Employment Law Solicitor For Collective Redundancy Cases

Employment law is complex and often confusing and this is no different when we are discussing the law surrounding redundancy. The recession has hit many UK businesses hard and many employers have taken the step to make collective redundancies where more than 20 people are made redundant in a 90 day period. However, it seems that employers are trying to get away with saving costs that they legally have to pay by not going through the appropriate steps before letting their staff go.

The Tribunal service has recently published statistics that show a 150% rise in the number of cases being brought to employment law tribunals where collective redundancy has been made. Workers are acting quickly to hire employment law solicitors to battle for their case so that they do not lose out on their financial rights.

Before any large scale redundancies are made, employers are obliged to consult with the representatives of their workers and discuss the following alternatives;

o Ways in which redundancies could be avoided.
o Limiting the number of redundancies.
o Justifying the reasons for the redundancies and the consequences of such action.

An employee representative could be a member of the trade union for the workforce and if a union does not exist, employees have the right to elect representatives from their numbers for the specific purpose of redundancy consultation. If a work’s council is in operation the representative could come from this organisation.

If the employer fails to go through these means and simply lays off more than 20 workers at a time, they could be hit with a tribunal case which will take up much more of their time and money than a redundancy consultation would have taken. In some cases, employers who have not gone through the correct channels have had to pay out hundreds of thousands of pounds to their former employees. An employment law solicitor will be able to help both employees and employers understand the processes of collective redundancy.

There is a higher awareness among workers that there are proper ways to go about collective redundancy and this makes it more likely that employees will be called to tribunal. Employment law solicitors are seeing huge rises in the number of clients looking for legal aid over redundancy issues and there cases are always successful when it can be proven that no consultation was made with employee representatives prior to the redundancies.

If you have been made redundant along with 10 or more of your fellow colleagues without notice given by your employer then you should get in touch with an employment law solicitor as you may be entitled to compensation or redress.

What You Need to Know Before Consulting a California Lemon Law Attorney

Attorneys specializing in California lemon law can be exceedingly expensive, but this is no different from any type of legal help. The time needed to research and represent a claim, as well as the complicated nature of law, all are contributing factors to the steep prices commanded by lawyers.

Lemon law, also known as the Californian Song Beverly Consumer Warranty Act, was written into statue to protect and compensate consumers that purchase pre-owned vehicles.

In it’s simplest form, the law is pertinent to vehicles that manufacturers, or dealers, have failed to effectively repair under a contract period. Failure to do so constitutes a breach of contract, and is effectively covered under the law.

If this law is violated, manufacturer is more inclined to deal with attorneys specializing in California lemon law. According to the law, auto manufacturers are legally responsible for any attorney fees based on creditable lemon law claims.

Included below are some key points that you should keep in mind prior to consulting with an attorney specializing in California lemon laws:

Under this law, a vehicle is subject to qualification only if it suffers a defect that cannot be repaired by an authorized dealer. This applies specifically to instances where the dealer was granted sufficient time to attempt repairs and failed to do so under the contracting period.

A vehicle that is a suspected lemon may process a claim under this law only if the owner has given a dealer adequate time to attempt repairs. In the event a vehicle spends more than 30 consecutive days in a dealer’s service center, the owner may then bring a lemon law claim against the manufacturer.

The owner may be eligible to collect financial compensation, including payments, any down payments made, and complete repayment of any loans if the vehicle qualifies as a lemon under this law. Additional compensations may be awarded, such as full refunds of repair costs, towing charges, and rental costs if applicable.

Additionally, instead of repayment, you may elect to replace your vehicle with a new model from the manufacturer. In this occurrence, the auto manufacturer is eligible for a mileage credit deducted against the vehicle before it was take for any repairs.

More information about the law or whether or not you vehicle may meet the criteria can be discussed with a lemon law attorney. Conduct research via the Internet to find local attorneys that specialize in lemon law.

Most car owners are either oblivious to the benefits offered under the California lemon law or are just ignorant of the conditions that qualifies them for claims under the California lemon law [http://www.attorneylemonlaw.net] statutes, prior to consulting with the California lemon law attorneys [http://www.attorneylemonlaw.net], check out Allan King’s site at AttorneyLemonLaw.net for information regarding this much mis-understood topic.

Employment Law Solicitors – 7 Essential Qualities to Look For!

Nobody needs to be reminded that due to the economic recession we are currently experiencing, times are hard for all businesses, whatever their size. Although it may not the first thing that comes to your mind if you are involved in running a business, clear, concise employment law advice should be strongly considered no matter what the economic climate, especially if you are looking to reduce the size of your workforce or review contractual terms and conditions. Consequently, here are seven tips on what to look for if you need employment law advice:

1. Ensure it is affordable
2. Risk Management Service
3. Regular Employment Meetings
4. Ask for a Risk Management Report
5. An Employment Manual
6. Insurance Cover
7. Online Consultant Service

Ensure it is Affordable

It is obvious to most people that you want to ensure you get value for money from the advice you receive. However, there are inherent dangers in seeking the cheapest option. There is usually a reason you are given a low estimate of costs and it may be that the person concerned lacks the experience that you require. Many firms of solicitors with employment specialists now offer HR and employment protection schemes that were previously the territory of non legal firms. The advantage of selecting a firm of solicitors who operate such a scheme is not only their levels of expertise but that they will be fully insured with a well established complaints procedure if things go wrong. Unlike most of the non legal companies, you should also be able to find a solicitor’s employment law protection scheme that only lasts for one year, which allows you to evaluate the service over that period before you decide whether to renew the service or not.

Risk Management Service

A good employment law advisor will first of all carry out a free risk management audit, which is basically a health check of your employment practices. A specialist employment solicitor will visit you to look at your personnel records, review procedures, uncover any weaknesses, and assess what needs to be done to improve any problem areas.

Regular Employment Meetings

You should also ensure that the scheme offers regular employment meetings, where the company you have hired will meet and talk with you or your HR department, management team and other key members of your team. This will enable them to understand and review your terms and conditions of employment, disciplinary and grievance procedures, absenteeism, flexibility, equal opportunities and redundancy arrangements and to make appropriate amendments.

