Legal IQ: “Final Arrangements”

A more serious topic, yes, but an important one.

While working through Estate Plans with clients, I not only talk about how they want their assets divided but also talk about their end of life care and burial wishes.

While it can be an overwhelming topic to think about, I can assure you that each of my clients feel a sense of relief once they make these plans and get them into a legal document.

Loved ones will thank you for preparing these types of documents as it gives them clear direction and information on your wishes and allows your loved ones to have a sense of peace making decisions “on your behalf”.

With your “funeral” and “burial wishes” you can be as creative as you want. There are many options and creative ideas out there that you’re welcome to include if the traditional route doesn’t speak to your essence.

A good Estate Planning Lawyer can talk you through all of this.

If you’re in Rhode Island, I am happy to help.

Elsewhere? Don’t be shy to reach out; I’m happy to find you someone I trust to help you through the process.

Legal IQ: “Unintended Consequence”

When writing, reading, or signing any type of contract, make sure you’re looking at the fine print.

That is, the details that lay out the rules of the game. Poorly worded, or overly restrictive contracts, may have some unintended consequences!

It’s always best to have a legal professional draft your contracts to help you work through these nuances.

For more on this topic take a read of my previous post on “Privacy Please”

Always here to help!

Legal IQ: “Right Tool for the Job”

I get a lot of questions about online tools to make legal documents, especially Wills and LLC formations.

The best advice I can give you is that if you just want to fill in the blanks on a document, use an online tool. But if you want guidance on how to create a plan that will ensure you and your loved ones are cared for in the event of death or disability, it’s best to go to a lawyer.

Online tools have boiler plate templates that are unable to take into account specific situations and often have incorrect or contradictory clauses. They also often do not have proper conflict resolution information built in, which can result in messy court battles. And a computer algorithm cannot understand, and take into account, your specific wishes for yourself and your loved ones.

Essentially, the tools are not able to process the information in a personal, sophisticated fashion, like a professional can, and you end up with a document which likely does not meet your needs. It will leave out important information that may result in your loved ones not being cared for the way you intended.

I think people often forget that lawyers go to years of schooling, then do “on the job training”, as well and continuing legal education, before they ever produce something a client is going to get. It’s hard to think that “fill in the blanks” can listen and understand your goals and produce a document that achieves your objectives.

I can equate it to a English class and two different assignments. The first assignment you have your allowed to write a creative story. You have so many options open to you to write the story you want and are not confined by any prescribed bounds.

The second would be a an exercise where the storyline was already typed out for you, and you simply were able to just fill in some of the adjectives. Easier in some regard; certainly quicker. But you might not like the storyline at all, and you are stuck with that. That in a nutshell is the difference between using a lawyer and an online tool.

I’ll give you an example:

I want to leave my dog to my friend along with money to care for my dog.

The online tool might allow me to fill out the name of the person who gets my dog and an amount of money that goes to that person. So, the boiler plate Will might say “I leave my dog Frankie to my friend Bob. I also leave Bob $10,000.00 for the care of Frankie.”

But what if Frankie is no longer around when I die and I have a new dog? Well, the Will doesn’t address that and there would be an issue.

Also, what if Bob gets Frankie and the $10,000 and decides to immediately turn Frankie over to the animal shelter and keep the $10,000? The online Will can’t address that either.

A lawyer can talk through these options with you, understand that you want your friend to get any pets you own, and ensure documents are prepared so that any money you leave is only used for the purposes you intend.

This is just one example, but there are so many more issues involving family homes, second marriages (providing for the spouse and children from former marriage), and guardianship for children. These all require personal conversations to understand your goals; something an online program cannot help you with.

Often issues with incomplete or contradicting information can be so large, that the entire document is completely invalid.

Essentially, you paid for nothing. Ithink of legal work a little like some of my home renovations projects I do.

You want to choose the right tool for the job otherwise it’s impossible to get the job done, correctly.

