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Palm Springs Law Blog

Thursday, November 10, 2016

2016 Election Analysis for LGBT Issues


Many of my LGBT clients have reached out to me in a panic wondering how the election of Donald Trump will impact their families, benefits, marriages, and other legal issues.  My advice….breathe, try to relax and let’s take a look at what the election MAY mean in the future.

In my opinion, the biggest issue is the future of the Supreme Court.    There is one vacancy that will now be filled by President-elect Trump.
Read more . . .


Monday, September 21, 2015

Food for Thought - Legal Punch

Food for Thought – Legal Punch

Every now and then, I need to stop and remind everyone about the perils of forgetting to create a Will or a Trust. Sometimes I meet people who say “Who cares about a Will? I’ll be gone! It won’t hurt me!”. I also know lots of people who nod their heads and say “Oh yes, I know I need a Will and I’m really, really going to do it…soon”. Folks who pass away or become seriously ill without estate plans are practically guaranteeing that lawyers will earn hefty fees to clean up the mess. Put some legal punch into your life, and prevent troubles and woes.

Here are some real-life examples of what can happen:

Out in the Cold
Bob and Stu were life partners who never registered or married. They were comfortable in their 24 year relationship. When Stu suddenly passed away, Bob was left with a major problem – Stu never created a Will or Trust. Stu’s two adult children, Laura and Willy, filed a probate petition, and the court appointed Laura as administrator of the estate. The house was in Stu’s name, and Laura decided to sell it to get cash, so it could be divided equally between the siblings, who were Stu’s legal heirs. In spite of living there and sharing expenses for all those years, Bob got nothing and had to move out. The only asset he could claim was Bob and Stu’s joint checking account with $1,516.32 in it.

Under the law, Bob was nothing more than a stranger to Stu. Friends and other relatives were shocked. Bob and Stu cared deeply for each other, and Stu would never have wanted Bob put out in the cold like that. Stu was always certain that Bob would be provided for by the children, but he never did anything to make sure that would happen. Now Stu is gone (and it’s true - he isn’t hurting), but Bob will suffer for the rest of his life. Will your children or other heirs actually do what you want when you’re gone? Only if you put some legal punch into those hopes and wishes.

War Story
Sharon and Jeff’s mother recently passed away without a Will or Trust. Because mom had been in poor health for some time, Sharon held a power of attorney to handle her mother’s financial and health care matters during the last year of her life. When mom died, Sharon transferred her checking account to a new bank and took most of the funds from mom’s sizeable savings account to invest in some stock that her boyfriend thought was a “terrific deal”.

After a month or two, Jeff began worrying about how he was going to get his share of the estate. He checked with a lawyer, who told him that a probate needed to be opened in court, and an administrator appointed to pay bills, distribute the assets to the heirs, and then close out the estate. Sharon had no authority to touch the money. Her power of attorney expired when mom died. Sharon was frantic. The stock was going south, and she could be in a lot of trouble.

Jeff petitioned the court to be appointed as administrator. Sharon petitioned the court to be appointed administrator. They battled it out in a series of hearings over many months until the court finally determined that Sharon was unfit to serve because of her unauthorized use of estate assets. Jeff is now the administrator, but the assets are, unfortunately, half of what they used to be. Can you always trust a sibling or other heir to know the law and do what’s right? Only if you put some legal punch into the mix.

Man’s Best Friend
Waldo, age 65, was pleased with his simple life. He had enough money to be comfortable, and he loved his best friend, Tonto, a Cockapoo. One day, Waldo suffered a stroke and was rushed to the hospital. It was clear that Waldo’s memory and speech were seriously affected, and he would likely be incapacitated for a long period.
Waldo’s nearest relatives, a nephew and his wife, came 2 days later to see if they could help. They found a key for the house and went to check on things. Poor Tonto was there, unfed, un-walked and frantic.

The relatives had no place to keep the dog, and no access to Waldo’s checking account to pay someone for its care. They decided to take the dog to the local shelter for adoption. Several weeks passed and Waldo was recuperating in a nursing facility. As his speech and memory improved, his first questions were about Tonto. Was he all right? Who was feeding him? Was it the right food? Could Tonto come to see him?

You know the rest of the story. If only Waldo had planned ahead for incapacity – something that a majority of us will experience some time in our lives – he would have authorized someone to handle his financial and personal affairs, providing a safe haven for Tonto, and assuring his best friend would be at his side as he took his long journey back to the comfort of his home. Have you planned for your possible incapacity? Please put some legal punch into your pet’s future.





