Right to Remain Silent

Bill of rights, constitution, 5th amendment, fifth amendment, racine, kenosha, westosha, milwaukee, wisconsinThe Right To Reman Silent

The 5th Amendment was ratified by Congress in 1791. It is part of the Bill of Rights, the first ten amendments to the United States Constitution. The 5th Amendment provides several protections, but one of the most commonly invoked protections is the right to remain silent. This right originally only applied to proceedings in federal court but not state court. This is a crucial distinction, as most criminal defendants are tried in state courts. This changed after the Civil War as part of a trend in which the Bill of Rights was systematically applied to all of the states by the United States Supreme Court. In 1961, the Supreme Court decided in Miranda v. Arizona that the right to remain silent applied not just in the courtroom, but also to any situation where individual freedom of action is curtailed, such as police interrogation.

Defendants Usually Do Not Testify

The 5th Amendment right to remain silent has thus grown dramatically from its humble beginnings in 1791. Indeed, popular depictions of the 5th Amendment Right are numerous. They might involve a defendant in a criminal case refusing to take the stand at trial, or a suspect in police custody refusing to answer questions without the presence of a lawyer. Although often dramatized, these situations are very common. In criminal cases, defendants usually do not testify. This is sometimes because the defendant would need to tell the truth on the stand about what happened and thus give evidence against himself. In other situations, a defendant may avoid the stand so their testimony cannot be misconstrued to say something different than what they meant. Before a criminal trial, the defendant’s attorney will help him to understand the benefits and the risks of taking the stand.

You Can Decline To Talk To The Police

But does the right to remain silent apply to someone who is not on trial? What if the police ask you questions about someone else who is suspected of having committed a crime? Often, people believe that they have to answer questions asked by the police. However, this is not the case. It is acceptable for you to decline to answer any questions asked by the police, even if you have been subpoenaed as a witness in a criminal case. Furthermore, refusing to answer questions may be a wise decision, especially if your answers could be interpreted more than one way. If you are in doubt about whether you should answer questions asked by the police, you should politely decline and then consult with an attorney. This is a better alternative to making an incriminating admission. If you do answer questions, always be truthful.

Corporations And Business Entities Do Not Have The Right To Remain silent

When does the Fifth Amendment not apply? The Fifth cannot be pled by corporations or business entities. It is available only to an individual person. Also, the Fifth cannot preclude a third party, such as your employer, from producing documents to incriminate you.

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If you are in doubt as to whether to exercise your right to remain silent, you should seek legal advice as soon as possible.

Contact our lawyers today.

Disposition of Tenants’ Property During Eviction

September 15, 2014

by Atty. Ronald L. Diersen

Rizzo & Diersen, S.C.

landlord, tenant evictions, rental property, tenant property

Wisconsin Statutes were recently amended and now provide new options for a landlord when the tenant leaves the property at the residence. Under the old law in Wisconsin, the landlord had to hire the sheriff to remove and store the property or get a surety bond, at the landlord’s expense, and move and store the property himself.

Landlord Can Remove Tenant Property After Sheriff Executes Writ

Under the new law, sec.799.45 Wis. Stats., the landlord may remove any of the tenants’ abandoned property himself once the sheriff has executed the writ and the rental property has been turned back to the landlord. For this law to apply the landlord must have complied with sec. 704.05(5), Wis. Stats. which provides in part that if the landlord does not intend to store personal property left behind by the tenants he shall “…provide written notice to the tenant, when the tenant enters into or renews a rental agreement, that the landlord will not store any items of personal property that the tenant leaves behind when the tenant removes from, or if the tenant is evicted from, the premises, except as provided in par. (am).” Par. (am) refers to medical items that the landlord is still required to store.


Landlord Has 3 Options After Complying With Wisconsin Statutes

Assuming the landlord has complied with Wisconsin Statutes he now has three options to pick from after a tenant has abandoned the property or the sheriff has forcibly removed the tenant from the premises and the tenant’s property is still there.

1. The old law can still be used. The landlord can continue to hire the sheriff to both forcibly remove the tenants and hire a moving company to remove the tenants’ personal property. This, of course, involves some expense for the landlord but many are still using this method. The benefit of this method is that if the tenant returns complaining of missing personal property they can simply be referred to the sheriff.

