LaBre on Law

Short Stories on Michigan and Indiana Law

Challenging a Speeding Ticket

TICKET FOR SPEEDING - NARA - 546631

TICKET FOR SPEEDING – NARA – 546631 (Photo credit: Wikipedia)

My wife, Stacy, and I were eating dinner with another married couple on a double date.  This was the first time I was meeting them.

We sat down and ordered some drinks and appetizers.  We did introductions.  What’s your name?  What do you do?  This type of conversation lasted until our drinks and appetizers appeared.  Then the ladies began talking about children.

Mentally, I began to gnaw on a contested hearing I had coming up, while trying to appear attentive at the same time.  As I was playing out the scenarios in my head, I suddenly heard my name.

“Rob,” Stacy said.

“Yes dear,” I said.

“You were just asked a question.”

Oops, caught with my pants below my knees.  Stacy smiled at me and winked.  She knows that the law is a harsh mistress.

“I’m sorry,” I said looking at the husband.

“No problem,” he said.  “I was just saying that a buddy of mine got a speeding ticket in Michigan.”

“Oh, how fast were you clocked at?”

“I said it was my buddy.”

“Yeah, that’s right, how fast was your ‘buddy’ clocked at,” I said with as strait of face as I could muster.

“The ticket has me at 20 mph over.”

“Ouch, that’s at least four points on your driving record, if you’re found responsible.  That’ll certainly increase insurance costs.  Did you get a lawyer?”

“No.  I paid it off last week.  I guess there’s not much I can do now.”

“Actually, you can still request to withdraw your admission, so long as you do it within 14 days of admitting responsibility.  If the court grants your request, however, you’ll be scheduled for either a formal or informal hearing, which you must attend if you want the citation dropped or reduced to a lower civil infraction.”

“Oh, I didn’t know that,” he said.

“That’s why there’s lawyers,” I said.

“What does it matter anyway,” he said.  “It’s not like I can successfully challenge a speeding ticket.  They’ve got that down to a science, don’t they?”

“Not really. Was the police officer sitting along the side of the road waiting for traffic as it passed by, or was he driving on the road with you?”

“He was coming from other direction— driving toward me in the other lane, right behind a semi.”

“Were you in the midst of other traffic or on the road by yourself?”

“There were some cars ahead of me and behind me.”

“What was the weather like outside, and what time of day was it?”

“It was sprinkling rain and about 7:00 p.m.”

“When you were pulled over, did you admit to the officer how fast you were going?”

“He never asked and I never said.”

I smirked.  Silence is golden.

“That means they’ll have to rely on the radar reading and the police officer’s observations to make a case against you, which leaves plenty of room for argument in the scenario you just described.”

“How’s that?”

“A police officer is allowed to testify as to his observations concerning your speed.  If he’s stationary when he clocks your speed, his testimony is more persuasive.  But when he’s driving, his concentration is necessarily more distracted.

“In addition, radar readings are far from scientific fact.  The law imposes certain foundational requirements before its reading is allowed into evidence.

“In your situation, there’s a possibility that the radar wasn’t properly calibrated, or that the weather may have affected the radar’s reading.  It’s possible that the officer wasn’t properly trained to use the radar.  And given that you had traffic both in front of you and behind you, there’s a possibility that the radar clocked someone else.  In essence, yours is a case to play with.”

“Wow.  I had no idea speeding tickets were so involved.”

“That’s why there’s lawyers.”

Contamination and Liability

Skin Deep Promises

Skin Deep Promises (Photo credit: newmy51)

“I’ve been offered a great deal on land”, she said.  “Can you help me with the paperwork on it?”

“Sure”, I replied.  “That’s what we do.  Why don’t we start by you telling me about the land you want to buy, and the discussions which you’ve had with the present owner.”

“The Owner is willing to sell the land to me ‘dirt cheap’, if you’ll excuse the pun.  The land is in the middle of town, and it’s been used as a gas station.  It also has a nice little home on it which I could use as a rental.”

“How much does he want for it?”

“He said he’d sell it to me for $10,000.  We’ve been friends for a long time, and the owner wants to get rid of it quickly so that he can retire and go fishing in the Upper Peninsula.  He said that’s why he’s willing to sell it so cheaply.”

“Have you had an environmental assessment of the land?”

“What’s that?”

