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Monday, July 24, 2017

Why New Parents Need an Estate Plan

Becoming a new parent is a life changing experience, and caring for a child is an awesome responsibility as well as a joy. This is also the time to think about your child's future by asking an important question: who will care for your child if you become disabled or die? The best way to put your mind at ease is by having an estate plan.

The most basic estate planning tool is a will, which enables a person to determine how his or her assets will be distributed after death. Without this important estate planning tool, the state's intestacy laws will govern how these assets will be distributed. In addition, decisions about who will care for any minor children will be made by the court. For this reason, it is crucial for new parents to have a will as this is the only way to name guardians for minor children.

In this regard, selecting guardians involves a number of important considerations. Obviously, it is important to name individuals who are emotionally and financially capable of raising a child. At the same time, a will can also establish a trust that provides funds to be used to provide for the child's needs. Ultimately, guardians should share the same moral and spiritual values, and childrearing philosophy of the parents.

In addition to naming guardians in a will, it is also critical to plan for the possibility of incapacity by creating powers of attorney and advance medical directives. A durable power of attorney allows a new parent to name a spouse, or other trusted relative or friend, to handle personal and financial affairs. Further, a power of attorney for healthcare, or healthcare proxy, designates a trusted person to make medical decisions in accordance with the parent's preferences.

Finally, new parents should also obtain adequate life insurance to protect the family. The proceeds from an insurance policy can replace lost income, pay household and living expenses, as well as any debts that may have been owed by the deceased parent. It is also important to ensure that beneficiary designations on any retirement accounts are up to date so that these assets can be transferred expediently.

In the end, having a child is a time of joy, but also one that requires careful planning. The best way to protect your family is by consulting with an experienced estate planning attorney who can help you navigate the process.

 


Monday, July 17, 2017

Employment Discrimination Laws in a Nutshell

There are a variety of state and federal laws that make it illegal for employers to discriminate based on certain characteristics when making decisions about hiring, terminating, promoting, demoting or compensating employees, or any other terms and conditions of employment. Employers are also barred from retaliating against employees who file a discrimination-related complaint or engage in other protected activities. While the laws vary from state to state, all employers have an obligation to adhere to the following federal laws.

Title VII of the Civil Rights Act of 1964

This law prohibits discrimination in the workplace based on race, color, national origin, religion and gender. Title VII also established the Equal Employment Opportunity Commission (EEOC), the government agency that is tasked with investigating employment discrimination claims.  Before an employment discrimination lawsuit under federal law can be brought, it is necessary to file a claim with the EEOC. Title VII applies to employers with 15 or more employees.

Age Discrimination in Employment Act (ADEA)

The ADEA prohibits employers with 20 or more employees from discriminating against individuals who are 40 years or older and their age cannot be used as a factor in any employment decision.

The American with Disabilities Act (ADA)

The ADA prohibits employers with 15 or more employees from discriminating or harassing disabled employees and requires employers to make reasonable accommodations that will enable a qualified disabled worker to complete his or her job functions.  

The Pregnancy Discrimination Act (PDA)

The PDA prohibits discrimination based on pregnancy regarding any aspect of employment in businesses with 15 or more employees. Women who are temporarily unable to perform their jobs due to pregnancy must be treated similarly to other temporarily disabled workers. The ADA may also protect a woman who suffers from a pregnancy related medical condition.

The Bottom Line

In sum, employers are prohibited from discriminating against employees and potential job candidates because of race, religion, sex, age, disability, pregnancy or national origin. Not only can violations lead to financial penalties, a discrimination lawsuit can damage a business' reputation. By engaging the services of an experienced employment law attorney, you can establish policies and procedures to ensure that your business is in compliance with these laws.

 


Monday, July 10, 2017

A Primer on Irrevocable Trusts

Many individuals are aware that a will is one way to plan for the distribution of their assets after death. However, a comprehensive estate plan also considers other objectives such as planning for long-term care and asset protection. For this reason, it is essential to consider utilizing an irrevocable trust.

