Many people, at some point in their life, will need help from someone else in their day-to-day responsibilities, health decisions and finances. For most people, this happens when they become legally "incapacitated", meaning they are no longer able to make those decisions for themselves. We see this with our parents and grandparents when they get dementia or Alzheimer, we see it with our children who turn 18, legally independent, but have things that prevent them from functioning independently, i.e. autism, brain tumor, etc.
For the former, our parents and grandparents, they could prevent needing a guardian and conservator by executing an advanced medical direction and power of attorney prior to their incapacitation. Those documents put in writing their wishes for who how decisions will be made and who will make those decisions on their behalf. However, for our children who are incapacitated prior to turning 18 and individuals who did not execute a power of attorney or advanced medical directive, we use a guardianship and conservatorship to ensure their rights are protected.
While they are typically done together, a guardian and conservator are two separate legal identities and can, in fact, be two different people. Let's start with a guardian. A guardian, is appointed by the court through a Petition for Guardianship, to take care of an individual on a day-to-day basis, make health decisions, etc. This person typically will report to the Department of Social Services, who oversees the guardianship and ensures the guardian is fulfilling his duties and responsibilities to the incapacitated individual. A conservator is the financial counterpart to the guardian. A conservator, appointed by the court through a Petition for Conservatorship, handles the incapacitated individual's finances. This person reports to an individual or agency; in Virginia it is the Commissioner of Accounts in the County where the incapacitated individual resides. This person will report all money coming in for the incapacitated individual and spell out how that money gets spent, invested, etc. The Commissioner of Accounts ensures that the conservator is appropriately handling the incapacitated individuals finances and not abusing their power. The guardian and conservator must report to the Department of Social Services and Commissioner of Accounts at least annually throughout the duration of their appointment as guardian and conservator (in most cases this is until the incapacitated individual passes away or a new guardian or conservator is needed).
To actually get a guardian and conservator appointed, the court will appoint a guardian ad litem to investigate the circumstances, ensure the incapacitated individual is represented and protected and make recommendations to the court on whether a guardian and conservator are necessary as well as who the court should appoint to act in those roles. During a hearing in court, the court will make those determinations and if appropriate, issue an order appointing someone as guardian and conservator.
So, if you have a family member or close friend who you think may be incapacitated, in need of legal assistance and without a valid power of attorney or advanced medical directive, you may need to begin the process of petitioning the court to appoint a guardian and conservator.
Monday, February 15, 2016
Tuesday, February 2, 2016
Why People Settle Law Suits
If you've never been involved in a law suit you may wonder why it is that people settle. Does it mean they admitted they were wrong? Does it mean they didn't think they would win the case?
Here's a bit about just some of the reasons people decide to settle in law suits:
1. To Avoid Risk
In every law suit, there is a risk that you will lose. Even if you think you have an airtight case, you have to remember that law suits evolve constantly, new evidence is discovered, the law may be clarified, etc. That means that the strength of your case could change suddenly. So, would you rather wait and see if you can win $500,000 with the potential of losing and getting $0 or would you rather take $200,000 today and avoid the risk of not getting anything.
2. Emotional costs
Being involved in a lawsuit, whether it is for divorce, wrongful termination, personal injury, or other types, is hugely emotional and stressful. As cases go on, some people decide it may not be worth the stress to keep fighting. Once a case is settled, people tend to find that they can then move on with life. Depending on the person and the circumstances surrounding the law suit, emotional costs could make someone want to settle their case.
3. Public Opinion
This comes into play more for large companies who do not want the bad publicity of a law suit. This alone may not cause someone to settle a case but it certainly comes into play. For example, if there was a sexual assault in the workplace, they may decide it would be a better business decision to try to settle the case rather than fight it in the public eye.
There are many, many reasons why people will decide to settle a case and these are just a few examples. The decision to settle is a complex decision and requires a lot of communication between the individual and their attorney. Remember, that's why you have an attorney, to provide you guidance on how to move forward in a case.
