A quick post today... Below are a few books I have read in the past year that I highly recommend to others. They are not directly about the law or business, but each addresses important issues and ideas relevant to lawyers and businesspeople.
The Huffington Post is running a story regarding the Medical Power of Attorney executed by Gary Coleman. Mr. Coleman's agent made the decision to remove him from life support under his Medical Power of Attorney.
It appears, however, that Mr. Coleman was divorced when he passed away. Mr. Coleman's Medical Power of Attorney was executed prior to his divorce in 2008 and had not been subsequently amended or revoked. His ex-wife told the hospital that she still his spouse and the hospital allowed her to make medical decisions on Mr. Coleman's behalf.
E! Online is reporting that the Medical Power of Attorney executed by Mr. Coleman was not effected under Utah law due to the divorce between Mr. Coleman and his ex.
In Texas, pursuant to Texas Health & Safety Code 166.155(a)(3) a designation of a spouse under a Medical Power of Attorney is automatically revoked upon divorce. Mr. Coleman's spouse would have been in hot water trying to pass herself off as still married and making such a decision. This is probably some comfort to Texans many of whom do not address this issue upon divorce. The revocation is true for a Durable Power of Attorney and a designation of spouse as executor of your estate. Unfortunately, a lot of heartache may ensue if a family had to come and fight with a spouse over the issue.
Something to keep in mind is that a hospital, especially in a stressful and time sensitive situation is going to have a tough time trying to confirm if a patient is divorced therefore invalidating the Medical Power of Attorney that have on record. Worst, there may be the designation of only one agent and the hospital or medical may be rushing around attempting to locate someone who is aware of the patient's wishes regarding end of life care. The last thing a family needs in this situation is conflict that could, ultimately, require court intervention.
All designations--life insurance beneficiaries, Powers of Attorney, Wills, POD and JTWROS designations on accounts should all be updated upon divorce to clear up any issues regarding who does and does not speak for you or is receives your estate.
A substantial number of Texans rent their home, but very few understand their rights when it comes to their security deposit. Worse yet, many landlords don't understand tenants' rights when it comes to the security deposit either. I've handled a number of cases in which I have represented a tenant against a landlord who has wrongfully withheld some or all of the security deposit.
What should you do to protect yourself? Here are a couple of tips, including references to the law as appropriate:
Now, what happens if your landlord doesn't comply with these requirements? Let's say you move out, you provide notice of your forwarding address as required by the lease, you turn your keys over to your landlord at the end of the lease, and you have paid all of your rent as required by the lease. 30 days from the day you surrendered the premises to your landlord have come and gone, and no deposit has been provided. Don't jump to conclusions quite yet. The landlord is required to place the deposit and/or written accounting of deductions in the mail within 30 days, so give it a little while longer.
If you still have no deposit or no itemization well after 30 days, the Texas Property Code considers such a withholding of the deposit to be in "bad faith" (Section 92.109(d)). Unless the landlord is able to rebut this presumption of bad faith in court, you could recover from your landlord $100, plus three times the wrongfully withheld security deposit, plus court costs and attorney's fees. (Section 92.109(a)). Moreover, your landlord will be barred from collecting any amounts that would have legitimately been due to him or her for damages.
Keep in mind as well that it is your landlord's burden of proof, not yours, to prove his or her damages in court. That will be very difficult if they don't have documentation showing the damages. Also, if the damages are the result of normal wear and tear, you as a tenant cannot be held responsible for that. It's simply the cost of doing business as a landlord.
If you are careful in documenting the condition of your home before you move and and after you move out, you will have a jump start on protecting yourself from false allegations of damage to leased premises. Also, if you keep in mind the requirements of the Texas Property Code and carefully read your lease, you will probably also have an advantage over your landlord who may take those provisions for granted.
Friends and family routinely ask me whether they should use legal forms they have obtained online instead of hiring a lawyer. A variety of websites provide legal forms for wills, basic agreements, and even documentation for more complex business transactions.
In general, as the value and complexity of the transaction or agreement increases, the more important it is to get some legal advice. For example, a small business that requires a confidentiality agreement to help protect its financial performance data when shared with customers or business partners will likely be able to find several good form agreements with a simple internet search. Financial performance information is sensitive, no doubt, but in the grand scheme of protecting business secrets, an unauthorized disclosure to a third party may not significantly impact the business. On the other hand, a business that might share information regarding its core products or processes to customers or business partners will likely need a carefully drafted confidentiality agreement that ensures its ownership of the information is adequately preserved and protected in the case of an unauthorized disclosure.
The difficulty many face is properly evaluating the value and complexity of a transaction or agreement. For example, many business partners will form a business entity, such as a corporation or limited liability company, and use basic form agreements to govern that entity. For family businesses or those started by partners with an extensive amount of mutual trust, this might be perfectly fine. But for others, it is tempting to view the facts that the business is just a start-up, has few assets, and may never succeed as reasons to skip over some of the details regarding the governance of the business entity and the relationship between the owners. If the business eventually sees a certain amount of financial success, overlooking these details early on will likely create problems later in the event a business partner stops contributing or wants to leave the organization. Even if there is no ill will or malicious intent, it is significantly more difficult to address these issues later on, when a substantial amount of money is at stake, than early on, when the business has little to fight over.
