Tuesday, February 21, 2017

Power of Attorney, Guardian, Conservator, Personal Representative...What's the Difference?

When someone becomes sick, a relative often handles their affairs for them. But there are different titles or roles that the caretaker can be acting under while managing the affairs. There are differences between the roles, but people often do not realize this.

Power of Attorney

A power of attorney (POA) is a document signed by an individual allowing another individual to manage a predefined set of affairs. The powers of the person acting as POA are limited to those matters set forth in the POA, and can extend no further. Our office typically drafts separate POAs for healthcare and general affairs. This allows for people to list separate individuals for these roles if they wish, as well as to allow for a bit of privacy.  

POAs can be durable or springing. A durable POA means that the document is effective immediately upon signing, and the POA could act immediately. A springing POA takes effect once the subject is declared incompetent. A doctor is the one that needs to declare the subject incompetent; and doctors are often loathe to do so. This can leave a gap in decision-making, bill paying, and handling of affairs. For this reason, a durable POA makes more sense for most people. Some clients are concerned about the POA being effective immediately. But ultimately, if you are trusting someone enough to handle your affairs should you need them to do so, you should trust them enough to not act when you don't need them to do so.

A POA is effective until revoked by the subject or until the death of the subject. After the death of a subject, a Personal Representative handles the affairs of the subject. The POA is no longer effective after death.

Guardian and/or Conservator

A guardian or conservator is a person appointed by a court to manage the affairs of the subject. His/her powers are limited by the court's grant of authority. Typical duties of the guardian or conservator include arranging for housing or care for the subject, paying bills, and handling property of the subject. For a lot of situations, the guardianship is indistinguishable in day to day practice from a POA. 

The Court can appoint either a guardian, or a conservator, or a guardian/conservator. Conservatorships are used when there are more significant assets at play. Guardianships are used when the subject's day to day affairs need to be managed. Both are sometimes needed and therefore appointed.

But the guardianship and/or conservatorship can only be terminated by the Court, rather than by the subject just revoking it. And the guardian/conservator has reporting requirements to the Court. This is an annual packet that has to be filed with the Court, with updates on the condition of the subject and his/her financial affairs. Other individuals can also participate in the guardianship/conservatorship proceedings by filing documents with the Court to be considered interested parties. Once an interested party, he/she is then entitled to notice about any hearings, as well as copies of documents filed with the Court. A guardianship proceeding provides for oversight of the affairs that is not found with a POA.

A guardianship/conservatorship is effective until terminated by the Court. It can be terminated by the Court because it is no longer needed, or due to the death of the subject. Guardians/conservators can also resign or be removed. A guardianship/conservatorship is no longer effective after death, and the guardian/conservator simply has final accounting type reports to submit to the Court.

Personal Representative

A personal representative is the person who handles the probate of the subject's estate after his/her death. This person is typically nominated in a Last Will and Testament, but then is appointed by the Court. A personal representative and an executor are the same thing, but personal representative is the term commonly used in practice now. 

The personal representative's duties are to carry out the directives of the Last Will and Testament, pay any final bills, and to wind up the final affairs of the subject. If there is no Last Will and Testament, then the Personal Representative's duties are dictated by state law. There are a whole host of documents that need to be filed with the Court in the probate proceedings, so most Personal Representatives choose to have an attorney assist them through the process.


Tuesday, February 7, 2017

Who's Who?! Simplifying the Roles of People Involved in Court

Sometimes it's pretty confusing trying to sort out who's who, and who does what in the court system and the justice system. This post isn't meant to be exhaustive, but simply a quick guide. If you have additional questions, please do not hesitate to contact us (or your own attorney if you're already represented by one).

Judge: The judge is an attorney licensed in the state. He or she is appointed by the Governor and then up for retention election in the district in which he/she serves. There are two types of judges that people commonly come into contact with, District Court Judges and County Court Judges. They each handle cases filed in their respective courts (District Court or County Court). The judge oversees jury trials, decides bench/court trials, and oversees and decides any other types of hearings that may be held. In addition to the judges in the District Court and County Court, there are also judges who serve on the Court of Appeals, Supreme Court, and Worker's Compensation Courts.