“If there’s ever been any use of the land which could have caused a release of contaminants in the soil, and a person buys the land, then the new owner is liable for the cost of cleanup, even if the new owner did not cause the contamination.

“Normally, if there is significant contamination, the cost of cleanup can run to many millions of dollars.”

“That’s nuts!”, she said.  Why should I have to pay for what someone else did?”

“Because Congress and the State Legislature said so,” I replied.  “The politicians decided that if you buy the land, you buy the problems.”

“You’re the lawyer.  Isn’t there some loophole?”

“There’s the ‘innocent purchaser’ defense,” I replied.

“Well that’s me!”, she said.  “I’m as innocent as the new-blown snow.”

“Not so fast”, I responded.  “To be an ‘innocent purchaser’ you have to have made a proper inquiry on whether there’s been a release of contaminants.”

“What’s a ‘proper inquiry’, anyway?”

“Normally, you have to hire a properly qualified company to conduct environmental assessments.  There are three kinds, called ‘Phase One’, ‘Phase Two’, and ‘Phase Three’.

“What are those?”

“The first assessment, Phase One, is an examination of the land records to see if any past owner was engaged in a business which may have caused a release of contaminants.  However, Phase One does not examine the land itself.

“In your case, you know that it was a gas station.  So, you need a Phase Two.  That’s an actual examination of the land itself, both the building, to see if there are substances like asbestos, and soil samples to test the ground.”

“If you pass the Phase Two, you can generally assert an ‘innocent purchaser’ defense if contaminants are discovered later.”

“Then what’s a Phase Three?”

“Phase Three relates to what you can do if contaminants are found in the building or the land.  The Phase Three tells you what you would have to do to remove the contaminants.”

“Would I have to pay for these environmental assessments?

“That’s a matter of contract”, I replied.  “You can put who will pay in your purchase agreement.”

“This is a lot to think about.  I want the land, but I don’t want to risk any costs related to contamination.  Let me think about this.”

“That’s a good idea.  Since these environmental laws were enacted, the danger of contamination needs to always be kept in mind.”

Intersections Between Criminal Law and Immigration Law

English: A dual citizen may bear two passports...

English: A dual citizen may bear two passports. 日本語: 二重国籍者は二つのパスポートを持てる。 (Photo credit: Wikipedia)

I was in an Indiana courthouse for a pretrial conference in a criminal case. My client, a young, foreign man here on a temporary visa to go to school here in the States, was charged with a felony for distribution of cocaine and a misdemeanor for possession of marijuana. He also wants to eventually become an American citizen.

I opened the door to the conference room where I placed my client before talking with the prosecutor, and sat down across from him at the table inside.

“The prosecutor is willing to drop the felony drug charge so long as you plead guilty the to possession of marijuana, which is a misdemeanor,” I said.

“Okay, is that good?”

“Well, you won’t serve jail time since this is your first offence. In addition, you won’t be deported since you’re dodging the felony, and the misdemeanor contemplates marijuana of less than 30 grams, but—”

“That’s great!” he interrupted in an overjoyed tone.

“But you may be prevented from becoming an American citizen,” I finished.

“What!? Why!?”

His tone and demeanor quickly changed to panic. Criminal law has a tendency to bring about all sorts of emotions in people, almost all at once.

“Marijuana is considered a controlled substance. Immigration laws allow the government to exclude individuals from becoming citizens if they’ve ever been convicted of any law or regulation related to controlled substances. That’s not to say you’ll definitely be excluded,  especially since this is a minor charge, but it is to say that you can be excluded.

“In addition, any criminal conviction can be considered a crime involving moral turpitude.”

“What’s that?”

“It’s basically a flexible character and fitness test that considers standards of justice, honesty, and whether you have good morals. Acts of baseness, vileness, or depravity in private and social duties are held against you. This conviction will be held against you, and may prevent citizenship as well.”

“So what are my options?”

“Trial is one, but, like all trials, it’s a coin flip. Your case presents circumstances where I can make decent challenges to the admissibility of the important evidence against you, which is why you’re being offered this plea agreement. But, if we go to trial, ultimately it’s up to the Judge to determine whether to allow that evidence for the jury to see. If the Judge allows that evidence in, then I may need for you to take the stand and testify in your defense—are you willing to go there, if need be?”

