Perspectives

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 If such treatment has already started the Living Will may provide that such treatment shall be withdrawn.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

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

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.

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

The Internal Revenue Service (IRS), as well as most states (including WI), have extending the tax filing deadline from the standard April 15th deadline to July 15, 2020. During this period, tax payers under an existing installment agreement with the IRS will have their payments suspended. For more information, you can visit the IRS website directly here.

The Coronavirus Aid Relief and Economic Security Act (CARES), is the act that will provide the most relief for individual taxpayers (as well as businesses) during this global pandemic. The CARES Act provides for a stimulus provision to all individual tax payers to receive a cash payment in the form of a refundable tax credit of up to $1200 per taxpayer plus an additional $500 per dependent child. Please visit the IRS website here to determine your eligibility.

With individual taxpayers receiving payments, the U.S. Department of the Treasury had a news release to further clarify that social security recipients will automatically receive the economic impact payments.

All information regarding Covid 19 and taxes is up-to-date as of April 2, 2020. There continues to be more legislation discussed regarding individual tax payers and we will continue to update our information when new information is known.

Information regarding Wisconsin tax deadlines being adjusted can be found here. The State of Wisconsin will continue to monitor the situation for all those affected by this pandemic, with more information available at the Department of Revenue website, specifically referencing Covid 19.

If you have any specific questions or wish to talk to an attorney about your situation, our attorneys are here to help.

Attorney Nathan Brown | Posted on April 7, 2020

The CARES Act provides much-needed financial assistance to a wide-variety of businesses, self-employed persons and sole proprietors. Here’s a summary of the key aspects of the Act.

Self-Employed, Sole Proprietors and Independent Contractors Now Eligible for Unemployment Compensation Benefits – The 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.

Small Business Relief for Maintaining Payroll – Under the CARES Act, eligible businesses (companies with up to 500 employees) that maintain their payroll while workers are forced to stay home would be able to receive up to 8 weeks of cashflow assistance. Small businesses would get loan guarantees while workers must stay home. This is delivered through the SBA Economic Injury Disaster Loans (EIDL) or expanded 7(a) Program loans. Employer can qualify to have a certain amount of the 7(a) loans forgiven with no tax consequences.
Grants of up to $10,000 – These are available as part of the SBA’s EIDL program. The SBA must distribute EIDL emergency grants within 3 days. Applicants are not required to repay emergency grants, even if they are ultimately denied EIDL.

Payroll Tax Deferrals – Employers and self-employed individuals may also defer payment of the employer share of the Social Security tax on employee wages. Deferred employment tax must be paid over the following two years, with half of the amount required to be paid by December 31, 2021, and the other half by December 31, 2022.

Payroll Tax Credit – The Act provides a refundable payroll tax credit for 50% of wages paid by employers to employees during the COVID-19 crisis. The credit would be available to employers whose: (1) operations were fully or partially suspended, due to a COVID-19 related shutdown order; or (2) gross receipts declined by more than 50% when compared to the same quarter in the prior year. The credit would be provided for the first $10,000 of compensation, including health benefits, paid to an eligible employee. The credit would be provided for wages paid or incurred from March 13, 2020, through December 31, 2020.

Penalty-Free Withdrawals from Retirement Accounts – The Act creates a new emergency retirement plan distribution option dubbed the “coronavirus related distribution,” or “CRD” for short. Small business owners could use this money to help them through the COVID crisis while waiting on another form of assistance mentioned above. A CRD can be drawn from an employer sponsored retirement plan such as a 401(k) or from individual retirement accounts (IRAs), in any amount up to $100,000. The normal 10% penalty tax levied on early plan distributions by the Internal Revenue Service (IRS) is waived. Furthermore, the individual taking a CRD can spread the reported income over three years for tax purposes, and the distribution also can be repaid within three years to avoid taxation.

If you are a small business owner and want to know more about financial assistance available to you in the CARES Act, please call your LegalShield Provider Law Firm.