If you grab whatever you have closest to you, to try and force the result, you often end up making a mess, that in the long run, might actually be a big headache and costly.

For important legal documents, most times, a lawyer is the right choice over trusting your fate with an online tool.

Legal IQ: “Privacy Please”

A fun one for you this Friday.

Contracts are important legal paperwork that layout the relationship between two parties.  

Contracts dictate how each party should act and good contracts indicate what happens if one of the parties decides not to act in accordance with the agreement.

Sometimes, poor wording may lead to “unintended consequences”, like we have happening with this poor pup. A poorly worded contract has this foster parent “hovering” a bit too much as he just tries to do his job correctly!

Along with estate planning, I focus my practice on contract creation and litigation.  Over the years, I have helped many animal organizations create contracts for their business or their various non-profit programs.  

When working with my clients, I tell them to think of a contract as a document that simply lays out the relationship they intendto have with the other party.

Often my clients will be overwhelmed at the onset of the process as they come in with a misconception that they need to have everything mapped out.  Usually, after just the initial conversation, they come to understand that the process is not all that daunting.  They realize they are already “doing” their contracts in every day life, we are just putting it down on paper, and I am making it legally enforceable for them. We work together to limit my client’s liability, while striking a balance of reality, so that both parties can function as needed. I work through the parameters with my client and then I work on making it legally sound. 

My last note; if you’re ever in the position of being the one to receive or review a contract, and you don’t feel comfortable with certain language; ask! If the explanation is not sufficient or you are still unclear, don’t just sign it. 

Perhaps this contract could have used a little more in the clause related to “oversight and care of the foster dog”!

Legal IQ: “Outside the box”

Clients come to me to do their Estate Plans, and have many different intentions.  

Some want to leave money to children, others foundations.  Some want to leave money in trust for their grandchild’s education, or maybe a scholarships fund. 

An Estate Plan can be as specific and personal as the individual wishes. Working one on one with my clients, giving them personal attention, we are able to work out a thorough and thought out plan.

I often hear my clients say, “I don’t have a lot of money but I feel strongly that I donate a little to “abc” organization”.

I always encourage my clients that if they feel strongly to help in this philanthropic way, not to let the “amount” deter them. Every little bit helps these organizations carry out their mission.Sometimes my clients ask for recommendations.  

While I typically stay away from naming organizations, I often help my clients brainstorm and identify charities they feel strongly about.  Often, my client has helped a charity in different ways over their own lifetime, or, it’s something they have always intended to get more involved in to help make positive change. 

Always happy to help. Feel free to reach out at any time, with any questions. 

Legal IQ: “Lincoln Lesson”

I have seen many posts stating that habeus corpus was suspended by in NYC and people can be arrested and held indefinitely for no reason.

While I believe it's always a good thing when people protect their rights and challenge government actions, I wanted to use this platform to help people understand exactly what is happening, at least from a legal perspective.

I cannot speak to the actions of anyone, nor will I attempt to defend or downplay anyone’s actions; and certainly will not do so on social media. I can see the pain in the our country, and so I’d like to play my small role to help in the best way that I can; to provide a legal understanding through this platform.

That said, I welcome any conversations personally on important topics that are transpiring.

Unfortunately, all the headlines are inaccurate because habeus corpus has not been suspended in NYC and you cannot just be arrested for anything.

The suspension of habeus corpus has only been "officially" done three times in history; by Abraham Lincoln during the Civil War (only applied to Maryland in response to Confederate conspiracies to sabotage supply lines to Washington, DC), by Ulysses Grant during Reconstruction (to suppress the Ku Klux Klan and other southern groups opposing Reconstruction), and, appallingly, by Franklin Delanor Roosevelt during WWII (only applied to about 100,000 Japanese on the West Coast, many of whom were US Citizens, and to 8 German saboteurs who were captured).

George W. Bush was challenged for trying to get around habeus corpus by setting up military tribunals at Guatanamo Bay after the 9/11 attacks.