Much like our initial interview, there was a long pause after I asked this particular question.

I interrupted his thoughts, and said, “Maybe you should approach this problem by considering the consequences if you lose. If you lose, then, in addition to having a felony on your record, you’ll probably serve jail time. In addition, you’ll definitely be deported, which prevents you from being able to finish school here, and you’ll definitely be prevented from becoming a citizen.”

“What do you recommend?”

“I think you should take the offer. It’s a good deal, and you still have a shot at becoming a citizen, albeit somewhat attenuated.”

“What if I get married to an American citizen? Will that change things down the road?”

“Don’t count on it.”

“Okay, can I think about this?”

“Sure. . . .”

Payday Loans

Hard up for cash?

Hard up for cash? (Photo credit: mrmaccc)

“I’m scared, Mr. LaBre”, she said.

“What’s the matter?” I asked.

“This guy, he said that he would be seeking a felony warrant on me!”

“Why?”

“Well, I went and got a ‘payday’ loan from him.  I had to give him a postdated check for the amount I borrowed, plus his fees.

“Well, when I got paid, I had to buy food for my baby and me, and then my baby got sick and I had to pay the doctor.  There was no money left, and so my post-dated check bounced .  He called me, all mad, and said that he was going to get a felony warrant on me!

“He also said that he’d sue me for three times the amount of the check in addition to putting me in jail.”

“That’s it?” I asked.  “There’s no more to it than that?”

“That’s all there is; isn’t that enough!” she exclaimed.  “If I go to jail, who will take care of my baby?”

“Well, then don’t worry.  Under Section 38(4) of a 2005 Michigan law, called the “Deferred Presentment Service Transactions Act”, he can’t seek any criminal penalty against you if your check is dishonored.”

“Are you sure?  He said that he could do that.  How come he’s saying that he can, and you’re saying that he can’t?”

“Well, let’s look at it.  First of all, do you remember seeing a copy of a Notice in big type posted in his place of business which told you about your rights under Michigan Law?”

“I didn’t see anything.  But, to tell you the truth, I was so nervous about getting a payday loan that I didn’t look, either.”

“OK.  Well, he’s required to post that Notice.  So, did he give you an agreement to sign before giving you the loan?”

“No.  All I signed was the post-dated check.”

“Well, before giving you the loan, he was required by Section 32 of the Act to give you a written agreement.  That agreement had to contain, in addition to your obligations to repay the loan, and a description of the fees which you would be charged, the following notice to you:  ‘State law prohibits us from using any criminal process to collect on this agreement.’ “.

“Like I said, he didn’t give me any agreement to sign.”

“Then all that I can say is that he’s violated the law on the one hand, and that the law prohibits any criminal charge being brought against you on the other hand.”

“How about his threat to sue me for treble damages.  Can he do that?”

“No”, I said.  “In 2010 the Michigan Court of Appeals decided a case which said that, for those firms which give payday loans, treble damages can’t be charged.  All that can be charged back to you is a $25.00 bounced check charge, and the actual amount of the loan.

“However, you may not have to even repay that loan.”

“I borrowed the money, and my check bounced.  How can it be that I may not have to repay the loan?”

“The Act requires those who give payday loans to be licensed.  It also requires them to both post the Notice I told you about, and requires that you sign the Agreement I mentioned.  If the payday lender fails to do all of that, then, under Section 53 of the Act, you can sue him to recover your actual damages and an amount equal to the service fee you paid.  Furthermore, if you win, he would also have to pay your attorney fees.”

“I really don’t want to go to Court.  Courts make me more nervous than dentists.”

“If you don’t want to do to Court, you can still complain to the State.  The State could then, based on its findings, fine him somewhere between $1,000 and $50,000 for each.”

“Do you mean that, instead of going to Court I can just write to the State and make all of that money?  Wow!”

“No, it doesn’t mean that.  If the State fines him, the State keeps the money.  But it certainly would cause the payday lender to reconsider his business practices if he was facing a stiff fine for non-compliance.”

Revoking Paternity: New Exceptions

 

Genetic testing

Genetic testing (Photo credit: Wikipedia)

Last night I did some research on Michigan Paternity law. During my research I found a new set of statutes that provide a basis for revoking Paternity Judgments where the man was determined the father by default.  I had to tell my Dad.