2. The landlord can hire the sheriff only to forcibly remove the tenant. The sheriff will remove any tenant still on the property and return the rental property to the landlord. The landlord can then dispose of the tenants’ personal property as outlined in sec.799.45 Wis. Stats. (assuming the landlord has complied with the notice requirement of sec. 704.05(5), Wis. Stats. and abides by the exceptions to the disposal rule found in sec. 704.05(5)(am) and (b))

3. The third choice available to the landlord is to hire the sheriff to forcibly remove the tenant and to stay at the premises while the landlord himself disposes of the tenants’ property. This, of course, will involve additional charges from the sheriff but will provide security in case the tenants return to the rental premises.

Sheriff Is Still Needed To Remove Tenant

This new law does not do away with the need to hire the sheriff to remove a tenant who has not voluntarily surrendered the rental property. It does do away with the requirement of hiring a moving company or getting a surety bond to remove or otherwise dispose of abandoned personal property left behind by the tenants.

Kenosha Count Sheriff

The Kenosha County Sheriff requires that the landlord select which option he wants to use before the sheriff forcibly removing the tenant. The dollar amount required to be deposited by the landlord with the sheriff varies depending on which option the landlord chooses. Option one is the most expensive. Option two has the lowest cost and option three is priced in the middle.

If you have a landlord/tenant issue please feel free to contact the lawyers at Rizzo & Diersen, S. C.

Filing Bankruptcy isn’t Your Only Option

by Atty Piermario Bertolotto, Rizzo & Diersen, SC

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Many events can force you into bankruptcy. These can include unemployment, layoffs or creditors being more aggressive in collection efforts.

Bankruptcy May Not Be Your Only Option

Since these events are often common, many people immediately consider bankruptcy because they’ve been told that bankruptcy is their only option. Or perhaps their bank has commenced a foreclosure action to force a sale of their home. Faced with that, many homeowners think they have no other option but to file bankruptcy and “let their house go.”

Many Options Are Available To You

That conclusion could well be wrong. Bankruptcy doesn’t have to be your only choice. In fact, in Wisconsin, it’s rare that a foreclosure of a primary residence is the sole driving force for a bankruptcy. There are many defenses, programs, and options available to you. Often, you can reinstate or modify the mortgage.

Bankruptcy Should Be The Last Option

Bankruptcy might be the only alternative. But usually, it should be the last option after all others are exhausted. It should be used only when there are many other negative financial factors besides a foreclosure lawsuit.

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If you are thinking about bankruptcy, the first thing to do is to gather all of your financial information. Then strongly consider talking to a bankruptcy professional. You not only want to get advice but also discuss – in detail – all of your alternatives.

A professional opinion will give you needed information about the bankruptcy process, all the alternatives, and all of the associated costs.

Contact our bankruptcy attorneys today.

Crime Classification: Where To Draw the Line?

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As popularity never fades, there is a perpetual supply of crime related shows, but what makes a crime, a crime? Wisconsin State Legislature defines crime as “conduct which is prohibited by state law and is punishable by fine or imprisonment (or both).” (Statute 939.12) Most people know that criminal actions are sorted into categories based on their severity. These categories include infractions, misdemeanors, and felonies. Infractions are considered the mildest of the three, and felonies classify the most serious crimes committed. Depending on the severity or classification of the crime, the court procedures and minimum sentence guidelines are different. Each case also has its own ‘flavor’, meaning they are examined on a case-by-case basis.

In the state of Wisconsin, there are only two of the classifications mentioned above, misdemeanors and felonies. “A crime punishable by imprisonment in the Wisconsin state prisons is a felony. Every other crime is a misdemeanor.” (Wisconsin State Legislature 939.60) This is the difference between being ‘jailed’ (being incarcerated for no more than 365 days) and being sent to a state prison where incarceration lasts for a year or more. I will still give a little information about infractions.