A Risk Management Report

Following your health check, you should ask for a comprehensive risk management report. This will review your current policies, practices and compliance with legislation. It will also include an action plan for any improvements that could reduce the risk of disputes with your staff.

An Employment Manual

If you have made the right choice in hiring an employment law advisor, they will also supply you with an employment manual – an invaluable source of reference for good employment practice. This includes information on fair procedures for recruitment and absenteeism, guidance on how to draft employment contracts, a selection of over 100 specimen letters and forms, and many other aspects of good HR practice.

Insurance Cover

Insurance cover is also important. When you’re protected by insurance cover, you’ll no longer have to worry about the costs of defending an action brought against you by an employee as a high-quality policy will cover legal costs and expenses to defend employment disputes of up to £100,000 per claim. In certain circumstances, compensation awards that you’re ordered to pay by an employment tribunal and out of court settlements agreed by insurers will also be covered.

Online Consultant Service

In this age of modern technology, it may seem like a given but some Employment Law Advisor do not necessarily offer online consultant services. By using an external consultant service you have control over exactly what HR services are delivered to you and how it is implemented.

Preparing For a Divorce Consultation

Information presented in this article is for informational purposes only and is not to be considered legal advice. Consulting with an attorney does not guarantee that the attorney will represent you. Representation begins with a contract for legal services and a retainer.

You have reached the point when you are considering the dissolution of your marriage. You have internally questioned how you should go about getting the process started and where you should turn for legal help. In the state of North Carolina, there are numerous firms that specialize in the practice of family law. Making the initial decision to consult a family law attorney about your divorce case is major step. Getting prepared for the initial consultation is an even greater step.

Do not walk into an initial consultation unprepared. Preparation can potentially save you the headache of wasted time and money. The role of your divorce attorney is to counsel you on issues of the law as they pertain to your case. It will be difficult not to let the emotions and stress of the situation determine the way you communicate with your attorney, but approaching the situation with reason is the most effective way to get the results you desire.

One of the most important ways to prepare for your consultation is by creating a timeline of events. This timeline should provide a truthful and accurate account of events leading up to your decision to seek attorney representation. Included in the timeline should be any marital issues such as instances of domestic violence, abuse, extramarital affairs, and so on. Some items that you list may spark potentially shameful or emotional memories, but remember your communication is guarded by attorney/client privilege.

The next step in preparation is creating your list of potential questions you may have. Even if you have experienced a previous divorce, you are not expected to be an expert. Your attorney should be able to address your questions and concerns, no matter how trivial you may think they are. There is no such thing as a silly or dumb question.

Being prepared can help reduce some of the initial anxiety. Information regarding individual and marital income, debts, and assets may be needed as a follow up to the initial consultation, so be prepared to locate those records. Again, it is important to be upfront and honest with your attorney in order to get the most effective results.

Alesia M. Vick is the lead attorney at the Law Offices of Alesia M. Vick in Knightdale, NC. She is a licensed and practicing attorney in North Carolina. She practices in the area of family law – divorce, separation, child custody, and adoption. Her written article topics include “Female Divorce Attorneys – Are They Better?” and “Dads and Divorce – What Today’s Fathers Need to Know Before Entering the Courtroom”. More about Attorney Alesia M. Vick can be found on her firm website at [http://www.VickLegal.com]

HR Consulting and Cal-Osha Compliance – Two Topics Employers Hate To Discuss, Why?

A little over a year ago I was speaking at a trade association dinner meeting. After about 20 minutes of speaking one of the members of the group interrupted me, and asked me if they could buy a membership.

I told them that it is was not the practice of the association to have guest speakers sell their products during the meeting. I said that I would be done in about twenty minutes, and if anyone wanted to set up an appointment for the next day, I would be happy to do so.

The subject of my discussion that night was Cal-Osha Compliance and HR Consulting. After another five minutes someone else rose up and said “look we just want to buy, we really don’t want to hear anymore.”

Well, I could see they were not going to let me finish, so I asked them what is it that everyone in this room knows, but me? All of them looked at a man that I will call Charlie.

They told me that Charlie had been in the Automotive Repair business for over 30 years, but that he no longer had a shop. Dummy me, I just thought he wanted to retire and drive his motor home around the country with his bride of 30 some years.

I asked the group why was it that Charlie was no longer the owner of his business, and the response shook me to my core. The group informed me that Cal-Osha came out to his shop, and when they were done, he was fined over a $100,000.00, and did not have the money to pay, so he closed his business down.

Times have changed Cal-Osha Compliance is a must, and not only that but every employer needs to also comply with California Labor Laws too. And without a good HR Consultant and a good Safety Consultant you can forget about being on the right side of the Cal-Osha Compliance street.

I can remember when I started my business back in 1997. There really was not much to comply with. Back then employers really did not need to have an employee handbook. Employers did need to have a formally written Safety Program, along with your State and Federal Postings, but if you had those things you were pretty much good to go.

Ah, those were the days of wine and roses, and easy compliance, but how things have changed. The laws have changed so much that you almost have to be an attorney, if you want to comply.

Here is a few things that you must have in place if you are going to be on the right side of the street when it comes to Cal-Osha compliance, and yes you really will need a good HR Consulting Firm.

California Labor Law Issues

1. A Good Employee Handbook

2. Sexual Harassment Training

3. A Good Media Policy

4. Strong, as in zero tolerance Sexual and Other Unlawful Harassment Policies

5. Effective July 1, 2015 You need to have the new California Paid Sick Leave Law explained and spelled out in your employee handbook

6. Your “At-Will” Policy needs to be set up and established and used in a way that will not cost you a lawsuit but help you to win one.

There are more but I am not writing a book, but rather a note. Before we wrap this up let’s also address some of the Cal-Osha Compliance issues you need to be aware of.

Cal-Osha Compliance Issues

1. A formally written Safety Program that meets all of the eight standards that have been established by Cal-Osha.

2. A formally written Heat Illness Prevention Program, provided you have employees that work in temperatures of 90 degree heat or more.