This estate planning tool becomes effective during a person's lifetime, but it cannot be amended or modified. The person making the trust, the grantor, transfers property into the trust permanently. In so doing, the grantor no longer owns property, and a designated trustee owns and manages the assets for the benefit of the beneficiaries.

In short, irrevocable trust provide a number of advantages. First, the property is not subject to estate taxes because the grantor no longer owns it. Moreover, unlike a will, an irrevocable trust is not probated in court. Finally, assets are protected from creditors.

Common Irrevocable Trusts

There are a variety of irrevocable trusts, including:

  • Bypass Trusts -  utilized by married couples to reduce estate taxes when the second spouse dies. In this arrangement, the property of the spouse who dies first is transferred into the trust for the benefit of the surviving spouse. Because he or she does not own it, the property does not become part of this spouse's estate when he or she dies.

  • Charitable Trusts - created to reduce income and estate taxes through a combination of gifting and charitable donations.  For example, charitable remainder trust transfers property into a trust and names a charity as the final beneficiary, but another individual receives income before,  for a certain time period.

  • Life Insurance Trusts - proceeds of life insurance are removed from the estate and ownership of the policy is transferred into the trust. While insurance passes outside of the estate, it is factored into the value of the estate for tax purposes, so this vehicle is designed to minimize estate taxes.

  • Spendthrift Trusts – designed to protect those who may not be able to manage finances on their own. A trustee is named to manage and distribute the funds to the beneficiary or directly to creditors, depending on the terms of the trust.

  • Special needs trusts - designed to protect the public benefits that many special needs individuals receive. Since an inheritance could disqualify a beneficiary from Medicaid, for example, this estate planning tool provides money for additional day to day expenses while preserving the government benefits.

The Takeaway

Irrevocable trusts are essential estate planning tools that can protect an individual's assets, minimize taxes and provide for loved ones. In the end, these objectives can be accomplished with the advice and counsel of an experienced estate planning attorney.

 


Monday, June 26, 2017

Responsibilities and Obligations of the Executor/ Administrator

When a person dies with a will in place, an executor is named as the responsible individual for winding down the decedent's affairs. In situations in which a will has not been prepared, the probate court will appoint an administrator. Whether you have been named  as an executor or administrator, the role comes with certain responsibilities including taking charge of the decedent's assets, notifying beneficiaries and creditors, paying the estate's debts and distributing the property to the beneficiaries.

In some cases, an executor may also be a beneficiary of the will, however he or she must act fairly and in accordance with the provisions of the will. An executor is specifically responsible for:

  • Finding a copy of the will and filing it with the appropriate state court

  • Informing third parties, such as banks and other account holders, of the person’s death

  • Locating assets and identifying debts

  • Providing the court with an inventory of these assets and debts

  • Maintaining any assets until they are disposed of

  • Disposing of assets either through distribution or sale

  • Satisfying any debts

  • Appearing in court on behalf of the estate

Depending on the size of the estate and the way in which the decedent's assets were titled, the will may need to be probated. If the estate must go through s probate proceeding, the executor must file with the court to probate the will and be appointed as the estate's legal representative.

By doing so, the executor can then pay all of the decedent's outstanding debts and distribute the property to the beneficiaries according to the terms of the will. The executor is also is also responsible for filing all federal and state tax returns for the deceased person as well as estate taxes, if any. Lastly, an executor may be entitled to compensation for the time he or she served the estate. If the court names an administrator, this individual will have similar responsibilities.

In the end, being name an executor or appointed as an administrator ultimately means supporting the overall goal of distributing the estate assets according to wishes of the deceased or state law. In either case, an experienced probate or estate planning attorney can help you carry out these duties.


Monday, June 19, 2017

Employment Contracts in a Nutshell

The contemporary workplace has become increasingly complicated as many businesses are governed by a wide range of state and federal employment laws. Moreover, the relationship between employers and employees has also become more complex, particularly as the work force becomes more diverse. For this reason, business owners should consider utilizing employment contracts to clarify these associations.