An infraction is the “violation of an administrative regulation, an ordinance, a municipal code, and in some jurisdictions, a state or local traffic rule.” (FindLaw 2018) Apart from previously mentioned minor traffic violations, here are a few more common examples of infractions:

  • Fishing without a license
  • Building permit violations
  • Drinking in public
  • Walking an unleashed dog

The infraction process begins when a citation is issued to a person by law enforcement. The ticket determines the case number, includes a description of the action and the state law or city code the action violates, the name of the issuer, the location of the courthouse, the deadlines for paying the fine or for an appearance in court, and lastly, instructions on how to pay the forfeiture. (FindLaw 2018)


A misdemeanor covers a very broad area of criminal activity and is a step below a felony. Misdemeanors usually include a fine and/or jail time less than a full year in a local or county jail (as opposed to a longer sentence in a state prison). In Wisconsin, misdemeanors are separated into classifications of A, B and C (A being more serious violations), and each has their own penalties as follows:

  • A Class A misdemeanor includes penalties of a fine that should not exceed $10,000, imprisonment longer than 9 months, or both. An example of a Class A misdemeanor is the theft of property worth no more than $2,500.
  • Class B misdemeanors include a fine that should not exceed $1,000 or imprisonment of 90 days or both. A situation that may be classified as a Class B misdemeanor would be disorderly conduct.
  • A Class C misdemeanor includes a fine that should not be greater than $500, an imprisonment that should not exceed 30 days or both. An example is a second conviction within 30 months for being a minor in possession of alcohol.

While a misdemeanor still isn’t a felony, these offenses are considered “crimes of moral turpitude”, which reflects a lack of knowledge of basic right and wrong, as well as a lack of a moral code of self-conduct. This depravity can negatively affect an individual’s ability to apply for scholarships and their ability to apply for and procure a job.


There is a fine line regarding the ethical standards of people convicted of a misdemeanor versus those convicted of a felony. As mentioned before, being sent to jail for misdemeanor calls for no more than 365 days of incarceration. An individual is sent to prison when they have been convicted of a felony and will serve time greater than a year. There are 9 classifications of felonies, A through I. Similar to misdemeanors, classification A is made up of more serious crimes, and in this case, the most heinous.

  • Class A felonies are punishable by life in prison. An example is a first-degree murder, which is carrying out a premeditated homicide.
  • Class B felonies demand a sentence of imprisonment for no more than 60 years. An example of a Class B felony is first-degree sexual assault, which ranges from rape of an incapacitated person to engage in the medical treatment of another for self-pleasure.
  • Class C and Class D felonies both include a fine not to exceed $100,000.  A Class C felony must not exceed imprisonment of 40 years, while a Class D felony must not exceed 25. Both imprisonment and the forfeiture may be included. An example is child enticement, which is luring a child for self-pleasure.
  • Class E felonies call for prison time not to exceed 15 years, or a fine not to exceed $50,000, or both. An example of a Class E felony is aggravated battery, which causes significant bodily harm to another.
  • Class F and Class G felonies include a fine not to exceed $25,000. Class F imprisonment may not exceed 12 years and 6 months, and Class G may not exceed 10 years. An individual may be penalized with both imprisonment and a fine. An example is pimping, which is in most cases, a man that uses an organized ring of prostitutes for a share of the earnings.
  • Class H and Class I felonies are monetarily penalized up to $10,000. A Class H felony prison time may not exceed 6 years, and a Class I felony may not exceed 3 years and 6 months. Both penalties of imprisonment and the forfeitures may be used in sentencing. An example is the theft of property worth $5,000 to $10,000.

The air just got a little heavier, but crime, especially committing a felony, is a serious matter. TV doesn’t show you the penalties that can be placed upon a person apart from ones included in Class A and Class B felonies (mostly because ‘milder’ crimes wouldn’t make good television). These same, crime-glamourizing spectacles fail to show the reality and long term repercussions on all parties involved. Misdemeanors and felonies are the kinds of situations that can ruin someone’s life, and not just the person being convicted. Survivors of violent crimes have to live with that life-altering trauma, and families of victims must go on without their mother, father, sister, brother, and so forth.

Moral of the story, think before you act, and keep both your future and others’ in mind. 

Contact our criminal attorneys today.

How To File A Personal Injury Claim

If you’ve been recently injured, it can be confusing to figure out what to do next, especially if you are struggling with emotional trauma. “Personal injury cases are legal disputes that arise when one person suffers from an accident or injury, and someone else might be legally responsible for that harm.” (FindLaw 2018) The first steps in taking control of the situation begin immediately after the initial incident. Taking care to follow these steps can help lead the way to successfully holding someone responsible for the emotional and physical damage they have cost you.