3. Regular safety Training topics and if you are in construction that means at least every 10 days.

4. Parodic Inspections of your facilities.

5. Make sure all fire extinguishers are checked and marked off that the arrow is in the center of the meter. Then initial the card that is on the fire extinguisher. If this is not done it is a $250.00 fine per extinguisher.

Failing to have a Heat Prevention Program can cost you $18,000.00. Failing to have a Safety Program can cost you $10,000.00.

Even though compliance may be a challenge please do not do one of the following.

1. Do not bury your head in the sand because of all the complexities of getting and staying in compliance.

2. And, don’t just quit because you know you are a good employer and you are always trying to do the right thing when it comes to your employees.

Today there are 1000s of attorneys advertising on YouTube. Educating employees on how to sue their employer.

So, if you think compliance is tough, try explaining why you are not in compliance.

Cestoday, is passionate about your rights as employers. They have several Programs in place that have been Cal-Osha Compliance tested

The Law of Post-Atmospheric Alien Encounters by National and International Organizations

How would international law treat the hypothetical case of a national space shuttle mission encountering an alien race? To begin with, I should probably instead use the word “extraterrestrial” rather than “alien,” as alien is already a well established legal term of art. So this is not the law of foreigners in a state’s territory, but rather the law of contact with intelligent non-human entities that did not originate from earth.

What if First Contact happened tomorrow? How would humans react, and how would the law apply? Assuming the aliens didn’t immediately blast us out of existence, that is. I think it’s safe to say each state would want to have its own say in how things with the aliens go down, and that states would have their own individual opinions and conflicting agendas regarding the encounter. Which means, inevitably, they would each take whatever actions they deemed appropriate and then afterwords seek to justify those actions on the basis of contorted interpretations of international law. The United Nations would also want to establish a central role for itself in the fray, and because it does possess the institutional mechanisms that states tend to follow when seeking to take multinational action, the UN would likely emerge as the primary vehicle through which multilateral discussions and actions would take place.

So international law would be the natural language for states to use when framing these discussions. In this first installment, I am going to examine how international law in its current form would govern an encounter in outer space between extraterrestrials and a national or international body. Later articles will consider outer space encounters between aliens and private parties, and encounters with aliens on earth.

Space law, although relatively new and still developing, is an established body of law governing human activities beyond the atmosphere. Although the current body of space law lacks any provisions directly regulating potential alien contacts, the laws contained within the various space treaties would by their language pertain to such an encounter.

The most relevant document is the 1967 Outer Space Treaty (“OST”). Other international space agreements are less important, as they either concern situations that would inevitably be of solely human concern, or else are only signed by nations that do not possess the ability to enter space and are therefore irrelevant. Also, the OST is like to be enforce whenever a state encounters aliens in space, as under Article XVI, withdrawal from the treaty will not be effective for one year. Thus, assuming we don’t get much advanced warning that our alien neighbors are dropping by, any spacefaring nation that has contact with an alien will not have had time to drop out of it. Moreover, at this point in time, OST may well embody customary international law, and thus be binding on all nations regardless of their ratification status.

Some basic legal stipulations conferred by the OST are that the space activities conducted by parties to the OST are governed by international law (Article III), and that nothing beyond the earth’s atmosphere is subject to “national appropriation by claim of sovereignty.” (Article II). So at the outset, we do know international law is in fact the governing body of law regarding alien-state relations, and that states are prohibited from immediately enslaving any alien races they encounter.

Let’s establish a hypothetical scenario: Canada has set up a manned space station in orbit around the moon. Aliens have arrived, and for reasons beyond human ken, have chosen to make first contact with the Canadian ship. The alien envoys thereafter board the Canadian vessel to enter into negotiations with Canadian diplomats that have been sent up to join them.

As an initial matter, Canada would be required to inform the rest of the world of the alien contact, and would be in breach of its treaty obligations if it attempted to keep the contact secret. Under Article XI of the OST, Canada has an obligation “to inform the Secretary-General of the United Nations as well as the public and the international scientific community, to the greatest extent feasible and practicable, of the nature, conduct, locations and results of [outer space] activities.” Therefore, not only must all other nations be made aware of the aliens, no secret Men In Black type arrangements can legally take place either; the discovery of an extraterrestrial intelligence must be announced to the world. Even if all the states wanted to make it a government secret, the scientific community also has a right to be informed.

Secondly, Canada would be required to allow other nations to have access to the Canadian space vessel that the aliens are on board — although Canada can get away with not granting that access immediately. Under international law, if the aliens should choose to board the space station of a single nation or a station collectively owned by a subset of nations, the owning nation(s) will not be allowed to exclude other countries from the Interstellar Negotiations. This is because Article XII provides that, “All stations, installations, equipment and space vehicles on the moon and other celestial bodies shall be open to representatives of other State Parties to the Treaty on the basis of reciprocity.” However, any country wishing to visit “shall give reasonable advance notice of a projected visit, in order that appropriate consultations may be held and that maximum precautions may be taken to assure safety and to avoid interference with normal operations in the facility to be visited.” This language give lots of room for stalling — consultations, plus ‘maximum’ precautions,’ plus ‘avoiding interferences with operations’ means that Canada could easily delay such visits for a lengthy time indeed. But, eventually, other countries must be allowed to visit with the aliens.

What if other nations fear that Canada is doing a horrible job at negotiations with the aliens, and worry that Canada’s bungling of it will drive the aliens into declaring a space jihad on Earth? Under Article IX,

A State Party to the Treaty which has reason to believe that an activity or experiment planned by another State Party in outer space, including the moon and other celestial bodies, would cause potentially harmful interference with activities in the peaceful exploration and use of outer space, including the moon and other celestial bodies, may request consultation concerning the activity or experiment.

So essentially, if, say, Barbados, gets worried that Canada’s dealings with extraterrestrials might cause “potentially harmful interference with activities in the peaceful exploration and use of outer space” (potentially starting an intergalactic war with a race of super advanced aliens would probably qualify), Barbados can take the proactive step of… requesting a consultation.