Monday, September 14, 2015

The Art of Collecting Art - Under the Law

The Art of Collecting Art – Under the Law

Most of us will never own a million dollar art or antique collection, but we always wonder if our own little treasures – 141 different vintage nutcrackers, a sketch by that street artist in Quebec, 17 stuffed pigs in all shapes and sizes, cocktail napkins from every major bar in Chicago - might someday be worth a tidy sum. Here are some interesting facts about art collections of all kinds:

Building your Collection - Art, antiques and collectibles are available from a wide range of sources. Established dealers and auction houses such as Bonham’s and Butterfields’, Sotheby’s and Christie’s have long handled direct sales, auctions and transfers of art. Now it is possible to buy or sell art online at all kinds of sites from amazon.com to ebay.com to shopgoodwill.com. It is unlikely that any expert or art connoisseur would recommend picking up important pieces from these internet sites, but if you are just putting together a little collection of comic books or a few interesting watercolors by unknown artists, it might get you off to a good start.

If you are, or hope to become a serious collector, it is necessary to keep detailed records and attend to all the other issues of managing what is really a business. Your records should give details and description of the item, where and when it was purchased, its provenance (ownership history), what and how you paid for it, and where you keep it. There should be photographs and it should be listed in an inventory together with all of the other art pieces you own.

Each piece in your collection should be appraised and insured. You may want to create an LLC to hold the collection and all its transactions, so it is separate and protected from your personal finances and assets. And the IRS must, of course, be a part of your planning. Are your collection activities for profit or for pleasure? Do you have to report on-line sales? Do you meet the definition of being a “dealer”? The way you buy, sell and manage your collection will determine how it will be taxed if you sell it, or when you pass away. Check with your CPA as soon as you decide to become a collector, and before making any declarations to the IRS or state tax board.

The Criminal Element - According to the US Department of Justice and UNESCO, art crime is the third highest-grossing criminal trade, just after drug and weapons traffic. Art trade is a lawful business, but almost totally unregulated around the world. There is little or no paper trail when art changes hands. Few transaction records. No public listing of art sales or transfers. It is an open invitation to shady deals, unscrupulous dealers and thieves.

Private art sales are estimated at $30 billion per year; and art crime may account for $6 to $8 billion of this total. Art thieves count on resale or ransom of the stolen pieces. Around the world, as many as 100,000 works of valuable art are stolen each year. It is likely that only 10% are ever recovered. There are also thousands of fakes and forgeries on the market, and many are likely to be found in museums or private collections everywhere. Dealers and private sellers are sometimes unethical, or prone to look the other way when questions of authenticity or true ownership come up.

Art crime and museum heists have been the focus of many popular films over the years. Topkapi, How to Steal a Million, The Thomas Crown Affair, Entrapment, The Monuments Men, and the Grand Budapest Hotel are a few of the films that have fascinated us, often clever and full of Hollywood glamour and intrigue. Captivating, but they also make us think about the serious side. How do you know if your art piece or collection is authentic, or truly valuable? How do you protect it? And what do you do with it when you die?

Where Will My Collection Go? Art is a unique possession, an asset that family members and friends may feel a strong emotional connection to. It is a part of your estate that requires special thought and planning for its future after you pass on. For a few pieces or small collections, you may wish to pass them along in your Living Trust to family and friends who will value and care for them. But depending on the dollar value of your art pieces or collection, there can be substantial tax implications for your estate based on how and when they are distributed to your beneficiaries.

Many serious collectors choose to make a charitable gift of their art pieces to a museum or other organization that can accept and maintain them. You could make the gift prior to your death, or gift it from your estate after you pass away. The tax laws regarding non-cash charitable gifts are especially complex, and you will need to consider the best way to donate your collection with a minimum of tax liability. Something as simple as whether you received an art piece as a gift or purchased it can make a difference in whether it is a deductible donation. The legal status of the organization receiving your gift, how it will be used, and whether the art is capital gain property or ordinary income property are a few of the many other issues that will affect the tax treatment of your art.

Whether your art collection is small or substantial, check with your attorney and CPA before deciding how to plan for its future and protect your estate.



Monday, August 31, 2015

Travel Forecast - Crossing the Line into a No-Comfort Zone

Travel Forecast - Crossing the Line into a No-Comfort Zone

Crossing state lines and international borders is something millions of us do every day. As long as we pack what we need, have our maps, GPS, and our tickets or gas in the car, we are pretty much ready for anything when we hit the road. But for the LGBT community, travel requires careful planning and an extra layer of protection. Both the journey and the destination determine our level of comfort on the trip. Using same-sex marriage equality and other non-discrimination laws as a guide, here are some of the things you should consider when you decide to travel for business or pleasure, or move to a new location:

U.S.A. - Currently, 37 states and Washington DC recognize same-sex marriage and/or registered domestic partnerships. If you are married or registered partners, you are likely to be treated fairly in these states, and especially in the larger cities. Smaller towns may still be catching up, and there are pockets of resistance in some states. Some businesses have invented a “religious exemption” excuse for not serving LGBT people. They claim that discrimination against homosexuals is permitted (and even required) by their religious beliefs.

For the states that have a ban against or don’t recognize same-sex marriage, there will soon be a resolution to our quest for equality. The Supreme Court of the United States is considering whether such marriages are constitutionally protected in every state, and their decision is expected sometime in June. But even if they decide in favor, there will be states and areas that will delay our civil rights in every way they can think of. We are unlikely to feel comfortable in many of those places.

