The case, filed in Albany federal court on December 3, follows a Supreme Court decision from March that suggested individuals may have a constitutional right to possess Tasers and other stun guns in Massachusetts. New York and four other states — New Jersey, Massachusetts, Rhode Island and Hawaii — prohibit civilians from owning stun guns. The stun-gun ban in Washington D.C. was lifted in September after a lawsuit.

The latest complaint was brought by California-based national gun rights advocacy group the Firearms Policy Foundation and the Firearms Policy Coalition. Matthew Avitabile, the mayor of Middleburgh, New York, is also a plaintiff in the case.

According to the lawsuit, Avitabile originally wanted to buy a Taser for self defense. The complaint said, “Plaintiff would prefer to minimize the likelihood that he would have to resort to deadly force in the event he was forced to defend himself or his home from a violent criminal attack.”

Avitabile argued the Taser ban is unconstitutional and that nonlethal stun guns should be available for self defense like traditional firearms. The lawsuit claimed using a nonlethal form of self defense would spare the plaintiff from potential arrest in case he is forced to use a weapon while defending his property from intruders. In addition, the complaint said knives, pepper sprays and other weapons are not as effective as stun guns when it comes to self defense.

Please call Banerjee & Associates for more information

This could have an impact on future injury lawsuits filed by individuals harmed in South Florida boating accidents.

In this case, Tundidor v. Miami-Dade County, plaintiff was injured in 2013 and later filed a federal lawsuit after his face struck a pipe while he was riding a pleasure motorboat while it passed under a low bridge about 7 miles inland in Coral Park Canal. Justices ruled in favor of the county, finding plaintiff did not prove the baseline requirement to invoke federal admiralty law, which is the foundation of any case brought against an entity for wrongs taking place on navigable waters. The U.S. Supreme Court laid out the foundation for this in an 1870 case holding that waters may fall under federal law when, in their ordinary condition, they are navigable for interstate commerce. 

Plaintiff had suffered serious injuries in the Miami boating accident, in which he was a passenger on a pleasure boat. When the boat approached the Coral Park Canal Bridge, plaintiff and three other passengers lowered their heads while the boat was passing underneath the bridge. As the boat was coming out of the south side of the bridge, plaintiff raised his head. It was then that he struck a water pipe. The force of that caused plaintiff to be tossed off the boat and into the water.

In addition to a number of low-lying bridges like this, the canal is obstructed by water pipes and even rail-road tracks. None of the narrow bridges that cross over the waterway allow for vessels to pass underneath unless they are very small.

Plaintiff had argued the waterway usually is navigable through the Tamiami Canal, which flows down to the Miami River and then later out to the Atlantic Ocean. However, there had been a flood-control spillway between the canal and the river. He argued the canal had the potential for commercial use and trade both historically and in the present condition, proposing that fishing or logging businesses could potentially use the water to transport products before reaching the river, at which point they could use a crane to move the items over to another larger vessel, which could then be used to take goods to broader markets, such as Georgia or the Bahamas.

However, the panel expressed skepticism of this assertion, and ultimately rejected it. In this case, there were artificial obstructions that would block interstate travel for commerce purposes on this waterway, which means it doesn’t meet the legal requirement for federal jurisdiction. This was also despite the plaintiff providing evidence that the U.S. Environmental Protection Agency (EPA) as well as the Miami-Dade Expressway Authority had previously classified the canal as a “transportation corridor” and a navigable water. But this alone doesn’t mean there was enough evidence to support invocation of admiralty law.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Tundidor v. Miami-Dade County, Aug. 3, 2016, U.S. Court of Appeals for the Eleventh Circuit

More Blog Entries:

Florida Boating Accidents Up, FWC Urges Caution This Summer, June 4, 2016, Miami Boating Accident Lawyer Blog

On July 14 in Cherrie v. Virginia Health Services, Inc., the Supreme Court of Virginia precluded an Executor’s action under the Declaratory Judgment Act compelling the production of policies and documents by a healthcare facility. The Executor’s action used rights found in Virginia administrative regulations as premise for the action. The Supreme Court of Virginia avoided construing the application of the term “residents and their designated representatives” found in the regulation and instead limited the holding to the availability of the Declaratory Judgment Act in enforcing duties of regulated parties. The method used to seek the documents was found to be improper, because administrative remedies were more appropriate than a court proceeding. Furthermore, the administrative regulations were held not to create a right to bring an action.

This decision clearly eliminates an avenue for obtaining documents from nursing facilities, but does not resolve the issue of how to obtain such documents when necessary. If the individual is in the nursing home is still alive, the nursing home resident or the resident’s designated representative can request copies of the documents. In the case of a deceased resident, it is unclear whether the nursing home has to provide those documents to the personal representative of the administrator’s estate. Given the confusion generated by this case, it is critical to obtain copies of these documents before a problem occurs at the nursing home.

In the event an incident occurs at a nursing home, it is critical to consult an attorney. The nursing facility may refuse to provide requested documents unless a party has certain documented authority. An attorney can assist in obtaining necessary documents and taking necessary action.  If no designated representative has been appointed, an attorney can assist in working around that limitation. Furthermore, an attorney can help take necessary actions against the nursing home in a timely manner. If out-of-court disputes with a nursing home drag on, then a subsequent action against the nursing home may be barred due to statutory time limitations. Seeking the counsel of an attorney can help prevent this from happening. The attorneys at Hook Law Center are available to counsel you in how best to manage you or your loved one’s relationship with their nursing home and assist in any disputes that may arise.

Ask Kit Kat – Drones with Peanut Butter

Hook Law Center:  Kit Kat, are there really such things as drones armed with peanut butter?

Kit Kat:  I know it sounds wild, but yes, the US Fish and Wildlife Service is considering using drones to drop peanut-butter pellets in northeast Montana. The reason—the peanut-butter pellets would be food for prairie dogs who frequently are infected with plague contracted from fleas. The pellets have a vaccine against the flea-based plague. However, the ultimate goal is to help black-footed ferrets, who are currently listed as endangered. In 1987, only 18 black-footed ferrets still existed.

The favorite food source for ferrets? You guessed it—prairie dogs! Prairie dogs make up 90% of this particular type of ferret’s diet. So in a roundabout way, the drones would be actually helping ferrets! The importance of the black-footed ferret is that is also the only one native to the United States. Its food source—prairie dogs—have significantly declined in number as the West has become developed either through farming or increased human population. The pellets have been used in lab trials, but now the government wants to expand their use to 1,000 acre tracts. The only alternative to drones appear to be sending in humans on an ATV. That would be more costly and disruptive to both animals, so the drone is being developed as we speak.

The concept of using drones may be new, but airdrops from planes or helicopters have been used in the past. For example, in 2013, helicopters were used in Guam to get rid of brown tree snakes. 2,000 dead mice, injected with Acetaminophen, a common painkiller for humans, were dropped in the forests there. Acetaminophen, while helpful to humans, is poisonous to snakes. In the 1970s and 1980s, vaccine-stuffed chicken heads were dropped in Switzerland to keep foxes free of rabies. The state of Texas fights rabies to this very day by airdrops of millions of fishmeal-coated anti-rabies packets. Consumers of this bait are coyotes, foxes, and even skunks.

So, once again, technology is being used to help man solve complex problems more efficiently and quickly. Stay tuned as we await more information about this interesting and creative project! (https://www.washingtonpost.com/news/animalia/wp/2016/07/15/drone-fired-peanut-butter…)

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Hook Law Center encourages you to share this newsletter with anyone who is interested in issues pertaining to the elderly, the disabled and their advocates. The information in this newsletter may be copied and distributed, without charge and without permission, but with appropriate citation to Hook Law Center, P.C. If you are interested in a free subscription to the Hook Law Center News, then please telephone us at 757-399-7506, e-mail us at mail@hooklawcenter.com or fax us at 757-397-1267.The post Recent Court Ruling Creates Difficulty Obtaining Documents from Nursing Facilities first appeared on SEONewsWire.net.]]> http://www.seonewswire.net/2016/07/special-education-case-seeks-supreme-court-review/ Fri, 08 Jul 2016 16:22:06 +0000 http://www.seonewswire.net/2016/07/special-education-case-seeks-supreme-court-review/ The U.S. Supreme Court is deciding whether to grant review in a case about the degree of educational benefit that a special education student should receive under an Individualized Education Program (IEP) to satisfy the requirements of the (IDEA). “Clearly,…

The Court ruled that “…The judgment is affirmed by an equally divided Court..”  With these 9 words, the Court split 4 to 4, and without a 9th and deciding Justice, permitted an injunction against implementing these programs imposed by a Texas District Court and upheld by the Fifth Circuit to stand.

As background, in November, 2014, and arising out frustration with Congressional inaction  on comprehensive immigration legislation, President Obama and his Administration created two executive actions programs: Deferred Action for Parents of Americans and Permanent Residents (“DAPA”) and an expanded program for Deferred Action for Childhood Arrivals (“DACA”), an earlier executive action program to benefit certain children who accompanied their parents into the United States at an early age.  The programs if implemented would shield certain parents of U.S. citizens and permanent residents from removal, and certain young people from removal based on enforcement priorities, and would expand who could qualify for DACA.  Texas and 25 other states sued the federal government alleging overreach of the powers of the executive branch in taking these steps.

There has been no trial on the merits, only appeals on the propriety of the injunction decision itself up to the Supreme Court.  The case now goes back to the District Court to be tried.  Procedurally, the Administration could request a rehearing before the full Court.  Whether it does so remains to be seen.

To learn more about both the effects of bullying and mental health and what you can do, you are invited to a seminar on May 10, 2016:  Understanding the Legal Obligations of a School District Regarding Bullying and Student Mental Health

By Marion M. Walsh, Esq.

Every parent and school professional must be aware of the mental health crisis confronting our youth and take steps to understand and advocate. Parents and schools must act together to protect children become educated on risk factors and symptoms.

If your child has a mental health issue, it is important to understand how to seek community supports and to understand the legal obligations of your school district.  Too many parents view mental health issues as a “private issue” or believe that things will improve. It is almost impossible for parents to handle mental health issues alone.

Signs of Mental Health Problems in Children:

Parents must be aware of signs of mental illness. Early identification is key to help children.  The Mayo Clinic and other professionals list the following signs of mental illness in children, but the list is not exhaustive:

• Mood changes: Look for feelings of sadness or withdrawal that last at least two weeks or severe mood swings that cause problems in relationships at home or school. Some students simply withdraw. School avoidance or physical symptoms without physical causes can also be a sign of mental distress.
• Intense feelings: Be aware of feelings of overwhelming fear for no reason — sometimes with a racing heart or fast breathing — or worries or fears intense enough to interfere with daily activities.
• Behavior changes: Look for drastic changes in behavior or personality, as well as dangerous or out-of-control behavior. Fighting frequently or expressing a desire to hurt others also are warning signs.
• Difficulty concentrating: Look for signs of trouble focusing or sitting still, both of which might lead to poor performance in school.
• Unexplained weight loss: A sudden loss of appetite, frequent vomiting or use of laxatives might indicate an eating disorder.
• Physical harm: Sometimes a mental health condition leads to suicidal thoughts or actual attempts at self-harm or suicide.
• Substance abuse: Some children use drugs or alcohol to try to cope with their feelings.

School District Legal Obligations to Help:

If a child is showing signs of mental illness, it is important for parents to understand school district legal obligations and also how to get community support.   Not every child with mental health issues has a disability but if a condition affects educational performance, the school district has an obligation to refer a student for special education and related services.

• Pursuant to the Individuals with Disabilities Education Improvement Act (IDEA), 20 USC §1400, seq. and parallel state law, school districts have a responsibility to identify and provide appropriate services to students with disabilities, including those who have an emotional disturbance or disability, including another health impairment, such as ADHD.
• As the Supreme Court noted in Honig v. Doe in 1988, “Among the most poorly served of disabled students were emotionally disturbed children: Congressional statistics revealed that for the school year immediately preceding passage of the Act, the educational needs of 82 percent of all children with emotional disabilities went unmet. See S. Rep. No. 94-168, p. 8 (1975).”  