These are still extremely controversial points in history and many still debate the danger of having the President use these powers.

Habeus corpus originated in England during Medievel Times and was protected by our founding fathers in the US Constitution. It literally means "I have the body" and it's the legal right someone who has been arrested has to appear before a judge who will determine if their imprisonment is legal.

If you want to read more about the concept of habeus corpus I’d suggest reading this; https://people.howstuffworks.com/habeas-corpus-important.htm

This concept is just one piece of "due process" which is a set of legal principles that leads to procedures and rules within the justice system to ensure that people who are arrested are given legal rights including the right to have the government prove the charges, to confront their accusers, etc.

Each State has their own procedures in place to protect habeus corpus.

In New York, although it is not a law, it is legal precedent that a prisoner should be brought before a judge within 24 hours of arrest (most states give the courts 72 hours to bring a prisoner in).

That means the courts must bring a prisoner before a judge within 24 hours and the police need to be prepared to list charges at that point.

At this first appearance , not only are the charges listed, but bail is also set and a prisoner either is released on personal recognizance or has the chance to post bail and be released.

What has happened in NYC is a judge has issued a ruling stating that prisoners do not have to be brought to the court for arraignment within 24 hours, rather they can be held beyond that time.

Basically, the Judge said that the system is overburdened by additional arrests from the protests and covid restrictions so it is not possible for the prisoners to be brought in within 24 hours and the police don't have enough time to process prisoners and bring formal charges against them in 24 hours.

I am surmising this is a “man power” issue, as there are only so many prosecutors, judges, and times in the day to perform arraignments.

The judge did not set a specific timeframe for when prisoners have to be arraigned; meaning he did not extend it to 48 hours or 72 hours. It is left open-ended, and the fear is that someone could sit in prison, without arraignment, indefinitely.

My opinion is that someone held beyond 72 hours without arraignment, would have a pretty good legal argument that their rights were violated.

That said, clearly problematical for an individual arrested, especially if it is someone who was peaceful protesting and the arrest was a stretch.

At the same time, it is important to note that this is a ruling from a court, meaning this is not a new law and can be superseded by a specific law or a higher court.  

More to come on this important subject.......

Legal IQ: “Common Law Marriage”

Funny comic, but a serious topic, and it is true.

In Rhode Island, you can legally be considered “common law married” even if you were never officially married by a Justice of the Peace or other official in a ceremony.

Shocking to some, but true in RI under the system of laws that are not clearly defined by a statute but are determined on a case-by-case basis according to caselaw precedent.

You might be thinking- so what?

Well, common law marriage can get tricky when it comes to situations of “break-ups” and death.

It seems that everyone understands how common law marriage comes into play when a couple breaks up (think messy divorce) but few realize the implications this has when one of the partners in the common law marriage dies.

I have seen far too many cases where an individual passes away and their partner comes to the table stating common law marriage. This is especially messy if there was a divorce and/or children who are involved.

Even if person who passed away had a Will before they were “common law married”, that Will is invalid. This is because RI law says that marriage (even common law) invalidates any prior Wills.

So what happens when you now don’t have a Will?

There’s something called Intestacy laws. Those law dictates where monies are divided out of you pass away with out having a Will. Those laws dictate that if you are married (even common law) that at least HALF of everything you own (more if you don’t have children) goes to your common law spouse. Plus, your common law spouse has the legal right to live in your house for the rest of their life.

To be clear, this applies if;

1. You are married (aka you filed marriage paperwork) OR

2. You are married by meeting the criteria of common law marriage.

I have to tell you, the standard for common law marriage is not as high as people believe (there is no requirement you need to live together for at least 7 years); people are shocked to know this exists and even more surprised when they understand the “legal proof” needed to be considered common law married.

In a nut shell this comic lays it out; joint bank accounts, living together, people “considering you married”. While there are a variety of other factors that could also be considered, what I hope you can take from this is things can get very messy.

