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Only Rich People Get Wills?

"I don't have enough assets to worry about a will."

I've heard this many times from friends, family, and even some of my personal injury or business clients.  There is a persistent belief that people with substantial assets are the only ones that get or at least need wills.  That reasoning is currently on display, as the news broke today that the late Aretha Franklin died intestate (without a will).  The immediate narrative in traditional and social media has been shock that a person with a sizable estate could die without leaving instructions as to how to handle her assets after her passing.  Likewise, we saw a similar national reaction when it was discovered that Prince died intestate.

But the reality is that the size of the estate shouldn't be what drives the decision to consider putting together a will. A will allows the testator to help their descendants by streamlining certain elements of the succession proceedings, in addition to simplifying the distribution of property. Ultimately, the process of drafting a will is a conversation that helps the testator decide what she or he believes is the best way to maximize benefit and minimize conflict within their family after their passing.

That's something everyone should at least consider, regardless of their financial situation.  If's something that you are considering, you can contact me at 504-298-8018 by email at chris@liuzzalaw.com to discuss your individual situation.

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What You Should Know About A Power Of Attorney

What do you think about when you hear the term “Power of Attorney”?  Do you envision a mustache-twirling villain conning an elderly widow into signing away all of her legal powers?  Such images make for good fiction, but that’s simply not reality for the vast majority of situations involving a Power of Attorney.  The document is merely a tool, no different in concept than a power saw -  both are powerful, both seem scary to anyone who hasn't used one before, and both are incredibly useful when we learn to how to use them safely and effectively.  That’s why I recommend them to my clients in a variety of different contexts as a flexible way to get things accomplished.  I wrote briefly about this subject in my “6 Legal Resolutions for 2016” (http://www.liuzzalaw.com/blog/2016/1/4/6-legal-resolutions-for-2016), but I wanted to provide bit more detail in this post.

So what is a Power of Attorney?  Simply put, it’s a document that allows someone else to perform a legal right on your behalf.  There are many different types, but let’s categorize them broadly as specific and general.  A specific Power of Attorney would allow an individual to name an agent that could do one or more things on their behalf in a certain context.  An example might be a Health Care Power of Attorney, where a person could nominate an agent to make health care decisions on their behalf if they themselves were unable to do so.  Another example would be a Real Estate Power of Attorney, which would allow an agent to act on someone’s behalf when transferring or purchasing real estate.  Each type of document can be customized to meet the individual needs of the client.  Perhaps someone wants to name an agent to sign on their behalf for all real estate transactions they will enter into in the foreseeable future.  Or, the agent may only be given the power to act on the person’s behalf for a single transaction involving a single property on a single day.

A second category would be a General Power of Attorney.  This is document that allows an agent to act on someone’s behalf in many different ways.  When could this be useful?  Perhaps a wife often leaves the country on business and wants her husband to be able to sign documents, pay bills, and make other decisions that might normally require her signature or consent.  A General Power of Attorney would be an efficient way to get these things accomplished without having to wait on the wife’s return.  An elderly individual may want to nominate a trusted family member to take care of his day-to-day affairs.  A General Power of Attorney would allow an agent to stand in that person’s shoes and accomplish a wide range of tasks.

Like any tool, a Power of Attorney can be dangerous if misused.  It’s important to fully understand the potential consequences of allowing someone to act on your behalf.  Trust is paramount, but it is equally crucial to speak with your attorney about what exactly you want to happen so you can get a custom-tailored Power of Attorney that meets your needs.  Before signing, you need to understand exactly what the document does and does not allow the agent to do on your behalf.  You should ask the drafting attorney if the agent’s powers are limited to what is expressly stated or if he or she has the flexibility to perform related unlisted tasks to further a particular goal.  With a trusted agent and a clear idea of the purpose of that particular document, a Power of Attorney can be an important part of your toolkit for getting things done.  To talk about whether a Power of Attorney is a good fit for your needs, contact me at (504) 298-8018 or by email at chris@liuzzalaw.com.

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What You Should Learn From The LA Rams’ Controversial Contracts

The Los Angeles Rams were recently in hot water with the National Football League Players Association over a choice of law provision in the team’s contracts.  This clause established that all disputes would be governed by Missouri law, where the Rams had previously played.  Missouri law is more favorable to management than employees relative to California law.  This is a high-profile example which has made headlines, but choice of law provisions are common in many contracts.  They’re often short clauses and can be easy to overlook, but can have major consequences that alter the balance of power between the parties in the event of a dispute.

There are several reasons why a contract drafter may want such a provision.  The provision may provide a set of laws that are more favorable to one party than the other, as in this situation.  The drafter may have specific statutes in mind when choosing a certain state over another.  Here, the Missouri Workers’ Compensation Act was specifically named in the Rams’ provision. The drafter could also prefer the general legal climate in one state over another.  Instead of a specific statute or specific set of laws, the drafter may feel that one state may be generally more favorable to plaintiffs or defendant in a particular type of dispute.  The drafter’s location could also influence choice of law.  A business based in a particular state may want all disputes to be heard on its home turf.