County Attorney: This is the prosecutor. He or she is a licensed attorney and is an elected official, although the county's board may appoint individuals to fill a term. He/she brings charges against people who have allegedly committed crimes. They also handle juvenile cases and file petitions and make allegations in these types of cases. The County Attorney also handles child support enforcement cases, other types of civil cases that may involve the county, and advises the county.

Deputy County Attorney: This is a licensed attorney that is hired by the County Attorney. He/she has any powers delegated by the County Attorney.

Public Defender: This is a licensed attorney and an elected official (although the county's board may appoint individuals to fill a term). He/she handles criminal defense work for those individuals who are indigent and cannot afford to hire an attorney of their own. Public defenders handle misdemeanors and felonies, and frequently are also contracted to handle juvenile delinquency cases as well. Public defenders represent their clients at no charge to the client. The county pays the public defender either through a salary or a contract.

Deputy Public Defender: This is a licensed attorney that is hired by the Public Defender. He/she has any powers delegated by the Public Defender. Deputy public defenders represent their clients at no charge to the client. The county pays the deputy public defender either through a salary or a contract.

Court Appointed Counsel: An individual licensed attorney can be appointed by the judge to represent an individual in a particular case. Court appointed attorneys are often appointed in criminal cases where the public defender has a conflict of interest, or in counties where no public defender's office exists. They are also appointed frequently to represent parents or juveniles in juvenile cases. Court appointed attorneys are paid by the county at no charge to the client.

Guardian ad Litem: This individual is appointed by the court and is a subset of Court Appointed Counsel. He/she represents the best interests of the client. This differs from the role of the person's attorney in that the attorney represents and pursues the stated interests of the client. The Guardian ad Litem, also known as a GAL, is generally paid for by the county at no charge to the client. However, in adoptions, custody cases, and guardianship cases, if the parties have the means to pay for the GAL's fees, the court sometimes requires reimbursement.

Privately Retained Counsel: An individual licensed attorney who is hired and paid for by the client. This occurs in all manner of civil, juvenile, and criminal cases, as well as situations that may not result in litigation in court.

Attorney: An individual who has attended law school and is licensed to practice law in a particular jurisdiction. Attorney is synonymous with lawyer.

Lawyer: An individual who has attended law school and is licensed to practice law in a particular jurisdiction. Lawyer is synonymous with attorney.

Bailiff: An individual who works for the judge and/or court system. He or she manages the judge's calendar and sets hearings, works with the attorneys, does dictation, prepares drafts for the judge, and similar types of clerical duties. This individual is not a licensed attorney, but is often very knowledgeable about the court system and the judge's preferences.

Magistrate: This individual is appointed by the presiding judge of a jurisdiction. He or she is not a licensed attorney, but may act in the role of a judge in certain limited proceedings, such as arraignments and bond setting. Their ability to handle certain types of hearings is controlled by the presiding judge of the jurisdiction and rules. The individual also oversees the County Court clerks and court staff.

Clerk: This term is a bit amorphous. In some counties it means the same thing as a bailiff. In other counties it refers more to the people who work in a front office, receive and copy pleadings and oversee the general workings of the court system.

Court Reporter: An individual who records verbatim what is said and prepares transcripts of what is said. Some court reporters are employed by the courts and handle court hearings, while others are freelance and handle depositions. This person is not a licensed attorney, but is required to obtain certification in court reporting.


I hope that this brief primer on the individuals involved in the court system has been helpful in sorting out the 'who's who.' Again, if you have questions, I would encourage you to reach out to your own attorney if you have one, or to our office.




Tuesday, January 31, 2017

Non-Profit Series: 4. What is the Difference Between Articles of Incorporation and Bylaws?