So some non legal advice today; maybe think twice before moving in with your girlfriend/boyfriend 🙂.

......Or at least make sure you’re protected with proper legal documents if you do.

Legal IQ: “$marts”

If you have children and you’re thinking about the topic of Estate Planning, you are likely thinking about how to “set them up for success”.  

Clients often express that if they are to pass away, they want their children’s caretakers to have access to money for the children’s day to day care needs and they also want to ensure their children have access to money for their health, wellbeing, and education. 

Some clients want to help their children with major life expenses like purchasing a home or having a wedding. 

Many of my clients are explicitly clear that they do not want their children, while they are young, to have access to inherited monies to buy expensive cars or things one might consider luxury items. 

Fortunately, there are ways to put bounds and limitations on the availability and use of monies by setting up Trusts.

Setting up this type of structure, with very clear guidelines in a Trust will help avoid miss-communications and headaches.

Legal IQ: “Overseas”

The assignment of a Guardian, meaning someone who will take care of your children if you are incapacitated or pass away, is critical for parents of minors.

This assignment, which is made through Estate Planning Documents, is important for every parent; but it is especially important for parents when their Guardian selection(s) live out of state or out of the country.

Properly assigning temporary caretakers until the long term Guardian is properly assigned (a process that involves court approval), will allow your children to stay in the care of loved ones, even if you are unable to care for them yourself.

Forgive me as this is a heavier topic but it is one that I feel is so important to communicate, especially to parents who may have never considered Estate Planning. I often find my young families have less assets, and the first comment I often here is; “We don’t really have anything to setup an Estate Plan with”. My response is always “Your children's care is far more important than your monetary assets, and an Estate Plan will protect them”.

If you need me, I’m here. I’m passionate about Estate Planning related to minor children. I am happy to help you if you are in RI, or to find you someone to help if you are outside of RI.

You can always feel free to contact me with any legal questions. Happy to help whatever way I can.

Legal IQ: “Cross Borders”

This one is a bit more serious, but I believe it highlights an extremely important issue.

Do you have children? Assigning a Guardian via Estate planning documents is extremely important. In fact, I tell parents this part of their Estate Planning is where they should spend the most time and energy.

Estate Planning documents are documents that are a legal binding way of communicating your intentions if you are to pass away or become incapacitated. Through your Estate documents, you can communicate to the court who you want to be legally assigned to become the new guardian for your child/children in the event of an unfortunate situation.

If something unexpected were to happen, it is already an extremely stressful time. Assigning a Guardian can avoid many headaches, and costly court proceedings, for your surviving family. It can avoid fighting among family and friends and ensures your children end up where you intended.

Finally, if the individual(s) you wish your children to reside with live out of state, or outside of the country, these documents are that much more important as RI courts have limited authority to assign out of state guardians. This means a very large headache, with DCYF being involved, if your children are to end up residing with a relative outside of RI.

I’m extremely focused on helping parents understand the importance of Estate Planning; particularly if their children are minors.

If you need help in this area, I am always here. If you live outside of RI, I will get you to someone I trust to help you out.

Stay well.

Legal IQ: “Pets and Estates”

Did you know you can include your pet in your Estate plan?

Animals are beloved members of many families. It’s important that your animals end up in the care of someone who will treat your pet the way you would.  In your Estate Plan you can lay out who your pet would go to if you were to pass away and you can also assign money to be left for your pet’s care.  

You can also setup ways for your pet to be cared for if you are permanently or temporarily incapacitated.

There are a few ways to go about doing this, but rest assured it can be done.  

I’m here to help if you need me.  I especially enjoy working on Estate Plans that include animals as I’m an animal lover myself.

Legal IQ: “Event Insurance”

Many clients and individuals I know run organizations, whether non-profit or other, that hold events.  Organizations often use these events as fundraisers to generate income.  Especially in the case of non-profits, events can be some of the largest sources of revenue.