While such agreements may not be necessary across the board, they are well suited for executives, sales people, or those who have either a decision making role or an ownership interest in the business. As such, the first element of a comprehensive employment contract is a description of the employee's duties and the duration of employment.

Obviously, an employment contract should specify the salary that is being paid as well as any work-related benefits: bonuses, vacation pay, health insurance, expense accounts, stock options and retirement plans. The contract should also clarify whether the employee is working at will and the grounds for termination. It is important to note that an employee who is fired for reasons not stated in the agreement may have grounds for a wrongful termination lawsuit.

Depending on the nature of the business, it is also necessary to protect sensitive information with confidentiality provisions. In particular, it is crucial to protect trade secrets, such as formulas, designs, practices, client lists or any other information that is generally not known to the public. Moreover, employees should be notified that all work product is owned by the business. Similarly, if the entity has relationships with independent contractors or freelancers, it is important to clarify that anything they produce is on a work-for-hire basis.

In addition to confidentiality provisions, it may also be necessary to include a non-compete clause clarifying that an employee will not accept a similar job with a competitor in the geographical region for a specified period of time.

In the end, there are a number of benefits to utilizing employment contracts. In addition to helping to retain key employees and minimize the costs of training new people, employment contracts give a business control over performance standards. Further, these agreements provide protection against the potential misappropriation of trade secrets and other intellectual property. Ultimately, these agreements help to clarify the rights and obligations of both the employer and the employee. By engaging the services of an experienced employment law attorney, a business can put in place a well designed employment agreement.


Monday, June 12, 2017

Common Types of Will Contests

The most basic estate planning tool is a will which establishes how an individual's property will be distributed and names beneficiaries to receive those assets. Unfortunately, there are circumstances when disputes arise among surviving family members that can lead to a will contest. This is a court proceeding in which the validity of the will is challenged.

In order to have standing to bring a will contest, a party must have a legitimate interest in the estate. Although the law in this regard varies from state to state, the proceeding can be brought by heirs, beneficiaries, and others who stand to inherit. While these disputes are often the result of changes to the distribution plan from a prior will, some common types of will contests are as follows.

Lack of testamentary capacity

The testator, that is the person making the will, must have the mental capacity and be of sound mind at the time the will is executed , modified or revoked. Further, being of sound mind means that the testator knows what property he or she owns and understands the effect of executing the will. Although these are considered to be low standards, claims that the deceased lacked the mental capacity when the will was executed are common.

Undue influence

If the deceased was coerced into executing the will, it may be considered invalid. In order to ensure that the testator is not subjected to undue influence, the will should be prepared by an attorney. Moreover, heirs and beneficiaries should not take part in meetings and discussions between the testator and his or her attorney.

Will improperly executed

There are certain formalities that must be followed in order for a will to be considered validly executed. While some states require a notarized signature, others insist on a certain number of witnesses being present when the will is executed. If these formalities are not strictly followed, the will may be found to be improperly executed.

Fraud

A will can also be considered invalid if a person is intentionally deceived when preparing and executing the document.

The Takeaway

If a will is successfully contested, it can be declared invalid by the court. This means that the assets will be distributed either according to the terms of a prior will or if no such will exists, the state's intestacy rules. Ultimately, engaging the services of an experienced estate planning an attorney can minimize the risk of a will contest.


Monday, May 22, 2017

Can You Be Fired for Having Bad Credit?

If you are feeling the pinch, you are not alone. Many Americans have experienced a decline in income, while expenses have continued to increase. Many have taken a significant hit to their credit scores and are considering bankruptcy. Others who are on the eve of foreclosure may be considering a bankruptcy filing to stop an imminent foreclosure sale.