If your child has mental health needs impacting education, you should refer your child for special education services and, if the child has a disability, he or she should qualify for an IEP and receive special education supports, such as counseling, flexibility with assignments, or a therapeutic environment. Some children with mental health needs may need building level help or need accommodations under Section 504 of the Rehabilitation Act.  

Steps to Take:

On a broader scale,  work with your school district and community to develop a task force to create systems and policies to proactively address student mental health needs and make sure interventions are in place.  Talk to your child’s school district administrators about making mental health and social emotional health a priority in your school district and ask about what programs are in place to ensure children are served.   Much training is available and many organizations have resources to help.

As just three examples of what you can do:

1. Become Certified in Youth Mental Health First Aid
2. Consider taking the Sandy Hook Promise, which encourages safer schools and more mental health treatment.
3.  Attend a screening of No Letting Go, on mental health and youth and one family’s story, aimed at helping to end the stigma:

Read more on how to educate, advocate and support mental health awareness month by clicking here.

Learn more about our special needs planning and special education advocacy services at www.littmankrooks.com or www.specialneedsnewyork.com.

Was this article of interest to you? If so, please LIKE our Facebook Page by clicking here or sign up for our monthly newsletter.

To learn more about both the effects of bullying and mental health and what you can do, you are invited to a seminar on May 10, 2016:  Understanding the Legal Obligations of a School District Regarding Bullying and Student Mental Health

By Marion M. Walsh, Esq.

Every parent and school professional must be aware of the mental health crisis confronting our youth and take steps to understand and advocate. Parents and schools must act together to protect children become educated on risk factors and symptoms.

If your child has a mental health issue, it is important to understand how to seek community supports and to understand the legal obligations of your school district.  Too many parents view mental health issues as a “private issue” or believe that things will improve. It is almost impossible for parents to handle mental health issues alone.

Signs of Mental Health Problems in Children:

Parents must be aware of signs of mental illness. Early identification is key to help children.  The Mayo Clinic and other professionals list the following signs of mental illness in children, but the list is not exhaustive:

• Mood changes: Look for feelings of sadness or withdrawal that last at least two weeks or severe mood swings that cause problems in relationships at home or school. Some students simply withdraw. School avoidance or physical symptoms without physical causes can also be a sign of mental distress.
• Intense feelings: Be aware of feelings of overwhelming fear for no reason — sometimes with a racing heart or fast breathing — or worries or fears intense enough to interfere with daily activities.
• Behavior changes: Look for drastic changes in behavior or personality, as well as dangerous or out-of-control behavior. Fighting frequently or expressing a desire to hurt others also are warning signs.
• Difficulty concentrating: Look for signs of trouble focusing or sitting still, both of which might lead to poor performance in school.
• Unexplained weight loss: A sudden loss of appetite, frequent vomiting or use of laxatives might indicate an eating disorder.
• Physical harm: Sometimes a mental health condition leads to suicidal thoughts or actual attempts at self-harm or suicide.
• Substance abuse: Some children use drugs or alcohol to try to cope with their feelings.

School District Legal Obligations to Help:

If a child is showing signs of mental illness, it is important for parents to understand school district legal obligations and also how to get community support.   Not every child with mental health issues has a disability but if a condition affects educational performance, the school district has an obligation to refer a student for special education and related services.

• Pursuant to the Individuals with Disabilities Education Improvement Act (IDEA), 20 USC §1400, seq. and parallel state law, school districts have a responsibility to identify and provide appropriate services to students with disabilities, including those who have an emotional disturbance or disability, including another health impairment, such as ADHD.
• As the Supreme Court noted in Honig v. Doe in 1988, “Among the most poorly served of disabled students were emotionally disturbed children: Congressional statistics revealed that for the school year immediately preceding passage of the Act, the educational needs of 82 percent of all children with emotional disabilities went unmet. See S. Rep. No. 94-168, p. 8 (1975).”  

If your child has mental health needs impacting education, you should refer your child for special education services and, if the child has a disability, he or she should qualify for an IEP and receive special education supports, such as counseling, flexibility with assignments, or a therapeutic environment. Some children with mental health needs may need building level help or need accommodations under Section 504 of the Rehabilitation Act.  

Steps to Take:

On a broader scale,  work with your school district and community to develop a task force to create systems and policies to proactively address student mental health needs and make sure interventions are in place.  Talk to your child’s school district administrators about making mental health and social emotional health a priority in your school district and ask about what programs are in place to ensure children are served.   Much training is available and many organizations have resources to help.

As just three examples of what you can do:

1. Become Certified in Youth Mental Health First Aid
2. Consider taking the Sandy Hook Promise, which encourages safer schools and more mental health treatment.
3.  Attend a screening of No Letting Go, on mental health and youth and one family’s story, aimed at helping to end the stigma:

Read more on how to educate, advocate and support mental health awareness month by clicking here.

Learn more about our special needs planning and special education advocacy services at www.littmankrooks.com or www.specialneedsnewyork.com.

Was this article of interest to you? If so, please LIKE our Facebook Page by clicking here or sign up for our monthly newsletter.

Last updated over a decade ago, the guidelines steer judges in financial crime cases toward prison sentences that vary based on the dollar value of ill-gotten gains. Opinions on the revisions ran across the spectrum. On one end, the U.S. Justice Department objected to the revisions, appearing to base their judgment on public opinion. The Department said the move was contrary to “overwhelming societal consensus.”

On the other hand, many defense attorneys at the American Bar Association felt the proposals were too moderate. They have long advocated for softened guidelines and had pushed for broader revisions. Indeed, even some judges have said the recommended prison terms for financial offenders are too harsh.

In 2005, the U.S. Supreme Court decided, in United States v. Booker, that all federal sentencing guidelines were advisory. Prior to the decision, they were mandatory — judges’ hands were tied, and the specific mitigating circumstances of each case had no bearing on the punishment imposed. Following Booker, judges would often hand down sentences in fraud cases that fell short of the Sentencing Commission’s guidelines. This illustrates that the recent revisions were probably overdue, especially considering the cumulative effects of inflation on the actual value of fraudulent gains.

Last updated over a decade ago, the guidelines steer judges in financial crime cases toward prison sentences that vary based on the dollar value of ill-gotten gains. Opinions on the revisions ran across the spectrum. On one end, the U.S. Justice Department objected to the revisions, appearing to base their judgment on public opinion. The Department said the move was contrary to “overwhelming societal consensus.”

On the other hand, many defense attorneys at the American Bar Association felt the proposals were too moderate. They have long advocated for softened guidelines and had pushed for broader revisions. Indeed, even some judges have said the recommended prison terms for financial offenders are too harsh.

In 2005, the U.S. Supreme Court decided, in United States v. Booker, that all federal sentencing guidelines were advisory. Prior to the decision, they were mandatory — judges’ hands were tied, and the specific mitigating circumstances of each case had no bearing on the punishment imposed. Following Booker, judges would often hand down sentences in fraud cases that fell short of the Sentencing Commission’s guidelines. This illustrates that the recent revisions were probably overdue, especially considering the cumulative effects of inflation on the actual value of fraudulent gains.

The CRS report points out that states and localities often have an interest in how the federal government enforces immigration law regarding undocumented immigrants. On the one hand, some cities have implemented policies to limit cooperation with federal enforcement efforts. On the other, states with large populations of undocumented immigrants have sued the federal government, unsuccessfully, seeking stronger enforcement measures through local law.

More recently, states have challenged the Deferred Action for Childhood Arrivals (DACA) initiative of the Obama Administration and a similar program, known as DAPA, for undocumented immigrants who are parents of certain lawful permanent residents or of U.S. citizen children. In this litigation, Texas v. United States, the U.S. Court of Appeals for the Fifth Circuit found that the programs violate the Administrative Procedure Act. The U.S. Supreme Court granted the federal government’s request for certiorari on January 19, 2016, and the high court indicated that when it considers the case later in the year, it will also consider the plaintiffs’ claims that DACA and DAPA violate the Take Care clause of the Constitution.

The CRS report concluded by stating that even if the decisions of the lower courts withstand appeal, the ability of states to challenge alleged “failures” of the federal government to enforce immigration laws is limited.

In early 2015, the FBI took control of a website known as Playpen which was used to distribute large amounts of child pornography. For two weeks after the seizure of the site, from February 20, 2015, to March 4, 2015, the FBI continued to operate the site in order to gather more evidence against more offenders. During that time, many thousands more sexual videos and images of children were downloaded.

To be clear, the FBI, by its own admission in court filings, literally distributed child pornography in an effort to capture offenders. The New York Times recently published several experts’ opinions on the matter, including law professors and anti-abuse advocates.

Corey Rayburn Yung of the University of Kansas School of Law argued that the government’s own position appears to be that every time child pornography is distributed or viewed, the victim is further harmed. For example, the Supreme Court held in Paroline v. United States that victims could seek restitution from mere possessors — not just distributors or creators — of child pornography. Yung also points out that in contrast to stings involving guns or drugs, the FBI cannot hope to contain the contraband in this case — it can be copied without limits.

Xavier Von Erck, an anti-child-abuse advocate, argued that the FBI’s actions may have prevented any number of future crimes from occurring. He said those who possess and distribute child pornography often are actively engaged in abuse of victims in their immediate area.

Clearly, the FBI is likely to use strategies like this again in future cases. Criminals and ordinary people’s ability to hide their online activities is increasing, and in the instances where authorities gain access to a potential trove of evidence, the temptation to make more arrests even at the cost of further victimization is enormous.

In early 2015, the FBI took control of a website known as Playpen which was used to distribute large amounts of child pornography. For two weeks after the seizure of the site, from February 20, 2015, to March 4, 2015, the FBI continued to operate the site in order to gather more evidence against more offenders. During that time, many thousands more sexual videos and images of children were downloaded.

To be clear, the FBI, by its own admission in court filings, literally distributed child pornography in an effort to capture offenders. The New York Times recently published several experts’ opinions on the matter, including law professors and anti-abuse advocates.

Corey Rayburn Yung of the University of Kansas School of Law argued that the government’s own position appears to be that every time child pornography is distributed or viewed, the victim is further harmed. For example, the Supreme Court held in Paroline v. United States that victims could seek restitution from mere possessors — not just distributors or creators — of child pornography. Yung also points out that in contrast to stings involving guns or drugs, the FBI cannot hope to contain the contraband in this case — it can be copied without limits.

Xavier Von Erck, an anti-child-abuse advocate, argued that the FBI’s actions may have prevented any number of future crimes from occurring. He said those who possess and distribute child pornography often are actively engaged in abuse of victims in their immediate area.

Clearly, the FBI is likely to use strategies like this again in future cases. Criminals and ordinary people’s ability to hide their online activities is increasing, and in the instances where authorities gain access to a potential trove of evidence, the temptation to make more arrests even at the cost of further victimization is enormous.

What Your Financial Planner Needs To Know…

There’s a handful of financial advisors that are familiar with iPug asset protection trusts.  Now if you were to ask your financial advisor, he or she may say, “oh yeah, I know those…”, but chances are they are just covering for a lack of knowledge.  You can read more on this issue (What Your Financial Planner or Family Lawyer Doesn’t Know, Hurts You!).  Either way, most financial planners are not familiar with the planning options with irrevocable trusts, they are used to the old Irrevocable Life Insurance Trusts (ILITs) or other irrevocable trusts that were set up for estate tax purposes.

The new breed of irrevocable trust is very different than the old style, estate tax planning irrevocable trust.  My colleague David M. Goldman breaks down the issue wonderfully on his blog Florida Estate Planning Lawyer Blog. In his blog, he lists the problems with the old style irrevocable trusts:

1. Loss of control over the management of the assets;
2. A separate EIN number for tax reporting purposes;
3. A larger tax bill because of the way traditional irrevocable trusts are taxed;
4. A loss of the step-up in basis available to assets owned by an individual upon the death of the settlor; and
5. The inability to change provisions or beneficiaries in the future.

Now remember, these problems only apply to irrevocable trusts of old, not the modern irrevocable trust.  

The Modern Asset Protection Trust- The iPug

The modern irrevocable trust arose to address the concerns of clients today.  My clients are not concerned with estate taxes (unless you have over $5million or won the Powerball…), but what they are concerned about are long-term care costs and to a lesser extent law suits.