Here's a bit about just some of the reasons people decide to settle in law suits:
1. To Avoid Risk
In every law suit, there is a risk that you will lose. Even if you think you have an airtight case, you have to remember that law suits evolve constantly, new evidence is discovered, the law may be clarified, etc. That means that the strength of your case could change suddenly. So, would you rather wait and see if you can win $500,000 with the potential of losing and getting $0 or would you rather take $200,000 today and avoid the risk of not getting anything.
2. Emotional costs
Being involved in a lawsuit, whether it is for divorce, wrongful termination, personal injury, or other types, is hugely emotional and stressful. As cases go on, some people decide it may not be worth the stress to keep fighting. Once a case is settled, people tend to find that they can then move on with life. Depending on the person and the circumstances surrounding the law suit, emotional costs could make someone want to settle their case.
3. Public Opinion
This comes into play more for large companies who do not want the bad publicity of a law suit. This alone may not cause someone to settle a case but it certainly comes into play. For example, if there was a sexual assault in the workplace, they may decide it would be a better business decision to try to settle the case rather than fight it in the public eye.
There are many, many reasons why people will decide to settle a case and these are just a few examples. The decision to settle is a complex decision and requires a lot of communication between the individual and their attorney. Remember, that's why you have an attorney, to provide you guidance on how to move forward in a case.
What to Expect during a Divorce Settlement Conference
Many attorneys start the beginning of divorce cases attempting to reach a settlement or agreement resolving all of the issues in the case. This includes custody, division of property, retirement accounts, debts, spousal support, etc. Here's a bit about what to expect during a settlement conference.
There are two major types of settlement conferences. The first method is to do a 4-way settlement conference, meaning both parties and both attorneys are present. Typically, this happens in a conference room at an attorney's office. The attorneys will start to work through each issue to see if the parties can agree on some things. During this, there tends to be a lot of emotion, as you are literally sitting across the table from your soon to be ex-spouse. Of course, at any time, you and your attorney can step out and have private conversations. This tends to work in more amicable situations when there is less anger involved.
Personally, I prefer the second method of a settlement conference: judicial settlement conferences. In Virginia, a pending case can be referred to a retired judge to help facilitate settlement. Typically, in these cases, the attorneys will write out a settlement proposal, i.e., what their client wants to see happen with property and custody, and submit it to the judge ahead of time. Remember each judge conducts these a little bit differently. However, typically, once you arrive, the judge will me with both parties and both attorneys in a conference room - these tend to be held at the courthouse. The judge will go over the process and explain how he prefers to conduct his settlement conferences. In most cases, the judge will ask each attorney, or if the party prefers, each party, to give him a general idea of what the issues are and how we can all resolve them. After that, the judge will meet with each party and their attorney separately. At this point, it is a back and forth between each party as the judge tries to narrow the gap to reach a settlement.
To give you a real life example of this, Wife may come into a settlement conference requesting $5,000 per month in spousal support for 10 years and Husband may come into the settlement conference saying he will pay no more than $3,000 per month in spousal support for 8 years. What the judge might do, is bring the parties closer together and encouraging each of them to budge a little bit, so maybe we could all consider $4,000 per month for 9 years and compromise. The reason this works is because no one can know what a judge will do if you take your case to trial. The judge could award $8,000 per month for 15 years or the judge may simply deny spousal support. So, when Wife and Husband are in control of their situation, most people would prefer to agree to something a little higher or lower than they originally wanted rather than risk going to trial and having no control over what a judge will do.
Assuming the parties can reach an agreement, at the end of the settlement conference, one of two things will happen. If practical, the attorneys may draft the agreement on the spot and have both parties sign it that day. In many cases, however, that simply isn't practical. So while you will leave the conference with an agreement, the attorneys will go back to their respective offices, draft a full property settlement agreement and then have the parties sign it at a later date.
