Perspectives

Sometimes all you need to navigate the legal landscape is a little information. Our blogs and articles touch on a wide spectrum of legal matters that can pop up in both business and everyday life, and we hope they’ll shed a little light wherever you happen to need it.

Boating Under the Influence – What You Should Know

We all know drunk driving has become a major problem throughout the United States but what about drunk boating? With our bright sunny days and beautiful lakes, boats are an attractive place to spend many days in the summer in both Minnesota and Wisconsin.

Most states, like Minnesota and Wisconsin, have boating laws but just how big is the problem? According to The U.S. Coast Guard 2018 Recreational Boating Statistics released June 2, 2020, there were 633 boating fatalities nationwide in 2018, with alcohol leading the known contributing factor in fatal boating accidents, accounting for 100 deaths or 19% of fatalities.

These laws are enforced but citations can be avoided if you have the right information. Please see below for a list of most commonly asked questions about boating under the influence.

1. Can I have alcohol on my boat?
Yes, open container laws do not apply to boats, meaning you are able to have an open container of alcohol on it. You are also able to openly consume it, as long as you are 21 or older.

2. Do Police enforce laws against boat operators drinking? If so, how?
Police do enforce these laws. These laws are most commonly enforced by safety checkpoints. Like roadside DWI checkpoints, police are able to set up BWI checkpoints as well. Law enforcement can stop, inspect, and test boaters for sobriety in the same manner they do in roadside checks on state highways. Those often include preliminary breath and field sobriety tests. Some states do not even require probable cause to do so.

3. What are the consequences?
The consequences of a BWI are like those of a DWI. Along with likely losing your boating license, you could also have a criminal record, lose your driver’s license, and pay hundreds or thousands of dollars in fines to the court if convicted. These convictions can further affect your boat and car insurance rates, making you a more high risk driver if you are charged or convicted of a crime involving alcohol. If you are a commercial driver, the consequences could be devastating.

4. How can I avoid these charges?
First and foremost, avoid alcohol while operating your boat. You can further avoid these charges by knowing the areas boating laws, making sure everyone on your boat wear their life vests while following other safety rules, and by taking courses on safe boating.

If you have specific questions or wish to speak to an attorney regarding your case or any of the information above, please reach out to one of our experienced attorneys for a free case analysis.

Posted by Alyssa Johnson | July 15, 2020

DO YOU HAVE CUSTODY RIGHTS? A FATHER’S GUIDE TO CUSTODY AND PARENTING TIME

Most people may be surprised to learn that a father has no legal rights to custody or parenting time with his child if he was not married to the child’s mother at the time of the child’s birth. In Minnesota, if a child is born to an unwed mother, the mother is the sole legal and physical custodian of the child. A father has to bring a legal action to obtain rights to custody and parenting time, even in cases where paternity is uncontested.

At the hospital, many unwed fathers sign a Recognition of Parentage (ROP) form along with the Birth Certificate. The ROP is different than an application for a birth certificate. The form must be completed by both parties and signed in the presence of a notary public. Then the form is filed with the Minnesota Department of Health. The legal effect of the form is to provide the father with a paternity presumption determination akin to that of a judgment or court order. If the ROP is on file with the state, the father may commence an action to determine legal custody, physical custody, and parenting time with the minor child or children. If a ROP has not been signed and filed with the state, then the father must first bring a paternity action to declare the existence of a parent-child relationship before any rights of custody or parenting time can be determined.

If a father is named on the child’s birth certificate but a Recognition of Parentage has not been completed by the parties, the birth certificate provides the father with a presumption of paternity but is not legally conclusive, nor legally binding like a ROP.

To put it another way, if a father does not sign the birth certificate, the mother or the County may file a paternity action to determine if the father is the biological father and therefore responsible to pay child support.  If a father signed the birth certificate and ROP, then the mother or County can merely apply for child support and begin those proceedings.  However, just because a father is responsible to pay child support does not mean that he has a right to custody or parenting time.  The only way for an unmarried father to gain custody and parenting time rights is to file for a Petition to Establish Custody and Parenting Time (or Paternity action if you are not on the ROP).  If the mother agrees that the father should have custody and parenting time, there is a Joint Petition to Establish Custody and Parenting Time that the parties can file with the Court.  If the mother does not agree, then the father can file a Petition with the Court and begin proceedings to establish custody.