Event insurance may help cover your organization’s event in the current situation.  If you have an event coming up, and have event insurance, you want to review the details of the policy you purchased to see what exactly is covered and under what circumstances. 

If you are planning an event for the future, but you are uncertain of what is to come and how it might impact your event, event insurance might be the answer to help you continue to plan with the assurance that if you cannot hold your event you will not be completely out of luck.

Whether you are reviewing the policy you currently have or looking to purchase one, you want to pay close attention to the details in the terms.  Working with a lawyer is always best, but if you choose to review on your own some places to pay close attention to are;

• Timeframes around cancellation 

• Cancellation notice needed

• What is within the coverage and conversely what is excluded

• What types of events are covered

• What dollar amount can be recovered; is it a percentage or dollar cap 

• Can you purchase more coverage to cover your total investment in the event.

 As always, if you need help, please reach out. 

Legal IQ: “Illegally Priced”

In case you have not heard Governor Raimondo say it, price gouging is illegal.  

This means that if there is an item in demand because of a crisis or other disaster, companies (or individuals for that matter) cannot unjustifiably and unfairly increase prices to take advantage of the consumer.

With the situation we are facing this applies to product like hand sanitizer, toilet paper, and even fabric to make masks.  

This applicable law is found at R.I.G.L 6-13-21.  Violation of this law can result in fines from $1,000-$25,000 per day and could be considered a misdemeanor offense! 

If you come across a situation and you suspect price gouging is taking place, call the RI Attorney General's office and report it immediately. 

Legal IQ: “Outdoor Signing”

Today's comic centers on a very real dilemma many of us who practice in the legal area of Estate Planning are facing.  

Here in RI, for some of the important documents that need to be signed when executing an Estate Plan (by that I mean; certain healthcare power of attorney documents and Wills) state law requires two independent witnesses to be "in the presence" of the individual signing. This statute is satisfied as long as the witness is in the "line of sight" of the signor.

At this time there is not yet a way to allow for lawyers to have witnesses virtually view the signing of the previously mentioned documents that are needed to complete an Estate Plan. 

These important documents are critical for our clients to have, especially at a time such as this with so much uncertainty and concern.  Many of our clients fall into the population that is considered "high risk" and so we, as a legal community, are trying to be as creative as we can to allow our clients to safely execute these documents; that is until a "virtual" option is available.

The creative way I am having clients execute these documents is to hold outdoor signings.  I'm setting up a long folding table in the parking lot so that no one has to touch handles or surfaces.  Of course, we are providing sanitizer and wipes as well.  Waiting longer than the 24 hours the guidelines of the NIH indicate that the virus can live on cardboard, these important papers are left to sit a full 72 hours, after the signing, before they are packaged and provided to clients. 

During these uncertain times, it's important that we are safe and do everything in our power to protect our clients, our witnesses and the public, while still serving our clients with the essential needs of important end of life documents.  It is also critically important to follow our Governor's orders.  

These documents provide much comfort and peace of mind to clients who are concerned about all that is transpiring.  I am happy to be able to provide just a little bit of comfort during these unusual times.  If you are in need of this type of help, whether in RI or another state, please do not hesitate to reach out.  If I cannot personally help you I will get you to someone who can. 

PS not pictured, the mask (with dog pictures) that I have started wearing! 

Legal IQ: “Force Majeure”

A contract condition that is not often at issue, comes into play with the Corona Virus.

A Force Majeure term in a contract refers to an “act of god”, or other event that couldn’t have been anticipated, which renders one or both parties incapable of performing their duty under the terms laid out.

If you’re in a situation, because of the current state of the world, where you’re having issues or cannot perform your contract, you may want to have a look to see if this term is included.

Then, have a conversation with the lawyer who drew up your contract to see if it applies and determine what options you may have.

If you don’t have a lawyer and need help , you can always reach out. If I can’t help, I can point you to someone who can.

Legal IQ “Square One”

Thanks to local and talented artist: Byron Olson of Strange One Comics.