David Goldman again goes on to list out the advantages of the iPug Trust:

1. This is a grantor trust that you create and are in control of.  No beneficiary ever has a right to demand a distribution of income or principal during your life.
2. The trust provides asset protection from future liability like car accidents, professional or personal negligence, and even can be structured to provide protection from Medicaid ineligibility.
3. The trust is a disregarded entity for tax purposes and uses your social security number.  This means you are taxed just like as if you owned the assets yourself.
4. The trust does not remove assets from your estate so your beneficiaries receive a full step up in basis upon your death, just like with personally owned assets or those in a revocable trust.
5. The assets in this trust are protected from the surviving spouse’s future marriage in much the same way that a prenuptial agreement would protect the assets.
6. The assets are protected from an elective share claim in the future.
7. You can change the beneficiary at any time without risking loss of the assets to creditors.
8. The trust has special provisions to protect inherited IRAs from the claims of creditors.  (A recent Supreme Court case held that inherited IRAs are not protected from creditors)
9. All assets that can be transferred to a revocable trust can be transferred to an iPug trust without penalties or termination.
10. The iPug trust can contain trust protectors that enable changes to the documents if the laws change in the future, in much the same way as one would have with a revocable trust.  Often in joint irrevocable trust, changes cannot be made after the death of the first spouse, but even with a joint iPug trust changes can be made after the death of the first spouse.

As you see, the modern asset protection irrevocable trust is a completely different animal.  These trusts are great for avoiding probate, protecting your beneficiaries, and most importantly–protecting you.  Given these benefits, it’s a matter of time before financial planners will be more familiar with the iPug Trust and realize these aren’t your parent’s irrevocable trusts of old.

The post Why Your Financial Planner Needs to Know about an iPug Asset Protection Trust appeared first on Michigan Estate Planning.

In Campbell-Ewald v. Gomez, the Supreme Court was asked whether a Navy contractor was immune from suit when it sent text messages to individuals who had not opted to receive them in violation of federal law and the Navy’s directive that the text messages should only be sent to those on the opt-in list. The Supreme Court made it clear that government contractors do not have absolute immunity.  As the Court noted: “[w]hen a contractor violates both federal law and the Government’s explicit instructions, as here alleged, no “derivative immunity” shields the contractor from suit by persons adversely affected by the violation.”  The Court went on to note that qualified immunity may be overcome if the defendant knew or should have known that his conduct violated a right ‘clearly established’ at the time of the episode in suit.”  The Court concluded that the Navy contractor was not entitled to immunity because there was no basis for Campbell-Ewald to argue that there was any doubt that the plaintiff had a clearly established  right to be free of unsolicited text messages or that its actions complied with the Navy’s instructions.  In the Fun 5’s case, the lottery players had a clear right to be free from deceptive or fraudulent representations.  GTECH cannot argue that it was unaware that it had a duty to be honest and fair with lottery players. Both Texas criminal and civil law prohibit the commission of fraud on consumers. Moreover, the Texas Lottery Commission made it clear in the Instant Ticket Contract with GTECH that GTECH was to provide final working papers that were “complete and free of errors”. Moreover, GTECH was required to conduct all of its operations “in adherence to the highest ethical standards.” To  the extent that the wording chosen by GTECH in the final working papers was misleading and deceptive, the working papers were not “free of errors” and GTECH did not comply with its contractual duty to conduct its operations in adherence to the highest ethical standards.

Although the Supreme Court’s opinion dealt with federal law, it is likely that it will be at least considered by the Texas trial and appellate courts when they rule on GTECH’s claim of derivative sovereign immunity in the Fun 5’s case.

By Richard LaGarde

The report, by Legislative Attorney Alexandra M. Wyatt, presents an overview of the legal debate on birthright citizenship and the issue of children born in the U.S. to alien parents. The report examines the historical development of birthright citizenship, early and modern litigation on the issue and the parameters of the modern legal debate.

The U.S. Constitution provides for birthright citizenship in the Fourteenth Amendment, which states that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” This is usually interpreted to mean that anyone born in the U.S. automatically becomes a U.S. citizen, even if their parents are undocumented immigrants, as the Supreme Court held in United States v. Wong Kim Ark, an 1898 case.

The CRS report details how many opponents of birthright citizenship favor a narrower interpretation of the Fourteenth Amendment’s Citizenship Clause, arguing that the term “jurisdiction” should mean “complete jurisdiction” in the sense of undivided allegiance and mutual consent of sovereign and subject. Some opponents of birthright citizenship also argue that Wong Kim Ark did not squarely address the question of whether the Citizenship Clause requires a broad view of jurisdiction.

Wyatt points out that since the early 1990s, bills have been introduced in Congress to deny citizenship to people born in the U.S. if their parents were not lawful residents. Whether such a statute would pass constitutional muster in the almost certain court challenge should such legislation become law would remain to be seen.

by Thomas D. Begley, Jr., CELA

Federal Employee Health Benefit Act

The Federal Employee Health Benefit Act (FEHBA) provides group health insurance for federal employees.[1] Although there is no statutory right of subrogation or reimbursement, FEHBA contains a preemption provision under which the terms of insurance contracts issued by its private carriers purportedly preempts state and local law.[2] However, the Supreme Court has held that FEHBA does not provide contract insurers with a federal cause of action or federal jurisdiction in a subrogation/reimbursement claim, leaving the matter to the state courts, and it further called into question whether a FEHB plan may assert any contractual recovery right at all against a beneficiary where such claims are prohibited by state law; the Court was “not prepared to say” that a carrier’s contract with the government “would displace every condition state law places on that recovery.”[3]

Federal Medical Care Recovery Act

The federal statutory scheme provides several independent bases for recovery of medical costs expended on behalf of government personnel and their dependents for injury or disease not connected to their military or other government service, but the Federal Medical Care Recovery Act (FMCRA)[4] establishes standards generally applicable to claims of all federal departments and agencies. Significantly, while the government may exercise its recovery rights under the statute by making claims directly against third-party tortfeasors, the statute authorizes no such claims against a beneficiary. The statute provides, inter alia, that in any case in which the United States furnishes or pays for medical or dental care and treatment under circumstances creating third-party tort liability for such expenses, the United States shall have a right to recover from the third party the reasonable value of such care and treatment.[5] The United States also has an independent right to recover from the third party the total amount of pay for a member of the Uniformed Services for any period in which the member is unable to perform his or her duties as a result of the injury or disease and is not assigned to perform other military duties.[6]

[1] 38 U.S.C. § 1725(a)(1).

[2] 5 C.F.R. § 890.

[3] Empire HealthChoice v. McVeigh, 547 U.S. 677 (2006).

[4] 42 U.S.C. § 2651.

[5] 42 U.S.C. § 2651(a).

[6] 42 U.S.C. § 2651(b).

Under California family law, the income and property each spouse acquires during a marriage is considered community property to be divided between them during a divorce. However, couples often separate years before they divorce, removing all their earnings after separation from consideration when determining community property. When the couple separates, each spouse gets to keep whatever they accumulate.

According to the Supreme Court guidelines, a couple that continues to reside in the same house cannot qualify as separated when dividing assets. The ruling reinforces a bright-line rule, which makes the establishment of individual residences the minimum requirement to legally define when a couple is separated and income and property are no longer shared.

The ruling provides some clarity to everyone involved in the divorce proceedings, so that there is no confusion or disagreement as to when a couple actually separates. The Supreme Court has prioritized living arrangements when deciding separation over other factors such as separate bank accounts or the care of children.  However, the ruling does not address the situation where a spouse files for divorce or legal separation in family court but the parties continue to live together.  In such a situation, it is likely that the parties would be considered separated because of the court filing.

The court made its ruling in the Alameda County Superior Court case of divorcing couple Keith and Sheryl Davis. According to court documents, Sheryl claimed they formally separated in 2006 when she declared the marriage was over. She said they began living as roommates in different bedrooms under the same roof for the sake of their children and had taken steps to separate their finances. Keith contended that the separation began in July 2011, when she moved out of their Castro Valley, California, home.

Sheryl argued that Keith was not entitled to a share of her earnings as the couple’s arrangement met the requirement of living separately during those five years, when she earned more than he did. However, the state Supreme Court ruled that her income until July 2011 was community property, of which Keith is now eligible to receive a share.

Although the Supreme Court ruling serves to avoid ambiguity, it does not take into account aspects such as the parenting responsibilities between an estranged couple, as well as financial considerations.  One spouse may have to move out of the marital residence and find a new home as a prerequisite to establishing the date of separation, which could pose financial difficulties. Mediation can be helpful in cases that involve children and for resolving the many issues that arise from separation.

For more information, see:

• http://patch.com/california/sanmarino/ca-high-court-rules-legal-separation-divorcing-couples
• http://www.sfgate.com/news/article/State-Supreme-Court-defines-legal-separation-in-6395912.php
• http://losangeles.cbslocal.com/2015/07/20/california-supreme-court-weighs-in-on-marriage-separation/

Gerald A. Maggio is an experienced Orange County divorce and family law lawyer and family law attorney located in Irvine, California, serving the Orange County and Riverside areas. Mr. Maggio assists clients with legal issues including divorce, legal separation, divorce mediation, child custody, prenuptial agreements, stepparent adoptions, and other family law issues. Mr. Maggio has practiced law in California since 1999, and founded The Maggio Law Firm in 2005, focusing exclusively on divorce and family law matters.

The VA said that same-sex couples with military ties will be eligible for the full scale of benefits that were, until recently, denied to them in some states. The agency previously upheld a policy of not providing spousal benefits to couples residing in states where same-sex marriage was not recognized.

Defense Department spokesman Navy Lt. Cmdr. Nate Christensen said the Supreme Court decision will not affect the military when it comes to the recognition of marriage or availability of benefits, since they have been in place since the court invalidated the Defense of Marriage Act in 2013.

Since then, same-sex military couples have received access to the department’s benefits. However, VA officials denied benefits to veterans in same-sex unions in states that did not legally recognize their marriages. This prompted lawsuits across the United States, most of which were put on hold while the Supreme Court made its decision.

The latest ruling is set to affect thousands of veterans as it dismantles all the barriers to gaining the full spectrum of benefits given to married couples. In a statement, VA officials said they are working to clarify the benefits process and provide guidance to same-sex couples looking to apply for them.

They added that the ruling now allows the department to “recognize the same-sex marriage of all veterans, where the veteran or the veteran’s spouse resided anywhere in the United States or its territories at the time of the marriage or at the time of application for benefits.”

Legal Help for Veterans, PLLC fights for veterans rights. We fight to make sure you get the benefits you deserve from the Department of Veterans Affairs. To learn more or contact an attorney about your Post Traumatic Stress, Traumatic Brain Injury, Mental Health, Sexual Assault, Hearing Loss and Tinnitus, Total Disability Based on Individual Unemployability, Medical Malpractice, or Aid and Attendance claim, visit http://www.legalhelpforveterans.com/ or call 800.693.4800

The VA said that same-sex couples with military ties will be eligible for the full scale of benefits that were, until recently, denied to them in some states. The agency previously upheld a policy of not providing spousal benefits to couples residing in states where same-sex marriage was not recognized.

Defense Department spokesman Navy Lt. Cmdr. Nate Christensen said the Supreme Court decision will not affect the military when it comes to the recognition of marriage or availability of benefits, since they have been in place since the court invalidated the Defense of Marriage Act in 2013.

Since then, same-sex military couples have received access to the department’s benefits. However, VA officials denied benefits to veterans in same-sex unions in states that did not legally recognize their marriages. This prompted lawsuits across the United States, most of which were put on hold while the Supreme Court made its decision.

The latest ruling is set to affect thousands of veterans as it dismantles all the barriers to gaining the full spectrum of benefits given to married couples. In a statement, VA officials said they are working to clarify the benefits process and provide guidance to same-sex couples looking to apply for them.

They added that the ruling now allows the department to “recognize the same-sex marriage of all veterans, where the veteran or the veteran’s spouse resided anywhere in the United States or its territories at the time of the marriage or at the time of application for benefits.”