Of course, if this didn’t work, Barbados could always bring a case against Canada before the ICJ, arguing that Canada is violating its obligation “to conduct all their activities in outer space, including the moon and other celestial bodies, with due regard to the corresponding interests of all other States Parties to the Treaty.”

But that would take at least a few years, and by then we’d all probably be slaves to the Alien Overlord. So under Article XIII, any “practical question arising in connection with the exploration of outer space” is to be decided by members to the OST among each other or with the appropriate international organization. To answer a practical legal question like “Does Canada have to let other nations talk to the aliens?”, we could consult with COPUOS. The Committee on the Peaceful Uses of Outer Space was established by G.A. Resolution 1472 (XIV), and gives COPUOS authority “to study the nature of legal problems which may arise from the exploration of outer space[.]” So it looks like UNCOPUOS is going to be our new law firm for all legal disputes concerning aliens.

Now, assume the aliens are well-meaning, but clumsy, and while all the debates over international law are going on, the aliens accidentally explode the Canadian space station. What recourses does Canada have?

If a visiting alien’s spacecraft accidentally injured an Earth vessel, or other earth-owned property, the injured owner may be able to bring suit against the alien by means of a Claim Commission on earth. Canada should consider using this remedy. Assuming the injury took place in our solar system, I believe a strong argument could be made that the damage should be governed by earth law, as torts are generally governed by the law of the location where they took place. Under lex loci delicti, for an injury in space the applicable law would be the Convention on Liability For Damage Caused by Space Objects. The Liability Convention mandates,

“In the event of damage being caused elsewhere than on the surface of the Earth to a space object of one launching State or to persons or property on board such a space object by a space object of another launching State, the latter shall be liable only if the damage is due to its fault or the fault of persons for whom it is responsible.”

So assuming it was the aliens and not the Canadians that were negligent, this might provide the basis of a claim. Although an alien would presumably not be a member of the treaty, if the Liability Convention represents an embodiment of customary international law, it can be argued that, as CIL, it is applicable to a state even absent its consent. Just as CIL is applicable to newly formed nations whose existence postdates the establishment of a CIL norm, if an alien empire were to enter Earth jurisdiction, it too would be bound by CIL, despite the fact it never signed it. Therefore, the alien would have to compensate Canada for the loss of its space station. (If I were the type to make bad jokes, I would now make a reference to the possibility of the Liability Convention being the new ‘alien tort statute.’)

Finally, it may be premature to be concerned about Canada falsely attempting to claim a role as Earth’s mouthpiece. Presumably, any alien civilization capable of traveling between stars would have a sophisticated legal system, and would thus realize that Canada is not the proper Earth channel which planetary diplomacy should occur through. In which case, our alien visitors might consider all nations’ astronauts, not any single state government, to be the appropriate envoys for Earth. Under Article IV of OST, astronauts have been declared by the earth nations to be the “envoys of mankind” — which theoretically means they trump any individual nation in their right to be at the negotiation table with visiting alien dignitaries. So astronauts, cosmonauts, and taikonauts might be Earth’s diplomats for purposes of interstellar or intergalactic law.

Your Law Practice: Make It Work For You and Without You

Does anyone go to law school to run a small business? How about to become a salesperson? Probably not. Attorneys go to law school for many reasons, but being a business owner or closing sales is not one of them.

But that’s what happened, isn’t it? Instead of the noble vocation of practicing law envisioned, many attorneys find out quickly about the harsh realities of running a professional legal business. They learn that:

The billable hour is everything
They’ve become the salesperson they never wanted to be
They own and operate a small business

The last point is sometimes the hardest issue to face. Owning your own business means that bringing in revenue and keeping the doors open may get pushed aside and replaced by the many details of actually running a small business.

Who’s Running the Store?

Many attorneys find that business matters overtake their practice, and billable hours and revenues decline. So a secretary or administrator is hired to run that side of the business. Not a bad idea. But who ends up running their business — the staff person or the owner? Do you want to hand over your livelihood to someone else? What happens when that person leaves? Does 90% of your administrative knowledge also leave or are you stuck with an underperforming employee who can hold your business hostage with their knowledge? That can be a dangerous way to run a business.

There are solutions to this issue, but the one that may work the best is sometimes the hardest to find time for: writing and maintaining a procedures manual so that anyone can step in and take over when needed.

Why is this Important?

If procedures are streamlined and duties written exactly as they should occur, attorneys are free to do what they truly love to do – practice law. But that’s not the only advantage. If procedures are written:

a staff member can take over the non-legal, non-billable matters that take so much of the attorney’s precious billable time.
correspondence and pleadings will have the same quality of work product, look, and accuracy.
clients are confident that consistent, high quality service is assured. Outstanding quality, accuracy, and service are a priceless commodity in today’s highly competitive legal market.

How Do I Write a Manual?

Option A: The attorney could do that themselves, but again, that’s a waste of valuable billable time.

Option B: The attorney could entrust the staff to record the steps that compose their daily duties, but that probably wouldn’t streamline the process since no new techniques or insights would be gained.

Option C: Outsource the process to a knowledgeable, trained consultant specializing in law firms and their procedures.

Obviously, Option C would probably work best. A consultant assesses the true needs of the firm, suggests options for different categories, observes the duties and processes employed by the staff, recommends steps to streamline needed procedures or eliminate unnecessary ones, and documents and writes the procedures manual.

However, care must be taken in finding and hiring the right consultant. There are many qualified Human Resource professionals who consult with small businesses; however, a professional law firm is unique in its services, confidentiality issues, practice, and procedures.