Posted on April 1, 2020

Families First Coronavirus Response Act

Late on Wednesday evening, President Trump signed the Families First Coronavirus Response Act which, among other things, addresses federal emergency FMLA and paid sick leave. Below are the highlights.

Emergency Family and Medical Leave Expansion Act

Effective Dates: April 2, 2020 – December 31, 2020

Covered Employers: Private employers with fewer than 500 employees and public agencies of any size (though employers with fewer than 50 employees are shielded from civil FMLA damages in an FMLA lawsuit, meaning reduced liability in terms of back pay or liquidated damages)

Eligible Employees: Employees who have been employed for at least 30 calendar days by the employer

Leave Entitlement: Up to 12 weeks

Reasons for Leave: Eligible employees may take up to 12 weeks of leave for a qualifying need related to a public health emergency. Such qualifying need is limited to circumstances in which the employee is unable to work or telework due to a need to care for a minor child if the child’s school or place of child care has been closed or is unavailable due to a public health emergency.

Financial Benefit: The first 10 days of emergency FMLA leave is unpaid unless an employee elects to utilize any accrued vacation leave, personal leave, or medical or sick leave (including emergency paid sick leave, discussed below) concurrently.

After 10 days, employees are eligible for an amount that is not less than two-thirds of their regular rate of pay based on the number of hours the employee would otherwise be normally scheduled to work.

In the case of an employee whose schedule varies from week to week to such an extent that an employer is unable to determine with certainty the number of hours the employee would have worked had the employee not taken leave, the employer should use: (1) a number equal to the average number of hours that the employee was scheduled per day over the immediately preceding 6-month period (including leave hours); or (2) if the employee did not work over the immediately preceding 6-month period, the reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.

Emergency FMLA leave pay need not exceed $200 per day or $10,000 in the aggregate.

Notice: Employees with a need for leave must provide as much notice as is practicable.

Reinstatement: Employees are eligible for reinstatement pursuant to default FMLA rules. An exception applies for employers with fewer than 25 employees if certain conditions are met (such as non-existence of previously held position due to economic conditions, etc.)

Emergency Paid Sick Leave Act

Effective Dates: April 2 – December 31, 2020.

Covered Employers: Private employers with fewer than 500 employees and public agencies of any size

Eligible Employees: All current employees, regardless of days of service.

Leave Entitlement: 2 weeks of paid leave, meaning 80 hours for full-time employees. Part-time employees receive a number of hours equal to that worked on average over a 2-week period.

Reasons for Leave:

• Employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19
• Employee has been advised by a health care provider to self-quarantine because of COVID-19
• Employee is caring for an individual ordered or advised to quarantine or isolate
• Employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis
• Employee is caring for a son or daughter whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 precautions
• Employee is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretary of the Treasury and the Secretary of Labor

Financial Benefit: Employees should receive their regular rate of pay for leave related to their own care, diagnosis, quarantine, or isolation. When employees use paid sick leave to care for a family member or for school or child care closures, they are entitled to two-thirds their regular rate of pay.

Emergency sick leave pay may be limited to $511 per day and $5,110 in the aggregate where leave is taken for the employee’s own illness, diagnosis, quarantine, or isolation, and $200 per day and $2,000 in the aggregate for leave taken to care for others or for school or child care closures.

Carryover: Paid sick time under the new law does not carryover after December 31, 2020.

Existing Leave Policies: Paid sick leave under the new law is available to employees in addition to leave under an existing company policy. Employers may not require employees to first use accrued leave under existing company policy before using sick leave under the new law.

Tax Credits

The law provides for reimbursement for employers via payroll tax credits. Refundable tax credits equal to 100% of qualified family and sick leave wages an employer pays for each calendar quarter will be available. Tax credits against income taxes are also available to self-employed individuals (at a reduced, two-thirds rate when using emergency paid sick leave to care for family members or due to school or child care closures).

This blog article is intended for general informational purposes only and should not be construed as legal advice or opinion. Contact myHRcounsel with questions concerning specific facts and circumstances.

Posted on March 19, 2020