Legal Help for Veterans, PLLC fights for veterans rights. We fight to make sure you get the benefits you deserve from the Department of Veterans Affairs. To learn more or contact an attorney about your Post Traumatic Stress, Traumatic Brain Injury, Mental Health, Sexual Assault, Hearing Loss and Tinnitus, Total Disability Based on Individual Unemployability, Medical Malpractice, or Aid and Attendance claim, visit http://www.legalhelpforveterans.com/ or call 800.693.4800

The Changes to the Family in Modern Times

The scale of changes has meant that divorce laws have started to be questioned by recent developments. A few of these notable changes can be:

• A generation or so ago, women having full time jobs was not as common as it is today. Now they are working outside of their houses, with many households having not one but two incomes.
• A few years ago, there were only a few states in the US, one of which was California, which had legalized same sex marriages. Yet, now with the recent decision of the Supreme Court making it legal throughout the US, the family laws such as those of divorce seem incompatible.

Incompatibility of the Law

These changes mean that the scope of the modern family has changed drastically. The California divorce and family laws for example are not meant to handle the complex issues that are arising as a result of these changes.

How do you determine the custody of the child between two same sex parents only one of whom is biologically related to the child? While the child may view both of them as parents, legally only one of them is the real parent owing to biological relations.

In addition, in homes where there are two sources of income one from each spouse, property division can be a serious issue, because neither party would want to settle for a smaller share or a share they don’t feel is proportionate to their contributions.

Mediating the Solution

Instead of using the courts to solve disputes, if we turn to Orange County divorce mediation, the needs of the modern family can be catered to, with decisions made based around common sense, mutual wisdom, and the needs of the family.

If both of the spouses can talk it out and make sure they understand each other’s point of views, Orange County divorce mediation gives them the chance to make a legally binding decision as they see fit, irrespective of its compatibility with the law. This, however, will only be applicable as long as both the spouses are mutually agreeing on the provisions of the agreement.

Gerald A. Maggio is a trained divorce mediator who has amicably resolved cases many cases out of court, as well as an experienced divorce and family law attorney. Mr. Maggio founded California Divorce Mediators in 2012 with the belief that although “not every marriage can be saved, every family can” and a mission to save families from the financial and emotional distress associated with traditional divorce litigation. California Divorce Mediators is located in Irvine, California, and serves the Orange County area and other counties in California offering divorce mediation, child custody mediation and mediation of other family law matters.

The officer asked the driver for his documentation — driver’s license, insurance, registration — and then asked the driver to come back to the cruiser with him. The driver declined. The officer questioned the passenger, called for backup, finished issuing tickets and asked the driver if he would submit to a dog sniff.

The driver and other car occupants objected. The dog later found methamphetamine. The Supreme Court indicated that keeping the vehicle beyond the time needed to wrap up the traffic matter constituted an unlawful seizure.

In Rodriguez v. United States, (No. 13-9972), the U.S. Supreme Court Justices handed down a ruling stating that once a “routine” traffic stop is completed, law enforcement cannot, unless there is “reasonable” suspicion, hold a driver and/or passenger to have a dog sniff their persons or property for illegal drugs. The main reasoning behind the Justices’ decision was that authority for a seizure or stop ends when all tasks related to a traffic violation are, or should have been, completed.

The court said: “A seizure for a traffic violation justifies a police investigation of that violation” — no more — and “authority for the seizure…ends when tasks tied to the traffic infraction are — or reasonably should have been — completed.” Detaining a vehicle to bring in a drug-sniffing dog to search for drugs is definitely not allowed under this ruling.

The Rodriguez v. United States, (No. 13-9972) decision is a bit at odds with Illinois v. Caballes. The latter has been understood to allow a dog to sniff, if that sniff takes place during the traffic stop window of time. Under the Rodriguez decision, a sniff would be forbidden if it unnecessarily prolongs the traffic time.

In either instance, as in many others, it is the circumstances of the situation that dictate the possible outcomes. Until further lawsuits are filed, dog sniff and traffic stop law remains hazy. Something that was not dealt with in this case was whether or not there was reasonable suspicion of a further crime, which would have permitted law enforcement to detain the driver. Another issue in this cases that may warrent further examination is defining a dog sniff as a “search.”

Thomas C .Grajek is a criminal defense lawyer in Tampa, Lakeland, and Polk County Florida. To contact a Lakeland criminal defense lawyer or to learn more, visit http://www.flcrimedefense.com/ or call 863-688-4606.

The old idea of retirement planning being a “three-legged stool” still holds basically true, but it’s also a little more complicated than it used to be.

Individual retirement accounts, or IRAs, have been a valuable tool for retirement and estate planning for several decades. It has been a great way for people to save money for retirement with little or no taxes paid and grow with interest to provide a nice nest egg to live on later in life or to pass on to beneficiaries.
This comes about following a landmark Supreme Court case that did not get many headlines nationally but has wide ramifications.

No Asset Protection for Inherited IRAs

The Supremes ruled in the 2014 case, Clark v. Rameker, that an inherited IRA is not a “protected account” under federal bankruptcy laws. What this means is if you have an IRA that you inherited from a loved one who passed away and you file for bankruptcy protection, that account is not shielded, which means the account can be used to pay creditors and can be subject to liquidation by a bankruptcy court.
Think about that for a second, and take it to a different angle. Let’s say you leave an IRA to your child who is a bit of a spender. He or she is the type who would ask for money out of the IRA ad use it to buy a car, lots and lots of shoes (there was a big sale!) and to pay back taxes or cover a gambling debt. Was that how you expected the money to be used? Surely the plan was to give the IRA to be used for retirement income and not for paying back creditors or for frivolous spending.

Stand Alone Retirement Plan Trust

But if an inherited IRA is now not protected, what can you do? There are ways to protect that IRA, and they include creating a “see through” trust account that meets certain IRS criteria. In a trust, the inherited IRA not only can be protected from bankruptcy or other creditors, but it also can be protected from those spenders you have as children.
If you have an IRA account that you intend to pass down to the next generation, it is a good idea to visit with an estate-planning attorney who knows the ramifications of the Clark case and how it applies to federal regulations as well as Michigan state law regarding such accounts.  One of the best ways to pass IRA’s down to the next generation are with Stand Alone Retirement Plane Trusts.

This is your hard-earned money, and you have a right, a duty, and a responsibility to protect it from various threats so it can be used to its maximum potential. Your retirement account is a part of your legacy, and your legacy should be maintained by the next generation, or you should take control of it in your own way. Either way, proper estate planning now will keep your legacy intact for years to come, regardless of your children, grandchildren or their creditors.

The post A Threat to Your IRA Thanks to the Supreme Court appeared first on Estate Planning Lawyers | Elder Law Attorneys | Brighton | Novi | Livonia Elder Law Attorneys.

In 2014, the U.S. Department of Labor opened new offices in Austin and Temple in 2014 to handle an increased number of complaints the agency is receiving, as well as the increased litigation.

Lawsuits and complaints have been filed over a variety of issues. In one example, employers have required workers to show up to work at a particular time, but did not start the pay clock until later. Other cases involve employers who have refused to pay when employees work overtime without obtaining pre-approval.

Many of the lawsuits are filed under the Fair Labor Standards Act (FLSA), the 1938 law that created the 40-hour workweek and established overtime pay and the minimum wage.

Legal experts say that a number of factors have contributed to the increase in litigation, including that workers have become more knowledgeable about the law. There has also been growth in small businesses that may not be aware of the law’s requirements. In addition, the statute provides for legal fees, making it relatively easy for workers to obtain legal representation than for other types of cases.

In December 2014, the U.S. Supreme Court ruled on a case involving workers’ pay. In a unanimous decision, the court held that a temp agency did not have to pay Amazon warehouse workers for the time they spent in a security screening checkpoint as they exited their workplace.

Gregory D. Jordan is an employment lawyer. To learn more, visit http://www.theaustintriallawyer.com or call 512-419-0684.

After waiting over two years for the Connecticut Claims Commissioner to grant permission to sue, the man’s widow filed a wrongful death lawsuit alleging that state workers failed to ensure that the man was a safe distance from the work site. Under state statute, lawsuits brought against the state need the permission of the state to go forward. She was awarded over $1.3 million in January 2012 after a non-jury trial, a judge who ruled that the accident was foreseeable and the state liable, but attorneys for the state appealed stating that the accident was unforeseeable. The defense argued that the DOT work crew met the standard of reasonable conduct and the man was kept a reasonably safe distance from any and all reasonably foreseeable dangers. The decision was overturned by a panel of three justices of the Connecticut Appellate Court in August 2013.
An appellate lawyer for the plaintiff asked the state Supreme Court to hear the case and argued that the DOT didn’t even have a written policy or regulation concerning the appropriate distance to stand from a fallen tree. He also noted that no Connecticut court has ever held that an industry has the last word on the standards governing its own liability.

We all have the right to expect that our state and local government does everything possible to keep us safe on our roads, at construction sites, and more. We expect they have written policies and procedures and all employees are properly trained to protect the community. When the government and/or business fail to do so, lawsuits almost always result in safety improvements. Shielding corporations and government entities from liability or damages is not a solution. Holding those who create dangerous conditions (or allow known dangers to continue without public warning) accountable for their actions improves safety, saves lives, and prevents future harm.

Now, almost 10 years later, the suit is nearly finishing its journey through the state courts. We will wait and see the Supreme Court decision.

This case is a perfect example of the all-to-often, lengthy litigation process especially with an appeal. The death of a loved one leaves many not only in emotional turmoil, but financial distress. Burial costs are expensive and can costs thousands of dollars. The loss may also put a strain on regular monthly expenses like mortgage/rent, car payments, and ongoing monthly expenses. As a result, some people turn to litigation funding.

Legal funding companies offer pre-settlement funding and post-settlement funding to help plaintiffs survive financially while they wait for their awards. Pre-settlement litigation funding is provided by a lawsuit funding company to a plaintiff before a settlement or award, with the expectation that the plaintiff will ultimately receive compensation from the suit. Funding provides immediate access to money so the plaintiff can cover expenses while in litigation. Post-settlement funding occurs after an award has been made or a settlement reached in a lawsuit, but before the award or settlement is paid out. Some plaintiffs find that they require financial assistance because even when a settlement is reached, it can still take time for the payment to be made. A defendant could also appeal the court’s ruling, resulting in a long time before the award is paid out.

If you are involved in a wrongful death lawsuit and are considering litigation financing, Litigation Funding Corporation may be your solution. We understand that waiting out the long litigation process can be devastating especially with bills stacking up. Our legal funding services are based on a non-recourse base, meaning that we are only repaid if you win your case. Credit score and employment history are not factors in the funding decision; only the strength of your case matters. Even if your case is in appeal, we can help. Don’t struggle financially during your pending claim and don’t settle for less than you deserve when our services may be a valuable asset to you. Once we receive an application, most requests for cash advances are approved within 1 to 2 days after case documentation is received from your attorney. Don’t delay; call today!

At one time, once a sexually dangerous inmate served a full sentence, he or she was released. The U.S. Supreme Court has now indicated this may no longer be the case when it comes to sexually dangerous convicts.

How is a convict classified as being sexually dangerous? There are two conditions that an inmate must meet prior to receiving this classification. In the first, a court must see clear evidence and convincing proof that the convict would not be able to stop molesting children or cease sexually violent conduct, should release occur. The second condition is that neither the state in which the convict is incarcerated nor the state where a trial was held, should they be differing locations, wish to accept custody of the offender.

Former President George W. Bush first granted the legal authority to hold convicted sexually dangerous offenders indefinitely in 2006 under the Adam Walsh Child Protection and Safety Act (2006). When the act first came into being, four inmates, who had served their sentences, filed a legal challenge stating they had the right to release from prison after their sentences were served. Prison officials did not let them out because they were viewed as being at high risk to re-offend.
The first court of appeal initially found in favor of the inmates and decided that Congress had gone too far in mandating that sexually dangerous prisoners remain in jail once sentences were completed. On appeal to the U.S. Supreme Court, in a 7-to-2 decision, the court reversed the initial ruling in United States v. Comstock.