And don't forget that it is possible to use an online legal form and hire an attorney to review the document before you sign it. This is a compromise approach that allows you reduce legal fees while still obtaining some legal advice. Many attorneys will review documents for you and provide a basic opinion. It might also be worthwhile to schedule a meeting after the attorney has reviewed your documents so that you can discuss face-to-face any questions you have and any recommendations your attorney has made.
Several times per week, our office receives an e-mail from a potential new client from out of the country seeking our assistance collecting on a debt owed by an American country. The e-mail offers to share a percentage of the collected amount as an attorney's fee, which is a fairly common arrangement. Being the skeptical person I am, I frequently Google large portions of the e-mail and often discover that these e-mails are elaborate Internet scams. Luckily, we have not fallen for any of them. Unfortunately, the same cannot be said for all Houston attorneys:
A successful Houston lawyer says he fell for an elaborate Internet scam that ended up costing him $182,500.[...]
It all began when Howell received an e-mail from a company, 8,000 miles away, that wanted him to legally pursue four of its U.S. customers who owed it money.
"The e-mail said this is a Hong Kong company and we would like to retain you as counsel," Howell said. "And they gave me the customers names for a total debt of about $4 million."
The Hong Kong company he was corresponding with had a Web site, and its customers were all legitimate U.S. companies with Web sites, Howell said.
[...]
But before the lawyers actually had to do anything, an official check -- like a cashier's-type check -- from Citibank arrived in express mail.
Checks that were written for more than $300,0000 arrived at the office.
"And it's written out to us and it looks like a fairly legitimate check," Loya said.
The Hong Kong company said the money was from some of its clients who were finally trying to pay off their debt.
It asked the attorneys to deposit the checks, take out their fees, and then wire them the difference.
Howell, not wanting to unethically hold on to his client's money, went to the bank and deposited the check and had the bank wire the difference of $182,500 to Hong Kong.
[...]
Well you probably guessed what happened next. The checks were fraudulent, and Howell is angry.
The story is extraordinary sad, and certainly a tale of warning to everyone out there, not just attorneys. What is telling in this story is the victim. Litigation attorneys are notoriously skeptical and inquisitive. Often, it is our job to uncover the truth from a thicket of opinion, misperceptions and sometimes outright lies. Yet, here is a litigation attorney himself doing what he believed to be sufficient due diligence in investigating a potential new client and still finding himself out of a substantial sum of money in the end.
The valuable lesson is that we should all remain vigilant in our day-to-day dealings with others. Don't simply assume that everything must be legitimate or that the stranger you are dealing with has nothing but honest intentions. Do your homework and use the very valuable resource in front of you right now -- the Internet. All too often, we can avoid the headache and heartache of such scams if we do a search for names, phone numbers, web sites or even the very text of e-mails we receive from others offering us a deal that seems too good to be true.
The good news is that this attorney is fighting back through the court system and hopes to be able to recover some of his losses. Yet, the cost in stress and embarrassment can never truly be recovered.
Over the last few years there has been a spate of horror stories regarding guardianship law. However, the New York Post reminds us what guardianship law is supposed to do.
The Texas Guardianship Code specifically states that a guardian is supposed to maximize the independence of a ward and that a court is supposed to consider restrictive alternatives to guardianship. Sometimes this is not possible when a ward comes before the court, but that does not mean it has to be permanent. One of the best days for a ward and the supervising court is when the ward recovers from whatever malady necessitated the guardianship and the court restores their rights.
When most people think of guardianship they think of the elderly or young children; however, it is when a young or middle aged adult needs help that there is such a lack of planning for such situations. A lot of times, individuals seem reluctant to seek help for someone who is suffering with issues where a guardian may be able to help. A guardian has the ability to step to get the help a person needs to get back on their feet and recover.
A family member willing to step in and help in this situation is invaluable to the process and a reason that attorneys and courts often thank applicants for guardianship who are willing to serve. It is a thankless job but necessary in cases such as this when the ward has lost the ability to continue to care for themselves.
The Middle Lane, a blog hosted by the Houston Chronicle has initiated a good discussion on warning signs that an elderly loved one may need help with some of life's daily functions.
Often, children are caught off guard by their parents being in a position where they need help. Many children do not know where to turn or how to get help in that situation. They begin to look at ways to help including seeking Powers of Attorney or other tools to allow them to step in and help their parent.
Unfortunately, parents and children often wait until it is too late to take preventative action such as utilizing tools to allow a child to step and help an elderly parent. Although a tough conversation to have regardless of age, it is best to have the conversation prior to the onset of symptoms.