I entered the law office and said my usual “good mornings” and “what’s new” to Mom and Terrie, who were both in the front reception area.

Then I walked down the hall to my father’s office, where I found Dad reading at his computer.  From his posture, he didn’t seem as though he was in analytic mode so that an interruption would be intrusive.

Tapping on the doorframe leading into his office, I said in a cheery voice, “Salve, mon pere.” “Salve” means “hello” in Latin, and “mon pere” means “father” in French.

Almost spinning in his chair to face me, he boomed, “Salve felius!” “Felius” means “son” in Latin. It’s a LaBre thing, we like it and do it because no one understands.

“Gotta sec?” I asked.

“Sure,” he replied, and extended his hand toward a chair next to where he was sitting.

“I found something interesting last night during some research on a Paternity law,” I said as I walked into his office while shrugging off my suit coat at the same time. “I thought you might want to know about it.”

“Tell me,” he said smiling as he leaned back in his chair.

I tossed my coat over the backrest of one of the other chairs in his office and placed my briefcase in its seat, and then sat down next to him.

“Do you recall Michigan’s default rule in Paternity cases?” I asked.

“Sure,” Dad replied. “A guy served with a complaint for Paternity needs to answer within 21 days of service, otherwise the Court can determine him be the father automatically.”

“Well, last June, the legislature made effective a statute allowing guys to revoke the Paternity Judgment if Paternity was established by default.  All he has to do is file a motion to set it aside,” I said.

“Oh?” He said inquisitively. From his facial expressions, I could see his mental wheels spinning. “That piques my interest. What are the conditions?”

“Generally, after June 12th 2013, the child must be no more than three years old or if the child was older than three at the time the default Judgment was entered, the motion to set aside must be brought within one year after the Judgment was signed by the Judge.”

“What about guys who were defaulted years ago?” Dad asked. “Did you see anything in there for that?”

“Sure did,” I replied. “Any man who has ever been established as the father of a child by default in Michigan can file a motion to set it aside so long as the action is filed by no later than June 12th, 2013.

“So the legislature made it a sunset provision that ends a year after the Act’s effective date.” Dad said.

“There’s more,” I went on. “Assuming the guy missed the time windows for filing, a motion to set aside can still be brought if excusable neglect can be shown, such as: fraud, duress, mistake or misconduct, among other things.”

“That’s good,” Dad said. “Who decides the case and what’s the standard of proof, clear and convincing evidence or preponderance of evidence?”

“The Judge decides the case,” I said.

“I think the standard of proof is debatable,” I went on. “Clear and convincing evidence pops up a couple of times in the Act, but the Act itself doesn’t make plain whether it applies only to the specific sections that it’s found in, or to the Act as a whole.”

“Is genetic testing required or optional?” Dad asked.

“Required,” I replied. “Albeit, the results aren’t binding on the Court in making its final determination. Even if the genetic tests show that the guy isn’t the father of the child, the Judge can still refuse to set aside the original Judgment of Paternity.”

A smirk crossed Dad’s face as he said, “I’ll bet that’s because the last part of the analysis focuses on the best interests of the child rather than the evidence showing that the man isn’t the father.”

“That’s exactly right,” I said. “In fact, the Judge need only ‘find evidence’ that setting aside the original Paternity Judgment is against the child’s best interests in order to deny the motion.”

“Sounds like the best interests factors are determined by using a preponderance of evidence standard of proof, doesn’t it,” Dad said.

“I thought so too,” I said. “And one more thing, if the guy loses the case, for whatever reason, he has to pay the other party’s attorney fees.”

A sour look crossed my Dad’s face, but he said nothing.

There was a pause in the conversation before I said, “Well, I suppose that’s pretty much all I came to bother you with.”

“You’re never a bother, son,” Dad said.

Then, sensing that our conversation was over, Dad swivelled back around toward his computer, and said, “Well, that should make for some interesting cases.”

 

Trust or Consequences: The Downside to Powers of Attorney

English: Power of attorney for Abram Ioffe by ...

English: Power of attorney for Abram Ioffe by Vladimir Lenin to represent USSR with Estonia. Русский: Доверенность, выданная В.И.Лениным Абраму Иоффе на представление РСФСР в переговорах с Латвией, Литвой и Эстонией. (Photo credit: Wikipedia)

He was eighty.  His son had brought him to my office.  “My Dad’s got a big problem”, he said.  “His girlfriend has just ripped him off and took all of his money!”