Written by Sagan L. Carman-Downer

In order to form a non-profit corporation, state law requires that you file a document called the articles of incorporation. Some states, like Nebraska, also require that you create and adopt internal rules called the bylaws. Typically, provisions in the articles of incorporation are included to provide information to individuals outside of the corporation. Provisions in the bylaws, on the other hand, are included to provide information to individuals inside of the corporation.

Articles of Incorporation
The articles of incorporation will be filed with the state where the non-profit is located. The state agency where they are filed will keep them on file and have them available for the public to view. In Nebraska, the Secretary of State keeps a database online where anyone can pay a small fee to get a copy.

The articles of incorporation are often required to include the following information of the corporation: the name, the address of its office for service of legal documents, the name of the agent for service of legal documents, and the names of the people incorporating it. Depending on the state, there may be additional information required. For example, in Nebraska you must include whether or not the corporation will have members. If the corporation wants to include additional information, it can as long as it is not contrary to state law. The main benefit of including information in this document instead of the bylaws, is that because it is filed for public viewing, it can provide notice of these matters to the public.

Bylaws
Some states, like Nebraska, also require that the corporation create and adopt rules for internal operations, called bylaws. The bylaws are not filed with the state, and thus are not available for public viewing. The bylaws can contain any provision related to the internal operations so long as it is not inconsistent with law or the articles of incorporation.

Some matters commonly addressed in the bylaws include things like: voting requirements, compensation of board members or officers, authority of board members or officers, and information on how and when meetings will be held. If the corporation has members, the bylaws can include qualifications or requirements of members. For example, the bylaws may require that members pay dues or volunteer a certain number of hours to retain membership.


As always, this information is provided as a general guideline, as not as legal advice. The requirements may vary depending on the state where you are located and the type of non-profit corporation you are operating. For more detailed information on what you should include in each of these documents, it is best to speak with an attorney in your state.

Tuesday, January 24, 2017

My Kid Got In Trouble...Now What?

Written by Tana M. Fye

So your child got into a fight? Or stole something? Or ran away from home? Or is smoking marijuana? Now you're wondering what happens. Look no further. I intend to give a brief guide as to what happens after a child gets into trouble with the law, step by step through the process.

Step 1: Petition

After a child gets into trouble, law enforcement may give them a citation to court, or may choose to simply provide reports to the County Attorney's Office. In either scenario, the County Attorney's Office files a Petition with the Court. The Petition states the allegations that the County Attorney is making about what occurred. Typically the juvenile and the parents also receive a summons, telling when to be at court to answer those allegations.

Step 2: First Court Appearance

The first court appearance has different names in different counties. It may be called a First Appearance, an Admit/Deny Hearing, or an Arraignment. No matter the name, the purpose is the same. The judge advises the juvenile of his/her rights, the allegations in the petition, and the dispositional options that the judge has (these will be discussed in Step 4). The judge determines whether the juvenile and his/her parents intend to hire an attorney, or whether they'd like a court-appointed attorney to be appointed. The judge also determines whether the juvenile wants to admit or deny the allegations. I encourage people to hire an attorney or ask for a court-appointed attorney if they can't afford to hire an attorney. I also encourage people to enter a denial so that they have the chance to talk to their attorney before proceeding further. There are often offers made by the County Attorney to the defense attorney, so it pays to wait and see.

Sometimes the Court will set the case for a continued admit/deny hearing if an attorney is appointed, and the purpose of that hearing is very similar to the first appearance. The judge wants to know whether the juvenile is ready to admit or deny, or if an adjudication needs to be scheduled.

Step 3: Adjudication

If the juvenile chooses to admit that the allegation in the Petition are true at an earlier hearing, this step is omitted. However, if the juvenile denies the allegations, then an adjudication happens. An adjudication is the term used in juvenile court to describe a trial.