So the U.S. is a checkerboard of states that may or may not be welcoming to LGBT travelers. When planning a trip, check where you have to pass through to get to your destination, and what you can expect when you get there. Look at the same-sex marriage record, and state or city laws regarding fair housing, employment, safety of LGBT youth, and HIV care and prevention. These are indicators of the comfort level of your stay in those communities.

Canada and Mexico - Our nearest neighbors are two sides of a coin. Canada permits same-sex marriage and has long had laws in place regarding other types of LGBT discrimination. Mexico is on the move toward equality. Mexico City permitted same-sex marriages several years ago, and court rulings since then have found that a ban on such marriages in many other areas of the country is unconstitutional. However, the rulings do not always give blanket permission to marry. They are sometimes limited only to the people bringing the suit. Progress toward equality in Mexico will likely take some time. And many other areas of discrimination have yet to be addressed.

Elsewhere in the World - A total of 18 countries have legalized same-sex marriage. 13 countries in Western Europe, 3 in South America, and New Zealand and South Africa now permit and recognize such marriages. A few other countries recognize same-sex civil unions, including Ireland, which may soon become the first country to legalize same-sex marriage through a popular vote. Some of these also have fair employment, housing and other non-discrimination rules. It is likely that all of these countries will be welcoming to LGBT individuals and couples.

At least 80 countries or entities around the world criminalize homosexual behavior, with 5 countries imposing the death penalty for such offenses. Most of the countries are in Africa, the Middle East and Indonesia. Others, such as Russia, have repressive laws against homosexual propaganda. When you cross the borders into these areas, you have entered the no-comfort zone. Plan your itinerary carefully, and be super-aware of your actions and speech that might run afoul of the local laws.

Pack That Extra Layer of Protection – Wherever You Go

You need these to insure wellbeing at home, and especially when traveling:

- Advance Health Care and Medical Care Directive: A detailed, notarized statement appointing agents to decide for you how your medical care will be handled if you are unable to make your own decisions. You will decide what kind of medical treatment you do or don’t want to keep you alive, manage pain or provide other care at end of life. There are issues of resuscitation, tube feeding, organ and tissue donation, and other critical matters.

Single travelers especially need this document, since there is no-one with them to provide information. Same-sex couples, married or not, will likely find that, even in comfortable locations, one partner or spouse may have little legal standing to make decisions as an agent for the other. It needs to be in a legal document.

- Emergency Medical Card: A card that allows medical professionals access to
your document. You are unlikely to carry your Directive on your person everywhere you go. There are several organizations that store it electronically for you, and they provide a credit-card size emergency card that instructs medical personnel to call or email to retrieve it, 24/7, from anywhere in the world. It also identifies the people you have named as your agents, and how to reach them. Carry this card in your wallet or pocket everywhere you go.

Monday, August 17, 2015

Can You Predict the Future? A Good Life Plan Needs Good Estate Planning

Can You Predict the Future? A Good Life Plan Needs Good Estate Planning

Most of us like to bring some order and predictability to our lives by planning ahead. We think about where we are now, and where we would like to be. We figure out how to get there, and how to avoid as many pitfalls along the way as we can. Moving through life, we accumulate things - our possessions, our estate – which are integrated into our lives. As an estate planning attorney, it is my job to help everyone plan for the care of their possessions as they move through life now, and after they die.

Here are a few of the issues that should make you think and do something about estate planning:

Do you have a live-in partner and you aren’t married or registered?

The 2013 U.S. Census Bureau Survey listed around 107,000 California same-sex couples living together. Of these, about 37% were spouses, and the rest were not. In California, community property rules mean that possessions (assets), and what happens to them, are clearly defined for spouses, but not for others. Although you and your partner may have a long-term relationship, your possessions can become a serious issue if you drift apart, become ill, or die. A plan for the care and keeping of your assets is essential to avoid the pitfalls that can upset your lives. If you have a car, bank account, savings or retirement funds, or a home, you have assets to plan for. What will happen to them if something happens to you or your partner?

Do you have children?

Many in the LGBT community have children from a previous or current relationship. If they are minors (under age 18 in California), they are usually under the legal control of one or both parents. But what happens if a parent becomes incapacitated or dies? That is where planning is essential to the child’s welfare. Care of children can’t be transferred to just anyone. A legal guardian will be required, and if there are no other plans in place, the state will appoint one and maintain jurisdiction until the children reach adulthood. It is always possible that the guardian will not be one that the parent would choose. Planning ahead can make the process predictable and greatly reduce the stress on the children.

Do you own a home?

If you own or are buying a house, it is an asset that is part of your estate. What will happen to that house if you become incapacitated or die? It all depends on how the property is titled on the deed. If you own it alone, you can create a Will that gives the house to a partner, a spouse, or another person if you die. The Will must be probated in court, and it may take a year or more to actually transfer the property to the beneficiary. As a better option, you can create a Trust, and transfer the property into the name of the Trust. Your Trust names who will manage the property if you become incapacitated, and who will inherit the property when you die. The Trust does not need to be probated in court.