“She’s not my girlfriend, you young whipper snapper!  She’s just a wonderful girl who takes care of me.  A lot better than you do, too, if I do say so myself.”

“Right, Dad”, he said, turning to his father.  “That’s why she just took over $200,000 from your bank account.”

“Wait a minute”, I said.  “How did she withdraw all of that money from the bank?  Was it a joint account?”

“I wouldn’t do that”, his dad replied.  “I’m not that dumb.”

“OK.  So, how did she get access to your bank account?”

“You tell him, Dad, or I will.”

“You see, it’s like this”, his father said.  “My son, he lives in the Upper Peninsula.  It’s hard for him to come all the way down here.   But I can’t do everything for myself anymore.  I need some help.  So I hired a housekeeper to help me.”

“She helped you, all right,” his son muttered.

“Well, as I was saying, she began to help me.  She even helped me write out my monthly bills.  I’d sign a check, and she’d go get my groceries.   She’s really very nice.”

“OK.  So, how did she get access to your bank account?”

“Well, about a month ago she suggested that it would be a lot easier if she had a power of attorney.  That way she could just take care of things for me.  She brought me to an attorney, told him what I wanted, and he drafted the papers and I signed them.  No big deal.”

“Did she take your money?”

“No.”

“Oh yes she did, Dad!  Here’s a copy of the $200,000 check she wrote to herself which cleaned you out.”

“She wouldn’t do that”, his Dad insisted.  “It’s probably just a loan.”

“If it’s ‘just a loan’, then where has she been the last week?”

“She said that she was going to visit her sick mother.  Isn’t that nice?”

“Where is she now?” I asked.

“With her mother.”

“Where’s is her mother?”

“Out West somewhere.”

“Do you have a phone number?”

“No, I don’t”, as a puzzled look came over his face.

“I’ll be surprised if you see her again”, I said.  “What you’re telling me is a far too common story.  I’ve seen children do this to their parents, brothers do it to their sisters, nieces do it to their aunts.”

“It usually starts out as a ‘small loan’, but the easy money is just too easy.  The owner doesn’t even know it’s happening, or else makes excuses.  After all, it’s usually the person whom the elderly and lonely soul trusts and upon whom the person depends.”

“Isn’t there anything we can do?”

“Well, first, I need to read the power of attorney.  The person who has the power, called an ‘attorney in fact’, is prohibited by Michigan Law from engaging in self-dealing unless the power gives that authority.  I’ve seen some lawyers, though, who give that authority in the document.”

“Assuming that that the authority to make gifts to yourself is not in the document, then you would need to do the following:

“First, you need to sign a document called “Revocation”, and mail that document both to the attorney in fact, record it with the Register of Deeds if you own land, and give a copy to every financial institution so that the power is not used.”

“Then you demand a return of the money.  You can even sue for three times the amount of money which was stolen from you.  Unfortunately, once the money has been taken, it’s usually spent and there’s nothing left to collect.

“Finally, you need to report the theft to law enforcement.  If you can’t get your money back, at least they can think about the theft from behind bars.”

“But shouldn’t everyone have a Power of Attorney?” the father asked?

“No, as a matter fact, everyone shouldn’t.  A Power of Attorney is literally a blank check.  You don’t trust someone that much unless you’re absolutely certain that the person is completely trustworthy.  If you’re wrong about the person, you can be wiped out.”

“I’m beginning to see that”, he said.

Being Summoned To Testify

English: An attorney impeaching a witness duri...

English: An attorney impeaching a witness during a mock trial competition. (Photo credit: Wikipedia)

I started typing my brief after 5:00 p.m., once all interruptions had left the building.  The next time I looked at the clock it was 10:30 p.m.  I was tired, and the words “Tylenol” and “bed” came to mind.  I decided to call it a night.

As I watched the computer screen shut down in a half daze, I heard the phone ring.  I tilted my head toward the phone in my office, glared at it, and I thought to myself, “It’s either my wife or a client with an emergency.”

Given the potential of the former, I decided to pick up the receiver.

“Attorney Robert LaBre speaking, how may I help you?”  I said.

