victim of legal malpractice and have suffered financial loss, one of the things you may want to consider is to contact the Lawyer's Fund for Client Protection.  You can e-mail them at info@nylawfund.org or call them at 1-800-442-3863.  These matters are held in a very personal and confidential manner.   

Victims of legal malpractice should also consult with an attorney.  The attorney will review with you what went wrong in your legal representation.  For example, if your attorney failed to file an action before the expiration of the statute of limitations, you may have an action in legal malpractice against that attorney.  Basically, you have to prove that your previous attorney failed to file your action in a timely fashion; that your case was a meritorious case, and that you suffered damages.

But what if your previous attorney, rather than simply making a careless mistake, misled you?  In that instance, a client may claim a violation of New York State Judiciary Law 487.  If the attorney was "guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party" that attorney is not only guilty of a misdemeanor, he will also be obligated to pay "treble damages", that is three times the damages that you can prove you sustained by reason of the misconduct of the attorney.


As always, the best way to find out whether you have a case is to call us and set up an appointment.  Your first consultation will be free of charge.  Call us at 1-800-924-3529.  Many of you know that we have offices or can meet you in Canton, New York; Potsdam, New York; Malone, New York; Plattsburgh, New York and the entire Northern New York State area.

From Left:  Tom Grue, Steve Vanier, Luke Babbie and Joe Nichols

Monday, March 21, 2016

What Happens If You Die Without a Will??


What happens to your property if you die without a will?  Our advice is always to make an appointment with an attorney and have a will done for the benefit of your family and for your peace of mind.

So, just what does happen to your house, your things, your money, all the things you have spent a life time building up, if you die and neglect to have a will drafted by an attorney?


Contrary to popular opinion, your estate will not go to the State.

Our Estates, Powers and Trusts Law in New York State gives a road map to the family by setting forth the persons qualified to share in the estate of a deceased relative.  When a person dies without a will they die "intestate".  When a decedent dies intestate, her property will pass to relatives in the following order:

1.  If survived by a spouse and children, the spouse receives the first $50,000 and one-half of the rest of the estate.  The children share the other one-half of the balance.  

2.  If survived by only a spouse and no children, your spouse receives everything.

3.  If survived by only children, the children equally share everything.  

4.  If survived by only parents, the surviving parent or parents receive everything.  Your brothers and sisters do not take anything unless both parents predecease the deceased intestate.

5.  If survived by only siblings and/or children of deceased siblings they share in the estate with children of deceased siblings sharing in a special way called "representation."  

The facts of each persons circumstances are very different.  For example, if you own your house with a spouse, the house will not go into your estate, but will pass automatically to your spouse upon your death.  Generally speaking, the same happens to joint bank accounts and other investments or funds held jointly.


It is always wise to consult with an attorney, ask a lot of questions and get a lot of answers about how you can plan for the distribution of your property after your death.  Other related questions will include how to try to protect your property should you need long-term care such as nursing home care or residence in an "assisted living" facility.

The point is that you will experience peace of mind and protect your family if you spend a few minutes with a qualified attorney.

Joe Nichols
From Left:  Tom Grue, Steve Vanier Luke Babbie and Joe Nichols