Have a frank conversation with your family regarding their wishes regarding care and get the tools to effectuate those wishes. Explain to a parent that it is not a matter of giving up control but ensuring that their wishes are carried out despite the inability to articulate those wises to others.
Texas provides many tools that allow a person to designate a person to make decisions for them--Medical and Durable Powers of Attorney, Designation of Guardian in Advance of Need, Living Trusts, etc. and tools to make their wishes known directly such as an Advanced Directive (sometimes referred to as a Living Will).
Computerworld reported today that Lubbock, Texas based PlainsCapital Bank settled a dispute with Plano, Texas based Hillary Machinery Inc. over a series of fraudulent wire transfers initiated using Hillary's online banking credentials. Over $800,000 was sent to various banks based in Europe (who could probably use the cash these days). The full details are here.
This incident underscores just how important it is for businesses and individuals to establish and implement sound security protocols to protect access credentials to third party sites, such as online banking sites. Banks and other larger institutions do, in most cases, implement a number of measures to protect their systems and their customers. This is a good thing because online banking tools can save businesses and ordinary citizens a lot of time in managing their funds. But instead of just relying on a bank's security measures alone, businesses and individuals should keep tighter control over their access credentials. Certain basic, but effective, measures include:
As the case between PlainsCapital and Hillary has settled, it is impossible for us to determine whether the fraudulent transfers occurred due to a lack of reasonable security measures on the part of PlainsCapital, a lack of controls on the part of Hillary, or both. It could also have been due to an especially enterprising hacker with the skill, desire, and determination to bypass even the most stringent security. And there may not be such a thing as a fullproof security system or process. The least we can do is make it as difficult as possible for a hacker to meddle with our accounts.
When I evaluate a child custody case in which the residence of the children is in dispute, I often ask a question most judges will ask, "Why is it in the best interest of the children to live with you on a day-to-day basis?" Unfortunately, the gut reaction for many people is to go negative and list reasons why the other parent isn't well suited. They tell of irresponsible behavior, working long hours, or sometimes allegations of substance abuse come up. While all of these are legitimate concerns, there is a far better way to approach this issue.
I always recommend that clients talk about the children first and foremost, and then explain how they can best help the children with the particular issue being discussed.
For example, a very common negative statement may be framed this way: "My husband never helps the children with their homework." Instead, I would recommend tackling this issue in a far more child-centric positive manner. "I really want my children to do the best they can in school. They have quite a bit of homework, and they often need extra help. I have always been very involved with the kids' education and help them with their homework every single night."
While it may be satisfying short-term to attack your spouse on these sorts of issues, taking the high road and explaining to the judge precisely how you are in the best position to care for the children is the most effective means of persuading the judge to see things your way. In addition, the more positive statement gives a clear picture of what sort of support the children can expect to receive in your custody. The first statement only tears down the other parent without giving any insight into your parenting abilities.
A couple of other issues courts frequently look toward in child custody matters:
Each judge is going to have a slightly different philosophy, but generally the court wants to ensure that the parent caring for the children on a regular basis has the skills and temperament to handle that responsibility. A good track record during the marriage/relationship is a good start. In addition, the court wants to be confident in that parent's ability to communicate with the other parent in a manner that keeps the best interests of the children in the forefront. Therefore, it is always best to keep that in mind when trying to distinguish yourself in a child custody proceeding.
A new regular feature I'll try to bring to the blog each week is my "tip of the week". While it will almost certainly come from my primary area of practice, family law, I could decide to provide unique tips outside of my field from time to time.
This week's tip concerns a central tool used to identify, characterize and value property in a divorce -- the sworn inventory and appraisment. In my opinion, an inventory is one of the most underutilized, yet most cost effective, tools available to a spouse involved in a divorce in Texas.
A sworn inventory and appraisment typically consists of a full and complete listing of all property owned by the spouses. Each spouse will create an inventory on their own, listing all property regardless of whether it was acquired before or during the marriage. As they list property, they also provide their opinion as to the asset's fair market value, and their position as to whether or not it is separate property or community property. In addition to assets, the parties will also list any debts or other liabilities owed by either party.
One the inventory is completed, the party creating the inventory will verify its contents (swear before a notary that the contents are true and correct, as reflected by a signed and notarized document attached at the end of the inventory), thereby making the inventory "sworn". Once each spouse has a sworn inventory, a copy is shared with the other spouse. This should give each spouse a complete picture as to all property owned by either party.
Why is this important? Inventories provide a wealth of valuable information regarding not only what property is owned, but also the value each party placed upon each item. This is essential to effectively negotiating a fair division of the community property. Also, the penalties for purposefully withholding information will usually discourage a party from not listing an asset on the inventory. Texas courts are authorized to award 100% of the value of an asset not disclosed through a sworn inventory to the innocent spouse if it is found that the failure to disclose that asset was intentional.
Not every divorce will involve an exchange of inventories, but any spouse going through a divorce in Texas would be wise to at least discuss this valuable tool with their attorney and determine whether it is appropriate for their individual case.
