by Greta Roemer Lewis | Blogs
My dad has Alzheimer’s. He was a great communicator and planner. He had his estate plan in place years before his diagnosis. But we never really talked about how he would want to be cared for if he were to develop Alzheimer’s or a similar incapacitating illness or condition.
As an estate planner, I work with my clients to make sure they have the necessary legal documents in place in the event of their incapacity (such as health care and financial powers of attorney). While these are very important documents to have, they don’t get into details about what a person would like to have happen in specific scenarios.
When a family member or loved one is in the early stages of Alzheimer’s or another form of dementia, we are particularly hesitant about discussing what might happen if their memory continues to decline. Maybe it’s because we are afraid of scaring them or hurting their feelings; they just won’t want to talk about it. Our loved one may be in denial (maybe we are too?). We avoid the topic, out of a desire to comfort and protect. Everyone is uncomfortable about discussing disease, disability, and death.
But it’s crucial for family members to know in advance, while their loved one is still “with it,” what they would like to have happen when they are not. Based in part on “The Conversation Project” (link below), here are some suggestions for starting a discussion with a loved one who has Alzheimer’s or another form of dementia:
- Have the conversation in “small bites” and keep it simple.
- Look for opportunities when your loved one expresses anxiety or concern about their memory. Ask them to tell you more about their feelings/concerns. (Resist the urge to dismiss their concerns.)
- Ask: What if somehow, at some point in the future, you did lose your memory due to Alzheimer’s or a similar condition? How would you want to live and be cared for? What would you really want? What is most important as you think about how you want to live at the end of your life? What do you value most?
If your loved one’s condition has already progressed to the point that he or she is unable to have such a conversation (and unable to make decisions about his/her own care), then it is up to the health care representative named under a health care power of attorney to make decisions as the disease progresses. In making such decisions, it is helpful for the family to come together to talk about what their loved one would want.
Talking about these issues is never easy. But it’s important to do so while you still can. Remember, it’s always too soon. Until it’s too late.
For more help with starting a conversation like this, go to “The Conversation Project”, a website with materials including guidelines for having conversations about end of life care.
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Greta Roemer Lewis, Partner at South Bend, IN law firm, Tuesley Hall Konopa, LLP, is a Board Certified Trust and Estate Lawyer by the Trust and Estate Specialty Board of the Indiana State Bar Association. She counsels clients in all matters related to estate planning and estate administration. Greta is licensed to practice in Indiana and Michigan.
You can contact Greta by calling 574.232.3538 or email glewis@thklaw.com.
Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon an investigation of specific facts. You should consult an attorney for advice regarding your individual situation. All THK blogs are considered advertising material by the Indiana Bar Association.
by Eric Seigel | Blogs
You’ve built your business from scratch, or bought an existing business or franchise, or worked your way up the ladder to lead your family’s business. Along the way, you’ve likely had some level of involvement with a business attorney in getting your business going. But just because the contracts are signed and you’re now in charge and free to go work and grow your business, that doesn’t mean you won’t benefit from an attorney’s ongoing involvement and support.
As a member of your professional team, your business attorney can be instrumental in guiding the health and growth of your company. With a strong business perspective, your attorney can be especially valuable as both a “strategic partner” and a “legal technician.” Beyond identifying legal issues of risk and liabilities, your attorney will also assist in negotiating the terms of contracts that will arise in your business.
Dealing with the Legal Complexity of Contracts
Throughout the life of your business, from creation through your exit, there will be opportunities for growth and expansion that require the drafting and negotiation of contracts. Your attorney will tell you that an effective contract is more than just offer, acceptance, and consideration.
Many contracts may be complex, may involve multiple parties, and the work to be done may cross state or international borders. There may be jurisdictional nuances which involve laws specific to the geographical areas in which you are asked to do business. And then there is the “boilerplate” language in contracts, often at the end of an agreement under titles such as “Miscellaneous,” or “General.” These provisions are important because they affect how disputes are resolved and how a court will enforce the contract, but often business owners tend to gloss over these sections based on a belief that they are “standard” and not really all that important. Your attorney will know how these provisions may operate as a benefit or detriment to your business, and how to adjust them to be in your favor, or at least neutral.
