The Attorney and Mr. Ghost

The Attorney was preparing for a hearing in the Faust case, when someone saying his name cut through his concentration.  He looked up to see a spectral image floating in front of his desk.

“You can see me!  Good!” said the Ghost, excitedly.

“Who are you and what do you want?”  The Attorney wondered what was in his coffee.  The Ghost looked and sounded familiar, though.

“Remember me?  I came in to see you just before I went on that trip to the North Pole last year,” the Ghost responded.

That did the trick.  “Ah, yes.  We talked about getting your will done.  You never did, though.  Your Widow hired us to help with your estate.  What possessed you to try to get a selfie with that sleeping polar bear?”

“The polar bear overreacted; I am not here about that.  My Widow either is ignoring me or she cannot see me.  Either way, I need you to tell her how I want things done.  Take my ’85 Yugo, for example.  I loved that car and I wanted it to go to my Cousin.  Instead, she is donating the car to that polar bear preservation charity.  I think she is doing that to spite me.  Then there is –”

The Attorney held up his hand to interrupt, “First, I am not sure this is really is happening.  Second, if this is really happening, you lost your right to say what you wanted to go where when you became polar bear chow.  Dead people do not have standing to come back and object to how their estates are handled.”  He could not believe he just said that.

“Seriously?!  I will sue!”

“Good luck with that.  Courts in this jurisdiction do not accept spectral evidence.”  The Attorney still could not believe he was having this conversation.  “Remember that I represent your Widow as the executor.  Consult with another lawyer about your rights.  Now, sir, please go.”

The Ghost grew angry, swelling in size.  “How about I just haunt this office until you change your mind?”  A strong wind centered on the Ghost whipped around the office, picking up anything light.  The wall hangings started to come off the wall.  A disembodied, unearthly wail rose in volume.

The Paralegal burst into the room amidst the chaos.  She was holding a book in one hand, tossing salt at the Ghost with her other hand, and saying something in Latin.  The Ghost looked shocked as it disappeared.  The wind and wailing ended just as suddenly.

“What was that?”  The Attorney asked, similarly shocked.

Holding the book up, the Paralegal said, “The copy of Exorcism for Dummies that I got for the office.  I thought we may need it once you started taking on clients who sold their souls to the netherworld.  Let me help you pick up this mess.”

“Good call and thanks.”

They both started picking up.  The Paralegal seemed to have read the Attorney’s mind when she said, “What are you going to tell the Widow?”

The Attorney sighed.  “Perhaps she will sell that Yugo to the Cousin and donate the money instead.”

The law has a formula for who handles the estate of people who die without a will.  The law or your heirs may want to divide your estate in a way that you do not want.  Take the time to get a will in place to express your wishes, or you take the risk that the law or your heirs get it wrong.

This post provides general information only.  This post is not intended to create an attorney-client relationship or to be legal advice about your situation.  A blog article is not a substitute for legal advice that fits your situation.  Laws change and your situation may be different.  You should consult with a licensed attorney for legal advice specific to your circumstances.

© 2019 Matthew D. Macy

The Attorney Goes to Hades

The Attorney waited for the guard to buzz him into one of Hades’ many visiting rooms.  As he waited, he thought about how his practice started to grow explosively after winning the Johnny v. The Devil case.  Charlie Daniels got it all wrong.  It took years of litigation and a trip to the Supreme Court to get Johnny his prize.  Now, everyone who made a pact with the Devil or his minions sought out the Attorney to help them.

The Attorney scheduled monthly visits to Hades to meet with clients and potential clients.  Today was not one of those days; today was a special visit made at the last minute.  What intrigued the Attorney was that this potential client sent him a letter written on vellum with a gold coin for the consultation fee.

The buzz sounded and the guard opened the door.  The visiting room had the usual décor – peeling gray paint on the windowless walls, a rectangular metal table bolted to the center of the floor, and two metal chairs on opposite sides of the table, also bolted to the floor.  Sitting in the chair facing the door was an old, bearded man dressed like a wealthy 16th Century German intellectual.  The man gave the Attorney a piercing stare.

The Attorney entered and started, “Hello, Dr. Faust.  My name is …”

Faust gruffly cut him off, “I know who you are.   I presume you got my letter.”

“Yes,” the Attorney responded as he sat down at the table across from Faust.  “I need you to sign my Representation Agreement before we begin.”  Faust took the paper from the Attorney, signing it with a quill pen that Faust took from a hidden pocket in his cloak.  Faust did not read the agreement.

Handing back the signed agreement, Faust asked impatiently, “Can you help me?”

“Maybe.  Let’s see.  First . . .”

Faust interrupted and scoffed, “‘Maybe.’  Always ‘maybe’ with you lawyers.”