What if you own the house jointly with a partner, and you aren’t married? There are several serious problems with this strategy. What happens if one of you becomes incapacitated and you need to sell the house? A joint tenant has no right to act alone on any house issues. What happens if one of you has a tax problem, or is in an accident, and a lien is placed on the house? What is the tax bite if your partner dies and you now own the whole house? There are much better ways of holding title to property, and a little planning will avoid lots of pitfalls.

Are you covered for illness or incapacity?

I am not a medical professional, so my concern with these issues is not about your health care plan, but with the plan for care of your possessions when something happens to you. And I say “when” very seriously. As our population ages, a majority of us will, at some point, require assisted living, long-term care or hospice. What happens to your estate when you can no longer manage it? Who will pay your bills, keep up your house or sell it, make sure your finances are in order? If you have a Will, it won’t help at all. A Will is effective only when you die. If you are a single person, or partners who are unmarried or registered, you need to plan very carefully for your own protection.

A Durable Power of Attorney will provide for a personal agent of your choosing to handle financial matters for you. An Advance Health Care Directive will give your instructions to your agent for handling medical and end-of-life issues with the medical professionals who care for you. A Trust will provide the instructions for handling all of your affairs when you are incapacitated, and after you die.

I have never been able to predict the future, so good estate planning is the very best I can do to help you keep your life plans on track.






Monday, August 3, 2015

The No-Party Clause and Other Bumps in the Road

The No-Party Clause and Other Bumps in the Road

Everyone has questions from time to time about how to handle knotty problems that threaten to make life miserable. I get phone calls or emails from many of these people who hope that I can provide answers, or refer them on to someone who can. Some are minor issues or sad ones – and some of them are very serious. They cover a vast range of troubles that could happen to any of us. Here are a few recent questions that came up:

Question: Two friends and I get along really well, so we signed a lease on a house together. My friends threw a big party while I was out of town a couple of weeks ago, and neighbors called the police to break it up. Now the landlord has sent a letter telling us all to move out because the lease says no noisy parties are allowed. I am furious. I don’t want to move. I wasn’t even here for the party, so it wasn’t my fault. How can I get the landlord to let me stay, even if the others have to leave?


Answer:  You probably can’t convince him to continue your lease. When the 3 of you leased the property together, you gave up your separate rights and became a single renter. The rights and responsibilities of each one of you are shared by all 3 of you. You may not have been personally involved in the party, but you are just as responsible for it as the other 2 are. The landlord has every right to evict all of you for breaking the terms of the lease.

Question: What should I do if I get a call from a collection agency and know I don’t owe them any money?


Answer: First, do not ignore the call. Immediately, request verification of the debt in writing. Under California and federal Fair Debt Collection Practices Act rules, you must usually do so within 30 days of receiving the first notification of the debt. When you receive the validation, determine whether it is correct, and that you truly do not owe that debt. Pull together whatever proof or substantiation you can and promptly send that back to the collection agency.

Second, if the collector refuses to acknowledge your response or withdraw the claim that you owe money, protect yourself by doing the following:

1.      Check your credit report to see if the debt has been reported to any of the
         3 credit reporting agencies. If it has, file a dispute of the claim with each
         of those agencies.
2.      If the collector threatens or harasses you, file a complaint with the
         California Attorney General’s office and the federal Consumer Financial
         Protection Bureau.
3.      If the collector files suit against you to make you pay the debt, do not
         ignore the notice of hearing. You have a very short period of time to
         respond. If you don’t file a protest, you will need to appear at the hearing,
         or it is very likely the court will rule that you owe the debt.

Finally, if you must go to court, consult an attorney to make sure you have as
much proof for your position as possible, and that you understand your legal
rights under the circumstances.

Question: What can I do to make the Homeowners Association respond to my requests for repairs to my condo and our common areas? They don’t answer my calls, and they don’t tell us when the board meets, so I can’t go to meetings to talk to them.

Answer:  California has strong HOA laws that clearly spell out how these organizations
and boards of directors must operate. Each homeowner must be provided with a
copy of the covenants, conditions and restrictions (CC&Rs), bylaws and other
information when the home is purchased; and the HOA must keep these up to date at least annually. Also, an annual budget and outside audit of HOA finances must be provided to each homeowner.

A management company who handles day-to-day HOA affairs is responsible
directly to the board of directors, who are themselves elected by the
homeowners. Notice of meetings and meeting minutes must be provided. You
have the right to inspect and copy association books and records.

Most requests to the management company and the board must be in writing.
This may be one reason your calls are being ignored. Write to the manager and
the board requesting copies of meeting minutes for the past year, and meeting
schedules for the remainder of this year. In a separate letter, identify the
problems you are having in your condo and the common areas, and how you expect them to be resolved. If there is no response, attend the next board meeting, and be prepared to present your concerns in a very brief and concise way. Board meetings must allow time for homeowner participation, but the time is usually limited to 3 or 4 minutes per person.