Settlement Conferences are important and serious but to calm your nerves, remember this meeting is all about agreement. You will not be forced to agree to something you don't want to and no rulings will be made by a judge that day. So take a deep breath and prepare to give and take a little bit.
There are two major types of settlement conferences. The first method is to do a 4-way settlement conference, meaning both parties and both attorneys are present. Typically, this happens in a conference room at an attorney's office. The attorneys will start to work through each issue to see if the parties can agree on some things. During this, there tends to be a lot of emotion, as you are literally sitting across the table from your soon to be ex-spouse. Of course, at any time, you and your attorney can step out and have private conversations. This tends to work in more amicable situations when there is less anger involved.
Personally, I prefer the second method of a settlement conference: judicial settlement conferences. In Virginia, a pending case can be referred to a retired judge to help facilitate settlement. Typically, in these cases, the attorneys will write out a settlement proposal, i.e., what their client wants to see happen with property and custody, and submit it to the judge ahead of time. Remember each judge conducts these a little bit differently. However, typically, once you arrive, the judge will me with both parties and both attorneys in a conference room - these tend to be held at the courthouse. The judge will go over the process and explain how he prefers to conduct his settlement conferences. In most cases, the judge will ask each attorney, or if the party prefers, each party, to give him a general idea of what the issues are and how we can all resolve them. After that, the judge will meet with each party and their attorney separately. At this point, it is a back and forth between each party as the judge tries to narrow the gap to reach a settlement.
To give you a real life example of this, Wife may come into a settlement conference requesting $5,000 per month in spousal support for 10 years and Husband may come into the settlement conference saying he will pay no more than $3,000 per month in spousal support for 8 years. What the judge might do, is bring the parties closer together and encouraging each of them to budge a little bit, so maybe we could all consider $4,000 per month for 9 years and compromise. The reason this works is because no one can know what a judge will do if you take your case to trial. The judge could award $8,000 per month for 15 years or the judge may simply deny spousal support. So, when Wife and Husband are in control of their situation, most people would prefer to agree to something a little higher or lower than they originally wanted rather than risk going to trial and having no control over what a judge will do.
Assuming the parties can reach an agreement, at the end of the settlement conference, one of two things will happen. If practical, the attorneys may draft the agreement on the spot and have both parties sign it that day. In many cases, however, that simply isn't practical. So while you will leave the conference with an agreement, the attorneys will go back to their respective offices, draft a full property settlement agreement and then have the parties sign it at a later date.
Settlement Conferences are important and serious but to calm your nerves, remember this meeting is all about agreement. You will not be forced to agree to something you don't want to and no rulings will be made by a judge that day. So take a deep breath and prepare to give and take a little bit.
Tuesday, May 19, 2015
Processes a business should have in place BEFORE they are accepting customers
When you are starting a new business, it is an extremely exciting time and everyone tends to get anxious to get their first client or customer! While all businesses certainly need clients/customers to become profitable, there are a few things you should make sure you have a procedure and policy in place for before you accept that first customer.
1. Intake
What procedures do you have in place for intake? If you are a restaurant or coffee shop, do you have an ordering system? A system to identify the customer with the order placed? If you are a housekeeping company, do you have a system to track your customers once you have accepted them as a customer?
Ensuring that you have a system to log your customers and their orders or services you provide for them, allows you to start off with a great impression and look professional. Aside from that it, and more importantly, perhaps, it allows you to ensure you will comply with all local, state and federal laws. Make sure your system tracks the amount charged to each customer and the amount paid by each customer (think taxes!). Make sure your system, if appropriate, provides for a contract between the customer and your business; this helps to reduce any possibility of disagreement or dissatisfaction as well as reduce the possibility of litigation.
2. Payments
How do you accept payments? Checks, money order, cash, credit cards? Credit cards may be a great option for your customers but ensure you understand the rules and regulations surrounding credit cards to ensure you are not violating any of those. For example, for attorneys, if you accept a credit card for a retainer, you need to ensure that the fee charged by the credit card company is not taken out of that retainer (unless agreed in an engagement contract like we mentioned above). You have to ensure you comply with certifications in accepting credit cards and provide a system to record those charges.