If you’re a father struggling to obtain rights to your child, please do not hesitate to call one of our experienced attorneys to help you through the process.

Attorney Samantha Ivey| Posted July 9, 2020

Common Myths about the Security Deposit

Security Deposits in the residential setting are often misunderstood. Tenants sometimes leave before the lease term is up, pinning the landlord with unpaid bills and property damage. On the other hand, landlords sometimes incorrectly use the deposit to improve or upgrade their property.

In Minnesota, statute 504B.178 contains the most guidance on the appropriate use of the deposit. It expressly states that a landlord may keep portions of the deposit to account for unpaid rent or fees. In addition, the legislature has adopted an “ordinary wear and tear” standard, which states that a landlord may use the deposit to repair any damage that is beyond such ordinary wear and tear. However, “ordinary wear and tear” has been ill-defined, and over the years has been open to interpretation. This has led to many myths and misconceptions. Here are some of the most common:

As a landlord, I can keep the tenant’s security deposit to update my property.
False. It is inappropriate to use a deposit to pay for anything other than repairs beyond ordinary wear and tear. A common example is replacement of flooring. The landlord may charge the tenant for damage that was directly caused by the tenant, such as pet damage or scratches. However, all flooring needs care or replacement from time to time. If the kitchen linoleum has simply seen too many years, the landlord must pay for the cost of replacement. Unless otherwise agreed to, updating or upgrading a property is always the responsibility of the landlord.

A landlord can’t use a security deposit to cover cleaning costs.
False. A landlord can use a deposit to cover the cost of cleaning an unusually dirty home. Most leases require the tenant to do a thorough cleaning prior to move-out. If the tenant fails to clean adequately, and the landlord is forced to arrange for cleaning, that cost may be deducted from the deposit.

A landlord can’t deduct utility bills from a tenant’s security deposit.
False. A landlord may deduct any unpaid bills, including rent, late fees, or key replacement fees, from the security deposit.

As a tenant, I can use my security deposit as my last month’s rent.
False. The purpose of the security deposit is to insure the landlord against property damage caused by the tenant. If the deposit is spent on the tenant’s last rental payment, there is often nothing left to cover the cost of repairs. Unless expressly written in the lease or otherwise agreed, a security deposit may not be used to pay the last month’s rent.

The security deposit is the only way the landlord get the tenant to pay for repairs.
False. If the deposit is inadequate to cover the cost of any repairs to the property, and if the damage was directly caused by the tenant, the landlord has a right to bill the tenant for the additional costs. If necessary, the landlord can sue the tenant in conciliation court to recover the costs of the repair.

It’s important to remember that whether the landlord intends to keep the deposit or not, the landlord must notify the tenant in writing or return the deposit within 21 days after the end of the tenancy.

Whether a landlord can keep a security deposit always depends on the individual circumstances. To learn more about how the law affects your unique situation, contact our team.

Attorney Jessica Irwin | Posted April 2, 2020

The Importance of Living Will in Today’s New Circumstances

What is a Living Will?
A Living Will is an important health care document in estate planning as it provides clear and unambiguous directions of a person’s healthcare wishes at a time when they cannot speak for themselves. It avoids uncertainty at a time when emotions are naturally high and where family members may have conflicting wishes. It is not a Testamentary Will, as it does not dispose of property or make bequests under State law. The Living Will is both a statement of a person’s wishes and a guide for family and healthcare providers.

Details of a Living Will
The person for whom the Living Will is prepared is called the declarant. This document provides the declarant with the right to direct future medical services at a time when the declarant is unable to speak with or consult with their doctor. The document becomes effective only in an extreme end-of-life situation. In the Living Will the declarant may direct the attending physician not to administer life-sustaining treatment including CPR or technologically provided nutrition and hydration. If such treatment has already started the Living Will may provide that such treatment shall be withdrawn. The document may include a directive of do not resuscitate.

Both the declarant’s attending physician and a second physician must certify that the patient is terminally ill, permanently unconscious, and will not feel pain or discomfort from the withholding or withdrawal of such treatment. Even under this diagnosis it is the agent named by the declarant in the living will, termed the attorney in fact, who ensures that the patient’s wishes are carried out by the healthcare provider and attending physician. It is not healthcare professional who decides to withdraw or withhold treatment. State law typically requires that the attorney in fact be notified of the declarant’s condition. Thus it is important to keep this information updated. Without the Living Will the healthcare provider for the a patient in the extreme terminal condition cannot withdraw or withhold treatment at the request of the family including a spouse or adult child, even if the patient previously expressed this wish verbally.