Leveling the Playing Field
Companies and vendors larger in both financial strength and business size often approach smaller companies with “non-negotiable” contract terms to do business. While the associated opportunities may benefit your business’ bottom line, adverse contract terms may limit, or even eliminate, that benefit. Your attorney can help you understand the meaning and import of the contract terms, and so can help you understand the risks of proceeding with the agreement so that you can make a more well-informed business decision. And sometimes “non-negotiable” isn’t really “non-negotiable.” Having your attorney involved in the discussions with the other party can help to level the playing field and allow you to negotiate a revised and more fair agreement where both parties benefit.
Translating the “Handshake” Deal
Oftentimes business owners will reach conceptual agreement on the business terms of a deal but then want to reduce the agreement to writing in a contract. Your business attorney can help translate your “handshake deal” into a legally binding contract that addresses the business terms but also provides appropriate legal protections for you. Your attorney will have a knowledge of contract drafting “terms of art” (words, phrases, and “jargon” that may have a precise and understood meaning within the realm of contract drafting and interpretation, and perhaps in your particular field or profession). For example, “representations and warranties” and “indemnification” are terms of art in used in many business contracts and need to be used and understood properly if you are to receive appropriate legal protection (and avoid unacceptable legal risk) from their use. Your business attorney can translate your conceptual agreement into a legally binding contract that addresses both the business issues and the legal issues and protections that will position you to more fully benefit from your “handshake deal.”
Honor Your Attorney’s Perspective
Don’t forget that your attorney’s perspective will and should be different from yours. You are rightfully focused on business opportunities and business issues, but that focus and your entrepreneurial risk-taking spirit can sometimes cause you not to see or properly evaluate risks and downsides. Your business attorney will help you avoid seeing opportunities through “rose-colored” glasses. The attorney’s role is not just to be a cynic and skeptic, but to point out for you the risks and liabilities inherent in business opportunities so that you can properly weigh them in your decision-making.
Legal Costs: The Reality vs. The Perception
What about the cost of keeping an attorney as part of my business team? Good attorneys are not cheap, but neither are other consultants critical to your business’ success. A brief consultation with an attorney can help you better determine your business’ legal needs, or help you avoid contract pitfalls that could cause you harm far in excess of the corresponding legal fees. Compare the investment of an attorney’s time to preventive maintenance and think of the difference between the cost of an “oil change” vs. an “overhaul.” Involving your business attorney earlier on in a business transaction or business contract review and negotiation could mean the difference between spending hundreds or thousands of dollars on legal services now and avoiding a potential future problem, or spending tens or hundreds of thousands of dollars later when that otherwise avoidable potential problem has ripened into a harsh reality.
In closing, don’t underestimate the role your attorney can play in the growth of your business. Having an attorney with a strong business perspective as a member of your professional team gives you someone who is looking out for your best interests in legal matters, allowing you to do what you do best – run your business!
For additional information on the types of contractual work the experienced business attorneys at Tuesley Hall Konopa do, go to https://www.thklaw.com/business-contracts/.
Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon an investigation of specific facts. You should consult an attorney for advice regarding your individual situation.
by Adam S. Russell | Blogs
Rarely does the world of estate planning enter into the public consciousness. Aside from the occasional “reading of the Will” scene (sadly, these do not happen in modern practice), the closest we get is probably the prenups. Known by many names, the pre-marriage agreement, traditionally called an antenuptial agreement, but universally known now as the prenuptial agreement, or “prenup” for short, is an agreement – a contract – between an engaged couple where they define their respective rights to their separate and/or collective property in the event of death or of dissolution of their marriage.
Prenups are done in a variety of settings, such as between second (or subsequent) marriages to deal with issues associated with disparate assets and/or blended families, or between business owners and their future spouses in order to mitigate potential disruptions in business operations, or between young couples who are the beneficiaries of trusts or expect significant inheritance.
A prenup is a contract between the two parties that waives and releases rights they may have under public laws and replaces those rights with a private arrangement, done in exchange for the promise to marry. All assets and liabilities must be disclosed in the course of the negotiation of a prenup. An individual cannot waive their legal rights or interests in property without understanding the scope of those potential rights or interests. For future anticipated inheritances, the line typically is drawn at disclosing any currently vested interests. Again, it is up to the parties and their counsel to decide what is appropriate for disclosure.