Whatever the reasons, a common concern of many consumers who face mounting debt, or are considering filing bankruptcy, is whether such credit issues can affect their ability to obtain or keep a job or get a promotion. In short, no. Bankruptcy is a protected, fundamental right granted by the U.S. Congress to all Americans. Under federal law, employers are prohibited from discriminating against a worker because of a bankruptcy filing. Bankruptcy courts across the country have weighed in on this issue and have consistently upheld the anti-discrimination protections contained in the U.S. Bankruptcy Code.

Employees who have filed bankruptcy and are subsequently fired must prove that bankruptcy was the primary factor in the termination. If the employer can prove there were other reasons for the termination, the employee’s wrongful termination claim will fail. Similarly, it is a violation of the law to refuse to hire or fail to promote an employee solely on the basis of a bankruptcy filing.
 


Monday, May 15, 2017

Should a Power of Attorney be a part of my Estate Plan?

A durable power of attorney is an important part of an estate plan. It provides that, in the event of disability or incapacitation, a preselected agent can be granted power over the affairs of the individual signing the document. This power can be limited to specific decisions, like the decision to continue life sustaining treatment, or it can be much broader in scope to allow the agent power over the individual’s financial dealings.

Estate planning is meant to prepare for contingencies beyond an individual’s control. A traumatic accident could leave an individual without the ability to manage his or her own financial affairs. Debilitating diseases, like Alzheimer’s, can affect a person’s ability to make sound decisions for him or herself. In these scenarios, someone must be appointed to do make decisions on behalf of the incapacitated individual. Preparing a durable power of attorney as a part of an estate plan accomplishes three things. First, it gives the power of appointment to the individual, instead of to a judge. Second, it avoids the need for a potentially expensive court proceeding necessary to make that appointment. Finally, a power of attorney may be used to respond to time sensitive issues without waiting for a court hearing to grant an agent the power to act.

A power of attorney provides much flexibility for the individual signing it. It can take effect only upon disability, or right away, regardless of disability. It can specify what funds may or may not be used for. If a person does not want to live in an assisted living facility, he or she can make sure that money from his or her own bank accounts is not used for those purposes. Different assets can be managed by different agents. The power of attorney can give an agent power to distribute assets as gifts on a specific schedule to collaborate with an existing estate plan. The level of detail and amount of instruction that is possible as a part of the document is unlimited. It will always be quicker and more economical than a guardianship or conservatorship proceeding, and it will always serve the disabled person’s interests better than the broad powers granted to an individual by a court.


Monday, May 8, 2017

Non-Compete Agreements: Are they Enforceable?

Courts typically disfavor “covenants not to compete” or “non-compete agreements.”  Therefore, the terms and provisions of these contracts must not be overly restrictive of the employee.  In order for a non-compete to be upheld, the document must “be reasonable in scope, geography, and time.”  It cannot last for years on end, or prevent the employee from working anywhere in the entire state. Likewise, an employer cannot prohibit an employee from working in a large variety of industries, especially if the restriction includes industries wholly unrelated to the employer’s line of work. 

Two other elements are analyzed by a court to determine the validity of a non-compete agreement:  (1) there must be mutual consideration between both the employer and employee at the moment the contract is signed and (2) the non-competition agreement must protect “a legitimate business interest of the employer.”  Preventing a former employee from working for an employer’s business rival, or preventing disclosure of trade secrets or personally identifiable information of important clientele, are typically considered justifiable business interests.

Non-compete agreements are generally implemented to protect a company’s most important assets:  its reputation and its confidential information.  However, the terms protecting these assets cannot be overly broad or vague.  Thus, in evaluating the “reasonableness” of a non-competition agreement, the court will conduct a “balancing test.”  This is a comparison of the employer’s need to protect its “business interests” with the “burden that enforcement of the agreement would place on the employee.” 

The validity of non-compete agreements is decided on a case-by-case basis. The court will consider circumstances such as the length of time certain information will be kept confidential, and the company’s reasons for limiting the employee's job search to a geographical area. If the court finds that the agreement serves a valid interest and does not exceed the range necessary to protect that interest, the entire agreement may be upheld. 