3. Standards of Operation
How are you going to operate once you have a client, or two, or twenty? How often are you expected to interact with that client and on what basis? Have you communicated that expectation to your client? Have you set up a process to remind you when you need to have those communications? Trust me on this one, you will think at the beginning that you can remember to call your client every two weeks. But soon, your business will be up and running and so busy that you can't possibly remember everything without a good calendaring system in place.
4. Closing Procedures
How do you end work with a customer or client? Is payment due at the end? What follow up procedures do you have to ensure you get paid? Do you have a closing contract to let the customer know that you have completed all the work? Do you have a follow up procedure to remind them you are there should they need assistance in the future?
Having these processes in place will help your company run smoothly. The end result of a smoothly run company is that you stay in compliance with local, state and federal laws and you reduce the likelihood of conflict or litigation. Get these things in place before you start accepting clients and your job will be much easier down the road.
Are you starting your own company or recently started a company? If you would like assistance in starting the company or maintaining the company in compliance with laws, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.
1. Intake
What procedures do you have in place for intake? If you are a restaurant or coffee shop, do you have an ordering system? A system to identify the customer with the order placed? If you are a housekeeping company, do you have a system to track your customers once you have accepted them as a customer?
Ensuring that you have a system to log your customers and their orders or services you provide for them, allows you to start off with a great impression and look professional. Aside from that it, and more importantly, perhaps, it allows you to ensure you will comply with all local, state and federal laws. Make sure your system tracks the amount charged to each customer and the amount paid by each customer (think taxes!). Make sure your system, if appropriate, provides for a contract between the customer and your business; this helps to reduce any possibility of disagreement or dissatisfaction as well as reduce the possibility of litigation.
2. Payments
How do you accept payments? Checks, money order, cash, credit cards? Credit cards may be a great option for your customers but ensure you understand the rules and regulations surrounding credit cards to ensure you are not violating any of those. For example, for attorneys, if you accept a credit card for a retainer, you need to ensure that the fee charged by the credit card company is not taken out of that retainer (unless agreed in an engagement contract like we mentioned above). You have to ensure you comply with certifications in accepting credit cards and provide a system to record those charges.
3. Standards of Operation
How are you going to operate once you have a client, or two, or twenty? How often are you expected to interact with that client and on what basis? Have you communicated that expectation to your client? Have you set up a process to remind you when you need to have those communications? Trust me on this one, you will think at the beginning that you can remember to call your client every two weeks. But soon, your business will be up and running and so busy that you can't possibly remember everything without a good calendaring system in place.
4. Closing Procedures
How do you end work with a customer or client? Is payment due at the end? What follow up procedures do you have to ensure you get paid? Do you have a closing contract to let the customer know that you have completed all the work? Do you have a follow up procedure to remind them you are there should they need assistance in the future?
Having these processes in place will help your company run smoothly. The end result of a smoothly run company is that you stay in compliance with local, state and federal laws and you reduce the likelihood of conflict or litigation. Get these things in place before you start accepting clients and your job will be much easier down the road.
Are you starting your own company or recently started a company? If you would like assistance in starting the company or maintaining the company in compliance with laws, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.
Tuesday, April 21, 2015
Received a complaint for divorce? Meet with an attorney immediately!
You've received a Complaint for divorce in the mail, or on your front door and you probably want to put off dealing with it for as long as possible. Here's why you shouldn't put it off at all and meet with an attorney as soon as possible.