The County Attorney presents evidence, through witnesses and exhibits to establish that their allegations are true. The juvenile with his/her attorney can choose to present evidence (witness testimony and exhibits) or not. The juvenile with his/her attorney can make arguments to the Court (the judge) about why the State (the County Attorney) has not proven their allegations. The trial is to a judge only, as there is no right to a jury trial in juvenile court. The judge can make a decision immediately at the end of the trial, or can take the matter under advisement (meaning issue a written decision later).

If the judge rules in favor of the juvenile, and finds that the State has not proven the allegations, then the case is dismissed. The juvenile has no further court appearances to make. If instead, the judge rules in favor of the State, and finds that the allegations have been proven, the next step is disposition.

Step 4: Disposition

Disposition is similar to sentencing in adult court. The attorneys make arguments to the judge about what the consequences and services should be for the juvenile. The juvenile and his/her parents can make statements to the judge.

The judge can also consider a document called a Pre-Dispositional Investigation (PDI). Judges sometimes order these after an admission or an adjudication, to get additional information and recommendations. The PDI is completed by the juvenile probation office, after testing and interviews with the juvenile and his/her parents. It includes information about the juvenile's family, friends, hobbies/interests, employment, education, and any juvenile or criminal history. This document is provided to the judge and the attorneys after its completion. The juvenile's attorney will review it and then discuss it with the juvenile and his/her parents.

After considering all of the statements, arguments, and the PDI, the judge decides what the disposition will be for the juvenile. The most common outcome is probation, either supervised by the juvenile probation office, or unsupervised court probation. There are a whole host of services that can be ordered as part of probation. These include, counseling, classes, group therapy, community service, school contracts, curfew, family support, and really anything that the judge or probation believes will be beneficial to the juvenile. If the juvenile is placed on probation, then no other hearings will be held, unless a probation violation is filed.

If instead, the problems are more severe, the judge can also place the juvenile out of his/her parents' home. This could be a foster care placement, a group home, a shelter, detention, drug treatment center, or at YRTC (Youth Rehabilitation and Treatment Center). I tell clients that if a placement out of home is coming, the family and the juvenile will know it. The problems are pretty bad, and there should be no surprise about it. There are two YRTCs in Nebraska--Geneva for girls, and Kearney for boys. A placement at YRTC only comes after all other placement options and probation services have been exhausted. If the juvenile is placed out of home, then the case is reviewed at least every 6 months until the juvenile is returned home.

Tuesday, January 17, 2017

Family Law Part 4: Testifying in Court

Written by Jordan J. Mruz

            More often than not, when a case gets to the point of a trial being necessary, I will have a conversation with my client and discover that they have never testified in court before. I can understand why someone would be nervous to testify in court but with proper preparation and knowledge of the process you should be able to testify confidently.

Direct Examination

            Direct examination is when one party calls you as a witness to testify. Generally your attorney will call you as their witness, but the other party can call you as a witness for them as well. When you are called as a witness and you are being questioned by the attorney who called you up to testify, this is direct examination. Generally speaking the questions you are asked on direct examination will be open ended questions (meaning more than a one word answer). If you are on direct examination by your attorney, they will have a framework for how their questions will go. They may start with general questions, then move on to a topic that there is not much disagreement on, such as property, then move to child support, and finish with custody and visitation. I do not believe there is any right or wrong way to order the questions, but your attorney should discuss with you the direction their questioning will take.

Cross-Examination

            Cross-examination occurs when the party who did not call you up to the stand, has a chance to question you. These questions will usually be leading questions (one word answers, usually yes or no). Leading questions are allowed on cross-examination and because of this, attorneys use them because they can limit your testimony to one word answers that fit their version of events. An example of a cross-examination question would be, “Isn’t it true that you have been arrested five times.” The correct answer is either yes or no. You may have been arrested five times but only been charged with a crime on one of those occasions and you want to tell that to the attorney questioning you. If it’s the other party, they probably are not going to let you answer beyond “yes.” Your attorney will hopefully do a follow up question on their re-direct examination to clarify this topic. Something to remember: cross-examination is supposed to be limited to what is brought up during the direct examination. Depending on the judge, they may be very strict with this rule of evidence, but they may not.