The court also has the option of doing away with overly intrusive terms in a non-compete, rather than invalidating the agreement entirely. In cases in which a non-compete is perceived by the court as punitive, unduly restricting an employee from obtaining employment, the agreement will not be upheld.  A licensed attorney who specializes in employment law will be able to gauge the likelihood that a particular non-compete agreement will be enforceable.


Monday, April 24, 2017

Making Decisions About End of Life Medical Treatment

While advances in medicine allow people to live longer, questions are often raised about life-sustaining treatment terminally ill patients may or may not want to receive. Those who fail to formally declare these wishes in writing to family members and medical professionals run the risk of having the courts make these decisions.

For this reason, it is essential to put in place advance medical directives to ensure that an individual's preferences for end of life medical care are respected. There are two documents designed for these purposes, a Do Not Resuscitate Order (DNR) and a Physician Order for Life Sustaining Treatment (POLST).

What is a DNR?

A Do Not Resuscitate Oder alerts doctors, nurses and emergency personnel that cardiopulmonary resuscitation (CPR) should not be used to keep a person alive in case of a medical emergency. A DNR is frequently used along with other advance medical directives by those who are critically ill and prefer not to receive life sustaining treatment.

What is a Physician Order for Life Sustaining Treatment (POLST)?

A Physician Order for Life Sustaining Treatment is similar to a DNR,  however a POLST is prepared by a patient's doctor after discussing end of life treatment options. This is not a legal document prepared by an attorney, but rather a binding doctor's order that is kept with a patient's medical records. A POLST declares a patient's preference for receiving certain life sustaining treatments, as well as treatment options the patient does not want to receive or to be continued.

Examples of these treatments include, but are not limited to, artificial nutrition and hydration, intubation and antibiotic use. These decisions should be made when there is no medical crisis that can affect an individual's decision making, after various treatment options have been discussed with his or her doctor. In short, a POLST ensures that a patient will receive appropriate treatments, but not be subjected to life sustaining measures the patient does not want.

By having these advance medical directives in place, a person can have peace of mind knowing that he or she will receive end of life treatment according to his or her wishes, and loved ones will not be forced to go to court to obtain the right make these decisions.

 


Monday, April 17, 2017

What is Wrongful Termination?

Many individuals who work hard to earn a living may not realize that they work "at will." This means they can be fired without good cause, or without any cause at all. While there are legitimate reasons an employee can be fired, such as layoffs, poor performance, or violating a company policy, an employee who is fired due to unlawful considerations may be the victim of wrongful termination. While the law varies from state to state, these claims can be hard to prove. Let's take a look at the general grounds for a wrongful termination lawsuit.

Discrimination

There are a number of federal laws that prohibit an employer from terminating an employee based on a legally protected characteristic including race, color, national origin, pregnancy, disability, religion, age (40 or older), citizenship status, or genetic information. There are limitations, however, because the law generally applies to employers with 15 or more employees while age discrimination rules apply to employers with at least 20 employees. In addition, there may be laws in place at the local and state level with similar protections. If you believe you were fired because of your status as a member of protected class, you may have grounds for wrongful termination lawsuit due to discrimination.

Retaliation

Under many state and federal laws, it is illegal for an employer to fire, demote, harass or retaliate against  job applicants or employees for filing a claim, or complaining about workplace harassment or discrimination. An employee also cannot be fired for participating in any proceeding, such as an investigation or lawsuit, related to any legally protected activity. In spite of these laws, there are subtle ways in which an employer retaliate against an employee. For example, supervisors and coworkers can adopt hostile attitudes against an employee, however, these are also forms of unlawful retaliation.

Other Types of Illegal Firing

Employers are also generally prohibited from terminating employees in the following circumstances:

  • In violation of a written contract

  • For filing a workers’ compensation claim

  • For reporting a whistleblower complaint

  • For reporting a dangerous or hazardous work condition

In short, if you believe you were fired illegally, you may have grounds for a wrongful termination lawsuit. An experienced employment law attorney can help you determine whether you live in an at will state and explore your options.

 


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