Once you are served a Complaint for divorce, you have 21 days to file your Answer and any potential counterclaims. Most likely, you want an attorney to handle those pleadings for you and begin advising you on your divorce case (see here for information on choosing an attorney). Those 21 days will go by very quickly and means you need to move fast. Here's an idea of what I mean: it will take you a couple of days most likely to get an appointment to meet with an attorney. After meeting with an attorney, you may want to take a few days to decide if that is the attorney you want to hire or if you want to meet with other attorneys before deciding (this could take anywhere from a day to over a week). Once you have retained your attorney (paid them a retainer and have a written agreement they will be representing you), your attorney has to draft the documents. Most attorneys, after drafting the documents, send those documents to you to review before filing. It may take a couple of days for you to review, the attorney to make any corrections and for the papers to be ready to be filed. If you even put off calling attorneys for a week, you have severely limited your options and created a huge time crunch for both you and your potential attorney. As soon as you get the complaint, start making plans to move forward.
If you fail to answer the complaint in a timely manner, your spouse can ask the court to deem anything stated in the Complaint as admitted by you. This means, if she alleges you deserted her or were cruel to her, you no longer have the opportunity to dispute those facts. Not being able to dispute those facts could create major legal problems towards the end of your divorce, particularly with child custody and spousal support.
These are important issues you are working through and the best way to protect yourself is to move in a timely manner so that you know and understand your rights and obligations and the best way to protect yourself.
If you are going through a divorce and would like an initial consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.
Once you are served a Complaint for divorce, you have 21 days to file your Answer and any potential counterclaims. Most likely, you want an attorney to handle those pleadings for you and begin advising you on your divorce case (see here for information on choosing an attorney). Those 21 days will go by very quickly and means you need to move fast. Here's an idea of what I mean: it will take you a couple of days most likely to get an appointment to meet with an attorney. After meeting with an attorney, you may want to take a few days to decide if that is the attorney you want to hire or if you want to meet with other attorneys before deciding (this could take anywhere from a day to over a week). Once you have retained your attorney (paid them a retainer and have a written agreement they will be representing you), your attorney has to draft the documents. Most attorneys, after drafting the documents, send those documents to you to review before filing. It may take a couple of days for you to review, the attorney to make any corrections and for the papers to be ready to be filed. If you even put off calling attorneys for a week, you have severely limited your options and created a huge time crunch for both you and your potential attorney. As soon as you get the complaint, start making plans to move forward.
If you fail to answer the complaint in a timely manner, your spouse can ask the court to deem anything stated in the Complaint as admitted by you. This means, if she alleges you deserted her or were cruel to her, you no longer have the opportunity to dispute those facts. Not being able to dispute those facts could create major legal problems towards the end of your divorce, particularly with child custody and spousal support.
These are important issues you are working through and the best way to protect yourself is to move in a timely manner so that you know and understand your rights and obligations and the best way to protect yourself.
If you are going through a divorce and would like an initial consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.
Wednesday, April 8, 2015
Why You Should Take Your Child Support Obligation Seriously
One of the most intense arguments co-parents have is over child support and finances. Typically, this results in one parent taking the other parent to court and having a child support order entered by the court. In some cases, this amount seems reasonable to both parents. In other cases, the parent having to pay the child support feels like it is too much and they are unable to pay that amount. Here's why you should take your child support obligation seriously:
1. It is ongoing and constantly accruing. Likely, you will be obligated to pay this child support until the child is 18 or graduates from high school. This means if you ignore this month's payment, next month you owe double. And if you ignore next month's payment, the following month you will owe triple the amount. Ignoring the payments only makes it add up to a bigger number.
2. Child support accrues interest. When you fail to pay child support, the amount that is owed and not paid (what we call the "arrearage"), accrues interest, typically at a rate of about 6%. This means, the support you weren't paying that we just talked about above in Number 1, is not only growing as more support accrues, but is growing by 6% every year.
3. When your child reaches the age of 18 or graduates from high school you still owe the arrearage and interest still accrues. Your child support obligation will never just disappear; it will constantly grow. In some cases, the state will even get involved in pursuing you to pay your child support.
4. You could lose your professional licenses and being held in contempt of court (i.e., jail). This means if you are a doctor, you could lose your license to practice medicine. If you are a lawyer, you could lose your license to practice law.