In the meantime, discuss the situation with as many of your other HOA members
as possible. If you are having trouble with the manager and the board, it is very
likely your neighbors are too. An action plan to get the HOA’s attention is often
successful when they see an uprising in their future.

If none of the above works, and repair and other problems affect daily living,
consult an attorney who is experienced with HOA issues to help decide if legal
action is needed.


Wednesday, June 10, 2015

All About Joint Tenancy - Are You and Your Partner at Risk?

Should your home, bank accounts or other property be held in joint tenancy with your partner or other family member? Many people comment to me that they don’t need an estate planning attorney because they own all their property as Joint Tenants with Rights of Survivorship. If they die, the property will automatically belong to the other joint tenant. No need for a Will or a Trust. No need for Probate. No need for an attorney’s services. 

Unfortunately, life is rarely that simple. There are numerous pitfalls in joint tenancy: 

         *   Joint property is exposed to the liabilities of either or both owners. If one

              owner gets a judgment against him or her, the entire property may be taken         

              to satisfy that judgment. If one is a doctor, lawyer or sole proprietor of a business

              in a highly litigious field, or if one is found at fault in an accident, or if one owner

              has a tax lien placed against the property, this may be the worst way to hold title.

          *  Joint owners lose individual control over the property. For example, with real

              property, one owner has no right to act alone in selling, making improvements,

              or refinancing the property.

          *  If one joint owner becomes mentally incapacitated, the property is in legal limbo.

              The owner can no longer convey legal title or sign ownership papers. This can

              prevent property such as a home from being sold or rented. It usually requires

              the healthy owner to go through a lengthy and expensive conservatorship

              process in Probate Court.

          *  When property passes to another owner through joint tenancy, that property

              is left outright, meaning there are no strings attached. The danger is that the

              surviving owner can then leave that asset to his new partner, or anyone else he

             chooses, and the first owner’s share of the estate never makes it to his own

             heirs. The last owner to die wins everything.

         *  When the first owner doesn’t do any estate planning, usually the second owner

             doesn’t either. Although probate may be avoided at the first one’s death, it will

             not be avoided upon the second owner’s death. In the event of simultaneous

             death, all assets held in joint tenancy must go through probate since both owners

             of record are no longer living.

         *  Even if the joint tenants do have Wills or Trusts, the surviving partner will receive

             the deceased joint tenant’s interest in the property, regardless of what that

             owner’s Will or Trust says. Wills and Trusts have no control over jointly owned

             property.

          *  Finally, transferring property into joint tenancy may have tax consequences. If

              you place another person on your bank account or a deed as a joint tenant, you

              have just given that person a gift. If the value is less than your annual gift

              exemption of $14,000.00, there may be no problem. If it exceeds that figure, you

              must file a gift tax return with the IRS. You may or may not owe taxes on the gift,

              depending upon your financial situation.

 

I hope you will give the joint tenancy risks careful consideration before you try to use it as a do-it-yourself estate planning tool. For very small estates such as those having only moderate sums in a bank account and no real property, joint tenancy can work to avoid probate and smooth the transition when a joint owner passes on. For most other estates, there are various planning tools that reduce or eliminate the risks of joint tenancy, and make far more sense.

Careful estate planning and correct property titling are especially important for same-sex couples. For partners who are not married or registered as domestic partners, it is essential to maintain as much individual control over property as possible. Couples can own homes together; have joint and individual bank and investment accounts; and own other property that they share equally, without the pitfalls of joint tenancy.

Many of my clients are same-sex couples who own various assets together. Often, we find that individual Revocable Living Trusts are the best way to maintain their property and allow each partner maximum flexibility and control over their shares. Each one creates the necessary documents to control how assets will be managed if incapacity or death should occur, and this allows each partner to pass his share on to whomever he names in the Trust. Each one has a plan that covers many of the risks in life, and gives partners greater peace of mind about the future.


Wednesday, May 20, 2015

Are You "Judgment Proof" After You Retire?

The bankruptcy rate for Americans over age 55 is soaring. This age group now accounts for over 20% of all bankruptcies filed. Some analysts estimate that for every older person who files a bankruptcy petition, there are two more seniors who should, because of their dire financial straits.

What’s going on?  Retirees used to be seen as financially stable, kicking back on their savings and pensions, mortgages all paid off – enjoying their golden years. But not any more. Here are some of the major reasons why so many of our older generation have hit financial hard times:

 

          *  People are living longer, making seniors a much larger percentage of the

              population than in generations past.

          *  Retirement funds are inadequate to cover the living expenses of a longer life, and

              income has gone down in recent years – hit by the recession and lack of cost of

              living increases in social security and other pensions.

           * Property taxes and the cost of gas and ordinary consumer goods keep going up.

           * Medical expenses grow rapidly as the population ages. Medicare and other

              health care insurance plans do not begin to cover all costs of medical care for

              older people.