First Steps in a Personal Injury Claim

The first action taken is ensuring sustained injuries are taken care of. Failing to have injuries properly evaluated and treated by a medical professional may unintentionally give the impression that there weren’t real injuries, to begin with. This can severely impact the ability to file a personal injury claim, let alone have a successful case. Early treatment also assists in proving that the injuries suffered are all directly related to the accident and not from another underlying cause.

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The subsequent steps to be taken into consideration when filing for personal injury are separated into two categories: documentation and notice. Documentation of an injury includes calling the police immediately following the accident (if you are able), taking photographs of the incident and resulting injuries, giving a statement on the accident and injuries, keeping discharge records from the ER, creating a notebook journal of evaluation and treatment after the accident, keeping receipts for any prescriptions used to treat the injuries, providing a doctor’s note for missed work, etc. Always strive for the most accurate record possible of the event to ensure there is ample proof of the accident and injuries sustained.

The ‘notice’ category begins by formally notifying the parties involved in the accident and injuries. This can include but is not limited to, informing auto insurance of the accident (if the injury is vehicle-related), working with an adjuster to resolve the property damage claim, coordinating with any health insurance that may be applicable, letting the workplace know if you will be out, etc.

Things to Avoid

Filing a claim for personal injury is weighted with several things that should always be avoided, or there is a risk that the claim will be deemed invalid. Never admit fault in the incident, do not make a recorded statement, don’t downplay injuries (let the medical professionals know if your pain rating is 10/10), and don’t try settling a personal injury claim without the assistance and guidance of an attorney.

All of these factors are critical to building a solid case and ensuring that your claim has validity. Take the time to approach the situation with a personal injury attorney who can help you through the legal process of properly filing a personal injury claim to greatly improve the chances of receiving the compensation sought. Hopefully, these steps aren’t needed any time soon, but there is no such thing as ‘too prepared’ for unexpected obstacles one may face.

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Notes from Attorney James M. Payne


Will of the People vs Will of the Law

The Effect of Public Opinion in Judicial Interpretation of the Law

The dilemma continues: how is public opinion influencing decisions of judges at both state and federal levels? In recent years, judges are finding it harder and harder to rule against the crushing weight of public pressure, even if the majority’s opinions aren’t in accordance with state and federal law. The impact is significant.

judicial interpretation, public opionion, rizzo law, kenosha attorneys, wisconsin, racine, kenosha, westosha, milwaukee
Photo by Alexa Mazzarello on unsplash

Increased Political Polarization

As a result of the past half century, increasing polarization between political alignment and religious beliefs has left a volatile situation in which people become extremely emotionally charged. These are significant influences that can affect the presiding judicial interpretation and ability to sentence against what public opinion drifts toward. Judges are faced with the dilemma of following the law and doing what they see fit or buckling under the growing pressure out of fear of being ultimately recalled by those who elected them.

Iowa Judges Recalled

The undeniable influence of a loud majority group was demonstrated on a smaller scale in the fate of three Iowa judges in a 2009 ruling to legalize same-sex marriage within the state. All three judges involved were recalled in 2010 by an extremely aggressive conservative movement that vehemently disagreed with judges’ constitutional interpretation of same-sex marriage. Despite being recalled, Judge Streit remains firm in his resolute that judges should remain politically and religiously absent. However, Iowa District Court Judge Jeffrey Neary states that the days of simply ruling against the demands of the public with little explanation are gone. Judges often write extensive opinion papers on their rulings to hopefully avoid too much public scrutiny and escape being recalled for an unpopular decision.

Today US Courts Favor Public Majority

In the past, the United States saw many rulings against public agenda particularly in cases surrounding the rights and privileges of minority groups. Another interesting aspect of these unpopular rulings is that to avoid greater opposition, the Supreme Court would intentionally vote without clear margins. This way the court could still appear to be leaning with the will of the majority, while still ultimately moving against it. However according to the Penn Undergraduate Law Journal, the US today is still seeing a general trend from federal courts ruling in favor of the public majority.

Is public influence helping or hurting?