The Rams situation is interesting as it involves a business leaving a state under controversial circumstances but still attempting to take advantage of the favorable laws in its former home.  It’s also one of the few opportunities for a common contract provision like choice of law to get any press.  Take it as an indication to always read the contracts you sign carefully and be aware that small clauses can have big effects.    

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6 Legal Resolutions for 2016

It’s a new year and the time for resolutions.  But instead of just worrying about waistlines and wallets, how about resolving to finally put your legal affairs in order?  Here’s a quick list of matters that deserve consideration in 2016:

1.       Create or update a will – if you don’t have a will, you owe it to yourself to give some serious thought to whether you should.  If you do have a will, does it still meet your needs?  A recent or impending event such as marriage or child birth is a great reason to considering creating or updating a will.  But single people without children might need wills most of all, because Louisiana law doesn't recognize boyfriends/girlfriends and friends as having a seat at the table if a person dies without a will.   If a single person dies intestate (a.k.a., without a will), all or a portion of their property could go to a family member they've never been close to (such as a parent or sibling) instead of a longtime friend or significant other.  A will allows you to have control.

2.       Start a business – perhaps 2016 is the year you finally take the plunge and start your own business.  Should you be a sole proprietor, an LLC, a partnership, or a corporation?  What are the advantages of each entity?  What formalities should you follow?  All important questions for the budding business owner.  If you already own a business as a sole proprietor, it might benefit by becoming an entity with limited liability.

3.       Start using contracts in your existing business – you've owned a business for a little while now and have gotten by with handshake deals.  Make 2016 the year that you take a hard look at whether your business could benefit by operating with a bit more formality.  An often-overlooked benefit of a written contract is that it can expose misunderstandings between the parties on the front end, leading to better communication and modification before a problem ever arises. 

4.       Get over your fear of power of attorney documents – The term “power of attorney” seems to instill fear in many people, with visions of a nefarious character taking advantage of someone elderly or infirmed.  The reality is that a power of attorney is simply a highly customizable document that allows someone else to have legal authority to do a certain action on your behalf.  That power can be far-reaching or entirely limited to one specific action.  A health care power of attorney, for example, allows another person to make your health care decisions in the exclusive event that you become incapacitated.  A more specific power of attorney could allow another person to tend to specific financial matters while you are vacationing out of the country.  In instances where mom or dad travels for work, a child care power attorney would allow the other parent to make choices about their child’s well-being while their spouse is away.  Perhaps you are a co-owner of a house but you simply cannot be available for the closing – a power of attorney can allow the other co-owner to sign the documents for that house on your behalf.  These are just a few instances where a well-crafted power of attorney can be a useful tool in everyday life.

5.       Consider a living will – this is a complex topic that really deserves its own blog post, but I’ll just say that you owe it to yourself and your loved ones to seriously consider whether or not you wish to have a living will that expresses your desires about what should be done if you end up in a persistent vegetative state with little chance of recovery. 

6.       Start looking at having an attorney you know and trust as being part of adult life, no different than having a primary care physician, accountant, or dentist – I’ll expand on my thoughts about this in a future post, but the reality is that legal services are a part of almost every adult’s life.  Sometimes those services are in a time of trouble, which is how many people think of needing an attorney.  But other times, legal services are needed in a time of promise or potential.  The entrepreneur that considers launching a start-up could benefit greatly from a legal consultation.  New parents might want to set up a testamentary trust for their child so they can rest easier knowing he or she will be financially protected.  In good times and bad, an attorney can fill an important role in your professional network.  Shouldn't that be someone you develop a relationship with?     

These are just a few ways that you can put yourself, your family, and your business on stronger legal footing in 2016.  To talk about any of these matters in more detail, contact me at (504) 298-8018 or by email at chris@liuzzalaw.com.

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Had A Bad Time At A Condo? A Negative Review Might Bring More Headache

I stayed at a condo on the Gulf Coast earlier this summer and noticed our contract with the condo owner had a non-disparagement clause.  I enjoyed my time at the condo, but what if I didn’t?  Could I have left a negative review online stating that I felt the experience wasn’t up to par without getting into legal trouble with the condo owner?  The answer depends on the interpretation of the clause and the capacity for risk.

Many contracts contain a non-disparagement clause that is designed to prevent or punish you for leaving negative remarks. These clauses are common in business and employment contracts and are intended to keep a party from actively hurting the reputation of the entity protected by the clause.

 Broadly speaking, non-disparagement clauses are enforceable.  However, enforcement of these clauses can be tricky.   How do we define disparagement?  Is anything less than a glowing review disparagement?  Are you disparaging a business if you write that the experience was merely okay? There’s no easy answer.  Generally, I’d err on the side of caution and assume that a review that would cause you to skip that condo (or any other service or product) could be construed as disparagement.