           * Seniors often have to rely on credit cards to pay their routine bills, burying them

              in debt they will never pay off.  This group now has more credit card debt

              than younger generations – debt that was often unthinkable for seniors only

              10 or 20 years ago.

           * Late payments on credit cards and other unsecured debts result in penalties and

              a huge increase in interest rates to over 30% interest in most cases. This makes

              even modest debts spiral rapidly out of control.

But wait…aren’t retirees “judgment proof?” Why should seniors worry about their debts, when, in most cases, creditors can’t touch their pensions or their homes during their lifetimes? If social security or IRA income each month can’t be levied by a creditor, grandma or grandpa can stop stressing, right? And if a creditor puts a lien on your aging mother’s home, what does it matter to her?  She will continue to live there until she dies, and after that, the creditor will get the money from the sale of her house.

“Judgment proof” is not the best way to describe the financial situation of many older Americans. The term is commonly used to mean that creditors can’t collect money from assets that are protected – pension, IRA, or social security income – or the home you live in, while you continue to live there. But a creditor can still file a lawsuit against you, and a court might agree that you owe the money and issue a judgment against you. So technically, virtually no one is “judgment proof.”

A better term is “collection proof” – because, even if you have a judgment against you, the creditor can’t collect it from your exempt assets. So if you have debts you can’t pay after you retire, or even if there is a judgment against you, why should you care? Here are two very important reasons:

 

       *  Creditors are shameless and relentless. They never give up trying to get money

           out of you. They call, send mail, and use every means to get your attention. To

           an older person who may be in declining health, or barely able to make ends

           meet every month, the constant harassment by creditors takes a heavy      emotional and physical toll.

       *  Creditors will often get judgments against you. You must respond to the Notice

           or Summons you receive from the court. If you do not take action, the court may

           very well authorize a levy or a freeze on your bank account. The county sheriff

           in your county is responsible for carrying out the levy, by ordering your bank to

           freeze your account and/or pay the debt out of your account. Neither the sheriff

          nor the bank may know that all of the funds in your account came from pensions

          or other exempt income. Once a freeze is in place, it can take weeks or months

         to get it reversed. In the meantime, your money is out of your reach.

Creditors can ruin a retiree’s life in ways that are far worse than their effect on younger people. Seniors have few chances to go back to work to pay off debt. There is little or no prospect of their paying off their debts in their lifetime. Credit card debt, in particular, grows rapidly, as retirees pay higher interest on interest over the years. A lien on a senior’s home to pay off that inflated debt after death often means there is little or nothing left to pass on to their children or grandchildren.

For retirees caught in the clutches of creditors, bankruptcy is often a good solution.

It usually wipes out credit card, medical and other unsecured debts, and makes it possible for most people to again manage their everyday living expenses within their income. A huge relief and peace of mind make a fresh start possible for seniors.


Wednesday, May 6, 2015

I'm a Consumer! What has the California Attorney General's Office and the Department of Consumer Affairs Done for Me Lately?

The Attorney General heads up the California Department of Justice (DOJ), and according to the department’s mission statement, has broad responsibilities to enforce laws fairly and impartially; ensure justice, safety and liberty for everyone; encourage economic prosperity, equal opportunity and tolerance; and safeguard California’s human, natural, and financial resources for this and future generations.  Justice is served by helping to prevent and prosecute criminal activity, protect consumers from victimization, and promote public safety.

 

The Attorney General can’t give specific legal advice about personal problems or represent individual Californians, but whether you realize it or not, your life is touched by many of the Attorney General’s actions every day. Here are some of the major areas that are designed to support your safety, general welfare, and quality of life:

 

  • DOJ bureaus are responsible for a variety of regulatory responsibilities in the areas of narcotics, gambling, and firearms control. They carry out laws, assist other state and local law enforcement agencies, and provide education to the public. The Bureau of Investigation has wide-ranging duties including information and intelligence networks, an anti-terrorism program, and special operations units that combat violent criminals, gangs, drug and human trafficking, and fraud.

 

  • The DOJ collects, analyzes and reports crime statistics, and maintains criminal history records for use by law enforcement and other authorized agencies. An individual may request a copy of his or her own criminal record. DOJ maintains a central index for cases of child abuse throughout the state, and handles international child abduction cases together with the U.S. Department of State under the Hague Convention; and domestic child abduction cases together with the California Child Abduction Task Force.

     

  • “Megan’s Law” information and locations for registered sex offenders may be accessed by applying on-line through the DOJ website. There is a searchable database for people who have gone missing, and you can subscribe to a Missing Persons Bulletin which covers children, dependent and voluntarily missing adults.

     

  • Elder abuse may become more prevalent as our aging population grows rapidly. The DOJ has responsibility for prosecuting abuses and policies that lead to neglect and poor quality of elder care in skilled nursing homes, hospitals and residential care facilities. Criminal history data is provided to employers of unlicensed persons providing in-home supportive or personal care services to dependent or elderly adults.