“What did you expect, sir?  You signed a contract with Mephistopheles for power, riches, and good health.  Section 3 provided that in exchange he could take your soul for eternity the moment you were happy.  What did you think was going to happen?”

“I expected an eternity on Earth!  There was no way I was happy when that winged [CENSORED] dragged me down here!”  Faust paused, then continued, “Mephistopheles did not say anything about that little clause you pointed out.  That should count.”

“Sorry, it does not.  Mephistopheles did not have to point out anything.  Did you read the contract before you signed?”  The Attorney accurately predicted the answer.

“No.  What was spoken was enough.”

“The contract reads that any discussions before signing became meaningless once you signed.  Language like that in cases like this usually are enforceable.”

Faust squinted hard at the Attorney.  “I have no hope then.  Keep the coin and go.”

“Listen closely before you cast me out.  The contract did not define ‘happy’ or ‘happiness.’  Instead, Mephistopheles was to determine when you were happy.  The Fairness in Hell Act provides that such determinations must be made in good faith.  It is like the implied covenant of good faith and fair dealing applied to contracts by many jurisdictions in the United States.  Perhaps your circumstances show that Mephistopheles breached his duty of good faith.  If so, you will be returned to Earth with your day of reckoning delayed.”

“Wunderbar!”  Faust’s eyes shone with hope, then clouded again.  “Will what I sent you cover your fees to do this?”

“No.”

Faust cursed aloud, but thought about what awaited him outside the room.  Faust dug into his cloak, then tossed a bag of gold coins across the table.  The Attorney looked at the bag and started to leave.  Faust tossed another bag onto the table.  The Attorney sat back down.

“Let’s get started.”  The Attorney took notes as Faust answered the Attorney’s questions.

It is a good idea to read what you sign – the law likely will hold you to the contract you sign even if you do not read it.  Hire a professional to help you when needed.  The cost for that assistance could be a fraction of the cost once the other side tries to enforce the deal.

This post provides general information only.  This post is not intended to create an attorney-client relationship or to be legal advice about your situation.  A blog article is not a substitute for legal advice that fits your situation.  Laws change and your situation may be different.  You should consult with a licensed attorney for legal advice specific to your circumstances.

© 2018 Matthew D. Macy

Can Your Business Avoid a Pearl Harbor?

Pearl Harbor Day is approaching.  The Japanese Imperial Navy burned that day into US history with the sneak attack the naval yards and airfield in Pearl Harbor, Hawaii.  Historians have written volumes about the warning signs the US had leading up to the attack.  The Japanese planes may have flown into the teeth of a prepared defense on December 7, 1941 had the US paid more attention.

You and your business should take action to avoid a surprise attack.  Here are potential areas of concern.

  1. Financial Controls. Do you have adequate financial controls and oversight over those who have access to the business bank accounts and credit cards?  Do have or need employee dishonesty insurance coverage?  A standard liability policy may not cover theft or embezzlement by your employees.  All it takes is one dishonest employee to do significant damage.  The better your controls are, the more likely you will deter wrongdoing or detect a problem earlier.
  1. Confidential Data. Confidential data comes in many forms, be it your trade secrets, your employee’s or customer’s private data (social security numbers, medical records, etc.), or bank account or credit card information.  There are federal and state laws covering much of the data on when/how you need to protect the data, and how to act if you have a data breach.  What do you have in place?  Ignoring the issue can cost far more than paying after the damage is done.
  1. Customer Contracts. Do you use contracts with your customers?  It does not matter they are one-page documents, the text on the back of an invoice, or multi-page tomes.  It makes sense to review them on a regular basis for updating, check for compliance with any applicable state and federal laws, and so forth.
  1. Employee Contracts or Policies. “I don’t need no stinking contracts with my employees” you may say.  Maybe – maybe not.  Do you give employees the company credit/debit card?  Do you allow employees to use their personal smartphones or other devices to access company data or email or cloud accounts?  Do you have trade secrets to protect?  Can you use a non-compete?  Do you have a sexual harassment policy?  It is better to get these in place before the proverbial horse gets out of the barn.
  1. The Corporate Book. I am referring to the bylaws, operating agreement, partnership agreement, and so on.  How well are they working out?  Have you deviated from them and need to return?  Do you need to revise them? Keeping these in order will help if you have a dispute with your other owners or have an audit.

These are but some of the areas where preparation can do wonders for a business.  Take the time to reduce the risk of your business suffering a Pearl Harbor that could sink your business.  Please contact us to assist you in this process.

New Year – New Tax Laws – New Headache?