What to Look For

When hiring a consultant, look for the following qualities, body of knowledge, and experience in the:

day-to-day operations of a law practice
client confidentiality issues inherent in a law practice
legal terminology
different types of law and resulting practice procedures and requirements
organization of a well-run practice
techniques to increase staff participation
recruiting of qualified staff
training of legal staff to adopt an ownership attitude
legal marketing and business development
creation of additional profit centers

The right consultant who can assess the true needs of the practice and apply that knowledge to streamline processes, document procedures, increase client satisfaction, originate new profit centers, encourage a staff ownership attitude, and increase the attorney’s billable hours is truly worth their weight in gold. They can help change your PRACTICE into a BUSINESS that works for you and that can run its daily operations without you. Leaving you to do what you really desire — practice law.

Copyright 2005

Nickie Freedman is a professional speaker, business consultant and trainer. She is also the founder and principal of Legally Large, a training and consulting company dedicated to helping firms rise to their next level by optimizing what they already possess. Contact her via [http://LegallyLarge.com/]

Planning and Development – A Planning Consultant To Assist Understanding Planning Law

Planning consultants can provide advice and guidance for property developers, whatever the scale of the development proposed. For the larger developer, undertaking a major planning & development scheme, understanding not only planning law but the policy behind it, the legal precedents involved and the complex legal processes that it can involve will require an experienced team of planning consultants. This is equally true of both gaining planning permission and for negotiating the planning appeals process; it is therefore crucial to employ a dedicated team of planning consultants.

Local Authorities and Development Frameworks

Planning law in the UK is a complicated matter. There is no level of government that is not involved in some sense in the development and implementation of planning law. The first point of contact for anybody undertaking a development that requires planning permission – often a good place to start even if you think that your proposal does not require planning permission – is your local authority. These bodies produce the Local Development Framework – formerly known as a Development Plan. This is a document that sets out what types of development are allowed within the area, and specifies which policies apply to which type of land – for example green belt or other protected landscapes. Exception policies are also included, which state on what grounds development may be allowed against the standard policies. Even for a householder these documents are daunting, and planning consultants or solicitors can help to ‘unravel’ their meanings.

The Role of National Governments and European Strategies

Planning Law is not, however, solely the preserve of the Local Authority. Both the Environment Agency and the Highways Authorities have significant involvement in the process along with small bodies such as parish councils and at the other end of the scale regional assemblies and national governments. National planning inspectorates take responsibility for planning appeals, while applications that are considered to affect national interests may be ‘called in’ to central government. Planning circulars and guidance notes form the basis of much policy and these originate from the Westminster government, while this in turn is influenced by broader European strategies and international treaties. If all this leaves you feeling a little giddy, then it may be time to take some expert advice!

Planning consultants can deal with all aspects of planning law to guide you through the planning process. They can help to create a case for a successful appeal against a decision and in addition can prepare contracts and legal documents to ensure that a property development can be efficiently disposed of once completed.

Negotiating the complex planning laws in place in the UK can be a daunting prospect. Planning consultants [http://www.marrons.net/our-services/planning-legal-services-and-consultancy] can make this process straightforward and play an essential role for developers both large and small.

Contact Marrons Planning Solicitors ([http://www.marrons.net]) your UK planning experts.

Family Law Attorney Q&A

When should I consult with a divorce attorney?

It is never too early in the process to consult with an attorney. Engaging with legal counsel early allows you to make informed decisions and avoid potential pitfalls – increasing your ability to achieve your goals. Remember, consulting with an Austin divorce attorney does not mean that you will be divorced; you may need information about the family law legal process. A common problem that I see is clients wait too long to contact an attorney to obtain legal advice and could have ended up with a better result if they had been informed about their options earlier.

What should I bring with me to the initial consultation?

Because family law matters can be very stressful, it is a good idea to write down any questions you have and bring them with you to the first meeting so nothing important is forgotten. You may also want to bring any documents relevant to your case if available – such as federal income tax returns, or documents concerning your assets and debts. If you signed a pre-marital agreement or any other kind of property agreement prior to or during your marriage, bring a copy to the consultation.

I was just served with divorce papers. What should I do?

You should retain a divorce attorney as soon as possible so they may provide legal advice regarding what has been requested and any hearings that have been scheduled. Once retained, your divorce attorney will file an answer on your behalf.

My spouse and I would like to only hire one attorney for our divorce. Is that possible?

In Texas, one attorney may not represent both spouses. Nor may a divorce attorney retained by one spouse give legal advice to the opposing party. Do some research to find out if your state allows representation by one attorney.

I understand that I have to go through mediation for my divorce. Is that true?

In Travis, Williamson and Hays Counties, mediation is required before a final hearing will be held in a family law case. In mediation, a trained, neutral third-party acts a facilitator for the settlement discussions between the parties and their respective attorneys. If an agreement cannot be reached during the mediation process, the parties may decide to resolve their issues via litigation.

How long will it take to get a divorce?

The time required to develop the final terms of your divorce is highly dependent on the number of issues to be resolved and the willingness of both parties to reach an agreement. In Texas, there is a statutory waiting period of 60 days after the Petition is filed before the divorce may be finalized.

Do both spouses have to consent to the divorce? What if one of us does not want the divorce?

Texas has a “no-fault” divorce statue. This means that a divorce can be obtained, even if only one spouse desires it. You do not need the agreement of your spouse to file the Original Petition for Divorce or to pursue a divorce.

What does it mean when an attorney is Board Certified in Family Law by the Texas Board of Legal Specialization?

A family law attorney who wants to be Board Certified in Family Law by the Texas Board of Legal Specialization applies to the Texas Board of Legal Specialization to take a day long written exam to become Board Certified in Family Law. Of the 78,032 attorneys licensed to practice law in Texas, only 691 are Board Certified in Family Law by the Texas Board of Legal Specialization, or less than one percent of the lawyers in the state of Texas.

* In addition to taking a written certification exam, family law attorneys applying for board certification in family law must have demonstrated extensive expertise in matters such as divorce, property division, child custody, child support, paternity and other matrimonial matters. Specific requirements include:

Must have been licensed to practice law for at least five years
Have devoted at least 35% of his/her practice to family law for the last three years
Have experience handling a wide variety of family law matters
Have received recommendations by fellow attorneys and judiciary members
Must pass a day-long written exam on family law issues such as divore and child custody
Demonstrate regular participation in family law continuing education seminars

At the Law Office of Amy K. Gehm, L.L.C., Austin divorce lawyer, we are committed to the highest standards of moral and ethical conduct in vigorously and effectively representing our client’s best interests.