Was the government overstepping its constitutional boundaries or does government have the power to hold this class of offenders indefinitely? The ratio decidendi indicated the government does indeed have the right to indefinitely detain this class of offenders.

This is an important case to note, as it addresses a legal concept referred to as federalism – a safeguard against the government overstepping its authority. In theory, the federal government may only act if it has been given the power to do so by the Constitution, and the Constitution does not expressly state that Congress has the power to indefinitely hold such prisoners. In other words, the Supreme Court decision expanded the government’s power to encompass such indefinite detainment, which may pose some decidedly delicate legal questions in the future.

Thomas C .Grajek is a criminal defense lawyer in Tampa, Lakeland, and Polk County Florida. To contact a Lakeland criminal defense lawyer or to learn more, visit http://www.flcrimedefense.com/ or call 863-688-4606.

It was 1985 and Ordinance No. 22, adopted on February 21, was a bold action considered to be well ahead of its time largely because it was the only way to offer same-sex couples legal recognition. Today, the domestic partnership program offers committed straight and same-sex couples equal opportunities in the eyes of the law.

1985 was also a banner year for the City of West Hollywood in another way. The City worked long and hard to lobby for change to California state law to include domestic partnerships in the California Public Employees’ Retirement System (CalPERS) benefit plans statewide.

Domestic partnerships in California allow two unmarried adults to enter into a legal partnership: a domestic partnership and states that they are one another’s sole partner, completely responsible for the other’s well being. The domestic partnership agreements are not just for couples living in West Hollywood. Anyone may register and many do as they view it as a serious sign of their commitment to one another.

Couples registering as domestic partners have been able to take advantage of the single-minded commitment to equality demonstrated by West Hollywood. Not only did the city give birth to the first domestic partnership registry, pass a resolution in support of marriage equality for straight and same-sex couples inside and outside its city limits, they also expanded their program to give the nod to other partnerships registered in other jurisdictions, and began requiring that franchises, contractors and vendors wanting contracts with the city must provide partnership benefits to their workers.

The California Supreme Court issued a ruling on Proposition 8 that stated barring gay marriages violated the state’s constitution. In June 2008, West Hollywood started issuing marriage licenses and holding civil ceremonies for same-sex couples. In November 2008, issuing marriage license was halted. The question was sent back to the Supreme Court in 2013 in the form of an appeal in Hollingsworth v. Perry. The Court neatly sidestepped the core issue, opening the door for the resumption of same-sex marriages in West Hollywood.

Domestic partnerships have a long and interesting history; a history that gay and straight couples should appreciate when declaring their commitment to one another. Evidently many do appreciate the ability to partake in the benefits of equality in a domestic partnership arrangement, as the 10,000th domestic partnership agreement was registered in West Hollywood in October 2014.

For those wishing more information about domestic partnership agreements in West Hollywood, visit:www.weho.org/domesticpartnerships.

Gerald A. Maggio is an experienced Orange County divorce and family law lawyer and family law attorney located in Irvine, California, serving the Orange County and Riverside areas. Mr. Maggio assists clients with legal issues including divorce, legal separation, divorce mediation, child custody, prenuptial agreements, stepparent adoptions, and other family law issues. Mr. Maggio has practiced law in California since 1999, and founded The Maggio Law Firm in 2005, focusing exclusively on divorce and family law matters.

The short answer is “yes, you can fire your personal injury lawyer even if you’re paying a contingent fee”, but you still may end up paying the first lawyer.  Let me explain.

Texas contingent fees are governed by a 1969 Supreme Court case of Mandell & Wright v. Thomas.    In that case, the Court stated that when a client fires a lawyer who is working on a contingent fee without having good cause, then the lawyer can still recover the full contractual fee.

This means that if you have hired a lawyer and agreed to pay him 40% contingent fee, decide to fire the first lawyer and hire a second lawyer on an identical 40% contingent fee, then you could be paying 80% of your claim for attorneys’ fees.  So yes, you can fire your lawyer, but if you’re not careful, you could end up paying for that decision.

Having said that, these issues can usually be worked out.  When you call us and ask us about firing your current personal injury lawyers, the first advice is almost always to schedule an appointment with the prior lawyer, sit down face to face, and see if you can’t work through your differences.  In many cases, disputes are often just a misunderstanding, and communication between you and the lawyer can help both of you move forward.

I realize that can’t work in all cases.  For a variety of reasons, you might not be able to work with your current lawyer.

In most cases, if you simply can’t work with your prior lawyer, then we can try to work something out with the prior lawyer so that you’re not being charged two fees.   Sometimes, the prior lawyer may agree to give up his rights to the fee and expenses.  Sometimes, the prior lawyer may agree that he won’t collect a fee, but he would like to be reimbursed for his out-of-pocket expenses incurred in your case.  And in other cases, we will work something out with the prior lawyer to share the fee so that you are only charged one fee.  The particular circumstances in your case will dictate what agreement can likely be reached.

However, there are times when we’ll talk to your prior lawyer, and we can’t work out any agreement.  Those instances are difficult.  Depending on the circumstances, we may advise you take various steps, including investigating whether you might want to file a fee dispute with the Austin Bar Association Fee Dispute Committee.  Regardless, if we can’t work something out with your prior attorney, we will typically not take your case until that issue is resolved because we don’t want to be part of a matter where you might be paying two fees.
So long and short, yes you can fire your personal injury lawyer, but the best way to do it is to do it as amicably as possible to minimize the risk that you might have to pay extra attorneys’ fees.

Charles Hooks III’s land lease required Samson Lone Star LP to pay him if it drilled a well within one quarter-mile of his property. He sued the company when he discovered that a well that began 1,500 feet away actually bottomed out within the buffer zone. Hooks claimed that Samson lied about the nature of the well and altered plans to cover it up.

In 2008, a trial court awarded Hooks’ family (he was, by then, deceased) over $21 million in royalties. But in 2011, an appellate court overturned the award and ruled that if Hooks had exercised due diligence, he would have discovered the well’s true location more than five years before he filed suit. 

The statute of limitations for such fraud claims is four years.

In response, the Hooks family argued that because Samson allegedly misrepresented the oil well’s location, they should be permitted more time to bring their claims. Their case has moved to the state Supreme Court in part to consider that claim.

The Hooks family has stated that the issue at stake is one of the most important in Texas oil and gas law – balancing the right of defendants to be protected from very old claims while preserving the ability of fraud victims to seek legal remedies.

If you have any doubts about your oil and gas lease, speak with an attorney sooner rather than later.

By Richard LaGarde

Merchant marine workers and their survivors are suing ship owners, alleging that exposure to ship-born asbestos scarred their lungs and/or contributed to their deaths. They are suing under the Jones Act and the Death on the High Seas Act, two 1920 laws that allow seamen to sue ship owners and operators in cases of negligence.

However, those laws limit recoveries to monetary damages (such as medical expenses). They do not allow punitive damages, which are intended to punish defendants in cases of extreme negligence.

The plaintiffs claim the ships in question were not seaworthy. The duty of a ship owner to provide a seaworthy vessel arises from the “master/servant” relationship, a long-standing common law concept that predates the Jones Act. For this reason, Judge Eduardo C. Robreno ruled that claims of unseaworthiness do not fall under the Jones Act.

It would seem, therefore, that the plaintiffs can seek punitive damages. But under Robreno’s ruling, that is only true of those sailors who were injured, but not killed, by the conditions alleged. Robreno said that a 2009 U.S. Supreme Court case established that wrongful death claims may only be pursued under the Jones Act, thereby precluding recovery of punitive damages. Robreno admitted the ruling seemed counterintuitive, but he stated that it followed Supreme Court precedent.

The multidistrict litigation was created in 1991 to manage all federal cases involving asbestos-related personal injury and wrongful death claims. It is the longest-running multidistrict litigation in history.

By Richard LaGarde

Court documents suggest that Dr. Rachel Tollefsrud told the parents to keep a watchful eye on the lump, but not to worry about it. Inexplicably, documentation relating to the lump did not appear in the child’s medical file until she was a year old. By then, several other doctors had diagnosed the lump as cancerous. The child died in July 2013.

During the trial, the doctor commented that the Dickhoff child was the first she had treated with cancer — and because of that, she is now more aware of such anomalies when they appear. In her defense, she argued that she provided the child with the accepted standard of care, did not do anything wrong and wished she could have acted sooner. 

The outcome of the case may have interesting legal ramifications. In 2013, the U.S. Supreme Court handed down a judgment that allows a family or patient to ask the court for damages if a doctor’s medical negligence results in a reduction of an individual’s chances of recovery or survival.

The Dickhoff family faced enormous medical bills as they cared for their daughter until her death. They may have been in a precarious financial situation and unable to handle all their usual financial obligations with the medical costs for their child. One solution may have been for them to seek litigation funding, also called a lawsuit loan. 

Pre-settlement funding is approved and send within 48 hours for qualified plaintiffs, provided that their case meets certain criteria and that they are working with an attorney of record.

There are many benefits for plaintiffs when they apply for litigation funding. They do not have to entertain any insurance company offers to settle and do not need to have a job when they apply. There are no credit checks, no fees to apply, no monthly fees and, should the case lose in court, the lawsuit loan funds are the plaintiffs to keep, no strings attached.

Daren Monroe writes for Litigation Funding Corp. To learn more about lawsuit funding and litigation funding, visit http://www.litigationfundingcorp.com/.

Obtaining  a search warrant is a relatively easy procedure for law enforcement and is usually done by swearing to facts under oath that constitute probable cause that a crime was committed or that incriminating evidence is likely to be found in a particular place or, in this case, the cellphone.

The cases the Court reviewed involved both an extensive smartphone search in California (that had been upheld by the state California court) and a more limited search of an old flip-phone in Massachusetts that a federal judge already had thrown out as an illegal search (search was only aimed at incoming calls and addresses).

Police can search an arrested person under arrest and whatever physical items are within reach to find weapons and preserve evidence.  There are limitations as to what is “within reach” or what evidence can be searched for after an arrest.  In addition, police may try to do an “end around” these search limitations by conducting “inventory searches”.  However, the Court noted that vast amounts of sensitive data on modern smartphones raise new privacy concerns that differentiate cell phones from other evidence. The Court did allow the police to argue “exigent circumstances” to possibly uphold a search of a cell phone.  Criminal defense lawyers already deal with this search warrant exception on a regular basis.  It mainly deals with the fact that evidence may be destroyed before a search warrant is obtained.

These privacy and search issues will continue to keep being raised in the criminal courts.   As technology advances, there will be new Fourth Amendment questions for defense attorneys to raise and judges to rule upon.  This is exactly why if you have been arrested, you need an aggressive criminal lawyer that will raise these new issues in your case.  You need an attorney that will file Motions to Suppress in your case to get evidence thrown out and to protect your privacy rights.  You need an attorney that knows that latest case law to insure you get the best defense to your criminal case.

If you have been arrested, call an aggressive criminal defense lawyer!

Thomas C. Grajek – 863-838-5549

NCDD

Don’t leave your IRA outright to a kid.

In the big news department, the Supreme Court held in Clark v. Rameker that inherited IRA’s are not asset protected.  There were differing opinions on whether an inherited IRA would be protected against bankruptcy, however it is now clear that they are not.
Here’s the facts, at death Ms. Heffrom owned an IRA worth about $300k, with her daughter Mrs. Heffron-Clark named as the designated beneficiary.  When Mom’s account passed to daughter, daughter and her husband were in the middle of bankruptcy proceedings.

It’s common knowledge that IRA’s are protected assets that are protected against such proceedings.  However, the issue is whether an inherited IRA is a “retirement fund” under the bankruptcy code.

The Supreme Court unanimously ruled that the inherited IRA was NOT a “retirement fund” under the bankruptcy code and was not protected.

Sooooo………what does this mean?

Well it means for Michigan clients who have retirement accounts greater than $250,000 then those IRA’s should not be given outright to children, but instead should be held in Stand Alone Retirement Plan Trusts (RPTs) to provide asset protection against creditors and bankruptcy proceedings.

Don’t leave your IRA outright to a kid.