The year 2018 saw the implementation of the Tax Cuts and Job Act (“TCJA”).  There are a myriad of changes to the federal tax code – just ask your CPA.  One question to ask is whether it makes sense tax-wise to keep or change how your business is taxed.  Your CPA and lawyer can help with that decision.

The CPA’s Role Your CPA should guide you on how the TCJA affect your business, and whether any changes need to be made.  The changes could include a change in tax status.  You may have elected to have your business taxed as an S-Corp, for example.  Maybe it makes sense to keep that, or maybe it makes sense to change its status to a C-Corp.  Be careful when making the decision based on what a colleague did or what someone wrote online.  What may work well for Jack’s business may be a disaster for Jill’s business. 

Keep in mind that there are short deadlines if you want the change to be retroactive to January 1, 2018.  Have more than one owner?  You may need everyone’s signature to effect a change.  Delay may not be your friend.

The Lawyer’s Role:  Need to make a change?  Changing entity status or tax status, or both?  Your lawyer can help guide you on what obligations you have to involve any co-owners, how to properly give notice, and how to take and record a vote.  Ignoring that may invite an angry letter and/or a lawsuit by a co-owner, for instance.  There could be other legal ramifications based on what agreements your company has in place.  Do your due diligence – avoid being penny wise but pound foolish, as the old saying goes.  

Starting a New Entity? The same general advice applies.  Speak with your CPA about the tax advantages/disadvantages of your choice of entity and tax status.  Speak with your lawyer about the legal aspects.  

How About DIY? Many states make it easy to do the bare bones to create an entity.  Some states make it just as easy to file to change an entity, such as converting an LLC to a corporation.  There is more that the DIY-er should consider.  What obligations do you have with your choice of entity?  Should you have a partnership agreement, shareholder agreement, bylaws, operating agreement, buy/sell agreement, subscription agreements, and so on?  Which one is the right fit for the entity?  What should you have or not have in those documents?  Done well, those documents can memorialize what everyone agreed to, provide guidance if there is a dispute between the owners, and maybe help if you get audited by the tax authorities.  Done poorly, you risk a harder and more expensive mess that helps your lawyer buy a brand new luxury car.

There are those who can handle all this themselves quite easily.  For the rest, get the right help at the right time.  Your peace of mind and pocketbook will thank you.

Happy 18th! Time to Make Adult Decisions!

Your child reaching 18 years old is a milestone.  Legally, your little one now is an adult with adult rights and responsibilities.  Here some of the ways the situation has changed.

“Our Son Does Not Want That” v. “ But He Told Me He Did if This Happened”

No parent should have a child become incapacitated through illness or injury, and be faced with making crucial health care decisions for your child.  Your child becoming an adult adds a layer of complication.  Georgia has an Advanced Health Care Directive that allows an adult to state what he or she wants for medical care in that situation, and designate who will make the decisions.  Other states use a living will, health care power of attorney, or a combination of the two.  Your now-adult child executing a clear and legally enforceable directive as to what your child would wants, plus who your child wants making the decisions, is a wise move.  This will reduce the risk of a legal fight that can cause more pain and suffering for all involved.

“Access Denied”

Your now-adult child has rights under HIPAA and other privacy laws that will restrict your access to your child’s medical records.  The child can give anyone permission to access his or her medical records – typically through a written consent or release.  The consent can be added to an Advanced Health Care Directive or in a separate document.

“Hands off My Money”

You child turning 18 means you will encounter resistance if you try to get information about his or her bank accounts, credit card accounts, and so on.  Your child’s right of privacy comes at a cost if your child cannot takes care of his or her affairs, be it because of illness, injury, or other reasons.  A power of attorney can be useful if the child wants to entrust someone to handle his or her financial affairs in those situations.  Your child making an adult decision like that can reduce the risk of having to rely on a judge’s decision. 

“But I am the Parent – Doesn’t that Count?”

It is risky to rely on a doctor, banker, and so forth to automatically defer to you as the parent of your now-adult child.  Lacking a power of attorney, directive, or written consent could put in you in the position of having to get a court order if your child is unable to give consent, when you need to have that consent.  It is easier on everyone to have that done in advance.

Whether your child will make a health care directive, sign a power of attorney, do a will, or any other adult decision is up to your child and your child alone.  Being an adult means having to make these decisions.  Have a talk with your child about this part of adulthood.  Suggest that your child speak with an attorney on how to get done what the child wants.  Hopefully, the paperwork gathers dust from non-use, but it will be there just in case.

This post provides general information only.  This post is not intended to create an attorney-client relationship or to be legal advice about your situation.  A blog article is not a substitute for legal advice that fits your situation.  Laws change and your situation may be different.  You should consult with a licensed attorney for legal advice specific to your circumstances.

© 2017 Matthew D. Macy