Wednesday, March 22, 2017

We're Hiring!

Fye Law Office seeks candidates for an Associate Attorney position. Applicants with all levels of experience are encouraged to apply. A successful candidate will have an interest in family law, juvenile law, estate planning/probate. Interest in other areas of law is also welcome. Travel to counties in South Central NE should be expected. Applicants must either be admitted to practice law in the State of Nebraska or eligible to apply for admission.

A cover letter, resume, and references may be submitted to: Tana Fye, Fye Law Office, 713 Fourth Avenue, Holdrege, NE 68949, or

Tuesday, March 14, 2017

Non-Profit Series: 6. What is a 501(c)(3)?

Written by Sagan L. Carman-Downer

The term 501(c)(3) is commonly used to refer to a non-profit organization. But what, exactly, is a 501(c)(3)? This goal of this post is to explain what this term means, and what types of organizations have 501(c)(3) status.

501(c)(3) is not actually a term that describes an entity itself, but instead describes its status (a non-profit corporation can’t technically BE a 501(c)(3), but it can have 501(c)(3) status). The term 501(c)(3) refers to the provision in the United States Code (federal law) that grants certain entities an exemption from paying federal income tax. Section 501(c)(3) is a specific part of Section 501. Section 501, appropriately captioned “Exemption from tax on corporations, certain trusts, etc.,” provides, with detail, what entities are exempt from paying federal income tax. Here is a link to a website that displays the actual language of Section 501 if you are interested in reading it

Section 501, as a whole, includes the provisions allowing the exemption. The wording of the section is broken down into subsections, paragraphs, subparagraphs, etc. In the term 501(c)(3), 501 is the section, (c) is the subsection, and (3) is the paragraph. Subsection (c) provides a specific list of what entities are allowed the exemption, each one explained in a separate paragraph. There are 29 categories of entities (and thus 29 paragraphs) listed under Subsection (c) that are allowed the exemption; Paragraph (3) is just one of those 29.

Although there are 29 categories, many non-profit organizations fall under the category in Paragraph 501(c)(3), which provides that the following entities are exempt, “Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes…” The explanation of entities included in this paragraph continues, but many non-profit corporations fall under the “charitable” portion of this paragraph. Thus, if you are a charitable non-profit corporation, you are exempt from having to pay federal income tax pursuant to paragraph 501(c)(3).

Simply stating that a non-profit corporation’s activities are charitable, though, isn’t enough to qualify for this tax exemption. To be exempt under this provision, your activities must meet the federal government’s definition of “charitable.” To learn about what activities are considered “charitable” check back for the next article in this series.

Thursday, March 9, 2017

Meet the Staff (Part 1)

At Fye Law Office, we have some great staff. And we want our clients, potential clients, and friends to have the opportunity to learn a little bit about them, and to hear some advice and thoughts from them. Today, you get to meet Destinee, one of the legal secretaries in our office.

How long have you worked for Fye Law Office?
     Started in October 2015

What is your work experience/education/training prior to coming to work for Fye Law Office?
     I worked for Lincoln County Attorney's office for 2.5 years while completing my AAS in business degree. I then moved to Holdrege. I worked as an office manager for 4 years before taking a job with Tri-Basin Natural Resource District as a secretary then moving into a public education position. I worked there for 4.5 years before starting with Fye Law Office.

What advice do you have to potential clients who are meeting with an attorney for the first time?
     Be as upfront and honest as you can. Attorneys can only deal with the information they are given and it is better for them to find out right away then to have something pop-up in court and not be prepared to deal with the information.

 What advice do you have to clients in working more effectively with their attorneys?
     Keep them up-to-date with any information that may change. It is hard to get a hold of clients when addresses or phone numbers change and we do not know about it. Also, remember that you are not their only client. They are good which keeps them busy.

Do you have any memorable experiences since working at Fye Law Office that you'd like to share?
      It is amazing how open some people are about what is going on. It is also interesting some of the stories the clients can come up with. We have definitely heard some good ones.

What do you like about working in a law office?
    I love how everyday is a different day. Each case is different. It is not the same thing day after day.

What is your favorite type of case or matter to work on? Why?
    I really love doing the adoptions. It is great knowing that a child is finding a forever home. Children need that acceptance it's great to see that happen.

Thanks to Destinee for sharing a little bit about herself, as well as her thoughts with all of you.

Wednesday, March 1, 2017

Non-profit Series: 5. What Happens at Meetings?

Written by Sagan L. Carman-Downer

There are a few different types of meetings that can be held by a nonprofit corporation. Some meetings are required under state law, and others can be held at the discretion or need of the corporation.

The first meeting that will be held will be an organizational meeting. This meeting is typically held after the articles of incorporation are signed and filed with the State. This meeting is held by the initial directors if they are named in the articles of incorporation, or by the individuals that started the corporation if there were no directors named in the articles of incorporation. The purpose of this meeting is to elect directors (if there are none yet), appoint officers and adopt bylaw. Other matters can be addressed at the meeting as necessary.

Corporations are typically also required to have annual meetings. The time and place of these regular annual meetings should be stated in the bylaws. The directors, officers and members are all invited to attend the annual meeting. At this meeting, the president and treasurer will report on the activities of the corporation and the financial condition of the corporation. Other matters that will usually be addressed include re-electing directors and officers if their term has expired (the term of directors and officers should be set in the articles of incorporation or bylaws). Past and future activities of the corporation will also be discussed at these meetings, and decisions can be made about what activities or transactions the corporation will pursue. What actions the corporation takes will be determined by taking a vote of the directors or members. Whether the directors or members are authorized to vote will depend on the proposed action and any provisions included in the articles of incorporation or bylaws specifying voting authority. For example, state law may require that some actions be authorized a two-thirds majority vote in favor by the directors, or the bylaws may provide that certain actions can be authorized by a 51% vote in favor by the members.

Additional meetings, usually called special meetings, can also be conducted in between annual meetings. These meetings are usually held when the corporation needs to make decisions about whether to engage in activities that need to be addressed before the next scheduled annual meeting. To hold special meetings, there must be proper notice provided to those that are allowed to attend. This notice must include the purpose of the meeting (what will be discussed), and the time and place of the meeting. There are usually specific requirements regarding how far in advance of the meeting notice must be provided. This will depend on state law, so it is important to make sure you check your state’s requirements to make sure you provide adequate notice.

Meetings are where individuals involved in non-profit corporations make decisions about what activities they will pursue and how they will spend their money to further their purpose. Annual meetings provide an opportunity to have regular updates about how the corporation is performing. When matters come up throughout the year that need to be addressed before the next annual meeting, corporations can use special meetings to address those things, but they need to ensure that proper notice is provided.

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.

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.