     

  • The DOJ handles many consumer fraud and complaint issues. Their website oag.ca.gov/programs offers detailed information about consumer concerns such as debt collectors, homeowners associations, e-crime, identity theft, loan modification fraud, antitrust issues, corporate fraud, lemon law, prescription drug monitoring, and many other problems that affect Californians.

 

  • Consumer questions and complaints may be filed with an on-line complaint form which is sent to the Attorney General’s Public Inquiry Unit, and will be forwarded on to other state agencies if they are responsible for regulation of the issue.

 

The California Department of Consumer Affairs (DCA) regulates and issues licenses in several hundred business and professional categories.  The DCA has

bureaus and boards that carry out the legal requirements for each of the specialties. All individuals and/or groups covered by these rules must apply for and be granted a license or certification to operate and practice in the state of California. You may check to see if someone has a valid license by going to www2.dca.ca.gov.

 

From your hair stylist, CPA, car mechanic, doctor, realtor, contractor, to your appliance repairman, pharmacist, pest control service, mental health counselor, security guard, and funeral director, all, and many more, are required to meet regulations for practice and must be licensed. The DCA handles complaints from consumers in all areas, and works together with the California Attorney General and local district attorneys to prevent and prosecute fraud in the marketplace.

 

Consumers are encouraged to make complaints and report problems when issues with business and professional practitioners are serious. Issues with certain businesses and practitioners might be resolved through the department’s Complaint Resolution Program. For other disputes, the DCA may recommend new approaches to resolving the problems, or possibly mediation, or filing suit in small claims or civil court.  File a complaint on-line at www.dca.ca.gov/online_services/complaints.

 

The DCA also offers important free information covering a wide range of consumer issues. There are guides for business and professional categories that are licensed, and a variety of others which offer important tips for handling concerns ranging from disasters to consumer fraud.  One well-known guide is “California Tenants – A Guide to Residential Tenants’ and Landlords’ Rights and Responsibilities”.  This is an excellent

brochure, giving a clear explanation of California rules and what they mean.


Wednesday, April 22, 2015

Money Matters

I handle estate planning for people who have a handful of assets, tons of assets, and everything in between. Other people have serious financial problems, and I help them file bankruptcy, so they can get a fresh start. And some folks are married or registered domestic partners and need me to file for a dissolution of the relationship. Whatever your fortune or misfortune, money and other assets are usually the focus of my work. Here are some notes and suggestions that can help protect what you already have, or regain a solid footing when you need it:

 

  • Finding Money:  You or a family member may have money waiting for you.

    Unclaimed monies must be turned over to the state by financial institutions and

    other companies. The state then must try to find the rightful owners. There is no charge to check these two official websites to search for unclaimed property:

     

    www.Unclaimed.org            www.MissingMoney.com

     

    Be wary of companies that charge you or send “special offers” to locate funds for you. Some are legitimate, but some are not. Check the above websites first.

 

  • Finding More Money:  Did someone pass away recently? Could you be the beneficiary of a life insurance policy? To get any information from insurers, you must have the authority to discuss the matter with them. You must be the executor or administrator of the decedent’s estate, a member of the immediate family; or have written authorization from that person for the insurer to release information to you. You will need a certified copy of the death certificate and as much information as you can find about the policy itself. Contact the insurer’s main office to see if they are permitted to talk to you as a possible beneficiary. If the death was a long time ago, it is likely that the funds have already been turned over to the state and will turn up on the websites listed above.

 

  • Marrying for Money:  When you marry or register as domestic partners in California, look carefully at both of your financial situations. You each bring

separate property to the union, and can choose whether to keep all of your property separate, or co-mingle some or all of it. What you acquire after the union

will usually belong to both of you as community property. You can choose how to identify all of your property by creating a pre-marital or post-marital agreement.

 

  • Splitting Up Money:  Sometimes things just don’t work out. You married,

    registered, or were in a committed relationship, and now you want out. Were you smart and signed that pre- or post-marital or cohabitation agreement? If you did, your path to single life should be fairly smooth. Everyone is clear on who owns what and who gets what when the relationship ends.

     

    Forgot those agreements in the thrill of romance? Unless you both agree completely on who is entitled to all the assets and debts, your escape from the union is likely to be painful. To dissolve a marriage or registered partnership, each person must provide very detailed financial information and documents that will serve as a basis for the two of you and the court to determine what is a fair settlement of your property. If your partnership was simply a committed relationship, it is not recognized as a union in California, and you and your partner must sort things out by yourselves. A civil lawsuit could be filed to try to settle disagreements, but the process is very complex and expensive.

 

  • Erasing or Reducing Debts:  Financial problems can hit any of us, any time.

    Student loan debts drag many of us down. Although most of these debts can’t be discharged in a bankruptcy, some can be reduced or forgiven through various programs. Get a job in public service, government or with a non-profit entity. Join the military. Apply for the Income-Based Repayment Plan. For certain student loans, become a public school teacher in a low income area. There are many other forgiveness programs that could help. Check first with your loan provider, who should be able to identify the programs that might work for you.