“Yeah, I have a question about a subpoena I received in the mail today,” he said in manner that sounded like he thought we were simply carrying on a conversation we’d already started.

I leaned back in my leather, executive chair, put my feet up on my desk, and started to ask him questions.

He received a subpoena to testify as a witness in a criminal trial on behalf of the defense.  Apparently the defendant stood accused of first degree home invasion, a felony punishable by up to 20 years imprisonment and $5,000 fine, excluding restitution.

The subpoena came via certified restricted mailing, and he signed for it.  The envelope the subpoena came in provided a cashier’s check for witness fees too.

“So can I get out of having to show up?”  He asked.

“Why can’t you show up to testify?”  I asked.

“I don’t want to miss work.  And I don’t want to get caught up in this criminal trial, that’s someone else’s problem.”

I grinned to myself, “So, it’s not as though it’s impossible for you to show up, you just don’t want to, right?”

“Well . . . kindda,” he said in a squeaky voice.

“Then you can’t skip,” I said.  “You need to be there.  You’ve been paid the witness fees and service came via certified restricted mailing.  Service of the subpoena was proper.

“The only other out you have from being required to testify is if it were impossible for you to be there, such as an emergency.  But even then, you need to contact the attorney who sent the subpoena and let him know your reasons for not being able to attend.”

“But I don’t wanna go.” he said.  “Court scares me.  What’s the consequences if I skip?”

“You could be held in contempt of court,” I said.

“What’s that mean?”

“Jail or fines or both, in an amount the court deems proper.”

“Man, that sounds pretty severe,” he said.

“It is.  But think about the ripple effect you’re failure to appear has on the trial. The attorney who sent it to you might ask for an adjournment until you appeared to testify.

“There’s probably a jury, and by not showing up, you’re wasting their time and the State’s money, not to mention the judge’s patience.

“Now picture this,” I continued.  “You don’t show up.  You’re eventually forced to appear before the judge.  All this time and money has been wasted, and the judge asks you, ‘Sir, why didn’t you appear before the court on the time and date stated in the subpoena?

“And you reply, ‘Well judge, I just didn’t wanna.’  How do you think the judge is going to react?”  I asked as a rhetorical question.

“Probably not so good.”  He said in a low voice.

“That’s an understatement.  You’ll probably feel a sharp pain in your forehead from the gavel bouncing off of it.  My advice to you is to show up and participate.

“Everyone’s nervous about testifying in Court.  It’s no cake walk to take an oath and then tell people what you know about a given situation.  But Court isn’t designed to be a easy, it’s designed to get to the truth.  And that’s all you should do, tell the truth as you know it.  You do that, then no matter what happens, you’ll have no regrets.”

What’s in a Will

Last Will And Testament

Last Will And Testament (Photo credit: Ken_Mayer)

I was at an event when a couple came up to me.  “May we joint you for a minute?  We’d like to ask you some questions, and we heard you are an attorney.”

“Certainly.  Please have a seat,” I replied.

“We’re thinking about making an appointment to have a Will made”, they said.

“Good idea”, I replied.

“What we’d like to know”, they continued, “is what we should think about putting in our Wills.”

“Let me ask you some questions first”, I said.

“Do you have any children, and, if so, how old are they?”

“We each have two children by prior marriages”, he said.  “All four are now teenagers.”

“We also have two of our own”, she added proudly, “ages six and two.”

“Second question.  Who’s got custody of the children from your prior marriages?”

“I’ve got custody of my two”, she replied.  “But that witchy ex-wife of his has custody of his two”, she quickly added.

“Third question”, I said.  “Adding up all of your assets, including the amount of money which you’ll receive from life insurance, and the full value of all jointly owned property, how much would you say that it’s all worth?”

“About a million dollars, if you include life insurance and the full value of the house,” they said.

“OK.  Then let’s take care of some preliminary matters before we get into what you should think about in regard to your Will.

“First, you’re not subject to Federal Estate Tax.  Under new law, the Federal

Estate Tax begins at estates worth five million dollars.  That’s not you.

“Secondly, Michigan abolished the Inheritance Tax in 1993.  So, unlike Indiana which still has the Inheritance Tax, you don’t have to worry about that, either.

“If you were worth more than five million, then your Will could be used for estate tax planning to minimize the Estate Tax which begins at 40%, effective January 3, 2013.