These are just the immediate, direct consequences of failing to pay child support. Additional consequences could include being denied credit or approval for a home loan due to large amounts of outstanding debt, losing your job, etc. If you are involved in a child support case and would like an initial consultation on that matter, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.
1. It is ongoing and constantly accruing. Likely, you will be obligated to pay this child support until the child is 18 or graduates from high school. This means if you ignore this month's payment, next month you owe double. And if you ignore next month's payment, the following month you will owe triple the amount. Ignoring the payments only makes it add up to a bigger number.
2. Child support accrues interest. When you fail to pay child support, the amount that is owed and not paid (what we call the "arrearage"), accrues interest, typically at a rate of about 6%. This means, the support you weren't paying that we just talked about above in Number 1, is not only growing as more support accrues, but is growing by 6% every year.
3. When your child reaches the age of 18 or graduates from high school you still owe the arrearage and interest still accrues. Your child support obligation will never just disappear; it will constantly grow. In some cases, the state will even get involved in pursuing you to pay your child support.
4. You could lose your professional licenses and being held in contempt of court (i.e., jail). This means if you are a doctor, you could lose your license to practice medicine. If you are a lawyer, you could lose your license to practice law.
These are just the immediate, direct consequences of failing to pay child support. Additional consequences could include being denied credit or approval for a home loan due to large amounts of outstanding debt, losing your job, etc. If you are involved in a child support case and would like an initial consultation on that matter, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.
Friday, March 27, 2015
What's missing from your estate plan?
When we talk about estate planning in the simplest terms, we talk about three main documents: a will, an advanced medical directive and a power of attorney. Having those three documents will be very helpful in protecting you, your family and your assets in the future. Here are a few minor things that you should think about and consider to make your estate plan more well rounded.
1. Bank Accounts/Stocks
You may want to look at your bank accounts and stock holdings to see if you have a Pay on Death designation. If you designate someone to have your account or stocks paid out to upon your death, you can avoid putting those assets through probate, meaning less headache, less taxes and quicker transfer of money.
2. Life Insurance
Check to make sure your life insurance policies are still sufficient and properly designated. If you properly designate a beneficiary to your life insurance policies, that money will avoid probate as well.
3. Financial Plan
Meet with a financial planner to fully understand your finances and what your short term and long term goals are so that you have assets to transfer to your family in the future. Financial planners can insure you are investing properly and that you understand your investments and assets.
4. Real Estate
You may want to revisit any real estate you own. If appropriate for your family and situation, if you add family members to your deed, that property can transfer outside of probate as well.
Some of these items may not be appropriate or necessary for your estate plan but they are all things you should be thinking about and consider when formulating your plan. If you are in need of an estate plan or would like to have a review of your estate plan, contact us at (804) 447-0146 or clbaudean@baudeanlaw.com for an initial consultation.
1. Bank Accounts/Stocks
You may want to look at your bank accounts and stock holdings to see if you have a Pay on Death designation. If you designate someone to have your account or stocks paid out to upon your death, you can avoid putting those assets through probate, meaning less headache, less taxes and quicker transfer of money.
2. Life Insurance
Check to make sure your life insurance policies are still sufficient and properly designated. If you properly designate a beneficiary to your life insurance policies, that money will avoid probate as well.
3. Financial Plan
Meet with a financial planner to fully understand your finances and what your short term and long term goals are so that you have assets to transfer to your family in the future. Financial planners can insure you are investing properly and that you understand your investments and assets.
4. Real Estate
You may want to revisit any real estate you own. If appropriate for your family and situation, if you add family members to your deed, that property can transfer outside of probate as well.
Some of these items may not be appropriate or necessary for your estate plan but they are all things you should be thinking about and consider when formulating your plan. If you are in need of an estate plan or would like to have a review of your estate plan, contact us at (804) 447-0146 or clbaudean@baudeanlaw.com for an initial consultation.
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