In the big news department, the Supreme Court held in Clark v. Rameker that inherited IRA’s are not asset protected.  There were differing opinions on whether an inherited IRA would be protected against bankruptcy, however it is now clear that they are not.
Here’s the facts, at death Ms. Heffrom owned an IRA worth about $300k, with her daughter Mrs. Heffron-Clark named as the designated beneficiary.  When Mom’s account passed to daughter, daughter and her husband were in the middle of bankruptcy proceedings.

It’s common knowledge that IRA’s are protected assets that are protected against such proceedings.  However, the issue is whether an inherited IRA is a “retirement fund” under the bankruptcy code.

The Supreme Court unanimously ruled that the inherited IRA was NOT a “retirement fund” under the bankruptcy code and was not protected.

Sooooo………what does this mean?

Well it means for Michigan clients who have retirement accounts greater than $250,000 then those IRA’s should not be given outright to children, but instead should be held in Stand Alone Retirement Plan Trusts (RPTs) to provide asset protection against creditors and bankruptcy proceedings.

The post BIG NEWS: Supreme Court Holds Inherited IRAs are Not Protected Anymore appeared first on Elder Care Firm.

Eight gay couples who were married in states that recognize same-sex marriages joined with the American Civil Liberties Union in filing suit against Florida. Their lawsuit argues that the state unfairly discriminates against them by not recognizing their marriage, violating the Florida and U.S. Constitutions.

Florida Attorney General Pam Bondi filed a response asking the federal judge in charge of the case to throw it out. This is no surprise. Arguably, it is required of her office. But it is her choice of words that has some gay marriage advocates expressing indignation.

Bondi’s legal brief included the following: “The Court should also deny the preliminary injunction motions because there is no likelihood of success on the merits, there is no immediacy requiring a preliminary injunction and disrupting Florida’s existing marriage laws would impose significant public harm.”

On May 30, the attention of gay rights activists and the news media turned to that last word: “harm.” Some took it as evidence of the attorney general’s malice, bigotry or outdated prejudice.

In response, Allen Winsor released a statement from the attorney general’s office. It clarified that, “Florida is harmed whenever a federal court enjoins” – that is, prevents – “enforcement of its laws … Florida’s voters approved a constitutional amendment which is being challenged, and it is the attorney general’s duty to defend Florida law.”

Perhaps Bondi should have chosen her words more carefully. But what is truly important and interesting about this case is not the attorney general’s position on it, but the stakes for Florida family law and for Florida same-sex couples. In states where gay marriage is not recognized, the issues couples face are diverse.

First, of course, is the fact that many Florida same-sex couples wish to marry but cannot. Then, like the plaintiffs in this case, some are married under the laws of recognizing states, but live in a non-recognizing state. Still other couples – at least one of whom has filed a separate lawsuit against Florida – were legally married in another state but wish to divorce. The spouses are unable to do so because their marriage is not legally recognized in the Sunshine State.

In June 2013, the U.S. Supreme Court struck down both a federal law preventing the recognition of same-sex marriages for federal benefits and a California law banning same-sex marriage. Since then, efforts to fight such bans have gained momentum state by state. 

Many Floridians are anxious to see the outcome.

Contact a Tampa divorce lawyer and Brandon child custody attorney with the Osenton Law Offices, P.A. To learn more, visit http://www.brandonlawoffice.com/

One proposal involves new limits on medical malpractice lawsuits.

Representative Steve Scalise, Republican of Louisiana, is one of several Republicans pushing for the proposed legislation, which would repeal the Affordable Care Act, place new restrictions on medical malpractice suits and provide more access to health savings accounts.

However, some Republicans oppose the concept of a big healthcare bill that would make sweeping changes. Instead, they propose a targeted approach with smaller bills that would make limited changes within Obamacare.

The Affordable Care Act sets minimum standards for health insurance coverage. It requires most Americans to purchase health insurance and provides subsidies for low-income people to get coverage. Opponents have criticized the legislation as government interference in the marketplace.

Many states have passed legislation limiting the amount of non-economic damages, such as those for pain and suffering, that can be recovered in lawsuits over medical malpractice. In other states, including Illinois, such limits have been ruled unconstitutional. At the federal level, the Supreme Court has ruled that punitive damages in any lawsuit may not exceed compensatory damages by a ratio of more than nine to one.

Paul Greenberg is a medical malpractice lawyer in Chicago and malpractice attorney with Briskman Briskman & Greenberg. To learn more call 1.877.595.4878 or visit http://www.briskmanandbriskman.com/.

In the second case, the City of Hazelton, Pennsylvania passed employment and housing ordinances in 2006 aimed at controlling illegal immigration by limiting those who could work and live in that city only to persons who could prove legal status in the United States.  The high court let stand a Third Circuit decision finding that the local ordinance was preempted by federal immigration law. Both actions were championed by Kansas Secretary of State Kris Korbach.

Rabinowitz & Rabinowitz, PC. is an immigration law firm representing businesses and foreign nationals in employment-based visa cases. To learn more or to contact a Dallas immigration lawyer, visit http://www.rabinowitzrabinowitz.com.

In the second case, the City of Hazelton, Pennsylvania passed employment and housing ordinances in 2006 aimed at controlling illegal immigration by limiting those who could work and live in that city only to persons who could prove legal status in the United States.  The high court let stand a Third Circuit decision finding that the local ordinance was preempted by federal immigration law. Both actions were championed by Kansas Secretary of State Kris Korbach.

Rabinowitz & Rabinowitz, PC. is an immigration law firm representing businesses and foreign nationals in employment-based visa cases. To learn more or to contact a Dallas immigration lawyer, visit http://www.rabinowitzrabinowitz.com.

The Social Security Administration (SSA) has begun processing benefits claims for surviving spouses of same-sex marriages.

On December 16, 2013, the SSA released a statement from Acting Commissioner Carolyn W. Colvin confirming that such claims had begun to enter processing that same day. Claims from widows and widowers of legally-married, same-sex couples were being processed, as were one-time, lump-sum death benefit claims.

Colvin asked the public for “continued patience” while policies concerning same-sex couples are developed and implemented.

In June 2013, the U.S. Supreme Court invalidated the section of the Defense of Marriage Act that denied federal benefits to same-sex couples who were legally married under state laws.

Since then, various federal agencies have been hashing out exactly how to rework policies to reflect the ruling. The SSA encourages those who believe they may be eligible for benefits to apply as soon as possible in order to protect against the loss of potential benefits.

Contact an estate planning lawyer at the Hook Law Center.

Cases involving the death of young children are especially difficult for everyone, and perhaps no more so than for the city of Montgomery employee who had recently inspected an abandoned facility approximately five months prior to the boy’s death.
The young boy died in 2009, as a result of playing near an air-conditioning unit in an abandoned building on a commercial property. While playing, the young boy came into contact with live wires and was electrocuted. The property had been inspected five months before the boy’s death. Thieves had raided the air-conditioner to steal the copper wiring.

The parents filed a wrongful death lawsuit, naming the worker. The main issue in the case relates to whether or not the worker, who did the inspection onsite, is protected by state law, a law that caps damages in civil suits at $100,000. In this instance, the worker is being sued personally, not as an employee for the city, which may, or may not mean that he is protected by the law.

The electrical worker’s attorney argued in court that the law does protect city workers from damages above the existing cap, and states that in plain and clear language. The original trial court ruled the statutory cap did not apply. The case went on appeal. There is no word on when the Supreme Court intends to hear the appeal.

The boy’s parents likely have massive bills to contend with in addition to their regular expenses, and may be hard-pressed to keep up with all of them in a timely manner. A solution for them to pay those bills would be applying for litigation funding. Pre-settlement funding is an advance lawsuit loan that is sent to approved plaintiff applicants to allow them to get back their financial bearings.

Applying for a lawsuit loan is easy. It may be done online or by phone. There are not upfront payments or monthly payments, no credit checks and no hassles. Many plaintiffs find litigation funding appealing when they have nowhere else to go to get financial help.

Daren Monroe writes for Litigation Funding Corp. To learn more about lawsuit funding, visit http://www.litigationfundingcorp.com/.

The recent Supreme Court ruling striking down a portion of the Defense of Marriage Act (DOMA) will have widesprea… http://p.ost.im/dtpjdH

On June 26, 2013, the Supreme Court invalidated Section 3 of DOMA, which denied federal benefits to legally married same-sex couples. On August 9, 2013, the SSA issued a statement from Carolyn W. Colvin, acting commissioner, announcing the administration “is now processing some retirement spouse claims for same-sex couples and paying benefits where they are due.” The statement encouraged all individuals who believe they may be eligible to apply for Social Security benefits.

Most same-sex couples who are married reside either in the state in which they married or another state that recognizes their marriage. Others relocated after marrying to states that do not recognize their marriage. For now, it is only certain that the former group will be eligible for federal benefits. It remains to be seen whether those in non-recognizing states will receive equal treatment by the federal government.

President Obama weighed in following the Supreme Court ruling, saying, “It’s my personal belief – but I’m speaking now as a president as opposed to as a lawyer – that if you’ve been married in Massachusetts and you move someplace else, you’re still married, and that under federal law you should be able to obtain the benefits of any lawfully married couple.”

The elder law attorneys at Hook Law Center assist Virginia families with will preparation, trust & estate administration, guardianships and conservatorships, long-term care planning, special needs planning, veterans benefits, and more. To learn more, visit http://www.hooklawcenter.com/ or call 757-399-7506.

There are two sections of a law that lays out benefits for U.S. veterans that the Obama administration will no longer enforce. In a rare decisions to stop enforcing enforcing federal laws, the President has directed the Executive Branch to cease enforcement of sections 101(3) and 1010(31) Title 38.

(Related: Advance Care Planning Lessons for Oakland County Residents)

The sections define marriage as between a man and woman and deny legally married same-sex couple Veterans Affairs benefits like health care and disability payments. House Speaker John Boehner, a Republican from Ohio, said the decision to allow same-sex couples to apply for benefits was based on a June Supreme Court decision that shot down the Defense of Marriage Act.

“Although the Supreme Court did not directly address the constitutionality of the Title 38 provisions in Windsor, the reasoning of the opinion strongly supports the conclusion that those provisions are unconstitutional under the Fifth Amendment,” Holder wrote.

(Related: Majority of Hospitals Fail a Medicare Test)

The Obama administration continues to execute moves in compliance with the United States v. Windsor ruling. Earlier this year, the IRS made it known that it would treat all married couples, both same-sex and straight, the same. Prior to that, the Pentagon extended full benefits to same-sex spouses of service members and civilian employees. A federal judge ruled that to denying them those benefits, is unconstitutional.

Christopher J. Berry is an elder law attorney Dedicated to helping seniors, veterans and their families navigate the long-term care maze. To learn more visit http://www.theeldercarefirm.com/ or call 248.481.4000

At present, same-sex married couples who reside in Florida cannot obtain a divorce, because the state does not recognize the existence of their marriage. On the other hand, they cannot remarry, as that would constitute bigamy in the states where the marriage is recognized. Some states where same-sex marriage is recognized have strict residency requirements for divorce, leaving some Florida residents who want a divorce in legal limbo.

While the section of DOMA that permits states to refuse to recognize same-sex marriages granted in other states was not struck down by the high court, the court’s decision is broad enough that it may provide a basis for future challenges to state laws. Same-sex marriage is prohibited in Florida and same-sex marriages from other states are not recognized.

Any legal challenge to state law will take some time, but the outlook has improved for same-sex couples wanting a divorce in Florida.

Contact a Jacksonville divorce lawyer with Richard D. Zasada, LLC or visit http://www.zasadalaw.com/

The post End of DOMA May Make Florida Divorces Easier for Same-Sex Married Couples appeared first on Richard D. Zasada, LLC.

If a prenup is controversial, then a postnuptial agreement, or “postnup,” could be even more so. But it does not have to carry a negative connotation any more than a prenup. A postnup serves the same purpose as a prenup, but it is an agreement entered into by a couple that are already married. It can contain all the same arrangements, and like prenups, postnups are gaining in popularity.

There are many reasons why you and your spouse might want a postnup. Perhaps you considered a prenup, but did not get around to it before the wedding. Or maybe the thought of a prenup did not occur to you, or you thought you disliked the idea but had a change of heart. Also, a postnup may be advisable if one or both parties inherit or expect to inherit significant assets. Inheritances are usually considered separate property anyway, but a prenup or postnup can make that crystal clear.