“I presume that you want to leave everything to each other.  Is that right?”

“That’s right” they both quickly said.

“But the problem comes with your kids.  You need to know that, if you both die before the kids turn eighteen, then, unless you say differently in your Will, the kids’ parents from your prior marriages will have priority to administer your children’s money as their Conservator.  As for your two kids together, if the older kids reach age eighteen, then adult siblings would have priority as both their Conservator and as their Guardian.”

“We’ll think of something!” she flared.  “There’s no way that “witch” is going to get her hands on any of our money!”

“While you’re thinking about that, you should also consider who you do want to both administer all of the money and to take care of your own two children as their Guardians.

“You should also think about how old the kids should be when they receive their money.

“Under the law, they’re each entitled to their share when they turn eighteen.  You can postpone that for three years, until they turn twenty-one, if you name a “Custodian” under the Uniform Gift to Minors Act.  But, if you want to wait beyond age twenty-one, then you’ll want to consider a testamentary trust in your Will to postpone distribution until the age which you specify.  That trust could also provide payment for your children’s college education, without giving them other access to your money.

“A critical decision in all of these matters are the people whom you will name.   Who will be the Personal Representative of your Estate, who will be the Guardian of your minor children, and who will administer any Trust, or otherwise be responsible for your children’s money, before the distribution to them?

“After all of those decisions, you will need to consider whether you want to give any money to your church or favorite charity, and, if so, how much.  You may also make specific burial instructions, such as where you want to be buried, whether you want to be cremated instead of burial, and which church will perform the funeral services.”

“That’s a lot to think about”, he said.  “We appreciate your time.  When we’ve made up our minds, we’ll call our own lawyer for our Wills.  Bye Bye.”

Order of Priority

Deutsch: logo der tageszeitung the guardian

Deutsch: logo der tageszeitung the guardian (Photo credit: Wikipedia)

“I can’t believe this!” he exclaimed.   “I just got these papers.  My 18 year old niece just filed an action with the court to become my brother’s guardian and conservator.  I’ve been the guardian and conservator for my brother for the past ten years.  Can she do that?”

“Sure,” I said.  “But that doesn’t mean she’ll get it.”

“So, you’re saying that I have nothing to worry about?”

“Not exactly.”

His brother was in a car accident about ten years ago, which rendered him permanently incapable of caring for himself.  Both of their parents had already passed away.  In addition, his brother never made a Will or a durable power of attorney listing a preference for who should become a guardian or conservator.

I read over the petitions.  My client’s niece wrote that she was the “daughter” of the ward.

“Is this young lady in fact the daughter of your brother?”  I asked.

“Yeah, he was married before the accident, but his wife abandoned him, and took the child with her.  His wife passed away a couple years after the accident.”

“Where did the daughter go to live?”

“She went to live with her mother’s parents.”

“Child support?”  I asked.

“I sent a couple hundred dollars to her grandparents every month.”

“Is that based upon a court order?”

“No, I just did it because that’s what my brother would’ve done,”  he said.

“Did the daughter ever come around to visit?”

“No, not once,” he said.  “I don’t even know who she is, really.  All of this is completely out of the blue.”

After interviewing my client further, one of the possible motives for his niece’s sudden desire to become involved with her father wasn’t hard to guess at—they’d won about $500,000 as a result of the lawsuit for negligence that followed the accident.  And due to my client’s investments of that money, that number had grown to over $700,000.

“So, how does this work?” he asked.  “She can’t just come tromping back in and expect to win, can she?”

“Stranger things have happened.  And she’s above you in the order of priority for appointment to be the guardian and conservator.”

“What’s the order of priority?”

“Well, a person’s spouse is first in priority to become another’s guardian or conservator.   Second is the incapacitated individual’s adult child, which is where your niece comes in.  Next in line are the parents of the incapacitated individual, who in this case have already passed.  And fourth on the list is any other relative of the family, which is where you come in.  Your niece is second on the list and you’re forth.”

“But she’s never even seen him,” he said in a tone of disbelief.

“That’s a very good point.  But that’s only one factor to consider in the analysis of determining what’s in your brother’s best interests.  The fact of the matter is that we don’t know why your niece never visited your brother.  Maybe she was prevented from seeing him despite her desires.”

A jaded grin crossed his face, “Come on.  She just wants the money.”