On the side of ruling in favor of the public majority, it could mean for US citizens that their values and wants are being consistently upheld, which is especially a positive if they feel that other areas of government aren’t representing them. However, the negative side presents its challenges. Supreme Court judges are meant to be ruling on behalf of the law and the Constitution and not on the behalf of public agenda, religion, and politics. The results of deviating from this process could shepherd inequitable sentencing due to anything being justified as constitutional or unconstitutional.

Public Opinion And Religious Stances

It seems that public opinion on politics and religious stances will continue to play a major role in the US’s judiciary decisions on both a state and federal level. Still, the question remains: should state and federal judges be representing the will of the people or the will of the law?

Contact our attorneys today for more information.





Notes from Judge Robert J. Kennedy

Driving Without a License

wisconsin, racine, kenosha, westosha, milwaukee, driver's license, drivers license, license, drivers, driver

Driving With A Revoked Or Suspended License

In my more than twenty-five years as a practicing criminal/traffic defense attorney, one of the more frequent offenses I see is driving with a revoked or suspended license. The reasons for the revocation/suspension are varied. There are of course people who have lost their license because of a drunk driving conviction or some other serious traffic offense, or for a controlled substance (drug) conviction. Others are suspended/revoked because of an accumulation of twelve or more points in twelve months. Many are even suspended for not paying traffic tickets.

Driving After Suspension

Driving after a suspension is a non-criminal offense and carries a penalty of a fine only. Driving after revocation is a criminal offense with penalties ranging from a fine of up to $2,500, mandatory imprisonment in the county jail of up to one year, or both. If the driving results in an accident where someone is seriously injured or killed, driving after revocation itself can be a felony in addition to any other charges.

The Snowballing Of Penalties

Sadly, many of these cases are avoidable. Often, the situation is like a snowball rolling downhill. A person gets a speeding ticket, does not pay the fine, gets a license suspension, gets caught driving again, and again, and again, and ends up in jail because of what started as a simple speeding ticket.

Reinstating Your Driver’s License

Reinstating one’s license can involve paying overdue fines, obtaining insurance, satisfying court other obligations, or simply by paying the $50 reinstatement fee. It is also possible to reopen prior traffic offenses and remove the HTO status.

Reinstatement May Not Always Be Possible

If reinstatement is not possible, an occupational license allows an individual to drive up to twelve hours per day and sixty hours per week for employment, educational and religious purposes.

Being Charged With Driving After Revocation Or Suspension

If you are ever faced with a charge of driving after revocation or suspension, especially if potential jail time is involved, you should consider consulting an attorney experienced in criminal and traffic laws. Sometimes these criminal traffic matters can be resolved as a civil, non-moving violation. If you get into an accident without a license and need an auto wreck attorney, contact Rizzo & Diersen today.

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Country Thunder Traffic/Drug/Criminal Charges

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Violations Near Country Thunder

Wisconsin law enforcement is actively involved in preventing the possession and delivery of marijuana and other drugs, underage drinking, and traffic offenses that occur at or near the County Thunder music festival. Unfortunately, many people who attend Country Thunder are cited and arrested for relatively minor offenses and face the possibility of a criminal record. The police may tell you it is only a ticket, but the consequences can be very serious. Rizzo & Diersen, S.C. has experience defending against exactly these kinds of charges.

Our Attorneys Make Court Appearances For You

Country Thunder is hosted annually in Twin Lakes, Wisconsin. In 2019, Country Thunder runs from August 16-18. If you were arrested or cited while at or near Country Thunder, contact Rizzo & Diersen, S.C. We handle every type of charge, including misdemeanor offenses, felony offenses, and traffic violationsIn many cases, our attorneys can even make the court appearances for you so that you do not have to travel.

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Growing Your Business

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Structuring Business Plans For Individuals And Small Businesses

For numerous individuals and small business owners, the last few years have been filled with tight budgets and many challenges to maintain jobs, cut costs, and compete in their respective markets.  The challenges have been brought mostly because of the state of the economy and the tight job market in recent years.  As part of Attorney Bertolotto’s business law practice, he has the continuing opportunity to assist individuals and small businesses in structuring their business, planning for future business growth and sales, and long term planning.