Any asset owned by an engaged partner prior to the marriage is considered a separate asset. To the extent that partner keeps that asset separate after marriage, it can remain so and be treated as separate in the event of death or divorce. The separate treatment is a one-way street – if a previously separate asset is put into joint name, or commingled, it loses its separate character forever. That toothpaste cannot go back into the tube. Also included under the umbrella of separate assets are all future received gifts and inheritances – again, provided the recipient keeps those assets separate after receipt. However, the inclusion within separate assets of all assets held prior to the marriage does not mean, necessarily, that any must be kept separate. All assets are disclosed as separate up front, but the parties can always choose what they choose to retain as separate or not. Collective assets include everything acquired together after the date of the marriage, including earned wages.
One issue that often requires special attention in the course of preparing and negotiating a prenuptial agreement is the treatment of retirement assets, in particular, employer-provided plans governed by the Employee Retirement Income Security Act of 1974 (ERISA). This federal law grants surviving spouses certain rights in ERISA-governed plans, and how to handle these assets in the context of the agreement often becomes a central issue for both sides.
The arrangement in a prenup establishes a floor, not a ceiling. A married couple can always do more for one another, through joint ownership, gift, or their estate planning documents, than is guaranteed in the agreement. In fact, in my experience, the majority of couples do so. The agreement is also revocable at any time after marriage. Again, in my experience, the majority will tear it up some years down the road, and will greatly relish doing so.
Prenups are not a fun topic to bring up to a future spouse, even where there may be legitimate reasons to do one. Nor is it fun to navigate any of the above issues, but they do have an important role to play for many people, including recently for many longstanding same-sex couples who are now considering marriage. Do all marriages need a pre-marriage agreement? Absolutely not. But, if any of these issues resonate with you, the earlier you start the process, the better it is for everyone.
Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon an investigation of specific facts. You should consult an attorney for advice regarding your individual situation.
by Michael J. Hays | Blogs
Most of us can’t keep track of all the tweets issued by the President. I don’t even try. But earlier this month, he tweeted “See you in court” in response to one of the various controversies swirling around his administration. And during the campaign, we all learned about Mr. Trump’s frequent litigation. His chosen Attorney General was recently confirmed by a very narrow vote, and court challenges to his executive orders are always in the news. These and other developments got me thinking about changing legal trends. And without veering into political commentary, the national trends can give local employers some guidance on how to approach everyday litigation and employment law issues. Consider the following guidelines.
First, be prepared for increased attention on immigration compliance. Several of President Trump’s executive orders concern border security and immigration enforcement. The courts have halted the much-publicized travel ban affecting travelers from seven countries. But other orders direct increased funding and attention to immigration enforcement. Observers who follow these issues believe the administration is gearing up for workplace raids that target undocumented workers—more like what employers saw during the Bush presidency. A Reuters report from February 13, 2017, quotes the Homeland Security Secretary reporting on more than 680 arrests in recent immigration raids. If you haven’t reviewed your I-9 documentation and other compliance procedures lately, now is a good time.
Second, don’t forget about your anti-discrimination efforts. Although you must ensure your employees are authorized to work in the United States, the law forbids discrimination based on immigration status or national origin. The Equal Employment Opportunity Commission recently issued its Strategic Enforcement Plan for 2017-2021, and one of its stated priorities is “protecting vulnerable workers,” including immigrants and migrant workers. The EEOC is part of the executive branch, but it is separate from the Justice Department, and I don’t expect its priorities to change. Think about what your company is doing to promote equal employment opportunities for immigrants. And don’t neglect what should be ongoing efforts to prevent discrimination (including harassment) based on sex, race, religion, disability, veteran status, or other protected status. Although there is more than one opinion on this, we advise our clients to consider sexual orientation and gender identity protected characteristics as well. The legal parameters of LGBT protections are not well-defined, but the bottom line is employers should create a workplace where decisions are based solely on merit and no one is subjected to harassment for any reason.
Finally, a media story is starting to shape up around the Trump presidency that those who feel oppressed need to stand and fight. People are showing renewed interest in the courts as a place to vindicate rights. Even if your workplace avoids politics and is far away from the national media, you may still get swept up in national trends that are likely to produce increased civil rights litigation, including employment discrimination claims. To avoid these kinds of claims—or, if necessary, to successfully defend them—you should direct attention to the same familiar practices: review your policies, train your employees, and partner with trusted advisors. This will always be good advice, no matter who occupies the White House.