Estate Planning Elder Law Guide

Estate Planning: Planning for death to get the assets to whom you want, when you want, the way you want, with the least amount of taxes and legal fees possible.

Elder Law: Planning for disability to get the persons you want to handle your affairs and to protect your assets from being depleted for long-term care.

Introduction to Estate Planning and Elder Law
Practicing estate planning and elder law is one of the most enjoyable and professionally rewarding careers an attorney may choose. Imagine a practice area where your clients respect your knowledge and treat you with kindness and courtesy. They pay your fees in a timely fashion and tell their friends how much they have enjoyed working with you and your firm. At the same time, you are rarely facing the pressure of a deadline, much less an adversarial attorney on the other side of a matter trying to best you. In most instances, you are acting in the capacity of a counselor at law (trusted advisor) rather than an attorney at law (professional representative).

We spend our days meeting with clients, discussing their lives and their families and addressing their fears and concerns. Through our knowledge, training, experience and imagination, we craft solutions, occasionally elegant ones, to the age old problem of passing assets from one generation to another as quickly and painlessly as possible. At the same time, we also seek to protect those assets from being depleted by taxes, legal fees and nursing home costs to the extent the law allows.

The end result of this process is a client who feels safe and secure in the knowledge that, in the event of death or disability, they have all their bases covered. Having achieved peace of mind that their future is well planned and in good hands, they can get on with the business of enjoying their lives. For the attorney, a happy and satisfied client has been added to the practice and another potentially lifelong and mutually rewarding relationship has begun. Let’s look at the strategies and techniques we use to achieve this enviable state of affairs.

Major Issues Facing Senior Clients Today
One of the ways that we help clients is in setting up a comprehensive plan so they may avoid court proceedings upon death or in the event of disability. Trusts are used in place of wills for older persons since they do not require court proceedings to settle the estate. Trusts also avoid the foreign probate proceeding required for property owned in another state, known as ancillary probate. This saves the family time in settling the estate as well as the high costs of legal proceedings. In addition, since revocable living trusts, unlike wills, take effect during the grantor’s lifetime, the client may stipulate which persons take over in the event of their disability. Planning ahead helps maintain control in the family or with trusted advisors and avoids a situation that may not be in the client’s best interest. For example, in the event of a disability where no plan has been put in place, an application to the court may be required in order to have a legal guardian appointed for the disabled person. This may not be the person the client would have chosen. In such a case, assets may not be transferred to protect them from being spent down for nursing home costs without court permission, which may or may not be granted.

Another area in which we assist the client is in saving estate taxes, both state and federal, for married couples by using the two-trust technique. Assets are divided as evenly as practicable between each of the spouse’s trusts. While the surviving spouse has the use and enjoyment of the deceased spouse’s trust, the assets of that trust bypass the estate of the surviving spouse and go directly to the named beneficiaries when the second spouse dies. Tens to hundreds of thousands of dollars, or more, in potential estate taxes may be saved, depending on the size of the estate. Furthermore, the revocable living trust avoids the two probates that would occur were the clients to use wills, as the couple’s estate must be settled after the death of each spouse in order to save estate taxes. We also help to protect assets from being depleted due to nursing home costs. Irrevocable Medicaid trusts may be established, subject to a five-year look-back period, to protect the client’s home and other assets from having to be spent down due to the high cost of nursing home care. We use Medicaid asset and transfer rules to protect assets in the event a client requires nursing home care but has done no pre-planning. Through the use of Medicaid qualifying annuities, promissory notes, and housing and care agreements, significant assets may be protected despite the five-year look-back, even when the client may be on the nursing home doorstep.

Five Steps to Estate Planning for Seniors

1. Understanding the Family Dynamics
The first step in an elder law trusts and estates matter is to gain an understanding of the client’s family dynamics. If there are children, which is usually the case, we need to determine whether or not they are married. Is it a first or second marriage? Do they have any children from a previous marriage or do their spouses? What kind of work do they do, and where do they live? Do they get along with each other and with the parent clients? We are looking to determine which family members do not get along with which others and what the reasons may be. This goes a long way toward helping us decide who should make medical decisions and who should handle legal and financial affairs. Should it be one of them or more than one? How should the estate be divided? Is the client himself in a second marriage? Which children, if any, are his, hers, or theirs? Sometimes all three instances may occur in the same couple. Here, further exploration of the family functioning will be needed as the potential for hurt feelings, conflicts of interest, and misunderstandings multiplies. In addition, great care must be taken to develop a plan for management, control, and distribution of the estate that will not only be fair to the children from a previous marriage but will be seen to be fair as well. At times, the assistance of the professional advisor in acting as trustee may be invaluable in helping to keep the peace between family members. Finally, this step will also flesh out whether there are any dependents with special needs and which family members and assets might be best suited to provide for such children.

2. Reviewing Existing Estate Planning Documents
The second step in an elder law trusts and estates matter is to review any prior estate planning documents the client may have, such as a will, trust, power of attorney, health care proxy and living will, to determine whether they are legally sufficient and reflect the client’s current wishes or whether they are outdated. Some basic elder law estate planning questions are also addressed at this time such as:

a. Is the client a US citizen? This will impinge on the client’s ability to save estate taxes.

b. Is the client expecting to receive an inheritance? This knowledge helps in preparing a plan that will address not only the assets that the client has now but what they may have in the future.

c. Does the client have long-term care insurance? If so, the elder law attorney will want to review the policy and determine whether it provides an adequate benefit considering the client’s other assets and income, whether it takes inflation into account, and whether it is upgradable. This will allow the practitioner to decide whether other asset protection strategies may be needed now or later.

d. Does the client need financial planning? Many clients that come into the elder law attorney’s office have never had professional financial advice or are dissatisfied with their current advisors. They may need help understanding the assets they have or with organizing and consolidating them for ease of administration. They may also be concerned with not having enough income to last for the rest of their lives. The elder law attorney will typically know a number of capable financial planners who are experienced with the needs and wishes of the senior client, including (1) secure investments with protection of principal, and (2) assets that tend to maximize income.