The form and content of the Living Will must comply with the laws of the jurisdiction where the declarant resides. This often requires two adult witnesses or a notary to witness the signature of the declarant. The declarant must be legally competent to sign and, once signed, the Living Will should be given to both the declarant’s doctor as well as the attorney-in-fact including an alternate if so named. These standards vary by State to State. An attorney should be consulted to assure compliance with the rules of your jurisdiction.

The attorney-in-fact should be someone who knows what the declarant’s wishes, be willing to see that those wishes are carried out, and typically must be 18 years of age or older. This document may be amended or revoked by the declarant. Some states ask an applicant during the driver’s license application process if they have a Living Will. The applicant can request that their driver’s licenses indicate that such a document has been executed or signed.

Why Have a Living Will Now When You Are in Good Health?
Clients will often ask why a Living Will is necessary when they are in good health and do not have a family history of any serious illnesses or diseases. It is a document that, hopefully, is never needed but in the event that than an unexpected catastrophic medical situation occurs it can alleviate uncertainty, disagreements among loved ones and provide the patient’s wishes are followed. We have all heard about situations where family members cannot agree on the wishes of the patient, leading to legal action as the healthcare provider cannot and will not withhold or withdraw treatment if there is no Living Will.

Many people are concerned that it is the healthcare provider who makes the decision to withdraw or withhold treatment but this is not the case. The healthcare providers make the diagnosis and present it to the attorney-in-fact. It is the attorney-in-fact who instructs the healthcare providers, on behalf of the declarant, to withhold withdraw treatment

Some years ago a case in Florida made national news concerning a young married woman who had been in a coma for several years and whose doctors determined that she would not recover and would remain in a permanent vegetative state. Her husband attempted to have the doctors remove her from the respirator but her parents intervened and after protracted and expensive litigation the court determined that the respirator could be removed. She passed away 13 days later. A Living Will is a very personal and important document that can avoid years of uncertainty and conflict as to what a person’s medical wishes might be. It allows the individual to dictate what their treatment and healthcare would be in this very extreme medical situation.

If you have any questions or concerns about this paperwork please consult your attorney. In this time of widespread disease it is a crucial document that can easily be drafted to comply with State regulations, protect and ensure that an individual’s healthcare wishes are carried out, and provide family and friends with clear and unambiguous directions end-of-life situation.

Posted April 2020

COVID-19 and its Affect on Domestic Violence Victims

As many Americans hunker down in their homes obeying Stay at Home Orders, Domestic Violence is on the rise. Victims who are normally able to escape their abuser for eight hours during the average workday can no longer count on that break.

As more and more people lose their jobs everyday, financial stress, fear, and isolation can drastically change a household. In fact, staying home can be deadly to some due to these climate changes.

Domestic Violence comes in many shapes and forms and is not always physical. Domestic Violence does not discriminate and people of all races, genders, and sexual orientations can fall victim.

While it seems like the world is on lockdown due to COVID-19 restrictions, there are still plenty of resources to help you through whatever you may be experiencing.

What are those resources?

Call 9-1-1
While it may seem obvious, calling your local police should always be your first step when you feel unsafe. However, If you do not feel safe calling the police due to lack of privacy, there are other options.

Get out of the House
While Stay at Home orders require you to not leave your home, except for essential services, this does not apply to domestic violence victims who are in imminent harm if they continue to stay home. If you feel unsafe, it is important to leave immediately to stay with a friend, family, or co-worker. If you have nowhere to go, there are various safe shelter options. Crisis Centers, like Minnesota’s DayOne and Wisconsin’s Bridge to Hope, can help you find a safe place to stay.

Call a Crisis Center
Crisis hotlines like Minnesota’s DayOne and Wisconsin’s Bridge to Hope can provide help 24/7/365. There are also national hotlines available and hotlines that tailor to each and every relationship.