Redirect

            As it mentioned in the previous paragraph the party who calls you as a witness will have an opportunity for redirect after the other party has cross-examined you. Again this testimony is supposed to be limited to what was brought up in the cross-examination.

Things to Remember When Testifying

            First thing to remember is to tell the truth. It is much better to tell the truth about something on the stand than to get caught in a lie on cross-examination. Hopefully you and your attorney have discussed the areas that may hurt your case so you have a chance to testify and explain them to the judge in your own words rather than the opposing party.

            Remember to answer the question that is being asked. This is a good rule in general, but you should really remember this when your being cross-examined by the opposing party. If they ask you a yes or no question, answer with a yes or no. If they ask you about the time you got a possession of marijuana ticket in 2014, only talk about that incident and not any other things you did before or after that. You do not want to offer up more answers to the opposition that could be used against you right away. If they like what they are hearing from you, they may let you keep talking instead of objecting to your answer that was not just yes or no.

            Keeping your composure on the stand is another key. Some attorneys will try very hard to get you rattled on the stand. They may ask you really difficult questions that you do not want to answer just to throw you off. They may speed up their tempo of questions to get you to answer more rapidly than you would otherwise and maybe make a mistake. Losing your cool and making dramatic faces on the stand will not help your case.

            Last thing to remember is to stop and think about the question being asked. You do not have answer immediately upon the attorney stopping. You can pause for a second to think about the question. Make sure you heard it correctly. If you do not understand the question, it is okay to ask the attorney to repeat it or to ask it differently. It is better to get a question clarified than to offer up an answer that does not match the question. If you do not know the answer to the question, simply state you do not know.

Conclusion


            These four things are not the only things to keep in mind while testifying, but I believe they are among the most important to remember. If you remember these things and remember to breathe, then you should be able to testify successfully. 

Tuesday, January 10, 2017

Non-Profit Series: 3. Who Runs a Corporation?

Written by Sagan L. Carman-Downer

If you’ve decided to operate your non-profit organization as a formal corporation, you will need to consider how it will be structured in order to carry out its purpose. A non-profit corporation doesn’t necessarily have owners to make decisions and put them into effect, so it is important to understand how these things will get done. Typically, a corporation is run by individuals serving in one or more of three roles: on the board of directors, as an officer, or as a member.

You have probably heard these terms before, but knowing the role of each can help you decide who will fill these positions. Put in very simple and broad terms, the board of directors makes the decisions, the officers carry out the decisions, and the members vote for the board of directors. Below is a bit of a closer look at each role.

Board of Directors
The board of directors is made up several individuals that are selected by the group of people starting the corporation. Some states require a minimum number of directors to serve on the board, in Nebraska the minimum is three. The board of directors provides oversight of the corporation by making decisions that they believe will help achieve or further its purpose. The board can do this by directly making decisions about operations, or by delegating the authority to others. For example, the board of directors may choose the recipient of a scholarship they are awarding, or they may authorize a subcommittee or officer to make the decision.

Officers
Officers carry out the decisions made by the board members for which they are given authority. A key point of distinction is that they can only take actions as directed by the board or as specified in the articles of incorporation. So, while they still have authority to make decisions, it is only to the extent the board or articles allows them to. Officers often include a president, secretary, treasurer and vice president. The role of each will be defined by the articles of incorporation or the board of directors. Typically, the president presides over meetings, the secretary prepares minutes of the meetings, and the treasurer keeps track of the corporation’s funds.

Members
A corporation may choose to have members, but is not usually required to. If there are members, they are typically the ones that vote on the board of directors. Their role is to vote for directors that they believe will make decisions they agree with. Members may be required to pay annual dues, volunteer a certain number of hours for the corporation, or meet other requirements set out in the articles of incorporation or as decided by the board of directors.


Ideally, each of the three groups work together to make sure the corporation runs smoothly to provide a public benefit. Keep in mind, though, that this is a brief description of each of these roles, meant to provide a general description and understanding. Their specific authority and duties and may differ depending on your state or what type of non-profit you operate.