3. Reviewing the Client’s Assets
The third step is to obtain a complete list of the client’s assets, including how they are titled, their value, whether they are qualified investments, such as IRA’s and 401(k)’s and, if they have beneficiary designations, who those beneficiaries are. Armed with this information, the advisor is in a position to determine whether the estate will be subject to estate taxes, both state and federal, and may begin to formulate a strategy to reduce or eliminate those taxes to the extent the law allows. This will often lead to shifting assets between spouses and their trusts, changing beneficiary designations, and, with discretion, trying to determine which spouse might pass away first so as to effect the greatest possible tax savings. Ideally, the attorney should have the client fill out a confidential financial questionnaire prior to the initial consultation.

4. Developing the Estate Plan
The fourth step is to determine, with input from the client, who should make medical decisions for the client if they are unable to and who should be appointed to handle legal and financial affairs through the power of attorney in the event of the client’s incapacity. Next, we will consider what type of trust, if any, should be used, whether a simple will would suffice, who should be the trustees (for a trust) or executors (for a will), and what the plan of distribution should be. In order to avoid a conflict, the trustees who are chosen in lieu of the grantor should be the same persons named on the power of attorney. At this point, great care should also be taken to ensure that the feelings of the heirs will not be hurt. Good estate planning looks at the client’s estate from the heirs’ point of view as well as the client’s. For example, if there are three children, it may be preferable that one be named as trustee or executor, as three are usually too cumbersome and if the client chooses only two, then they are leaving one out. If there are four or five children, we prefer to see two trustees or executors chosen. This way, the pressure will be reduced on just the one having to answer to all the others. More importantly, the others will feel far more secure that two siblings are jointly looking after their interests.

If the distribution is to be unequal, it may need to be discussed with the affected children ahead of time to forestall any ill will or even litigation after the parents have died. By considering the relative ages of the children, where they live, and their relationships amongst each other and with their parents, the advisor will generally find a way to craft a plan that accommodates the needs and desires of all parties concerned. Some of the techniques we find useful in this context are to offer a delayed distribution, such as twenty percent upon the death of the grantor, one-half of the remaining balance after five years, and the remainder after ten years. These same percentages may also be used at stated ages, such as thirty, thirty-five, and forty. Also, when leaving percentages of the estate, unless it is simply to the children in equal shares, it is often useful to determine the monetary value of those percentages in the client’s current estate. This will allow the client to see whether the amount is truly what they wish to bequeath. Percentage bequests to charities should be avoided so that the family may avoid having to account to the charity for the expenses of administering the estate.

In terms of the type of trust, we are generally looking at several options for most clients. It is important to determine whether there should be one trust or two. In order to avoid or reduce estate taxes, there should be two trusts for spouses whose estates exceed or may at a later date exceed the state and/or federal estate tax threshold. Should the trust be revocable or irrevocable? The latter is important for protecting assets from nursing home expenses subject to the five-year look-back period. Primary features of the irrevocable Medicaid trust are that neither the grantor nor the grantor’s spouse may be the trustee and that these trusts are income-only trusts. Most people choose one or more of their adult children to act as trustees of the irrevocable trust. Since principal is not available to the grantor, the client will not want to put all of their assets into such a trust. Assets that should be left out are IRA’s, 401(k)’s, 403(b)’s, etc. The principal of these qualified assets are generally exempt from Medicaid and should not be placed into a trust, as this would create a taxable event requiring income taxes to be paid on all of the IRA. If the institutionalized client has a community spouse, up to about one hundred thousand dollars may also be exempted. Notwithstanding that the home is exempt if the community spouse is living there, it is generally a good idea to protect the home sooner rather than to wait until the first spouse has passed, due to the five-year look-back period. It should be noted that the look-back means that from the time assets are transferred to the irrevocable trust, it takes five years before they are exempt, or protected from being required to be spent down on the ill person’s care before they qualify for Medicaid benefits. What if the client does not make the five years? Imagine that the client must go into the nursing home four years after the trust has been established. In such a case, by privately paying the nursing facility for the one year remaining, the family will be eligible for Medicaid after just the remaining year of the five-year penalty period has expired.

Although the Medicaid trust is termed irrevocable, the home may still be sold or other trust assets traded. The trust itself, through the actions of the trustees, may sell the house and purchase a condominium in the name of the trust so that the asset is still protected. The trust may sell one stock and buy another. For those clients who may wish to continue trading on their own, the adult child trustee may sign a third party authorization with the brokerage firm authorizing the parent to continue trading on the account. The trust continues to pay all income (i.e., interest and dividends) to the parent grantor. As such, the irrevocable trust payments should not affect the client’s lifestyle when added to any pensions, social security, and IRA distributions the client continues receiving from outside the trust. It should also be noted that while no separate tax return is needed for a revocable trust, the irrevocable trust requires an “informational return” which advises the IRS that the income is “passing through” to the grantors and will be reported on their individual returns.

If there is a disabled child, consideration will be given to creating a supplemental needs trust, which will pay over and above what the child may be receiving in government benefits, especially social security income and Medicaid, so that the inheritance will not disqualify them from those benefits.

Finally, with the size of estates having grown today to where middle class families are leaving substantial bequests to their children (depending, of course, on how many children they have), the trend is toward establishing trusts for the children to keep the inheritance in the bloodline. Variously termed inheritance trusts, heritage trusts, or dynasty trusts, these trusts may contain additional features, such as protecting the inheritance from a child’s divorce, lawsuits, creditors, and estate taxes when they die. The primary feature of all of these trusts for the heirs, however, is to provide that when the child dies, in most cases many years after the parent, the hard-earned assets of the family will not pass to a son-in-law or daughter-in-law who may get remarried, but rather to the grantor’s grandchildren. On the other hand, if the client wishes to favor the son-in-law or daughter-in-law, they may choose to provide that the trust, or a portion of it, continue as an “income only” trust for their adult child’s surviving spouse for their lifetime, and only thereafter to the Grantor’s grandchildren.