Helplines are helpful in both lending an ear and helping you find resources. If you need a place to stay, they can help you find a safe shelter. If you need someone to talk to, they can help you find a counselor. Whatever your needs are, these hotline operators will speak to you in a confidential and respectful manner, while helping you out in your time of need.

DayOne Crisis Hotline
866-223-1111
Minnesota hotline for those experiencing domestic violence

Bridge to Hope
800-924-9918
Wisconsin hotline for those experiencing domestic violence

The National Domestic Violence Hotline
800-799-7233

Casa de Esperanza (Espanol)
651-772-1611

National Deaf Domestic Violence Hotline
Videophone: 855-812-1001
deafhelp@thehotline.org

ThinkSelf-Deaf Advocacy Services
Videophone: 651-829-9089
Text Hotline: 621-399-9995

OutFront Minnesota
612-822-0127
LGBTQ+ Anti-Violence Crisis Line

Room to Be Safe
414-856-5428

LoveIsRespect.org
866-331-9474
For Teens Experiencing Dating Violence

StrongHearts Native Helpline
844-762-8483
Native American Domestic Violence Helpline

File an Order for Protection
While courts are closed for all non-essential business, courts in every state are still hearing cases where someone has filed an Order for Protection. An Order for Protection filed with the court may save your life if you are being abused.

Domestic Abuse is defined as occurring to a family or household member if committed by a family or household member. A household member as:

• Spouse or former spouse;
• Parents and children;
• Persons related by blood;
• Persons who are currently live together or who have lived together in the past;
• Persons who have a child in common, regardless of whether they have been married or  have lived together at any time;
• A man or woman if the woman is pregnant and the man is the alleged to be father, regardless of whether they have been married or have lived together at any time or;
• Persons involved in a significant romantic or sexual relationship.

Call our experienced attorneys to get further information on how and where to file an Order for Protection in your state.

The main thing to remember when you are suffering from Domestic Abuse, no matter where it is occuring, is that it is not your fault and there is help available. There are much better options than to stay at home and risk your life.

If you have specific questions or wish to speak to an attorney regarding your case or any of the options above, please reach out to one of our experienced attorneys.

Posted April 10, 2020

COVID-19 and Consumer Bankruptcy

The current coronavirus pandemic has had an unprecedented effect on all of us personally, professionally and financially. Businesses have closed and employees have been laid off. Unemployment compensation claims are at a record high. Individuals are under extraordinary stress with concerns about the health and safety of their family and loved ones.

With businesses shutting down either by government order or through lack of customers many find themselves with little or no income to pay their debts. The federal government has promised direct payment to citizens who qualify, which cannot come too soon. The federal government has also suspended foreclosures and evictions for federally backed mortgage loans. Some state and local courts have suspended or continued evictions during this crisis.

As income dries up and savings dwindle many people’s thoughts turn to bankruptcy. More often than not their thinking is along the lines of “I never thought I would have to do this.”

Bankruptcy Basics

The federal bankruptcy laws provide people who have suffered financial setbacks with the opportunity to start over. Filing for bankruptcy is the legal process to eliminate, reduce or reorganize one’s debts. The most common types of bankruptcy for individuals or married couples are the Chapter 7 bankruptcy and the Chapter 13 bankruptcy.

Chapter 7 Bankruptcy

The Chapter 7 bankruptcy is the one that most people think of when they think of bankruptcy. Chapter 7 bankruptcy can discharge many types of debt providing someone with a “fresh start.” However, Chapter 7 is also known as the liquidation bankruptcy meaning that you may have to give up some of your property. The law does provide exemptions for your property, which, in most cases, are quite generous. With careful review and planning with a bankruptcy attorney, most people are able to keep all of their property.

Chapter 13 Bankruptcy

The Chapter 13 Bankruptcy allows someone to propose a payment plan to pay at least a portion of their debts in monthly payments over a 3 to 5 year period. In some cases, the Chapter 13 has advantages over the Chapter 7. For instance, a Chapter 13 can provide an opportunity to save one’s home from foreclosure by allowing them to cure delinquent mortgage payments over time. The Chapter 13 does not always require that all creditors be paid in full. At the end of the chapter 13 payment plan, any remaining debt is discharged. Essentially, one pays what one can afford to pay after their other necessary living expenses have been paid, over a 3 to 5 year period. At the end of that time, if one’s creditors have not been paid in full the remaining balance is erased.