 Let’s say you have already written a negative review, even with such a clause in your contract.  Should you worry about legal action?  Unfortunately, there’s no sure way to know, because it will likely come down to a matter of time and expense for the other party.  Generally, lawsuits are filed when the value of the likely recovery (either in dollars or in getting someone to do something) is expected to exceed the cost in time and money of pursuing the suit.  In other words, do the alleged damages suffered make this worth getting an attorney involved?  In a simple breach of contract case where one party pays $50,000 to another for construction services and the other party never provides those services, determining the damages can be relatively simple.  Likewise, a contract may provide for stipulated damages (for example, $1,000 for a   breach of a non-disparagement clause).   It could even allow the business or condo owner to keep your deposit or charge your credit card to collect on those stipulated damages without involving the legal system.  Without such a damages clause, however, determining the extent of damages in a non-disparagement case would be more complex because there’s no baseline dollar figure to begin the analysis.  In this situation, it’s hard to determine whether it makes financial sense for the supposedly disparaged business to come after you.  Of course, a particularly hurt or spiteful owner might decide to ignore the financial implications and get his or her attorney involved anyway.

 The takeaway is to be aware of non-disparagement clauses in the contracts you sign.  If you have signed a contract with such a clause, you should consider that you don’t really know whether or not the other party will be interested in any sort of legal action in response to a negative review.  If a business owner came to me with a disparagement issue, I would tell him or her that the potential gains and potential costs should be carefully considered before going forward. However, a contract is a contract. So even if you believe that an owner may not take legal action, that doesn't mean that they don't have the right to or won't.   In other words, leave that review at your own risk.

 

This post features my legal opinions, but not legal advice.  Legal advice can only be provided after an inquiry into the specific facts of a case.  If you are interested in legal advice, email me at chris@liuzzalaw.com or call me at (504) 298-8018.

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The Moments After Impact: Should You Get A Medical Evaluation After An Auto Accident?

I’ll begin this series of posts about auto accidents with perhaps the most important consideration of all: whether or not you should seek medical attention after a crash.  Like most questions in the legal world, the answer depends on the facts.

Let’s imagine a crash where a truck hits your car in the middle of a four-way stop.  You’re shaken up from an unexpected collision, but should you get checked out by a doctor?

There are certainly accidents where a driver can reasonably assume that he or she will not sustain any future pain and/or injury.  The problem comes in making that determination, as sometimes small crashes can cause big injuries and big crashes can cause merely small injuries.  I believe that a driver involved in a crash of any significance should seriously consider obtaining a medical evaluation as soon as possible.  The driver may very well decide against it, but he or she needs to fully understand the context of the decision.  It has become a cliché in our society that individuals involved in auto collisions attempt to fake injuries and recover money.  Of course, there are unscrupulous people who are willing to take advantage of others, whether it is a person faking an injury or an insurance adjuster who is not willing to carry out his or her obligations under an insurance policy.  However, do not allow this cliché to scare you away from pursuing medical care.  What is important is whether getting checked out by a medical professional is the right choice in your situation.

The reality in many auto collisions is that the extent of the injuries suffered is not immediately known.  Damage to the spine, neck, and back can take time to fully manifest.  Even a relatively small collision can result in pain that takes days or weeks to develop.  If you have been involved in a crash and you decline medical care or decide that you’re not going to seek medical care, you have made the decision that you are better able to determine what’s going on in your body than your doctor.  The safe bet is to allow your doctor to have the opportunity to evaluate you immediately after the impact and let him or her determine whether you are actually okay.  He or she may spot something that could cause trouble down the road, even if the full effects are not yet felt.

In sum, your decision about whether or not to get a medical evaluation after a collision should be based on the facts of your collision, with a consideration that that the types of injuries frequently suffered in crashes are not always immediately apparent.  When in doubt, get checked out.  

In a later post, I’ll discuss how medical evaluations fit into the larger picture of legal proceedings regarding injuries caused by a collision.  I’ll also touch upon how a medical evaluation soon after a collision is important even when the injury is not immediately apparent.    

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The Moments After Impact: What You Should Do Immediately After An Automobile Accident

It seems like traffic in New Orleans is stalled nearly every day due to an automobile collision. As much as we might not like to think about it, even the most careful drivers among us will likely be involved in a collision with another driver at some point.  Some impacts are mere fender benders, requiring nothing more than a friendly apology or at most an exchange of insurance information.  Other impacts can fall anywhere on a spectrum of frightening, injurious, or even deadly.

Most of us have a basic idea of what to do immediately after the collision.  Safety comes first and the main priority is to evaluate the well-being of yourself, your passengers, and determine whether you are in any continuing danger.  Likewise, most drivers know to communicate with the other driver, exchange insurance information, and contact the police.  However, the next steps are not so well-understood and can have significant legal consequences.  In a series of posts, I’ll talk about some common issues and missteps that can result after an auto collision.

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Welcome

Welcome to my blog, Liuzza on Law.  This will be a place where I can post on a variety of topics that come up in my practice.  It will feature my legal opinions, but not legal advice.  Legal advice can only be provided after an inquiry into the specific facts of a case.  If you are interested in legal advice, email me at chris@liuzzalaw.com or call me at (504) 298-8018.

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