 

Housing debts are a major contributor to bankruptcies. If your mortgage is more than the value of the property and it is tough making the payments, it is possible the lender will foreclose and you will lose your home. There are several good refinancing programs available now. Check with your lender for options.

 

If refinancing doesn’t work, and you are in genuine financial distress, consider

bankruptcy. It can often stop an imminent foreclosure, help reduce or wipe away your other debts, and make it possible for you to retain your home and start off with a clean slate.

 

  • Giving Away Money:  Many folks give gifts to family members and charities. There may be tax consequences for these gifts, and it is crucial that you check with your tax professional to review these first. When choosing charitable organizations for your gifts, do careful research. Are they well-managed and are  they actually accomplishing what they set out to do? Use these websites to learn:

    www.CharityNavigator.org    www.Guidestar.com    www.MinistryWatch.com


Wednesday, April 8, 2015

Good News - Bad News: Challenging the Culture of Discrimination

The LGBT community in the U.S. has made huge gains in human rights and equality in the past few years. This brief scorecard highlights some of the major victories:

 

  • The federal government and 35 states plus Washington DC now recognize same-sex marriage

  • The “Don’t Ask Don’t Tell” policy in U.S. Military service was repealed

  • Laws against bullying and harassing students now exist in 49 states, with at least 18 states and DC specifically addressing sexual orientation and gender identity as protected categories

  • The federal 2009 Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act specifically protects LGBT persons from violence

 

This is great news  -  these advances are awesome, and we are keeping the momentum, pushing on the legal front for marriage equality in all the remaining states, inclusion of LGBT categories in all anti-bullying laws and additional protection from hate crimes.

 

So where does that leave us with tolerance and equality for our LGBT community? Clearly, there is a lot of hard work ahead. How is it that a person in 2015, in the United States of America, can lose his or her job, or be disqualified from renting or buying a home, because of sexual orientation or gender identity?  How can it be that LGBTQ youth are discriminated against by school teachers and school boards simply because of their diversity? How can anyone justify continuing to criminalize HIV when we now understand the disease and how to prevent or minimize it?

 

Let’s take a look at these and other serious issues that still face us. They are the focus of individuals and organizations who hope to move us forward in this new year:

 

  • Two of the most basic human requirements – shelter and a job to earn a living  -  can be denied to people who aren’t straight. 29 states and many federal agencies have no laws giving equal rights in housing or employment to most LGBT persons.

  • Federal legislation to address employment discrimination based on sexual orientation and/or gender identity has been pending for years in Congress. The current version has been watered down, and may not be the best solution at this time. Its chances of passage are unknown for this coming year.

  • A majority of states who don’t specifically include LGBTQ youth in their anti-bullying and anti-harassment laws make it possible for a continuing culture of

    cruelty, intimidation and discrimination against this group. Such youth in schools are subject to verbal and physical abuse by other students, and sometimes by teachers and other officials as well. This leads to a high rate of truancy, dropping out of school, and a distressing suicide rate. Suicide is the leading cause of death among LGBTQ youth.

  • It is estimated that 40% of homeless youth are LGBTQ. Forced out of their homes, with no family, friends or community support, they may enter into a foster care system which often perpetuates the harassment and victimization they faced at home or in school. Or they are forced to rely on minor crimes or sex for survival, and eventually end up in the juvenile justice system, which again offers little but discrimination and abuse.

  • Domestic violence is, sadly, very common in the U.S., and most experts agree that it occurs just about equally in same-sex and opposite-sex relationships. But not all states have laws or policies that provide equal protection and support for both straight and LGBT victims. And LGBT victims are much less likely to report abuse, call for assistance or receive help or support in the community. Fear of

    negative attitudes and discrimination by agencies and officials; fear of exposure or outing someone; and fear of making the LGBT community look bad are some of the reasons such victims fail to report abuse, and have a difficult time escaping violent relationships.

  • According to Lambda Legal, 39 states have HIV-specific criminal statutes or have brought HIV-related criminal charges in the past 2 years. There were more than 80 prosecutions during that period. This organization and others are working to challenge convictions and reform existing HIV laws to reflect and support the current scientific knowledge of HIV, its prevention and treatment.

 

These serious issues, and many others, affect the daily lives of everyone in the LGBT community; and reflect faults in U.S. and state human rights policies that have no place in our country. Lack of tolerance and community support for any minority affects all of us. There is no positive value for our society when anyone perpetuates a culture of discrimination and harassment. It is our obligation to work toward equality in every part of our lives.

 

You can help by giving your voice, time and financial support to the many organizations that work hard for equality. Here are a few to consider:

 

Lambda Legal                                     Equality California  

Human Rights Campaign                    American Civil Liberties Union

     Southern Poverty Law Center             PFLAG

     GLAAD                                                The GLBT National Help Center  


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