I smiled, as the perpetual, paranoid side of my nature concerning the practice of law kicked in, “That’s only our side of the story.  That perspective alone doesn’t preclude her from asking the court to take over for you.  And once trial hits, even the moon and the stars aren’t out of reach for dreamers.  You just can’t predict with any certainty what’ll happen.”

He exhaled in deep frustration, “Jeez.  So I have to spend all this money all because my brother’s step-daughter wants to grab at the pot of gold.”

Like a Doberman Pinscher, my ears perked up, “Wait a minute, did you just say step-daughter?”

“Yeah.”

“As in, your brother isn’t the father of this young lady.”

“Yeah.”

“As in, someone else is already the father.”

“Yeah.”

“Your brother never adopted her, did he?”

“Not that I know of,” he said.

“I thought you told me she was his daughter?”

“Well, whatever,” he said with a frustrated, I-hate-nitpicky-lawyers and stop-correcting-me look on his face.  “Does it matter?”

“You bet,” I said.  “Step-children aren’t children under the probate code.  If we can prove that she’s not your brother’s daughter, then she’ll be below you in the order of priority, ultimately having the effect of making her odds of success at trial slightly above zero.”

Different States, Different Worlds

English: I-69-Indiana-Michigan

English: I-69-Indiana-Michigan (Photo credit: Wikipedia)

After the meeting we were having a cup of coffee and chatting. One of the guys said to me: “My daughter just got married and she and her new husband now live in Indiana. Is there much of a difference in the laws of the two States?”

“Yes indeed!”, I replied.

“Give me some examples”. At that point, the rest of the group stopped talking and began listening.

“Well”, I said, “let’s start with divorce, since your daughter just got married”.

“You lawyers; who else would think of divorce when some says ‘marriage’? But go ahead. Tell me about some differences in divorce.”

“Sorry about that”, I said. “Going to law school is like having brain surgery. We’re taught to ‘think like a lawyer’. By the time we ‘pop out’, most folks think that we’ve become aliens. But I’ll tell you some differences between Michigan and Indiana.

“In Michigan and Indiana, getting a divorce is based on a ‘no fault’ statute. But, in addition to a divorce from the bonds of matrimony, there are a host of other issues, such as custody, property settlement, alimony, and so forth. That’s where the differences come in.

“In Michigan, division of property can take ‘fault’ into consideration; in Indiana the only ‘fault’ is ‘dissipation of marital assets’. The other spouse could be an adulterous meth manufacturer, but if he or she made money, then division of property does not consider his fault.

“In Michigan the first question in division of property is whether it’s ‘separate property’, namely, obtained prior to marriage, or obtained through gift or inheritance. In Indiana, it’s all in the ‘marital pot’, though a judge may consider whether it was inherited or obtained before marriage.

“In Michigan there’s alimony, now called ‘spousal support’. In Indiana, with very few exceptions, there’s no alimony.

“Do you want more examples?”

“That’s enough on divorce”, he said. “What are some other differences?”

“Well, let’s look at automobile accidents. In Michigan, we have “no fault”, and, unless there’s very serious bodily injury, disfigurement or death, there’s no law suit against the other driver. Our own insurance pays the bills. In Indiana, there is “fault”, and law suits based on auto accidents are therefore much more common.

“If you look at Probate, there’s a completely different procedure of starting the process. In Michigan, there are three ways in which an Estate can be initiated; in Indiana there’s one.

“If you look at criminal law, Michigan gives a Preliminary Examination within fourteen days in felony cases where the State must provide probable cause that a crime was committed, and the Defendant committed it. Only if that’s done, or waived by the Defendant, can the Defendant be ‘bound over’ to stand trial. Practically, this means that a person can’t be held for months without a hearing.

“In Indiana, there’s no Preliminary Examination.

“In Michigan, if you file a law suit, the case can be dismissed unless the Complaint gives facts which contain all of the elements need to prevail. That’s called “fact pleading”.

“In Indiana, if you file a law suit, you only have to state the general nature of the case, not specific facts to support your claim. That’s called ‘notice pleading’.

“Do you want more examples?”

“No”, he said, shaking his head. “I’m already dizzy from hearing about all these differences. Now, all I can ask is whether the States have anything in common?”

“Yes”, I replied, “they do. The judges wear black robes in both States.”