Tuesday, January 3, 2017

Do I Need a Will? And Answers to Other Estate Planning Questions

Written by Tana M. Fye

Do I Need a Will?

This is probably the most frequently asked question that an attorney hears. And if you're asking the question you likely do need a will. At a minimum, you need to consult with an attorney to determine whether you need a will. Here are a few questions that we use to help determine whether the laws of intestacy (passing away without a will) will be sufficient, or if you need to engage in some sort of estate planning:

  • Do you have minor children? If so, estate planning can help ensure that your minor children are taken care of the way that you would want them to be taken care of if you pass away while they're still minors, and that they receive any assets in the way that you'd like them to.
  • Do you have adult children? If you have adult children, you need to decide how you'd like your assets to be distributed, whether your grandchildren or any spouses of your children receive anything.
  • Have any of your children passed away, leaving a spouse or children behind? If so, then you need to decide whether these folks would receive any of your assets or none of your assets at your passing.
  • Is this a second marriage for you or your spouse? Does your spouse have children from a prior relationship? This situation is notorious for creating hard feelings between spouses and step-children, unless estate plans are created for both of the married parties, and the children know what is going to happen upon the passing of either or both of parents.
  • What are your assets? Where are they held? Some assets pass outside of probate, meaning just by direction of the parties in a particular document. Insurance proceeds and certain bank accounts are good examples. A competent estate planning attorney can help you decide what estate planning tools are best for the amount and type of assets that you hold.
What Happens to My Young Kids if My Spouse and I Both Pass Away?

This is a nightmare situation that no parent wants to even think about. But making plans for who you'd like to care for your children if you're not able to is just responsible parenting. If married spouses pass away (like in a major accident) and leave minor children, then a court would likely have to determine who raises the minor children. Grandparents, aunts, uncles, and other family, or friends can be put into a very difficult and emotionally wrenching situation of trying to decide (or fighting in court about) who raises the kids, if the parents haven't given direction. And in the worst case scenario, children could be placed in foster care while guardians can be located and things are sorted out. The wills that our office drafts include language directing who should be given priority as potential guardians for minor children upon the passing of the parent(s). 

But What Happens if I Just Become Ill or Am Injured?

In this scenario, there are other documents, besides a will, that would be necessary. A living will would give direction on issues such as life support, feeding tubes, organ donation, so that family members and doctors know what you'd like to have happen.

A Power of Attorney for Healthcare directs who gets to make medical decisions for you, and usually also has a back-up if that person is unable or unwilling to serve.

A General Power of Attorney directs who makes other types of decisions for you. This covers things like banking, business, payment of bills, and general life decisions. This document usually also has a back-up listed, if the initial person selected is unable or unwilling to serve.

Can a Power of Attorney Make Decisions or Act After I Pass Away?

No. A Power of Attorney is no longer in effect after death. At this point, a Personal Representative takes over and administers an estate, often with the assistance of an attorney. Personal Representatives are usually named in a Will, but can also be appointed by the Court.  

What Should I Do if My Spouse and I Are Going on Vacation and Leaving Our Children With Someone Else?

First, you should make sure that you have your estate plans in place, so that if something happened to one or both of you, things are easier for the family left behind. Visiting with an attorney is the best way to make sure that this has been accomplished.

But in addition to estate plans, parents can also sign a Power of Attorney for Childcare, which is a temporary delegation of parental authority. It allows for grandparents or other caregivers to gain necessary information from schools or doctors, or to make medical decisions for your children if need be. Again, this is simply responsible parenting when parents are leaving their children with other individuals for care-giving for any length of time.


In sum, it's important to consult with an attorney about your particular situation to determine if estate planning, and what particular estate planning services are best for you and your family. All three attorneys in our office handle estate planning and would be happy to meet with you or visit with you on the telephone. Please feel free to call and set up a consultation at 402-519-4061 or 308-995-8061.