Planning Your Business In The New Year

Many hope that this year will be a year filled with great achievements, business growth, and economic stability.  Entrepreneurs understand very well the value of planning, setting goals, working towards achieving them, and still have a certain degree of flexibility to modify the plan and goals as the year progresses.  We have summarized below a short, non-exclusive list of steps that many are taking to develop and grow their respective businesses in the new year.  The list is not meant as a static roadmap, but suggestions to take into consideration to devise a plan and foment forward thinking in your respective business enterprise to help achieve planned goals for the year.

A Plan Is Essential

First and foremost, you need a plan.  Without a plan, you are setting yourself up for failure.  It is always a good thing to take a look at the big picture because daily we all tend to concentrate on details and lose track of how those work with each other to get us one step closer to achieving the goals we have set.  Setting specific goals as part of our plan lends itself to keeping us focused on achieving them and turning the plan into a reality.  As part of devising a plan, it is important to establish budgets and look at past years and experiences to be able to avoid surprises and minimize the unexpected.  Constantly reviewing past successes and failures is a necessary tool to tailor a plan, set goals, and stay on track to achieve them.

Current Trends And Developments

Keeping up with and understanding the current trends and developments in our respective industries is essential to implementing a successful plan.  Continuing education in our respective fields and participating in professional groups always helps to sharpen one’s skills, as well as understanding how technology can save time and money, and which technological advances make sense to invest in and implement to facilitate reaching the goals we have set.

Constant Review Of The Plan Is Essential

Finally, a constant and continuing review of the plan and goals set will enable any business owner to modify their plan and make sure it is dynamic enough to overcome unforeseen challenges.  The suggestions mentioned above, coupled with a solid business structure, will enhance success.

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Nursing Home Neglect and Abuse

Deciding to place your elderly parent or relative into a nursing home is always a difficult decision.

Elderly Neglect And Abuse

elder law, elder, elderly, law, kenosha, racine, milwaukee, westosha, wisconsin, neglect, abuseUnfortunately, there have been many cases in which our elderly family members may have experienced neglect and/or abuse while they are a resident at a nursing home. When deciding on which nursing home to provide long-term care, you need to properly assess the facility to ensure that the right standards are maintained and practiced. You need to evaluate the safety standards and the staff training to ensure that the elderly parent or relative is not in danger of any risk of harm from falls, bed sores/pressure sores, broken bones, restraints, malnutrition, dehydration and any other areas that would result in nursing home neglect and abuse.

Nursing Home Resident Rights

Wisconsin law outlines the resident’s rights as follows:

“The resident has a right to a dignified existence, self-determination, and communication with and access to persons and services inside and outside the facility. A facility must protect and promote the rights of each resident…”

These requirements include the rights of the resident, such that, they are protected from mental and physical abuse and also set the standards that nursing homes follow.

Elderly Residents Are Entitled To Necessary Care And Services

Each resident should receive the necessary care and services to protect residents from known risks, such as Alzheimer’s, dementia, bedrail asphyxiation, wandering, elopement, assault, physical abuse, medication errors, corporation decision making and false charting.


Thus, when you are determining an appropriate nursing home, please include the following:

  1.  Find out whether the nursing home is licensed in the State of Wisconsin;
  2. Determine whether the staff, including RPN, LPN, CNA, are licensed and have received in-service training for nursing home care;
  3.  Ask whether your elderly parent or relative is to rely on you to observe what is happening in the nursing home or whether a physician will be relied upon for these observations;
  4. Google the nursing home, and see what you can find out about its reputation and its care for the elderly;
  5. Ask your elderly relative’s physician as to what he/she thinks about the nursing home you are considering;
  6. Ask around the community, including your friends and family, regarding the nursing home’s reputation for caring for the elderly. 

Be sure to carry out most or all of the checkpoints mentioned above, and go over and above to ascertain that your parent or relative is living in an environment that ensures that they grow old in a dignified manner, without suffering any neglect and/or abuse.

Always Monitor Living Conditions

Should you have your parent or relative in a nursing home, please be sure to always monitor and be aware of their living conditions. If you are uncomfortable about anything, always put a staff member on notice, ask questions and make sure you are always notified of any conditions involving your elderly resident.

Please contact the elder law attorneys Rizzo & Diersen, S.C. should you feel that there has been neglect or abuse, and we will be happy to discuss these issues with you.