A postnuptial can also bring a measure of peace to a marriage full of conflict. A recent CNN report told the story of a Boston couple who had ongoing disagreements about money. He took on large amounts of debt to grow his consulting business, which kept her up nights worrying what would happen if the business failed. They agreed to put the house in her name and split the mortgage and other expenses, quelling her fears and bringing peace to their relationship.

Postnups may become even more common soon in the wake of the Supreme Court decision that struck down part of DOMA. That ruling invalidates the portion of the law that denied federal benefits to legally married same-sex couples. When those couples suddenly find themselves in new and different financial circumstances, they may want to make new legal agreements to account for those changes.

No one plans to divorce, and no one wants to spend time, money, and energy in a drawn-out court battle. But those are exactly the situations in which many couples find themselves today. A prenuptial or postnuptial agreement prevents a great deal of conflict and can even strengthen a marriage.

Alston & Baker, an Affiliation of Professional Associations: The Law Office of Robert C. Alston, Esq., P.A. and The Law Office of Marcie L. Baker, Esq., P.A. To contact a Zephyrhills divorce lawyer call 1.888.500.5245 or visit http://www.alstonbakerlaw.com.

Bankruptcy in the U.S. is subject to federal law – the U.S. bankruptcy code. The law varies somewhat from state to state, but bankruptcy cases in the U.S. are heard in federal court. That means bankruptcy cases were subject to DOMA. The prohibition of joint bankruptcy filings by same-sex married couples was not ironclad, however.

In fact, determining whether such a couple could file jointly has been a confusing matter for some time. Under the direction of presiding judges, some bankruptcy courts have allowed joint petitions by same-sex married couples. In June, 2011, a California bankruptcy court ruled that DOMA violated the U.S. Constitution’s guarantee of equal protection. In an unusual move, 20 bankruptcy judges signed onto a ruling rejecting the U.S. trustee’s office’s request that the joint bankruptcy petition of two legally-married California men be dismissed. Prior to that, a very small number of judges had called DOMA unconstitutional.

Just three weeks later, the U.S. Department of Justice announced that it would stop opposing joint bankruptcy filings of same-sex married couples.

But that still did not mean that those couples could count on being able to file jointly. Individual bankruptcy judges exercise great discretion in how to handle cases presented to their courts. They need not heed the rulings or opinions of other bankruptcy judges.

Daniel Maltbie and Garry Houston made news recently when they filed for joint bankruptcy. Having married in Vermont in 2003 and subsequently moved to Florida, they anticipated a rejection of their petition by judges sympathetic to DOMA and to Florida’s non-recognition of same-sex marriages. The couple and their attorney had indicated a willingness to appeal the case in the event their filing was dismissed.

Following the Supreme Court ruling in June striking down DOMA, Maltbie and Houston and many other couples in similar situations expect their cases to proceed smoothly. The decision affects many federal benefits in addition to joint bankruptcy filings, and it remains to be seen how quickly and completely it will be reflected in the government’s laws and day-to-day practices.

O. Reginald (“Reggie”) Osenton is the Owner and President of Osenton Law Offices, P.A. If you need a Brandon bankruptcy lawyer, attorney, call 813.654.5777 or visit http://www.brandonlawoffice.com.

The U.S. Supreme Court has delivered a decision that has enormous ramifications for criminal offenders and criminal defense attorneys. The Court handed down a ruling that says law enforcement officers may gather DNA samples without getting a warrant first and such a process does not violate the 4th Amendment (protection against unreasonable searches and seizures).

While the Court indicates gathering DNA is a minor intrusion, there are others that suggest it will exponentially increase police powers – powers that may well be open to abuse.

As it now stands, anyone arrested in Florida for a serious crime is expected to comply with the police, allowing them to collect a mouth swab. Criminal defense attorneys view this as one more insult to the tenet that everyone suspected of a crime and/or arrested is presumed innocent until proven guilty – another infringement of rights.

The hole one could drive a truck through is that DNA collected is often used to close other crimes. For instance, consider a criminal arrested for an assault charge who is then linked with an unrelated burglary because of a DNA sample. It is important to remember that just because someone’s DNA may be present at a crime scene does not mean that it is that individual who committed the offense in question. There are many reasons why someone’s DNA may be present.
Anytime the courts change a basic principle that links to an individual’s rights, there is the potential for abuse. It is not unusual for law enforcement to violate someone’s rights in the name of justice. That should never be the case.

Collection of DNA without a warrant is an invasion of privacy and is wrong on so many levels. What about the question of the 5th Amendment, a person’s right to remain silent? Does having to provide a DNA swab without the benefit of a warrant not violate a person’s right to remain silent? It forces alleged offenders into a situation where they are incriminating themselves without proper recourse to a defense attorney.

The ruling opens a can of worms that will likely be revisited. Interestingly, even the Supreme Court was clearly divided on the ruling, by a vote of five to four. Despite the police suggesting DNA is also used to prove people innocent, there is a fine line being crossed. No one knows what will come about as a result of it.

Thomas C .Grajek is a criminal defense lawyer in Tampa, Lakeland, and Polk County Florida. To contact a Lakeland criminal defense lawyer or to learn more, visit http://www.flcrimedefense.com/ or call 863-688-4606.

Lesbian and gay married couples who are legally married in New York or any of the other 11 states that recognize same-sex marriage, and the District of Columbia, now have the right to more than 1,100 federal benefits that were previously only available to heterosexual married couples.

Same-sex married couples now have the ability to file joint federal tax returns and take unlimited marital deductions on federal and state taxes. The benefits also include access to immigration laws related to the residency of a spouse, stretch rollovers for distributions from retirement plans, and Social Security benefits.

Now is an important time for same-sex married couples to review their estate plans, as they will likely need to be amended to take the legal change into account. Estate planning documents such as wills, trusts, living wills and health care proxies should also be reviewed in light of the new circumstances. Individual and estate tax returns already filed may be open to amendment.

Married same-sex couples should contact their estate planning attorney or tax professional as soon as possible to take full advantage of these benefits.

For more information, visit www.littmankroooks.com.

Rabinowitz & Rabinowitz, PC. is an immigration law firm representing businesses and foreign nationals in employment-based visa cases. To learn more or to contact a Dallas immigration lawyer, visit http://www.rabinowitzrabinowitz.com.

Leahy told the news site, Politico, in a recent interview that at least one dozen U.S. states now legally recognize same-sax marriage. It does not make sense, Leahy said, for the federal government to help one married couple with immigration issues, but not another, simply based on their same-gender marriage.

One of the amendments backed by Leahy includes green cards for a foreign-born partner of a gay or lesbian U.S. citizen. Another amendment would give green cards only to a foreign-born partner if the couple is married.

Leahy stated that his goal is a fair and transparent process when it comes to the changes to immigration law, and for all people for whom it is important to get their say about those changes. In addition to the LGTB amendments, Leahy stated that the “trigger” issues are a number of border security benchmarks which must be agreed upon prior to allowing the more than 11 million undocumented immigrants apply for legal status. But critics are concerned that the compromise crafted by the Gang of Eight does not adequately address real border security issues and have countered with much tougher amendments.

The trigger encompasses extensive, new border fences; an agreed-upon, operational border security plan; the E-Verify system which would allow employers to check on the citizenship status of existing and potential employees; and a tracking system for both entry and exits at seaports and airports. Leahy said that he hopes any controversy is not enough to derail the important bill. Though the issues are serious, he said, they really should not be bones of contention. If the Senate truly wants an immigration bill, they will agree upon amendments to improve it and vote on them. Only people who really do not want a workable immigration bill, he said, will raise amendments with the intention of stalling it.

Currently, for married heterosexual couples, the spouse of a U.S. citizen can get immigration benefits, but the noncitizen of a same-sex couple cannot get the same benefit. This is due to DOMA, the Defense Of Marriage Act, a federal law which defines legal marriages as between one man and one woman. DOMA is currently under review in front of the Supreme Court. Will the majority of Justices strike down DOMA or will LGTB equality come into the country through the federal “side door” – immigration rights for same sex couples? We will know soon enough.

A. Banerjee is a Houston immigration lawyer in Texas. Before selecting an attorney, contact the Law Offices of Annie Banerjee by visiting their information filled web site at http://www.visatous.com.

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“I take full responsibility for this,” he allegedly stated. “Everything will be okay.”

Later that year, Johnson filed a medical malpractice lawsuit in which she admitted Smith’s statement as evidence of his negligence. When she dropped the lawsuit in 2006 and refiled it in 2007, she lost that right.

Why?

September 13, 2004, Ohio enacted the “medical apology statute,” which states that a doctor’s apology cannot be used against him in court.

“Physicians are and should be sympathetic and empathetic. Fear of future legal action shouldn’t impede that,” Dr. William Wulf, medical director of Central Ohio Primary Care, told the Columbus Dispatch.

Johnson filed an appeal, and the 11th District Court of Appeals ruled that Smith’s apology should have been admitted because he apologized before the law went into effect. In April, however, the Supreme Court reversed that ruling in a unanimous decision.

“Justices said lawmakers were ‘clear and unambiguous’ that the prohibition applied to all suits filed after the effective date of September 13, 2004, regardless of the date of the medical conduct in question,” the Associated Press reported.

Following the Supreme Court’s ruling, the Ohio State Medical Association issued a press release stating that it intends to pursue a bill that will clarify the statute.

Now that you know you may not submit a doctor’s apology as evidence, you may wonder what evidence you need in order to prove that your doctor was negligent. Below, Cleveland medical malpractice attorney Chris Mellino explains.

Because some states have declined to expand their Medicaid program under the Affordable Care Act, more than a quarter-million veterans who don’t have health insurance will miss out on Medicaid coverage.

Under the new federal health law, expanding Medicaid eligibility is a key component which aims to offer coverage to the majority of uninsured Americans. In January, uninsured adults with incomes at or below 138 percent of the federal poverty level ($15,415 for an individual and $32,527 for a family of four) will become eligible for Medicaid benefits in those states that expand their programs.

(Related: Rural Areas Could Suffer In States That Opt Against Medicaid Expansion)

It is a common misconception that the nation’s 12.5 million non-elderly veterans receive health benefits through the Department of Veterans Affairs (VA). But only two-thirds of those veterans are eligible for VA health care while only one-third are enrolled.

There are roughly 1.3 million uninsured veterans nationwide.

In a recent report, it was was estimated by the Urban Institute that if every state embraced the new Medicaid rules, as many as 535,000 uninsured veterans and 174,000 veteran’s spouses would become eligible for Medicaid coverage.

(Related: Palliative Care Need Grows, Specialists Dwindle)

Unfortunately, last june the U.S. Supreme Court ruled that states were not required to expand their Medicaid programs. As a result, 23 states have declined to expand Medicaid, while another six have yet to make a final decision. There are close to 258,600 uninsured veterans in the 23 states that have rejected the expansion who would have been eligible for Medicaid, according to a Urban Institute report.

And with Obamacare taking effect in 2014, like most other Americans, the uninsured veterans will be required to get it by January or risk paying a penalty under the Affordable Care Act. However, some of the uninsured who fail to qualify for Medicaid coverage might be eligible for federal subsidies that will be made available under the law. Uninsured Americans–veterans and non-veterans–will be able to use those subsidies to purchase private insurance on the state health care exchanges, set to launch in January.

There is a growing fear that Medicaid expansion and the array of health insurance choices available to veterans would result in worse care. The federal government created a separate VA health care system in the belief that veterans would get better care from doctors and nurses versed in the unique health conditions facing them, including post-traumatic stress in addition to other mental illnesses and physical injuries. But the Department of Veterans Affairs only expects 66,000 uninsured veterans to enroll in the VA system to meet the insurance requirement under the new health law.

(Related: Where Does Michigan Stand on Medicaid Expansion?)

Income limits for VA benefits are significantly less stringent than they are for Medicaid. A veteran with no dependents and an annual income of as much as $30,978 is eligible. But conditions other than income–like the length of time since combat, service medals, and service-related injuries or illnesses– also affect eligibility for VA health benefits.