Author: Michael J. Hays is a civil litigation attorney and Partner at Tuesley Hall Konopa, LLP. His practice areas include business transactions, real estate law, and employment law. Michael is licensed to practice in Indiana and Michigan.
You can contact Michael by calling 574.232.3538 or email mhays@thklaw.com
Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon an investigation of specific facts. You should consult an attorney for advice regarding your individual situation.
by Admin | Blogs
If like many of us, you visited your aging parents for the holidays, you may have noticed things just didn’t seem right. Maybe the house wasn’t in its usual neat and tidy state. Maybe Mom seemed more confused than usual. Or, maybe you and your siblings engaged in a spirited discussion about what happens when mom and dad are gone, leaving behind some resentment and hurt feelings. So, now what do you do? Bottle it all away until next year and see if things get better? Or, are there steps you should take now to make sure your parents are protected in the event of disability or incapacity and to help avoid family discord if one of them should pass?
- Give it time. The holidays are a busy and stressful time for all of us. Even the most put together person tends to get frazzled in December. If things still seem off in February, intervention may be necessary. Also, keep in mind that it’s not just Mom and Dad who may be a little off at this time of year. Wait until the hubbub has died down before calling your siblings with questions. Your brother may not appreciate a three-page email on his first day back to work detailing everything you thought was wrong when you visited. Also, you need time to gather information. Get some distance from the situation before you jump to conclusions. Talk to people outside the situation like family friends and neighbors to hear what they’re seeing, One bad visit does not a crisis make. It may just be a sign that you need to keep a better eye on things.
- Rally the troops. In most families, battle lines are drawn from a young age. You know which of your siblings is most likely to be supportive and helpful, who Dad is most likely to open up to and who should be left out of any sort of discussion. Get the best team together and agree on a plan of action. The most important piece of this puzzle is good communication. Keeping everyone on the same page can make your parents more receptive to help. One bad apple can spoil the whole plan. One rogue agent going off to find information on her own without cluing in the others can breed distrust from the start. Be as open as possible with each other to prevent misunderstandings. Share the burden as much as you can to prevent resentment. Even the most distant sibling can be assigned a task. Sometimes the best information can come from Mom venting on the phone to the one she thinks isn’t pestering her!
- Lend a helping hand. If you noticed expired food in the fridge, offer to pick some things up on your next trip to the store. Did the house seem cluttered and untidy? Straighten up a little bit next time you’re over. If they don’t object, go a little farther next time or consider buying Mom a cleaning service for Mother’s Day. Ask if Mom needs help sorting financial information to take to her tax preparer. This could be a good opening to seeing if finances are in order or bills are being paid. If you tread carefully and slowly instead of barging in with guns blazing, you may be surprised at how much you can accomplish.
- It’s okay to ask for help. If you think there are medical or neurological problems that aren’t being addressed, get permission to talk to doctors and health care providers. Ask family friends and neighbors to help check in and watch for possible signs of trouble. Find a good caregiver support group to lean on. Even if you’re an only child, you don’t have to take this on by yourself.
- Pick your battles. Is it critical that Dad’s medications are all correct? Absolutely. Is it worth arguing over Mom’s insistence on saving bread bags? Probably not. Should you start discussing possible assisted living options? Maybe. Arguing over Mom’s china? Put that on hold. Keep your focus on the critical issues of health and safety. Once those have been settled, your parents may be in a better place to help sort out the minor stuff. Conflict over who gets what in the midst of doctor visits and choosing an assisted living can deflect attention from the important issues and could give Mom or Dad the window of opportunity they need to refuse the move.
Our office often gets calls from concerned family members following the holidays. Assuming that the situation hasn’t already reached a crisis point, taking small steps can prevent future family discord and help foster a supportive atmosphere as our loved ones age. Our goal is to become a part of your team to help sort out what steps are needed and how best to maintain your parents’ dignity and family harmony. Call 574.232.3538 to get started.
Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon an investigation of specific facts. You should consult an attorney for advice regarding your individual situation.