5. Applying for Medicaid Benefits
In the event the client requires home care or institutionalized care in a nursing home facility, an application for Medicaid benefits may be required. Due to complex asset and transfer rules, the application should be made with the aid of an experienced elder law attorney. Again, it is useful in this context for a confidential survey of the client’s assets, as well as any transfers of assets, to be filled out prior to the initial consultation. This form of financial survey will be significantly different from the one used for estate planning purposes. As a combined federal and state program, Medicaid asset and transfer rules vary significantly from state to state. A few techniques, nevertheless, will be widely applicable. First, in the event an adult child takes the parent into their home in order to care for them in their later years, a housing and care agreement should be executed so that assets may be legitimately moved from the parent to the child prior to any nursing home care. The adult child will be required to report any payments received under the agreement as earned income on their tax returns. Also, since the family home is usually the most significant asset, consideration will need to be given as to whether the home should be deeded to the client’s adult children while retaining a life estate in the parent or whether the irrevocable Medicaid trust should be used to protect the asset.

While the deed with a life estate will be less costly to the client, in most cases it offers significant disadvantages when compare to the trust. First, if the home is sold prior to the death of the Medicaid recipient, the life estate value of the home will be required to be paid towards their care. If the house is rented, the rents are payable to the nursing facility since they belong to the life tenant. Finally, the client loses a significant portion of their capital gains tax exclusion for the sale of their primary residence as they will only be entitled to a pro rata share based on the value of the life estate to the home as a whole. All of the foregoing may lead to a situation where the family finds they must maintain a vacant home for many years. Conversely, a properly drafted irrevocable Medicaid trust preserves the full capital gains tax exclusion on the primary residence and the home may be sold by the trust without obligation to make payment of any of the principal towards the client’s care, assuming we have passed the look back period. It should be noted here that both the life estate and the irrevocable Medicaid trust will preserve the stepped-up basis in the property provided it is only sold after the death of the parent who was the owner or grantor. Upon the death of the parent, the basis for calculating the capital gains tax is stepped up from what the parent paid, plus any improvements, to what it was worth on the parent’s date of death. This effectively eliminates payment of capital gains taxes on the sale of appreciated property, such as the home, after the parent dies. Both the revocable and irrevocable trusts also preserve any tax exemptions that the client may have on their home, such as senior and veteran’s exemptions.

Finally, even with a client already in a nursing home, significant assets may be saved through advanced techniques that are beyond the scope of this guide. Please consult your elder law attorney for further information if you or a family member is in this situation.

Major Mistakes in Estate Planning and Elder Law

1. Failure to address all of the issues.
A comprehensive review of the client’s situation should address planning for disability as well as for death, including minimizing or avoiding estate taxes and legal fees and proceedings. A plan should be in place to protect assets from nursing home costs. Like a chess player, counsel should look ahead two or three moves in order to determine what may happen in the future. For example, attorneys will too often place a majority of the assets in the wife’s name or in her trust in light of the husband having significant IRA assets in his account. However, since the husband is often older and has a shorter life expectancy, this may result in the IRA assets rolling over to the wife, all of the couple’s assets ending up in the wife’s estate, and no estate tax savings effected. Another example would be where the client’s children are in a second marriage but have children (the client’s grandchildren) from a previous marriage. Unless planning is done with inheritance trusts for the client’s children, a situation may occur one day where the client’s child predeceases their second spouse, all assets pass to the second spouse, and the client’s grandchildren, from a son or daughter’s prior marriage, are denied any benefit from the grantor’s estate.

2. Failure to Regularly Review the Estate Plan
At a minimum, each client’s estate plan should be reviewed every three years to determine whether changes in the client’s personal life, such as their health, assets, or family history (births, deaths, marriages, divorces, etc.) impact the plan. It is unrealistic to expect a plan established today to be effective ten, twenty, thirty, or more years in the future. Over time, clients will want to change their back-up trustees or plan of distribution. They may wish to add inheritance trusts for their children. They might, after a number of years, wish to change from a revocable trust to an irrevocable trust because they were unable or unwilling to obtain long-term care insurance. The attorney will benefit from the additional legal work needed, and the client will benefit from having a plan better suited to their current needs at any given time.

Conclusion
Despite the knowledge, earnestness and even charm of some of the finest practitioners in the land, clients occasionally do not act on the advice given. As experienced attorneys, we know not to take it personally when clients choose to ignore our advice or perhaps choose other counsel. We know that people don’t always do what they need to. They do what they want to and, even then, only when they want to. Recently, a ninety-three year old client told us that she “wanted to think about it” so far as planning her affairs. Experience tells us that this client is not ready to plan at the present time, despite her advanced years, and we respect that choice. On the other hand, we recently had a client come in to see us eleven years after their initial consultation stating that they were now ready to proceed. We prepared their estate plan.

Perhaps the best approach to the estate planning and elder law practice is to follow the four SW’s. Some will, some won’t, so what, someone’s waiting. We move forward, help those who will allow themselves to be helped by us and keep turning towards those to whom our firm’s services are appreciated, admired, and sometimes even considered heroic.

Principal attorney Michael Ettinger has been a member of the New York State Bar Association since 1980. He is a law graduate of McGill University in Montreal, Canada and obtained his Master of Laws from the London School of Economics in 1978. Ettinger Law Firm, dedicated exclusively to estate planning and elder law, was formed in 1991. Mr. Ettinger is a founding member of both the American Academy of Estate Planning Attorneys and the American Association of Trust, Estate and Elder Law Attorneys.

Ettinger Law Firm has prepared thousands of estate plans using trusts and Medicaid applications. Their staff of attorneys and experienced Medicaid professionals provide over fifty years of combined experience in estate planning and elder law.

Ettinger Law Firm offices are located throughout New York State in Albany, Fishkill, Nyack, White Plains and Staten Island.