Furthermore,, “there may be a variety of factors why a veteran would choose (Medicaid) or the (VA), such as proximity to VA facilities or their knowledge of the fact that VA care is available to them,” according to Jennifer Haley, who co-authored the Urban Institute report.

Read more: http://www.themonitor.com/news/local/article_035861f0-c972-11e2-8d60-001a4bcf6878.html

Christopher J. Berry is a Michigan elder law attorney Dedicated to helping seniors, veterans and their families navigate the long-term care maze. To learn more visit http://www.michiganelderlawattorney.com/ or call 248.481.4000

Medicare costs more for same-sex married couples as a result of DOMA. 

In response to the Supreme Court reviewing the constitutionality of the Defense of Marriage Act (DOMA), news outlets are reporting that DOMA increases private and federal health care costs for same-sex couples. As a result of a DOMA — which prevents the federal government from recognizing same-sex marriages — these couples are not privvy to the same benefits offered to hetrosexual married couples in programs like Medicare, Medicaid and Social Security. Politico recently reported, “The result is thousands of same-sex couples [are] facing more limited access to health insurance and steeper costs for coverage than their heterosexual counterparts.”

(Related: Elder Abuse Not Unique to James and Etta Jennings’ Overwhelming Story)

Fact or Fiction?

Fact. DOMA equates to limited access and higher costs when it comes to Medicare.

DOMA prohibits the federal government from acknowledging same-sex couples’ marriages. As a result, Medicare is more expensive for same-sex couples because it keeps  these couples from qualifying for spousal benefits. This impacts same-sex married couples’ Medicare eligibility and enrollment, and  can result in higher Medicare costs for these individuals.

Eligibility

To qualify for Medicare Part A (hospital insurance) without paying any monthly premium, a person must:

• be 65 years or older;

• be a legal resident of the United States for at least five years; and

• have worked for at least ten years (40 work credits) in which Federal Insurance Contribution Act (FICA) taxes (consisting of both Social Security and Medicare taxes) were paid, or be married to someone who has met this requirement.

(Related: (Related: Medicaid Applicant Denied for Uncompensated Transfer of Assets))

Individuals who meet these criteria are exempt from paying monthly premiums for Part A because they or their spouse paid Medicare taxes while working. With that said, this provision does not apply to same-sex married couples because DOMA does not accept same-sex married couples as married. As a result, those in same-sex marriages are not eligible for Part A through their spouse and must meet all eligibility requirements individually, or pay a monthly premium. This premium was $441 in 2013 if the individual has less than 30 work credits, or $243 with 30 to 39 work credits.

Additionally, DOMA prohibits same-sex married couples who might be covered by their spouse’s health benefits from deferring enrollment in Medicare Part B (medical insurance), which helps pay for doctors, outpatient hospital care and other medical services. Currently,  Americans who turn 65 must enroll in Part B unless the individual is still working, or is married to a spouse who is still working, and is covered by their employer’s group health plan.

These individuals can defer Part B enrollment without risk of being penalized and are able to choose to keep their employer’s or spouse’s employer’s insurance instead. However, those in a same-sex marriage cannot claim exemption from Part B enrollment even if they are married to a spouse who is still working and who is covered by their employer’s insurance because the federal government does not consider them married.

(Related: Bloomfield Hills Elder Lawyer Advice: Create a Personalized Healthcare Directive)

Thus, DOMA hinders same-sex couples Medicare benefits because same-sex married couples cannot enjoy Medicare spousal benefits, which can end up costing same-sex married individuals more when it comes to both eligibility and enrollment.

Credit to MedicareNewsGroup.com

Read more: http://medicarenewsgroup.com/context/beyond-the-sound-bite/beyond-the-sound-bite/2013/03/29/fact-fiction-medicare-costs-more-for-same-sex-married-couples?utm_source=Twitter&utm_medium=tweet&utm_campaign=Helen

Christopher J. Berry is an elder law lawyer in Michigan Dedicated to helping seniors, veterans and their families navigate the long-term care maze. To learn more visit http://www.michiganelderlawattorney.com/ or call 248.481.4000

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Covering more than 60 million individuals, Medicaid is the nation’s primary health insurance program for low-income and high-need Americans.

(Related: GOP Gov. Rick Snyder Supports Michigan Medicaid Expansion)

Major federal funding is allocated by the Affordable Care Act’s expansion of Medicaid to a national eligibility floor of 138% of the federal poverty level (FPL).  The Supreme Court upheld the ACA but limited the federal government’s ability to enforce the Medicaid expansion to low-income adults, effectively making implementation of the Medicaid expansion a state choice.

(Related: Legal and Financial Resources for People with Alzheimer’s Disease)

The report below examines the latest Congressional Budget Office (CBO) projections for federal Medicaid spending over the 2013-2023 period. CBO’s budget projections, also referred to as “baseline” projections, reflect CBO’s best judgement about how the economy along with other factors will affect federal revenues and spending under the existing laws.

(Related: The Doctor’s New Prescription: An Elder Attorney)

It is important to understand the CBO baseline estimates because they are the basis to evaluate the federal cost and coverage implications of proposed federal policy changes. Federal budget and federal deficit reduction have ignited an active debate and discussion. The fiscal effect of any federal policy changes will be measured against the CBO baseline.

Report 

(Read more: The Affordable Care Act At Three: Quality Over Quantity)

Currently, too few Michigan Republicans support the plan for it to advance. However, there are some in the GOP that claim they are open to expanding the health insurance program if changes are made to it.

Changes could potentially include making more participants pay co-pays. Advocates for the poor counter that they can’t afford the co-pays.

(Read more: Why Elder Law Attorneys Aren’t Just for Seniors)

A broad alliance of business, hospitals and low-income advocates support Medicaid expansion and say it’s a good deal for the state. Conservative groups stand in opposition.

(Read more: Tips to Alleviate the Burden of Caring for Someone With Alzheimer’s)

Medicaid expansion is optional under the Supreme Court’s interpretation of the federal health care law.

Read more: http://www.fox28.com/story/21776517/medicaid-expansion-in-trouble-in-mich-legislature

A prior offender is a driver who at the time of his stop and detention as a DWI suspect has previously entered a plea of guilty to or been convicted after trial of an alcohol/drug related driving offense. For this person, whether to consent or to refuse chemical testing of his blood alcohol content involves considerations not present in the case of the driver who is experiencing his first contact with law enforcement as a DWI suspect.

The driver who finds himself in this situation needs to already be aware of the consequences and evidentiary implications of a refusal. Further, he needs to be aware of his right to take 20 minutes to contact an attorney once the officer has read him the implied consent law. He needs to use those 20 minutes to contact a lawyer whose telephone number he has on his person. Even if his DWI arrest occurs in the middle of a normal business day, the odds of directly contacting an attorney within the time allotted are not good. I know of no lawyers whose day is spent sitting by the telephone waiting on a call from someone being detained as a DWI suspect.

If the driver is able to get a lawyer on the phone, the driver needs to be able to provide the lawyer with precise information about his previous alcohol/drug related driving history. The law and the prosecuting authorities in most venues take a hard stance with drivers who are considered prior offenders. The law first of all takes away jury sentencing if the driver should elect trial by jury. The jury returns a verdict of guilty or not guilty. If guilty, then the judge decides the sentence. The penalty range for a prior offender is enhanced by law. For example, the penalty range to which the court may sentence a person being prosecuted for his second alcohol/drug related driving offense is exactly twice that of a person being prosecuted for his first offense. The stakes get higher with the number of prior offenses the driver has.

When the driver contacts the lawyer, the lawyer may be able to discern that the driver is obviously impaired. If that is the case, the lawyer, in my opinion, should tell the driver to refuse the test. As a lawyer who has tried these types of cases to a jury, I know that I had rather deal with the evidence that the driver refused the test than with a high test result. If the driver is convicted, as a prior offender, it is likely that he will also have had a previous suspension or revocation of his driving privileges stemming from the last DWI arrest; therefore, if convicted of the present offense, it is also likely that he will lose his driving privileges for a year anyway; therefore, obtaining a favorable result for the driver on the criminal charge of DWI prior offender or prior and persistent offender is the real objective and not saving the driver’s driving privileges.

Once the driver has told the lawyer that he has a prior alcohol/drug related driving conviction or plea of guilty, unless the driver does not “sound” intoxicated during the conversation and tells the lawyer that he only had one or two drinks 2 or 3 hours ago, the lawyer is going to advise the driver to refuse consent. If to the lawyer the driver seems to not be under the influence and the driver clearly and emphatically insists to the lawyer that he could not be intoxicated and is confident that he would “pass” the chemical test, the lawyer had another consideration to ponder being deciding how to advise the driver.

The lawyer will be aware that if the driver has a prior offense, the arresting officer will have been aware of that fact before he ever made the decision to take the driver to the station for one of the allowed tests. If the officer has learned through the MULES system that the driver has had a previous plea of guilty or conviction of an alcohol/drug related driving offense, that driver is going to be handcuffed and taking to the station for further testing if the officer has detected even a hint of alcohol on or about the driver’s presence; so, it could well be that the driver actually has a low blood-alcohol level. In this particular fact scenario, the lawyer may well advise the driver to cooperate and give his consent.

Should the lawyer’s advice, however, ultimately be that the driver refuse consent, the lawyer should be sure to inform the driver that the officer may then seek a warrant (whether the lawyer needs a warrant is currently on appeal to the U.S. Supreme Court) for a blood draw and obtain the damning evidence of a high blood alcohol content without the driver’s consent. The lawyer should also inform the driver that once the warrant is obtained, the officer will take the driver to a medical facility to have the blood drawn by a medical person qualified to do the draw.

**DISCLAIMER: This article is intended to provide general information and is not and should not be taken as specific legal advice or as creating an attorney/client relationship with any reader. Any specific situation requires specific legal advice. Anyone facing a legal problem should contact an attorney for specific legal advice and should not rely solely on any information contained in this article. An attorney licensed in the state of Missouri writes all articles and all legal information discussed addresses the law as it stands in Missouri at the time of writing. Not only may there be significant differences in how the law would be applied in Missouri versus other states, the law is not static and can change over time. Nothing in this article is intended to have any relevance outside of the state of Missouri and should be taken as general information only, not legal advice.

More and More States Encourage or Require Sentencing to Treatment Centers
Some states have implemented legislation that encourages or even mandates this new approach to sentencing drug offenders. The sentencing programs in these states recognize that in some cases, the best solution for drug problems is not increased incarceration but rather increased treatment. California’s law, for instance, requires judges to offer nonviolent drug offenders probation with substance abuse treatment in lieu of incarceration for their first two offenses. The court can choose from a variety of state-licensed treatment programs. The offender’s sentence may also include community service, literacy training, family counseling, and vocational training.

While most states have some kind of law that provides treatment options to drug offenders, California was only the second state to pass a comprehensive program by voter referendum. Arizona was the first in 1996 with its Drug Medicalization, Prevention and Control Act. Arizona’s Supreme Court has found that 75% of the participants in its program remained drug free in the first year, saving the state $2,500,000. Based on these positive results, other states are also working on treatment options for nonviolent offenders. New York’s chief judge ordered the state’s courts to start phasing in a program that would offer nearly all substance-abusing criminals treatment instead of jail time, for example, and North Carolina and Oregon have also passed laws regarding drug court or conditional probation for certain drug offenders. Washington state, too, has provided for sentencing alternatives in drug cases.

These states have demonstrated that by providing treatment to non-violent drug offenders that would otherwise be incarcerated, society benefits in many ways. Millions of tax dollars can be saved by providing treatment, and treatment programs also incorporate vocational and life skill training, thus enabling the drug user to become a productive part of society once again.

Current drug policy places an increasing burden on an already overburdened and over-crowded prison system by incarcerating non-violent drug offenders in spaces that could be better used to house violent criminals. The public stands to benefit from the financial and societal savings that result from treatment versus imprisonment for certain drug offenders, and the offenders themselves benefit from the training and rehabilitation afforded them in treatment centers. If you or someone you know has been charged with a drug-related crime and you have questions about the options that may be available, contact an experienced criminal defense attorney now.

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