The Process

The first step in the process is to get an attorney. One can represent one’s self in a bankruptcy, however, it is not recommended. The bankruptcy rules are complex and bankruptcy courts generally do not make allowances for individuals representing themselves.

Once you have found an attorney, he or she is going to request information and documentation regarding your financial situation. You are likely to be asked to provide copies of tax returns, pay stubs, car loan paperwork and mortgage loan paperwork. You will need to identify your creditors and the debts that you owe. You will need to list the property that you own. You will need to provide a breakdown of your monthly income and your monthly living expenses. This is the information and documentation that the attorney needs in order to prepare the petition and schedules that get filed with the bankruptcy court.

There is a credit counseling requirement and there is at least one mandatory hearing called the Meeting of Creditors. At present, most courts are either delaying these hearings or holding them by phone or video conference.

When to File

The decision to file bankruptcy is never an easy one. The best advice is that one should consult with a bankruptcy attorney. In that way, one can determine whether bankruptcy is the best option. If so, the next question would be what type of bankruptcy would be best. After that, the question becomes when is the right time to file.

In some instances, the decision may be to hold off on filing. Current events are changing the economic and legal landscape daily. As of the writing of this article, federal stimulus payments are on the way which may serve to tide individuals over. Some foreclosures have been suspended. Some courts have stayed or delayed eviction and other civil proceedings. Some creditors are voluntarily providing forbearances or deferments of payments. It may be possible for some to weather the storm. Again these are matters best discussed with one’s attorney.

After Bankruptcy

A Chapter 13 bankruptcy filing will stay on your credit record for seven years. On the other hand, a Chapter 7 filing will stay there for 10 years. During that time, you may have difficulty borrowing money, or borrowing affordably. One’s credit does improve over time.
Although bankruptcy is a good way to deal with unsecured debts, there are certain debts it will not wipe out. These include such debts as most back taxes, child support and alimony payments and, in many cases, student loans.

Self-Employed? Yes, You Can Get Unemployment Compensation Benefits

The Coronavirus, Aid, Relief, and Economic Security (CARES) Act makes unemployment compensation benefits available for persons not traditionally eligible (self-employed, independent contractors, those with limited work history, and others) who are unable to work as a direct result of the coronavirus public health emergency.

Eligibility Expanded

Specifically, the CARES Act provides that a “covered individual” includes anyone who self-certifies that they are able and available to work but is unemployed or partially unemployed due to any of the following:

  • Has been diagnosed with COVID-19 or is experiencing symptoms and seeking a medical diagnosis.
  • A member of the individual’s household has been diagnosed with COVID-19;
  • The individual is providing care for a family member or household member who has been diagnosed with COVID-19;
  • The individual is the primary caregiver for a child or other person in the household who is unable to attend school or another facility as a direct result of COVID-19;
  • The individual is unable to reach the place of employment because of a quarantine imposed as a direct result of COVID-19;
  • The individual is unable to work because a health care provider has advised the individual to self-quarantine due to COVID-19 concerns;
  • The individual was scheduled to commence employment and does not have a job or is unable to reach the job as a direct result of COVID-19;
  • The individual has become the breadwinner or major support for a household because the head of household has died as a direct result of COVID-19;
  • The individual has to quit their job as a direct result of COVID-19; or
  • The individual’s place of employment is closed as a direct result of COVID-19.

he U.S. Secretary of Labor may establish additional eligibility criteria as well. Importantly, the law not only applies to employees, but also to those who are self-employed (independent contractors). Individuals are not eligible for benefits if they have the ability to telework with pay or are receiving paid sick leave or other paid leave benefits.

Impacts One-Third of Workforce
This portion of the CARES Act is welcome news to millions of Americans. The number of nontraditional workers has nearly tripled in the last few years. Nearly one-third of the workforce is comprised of self-employed professionals, sales persons, small business owners, sole proprietors and others whose primary income is from independent, customer or client-based work.

What Should You Do?
Apply online with our state’s unemployment compensation office. It’s the fastest and easiest way to get started. Be patient – most states are experiencing very high volumes of applications. If you are unable to reach them via the phone, look for an email address to submit your questions.

If you’re not certain whether you are eligible, don’t hesitate to contact your LegalShield Provider Law Firm. They are available to help you every day.

Posted on April 8, 2020