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.

Recruitment Law – The Importance of Knowing the Regulations

As a recruitment consultant your days are generally spent focusing on making sales and dealing with client requirements. Getting roles, finding candidates, chasing feedback, organizing interviews, the list goes on, leaving little time to focus on the clients themselves. But with such focus on making a sale, are you inadvertently leaving your clients open to risks?

Over the past few years government legislation has tightened the regulations governing employment law, yet very few recruitment consultants are aware of the implications that theses changes have for their clients. It is shocking to think that companies are using agencies to provide services that are potentially opening them up to law suits that may cost them millions of pounds.

There have been numerous instances over the past few years which have brought home the risks faced by employers today. The most notable of which was the case of Muscat vs. Cable & Wireless Plc. In this case, a temporary worker was able to successfully sue Cable & Wireless for wrongful dismissal because the contractor was able to prove that the working situation was one of “implied employment”.

“Implied Employment” refers to a situation where a contractor working for a client through a Limited Company and a recruitment agency is treated by the client the same as a permanent employee. This includes having to organize annual leave, contract extensions and pay rises with the client directly. From a recruitment agency standpoint, this is unacceptable.

First and foremost, there is rarely a direct contract between a contractor and a client, the contract is between the contractor’s Limited Company and the agency. The agency will then have a contract with the client to provide the services of the contractor’s Limited Company, not the contractor specifically. Quite simply, any contractual negotiations, any annual leave, sick leave etc, all of this must go through the recruitment agency. Line managers who involve themselves in these conversations or behaviours are opening themselves and their companies up to some serious legal risks.

Yet many agencies do not train their consultants about these regulations or the risks that their clients face. It is understandable that managers within an organization would not be aware of the legal aspects of hiring contractors. Therefore it is the responsibility of the recruitment agency to ensure that the client is aware of the risks and that the consultant ensures that both the contractor and the managers work in such a way as to negate those risks.

Thankfully these lawsuits do not happen very often but this does not mean that recruitment consultants can continue to be complacent. These cases still happen, this behaviour still continues and clients are still put at risk because consultants are not trained sufficiently in the requirements of contract law.
By no means should recruitment consultants become employment law experts, but it is important if they are working within recruitment, to understand the simple things which can be done to minimize these risks.

Firstly, consultants should always read the contracts which go out to their contractors. If at any point a contract uses terms like “the employee” or “the team” this can be considered implied employment. The contractor must always be referred to as “the Limited Company” or “the Company”. That is because the contract is with the Limited Company, not the individual contractor, hence the presence of the right of substitution clause.

It needs to be reinforced that any contractual negotiations or annual leave must go through the agency. As the contract is between the agency and the client, the contractor and the client have no legal grounds to make these negotiations, only the agency can negotiate with the client on behalf of the Limited Company.

It is recommended that recruitment consultants understand the basics of the IR35 regulations. These are all laws which govern the industry that you work in and can have a direct impact on your working life.

To learn more, speak to your agency’s legal team. They should be in a position to provide training and information about the regulations and give a deeper understanding about the nuances of contract law. For more information on the Muscat vs. Cable & Wireless Plc case visit : http://www.msi-network.com/Content/general/UK_employment_law_update_3.aspx

Look beyond the sales and understand your industry. Not only will you be protecting your clients and your contractors, you will be building trust with them making yourself a consultant they will want to work with again and again.

Copyright 2007 © Mandy Leonard

Mandy Leonard is a co-founder of Enabled IT, which specializes on working in partnership with clients to provide a customer centric recruitment solution. With experience in both the recruitment and technical sector, she has specialized in sales training to optimize the abilities of sales forces and open up effective, mutually beneficial business opportunities within new and existing clients. She is also the author of “Micromanagement: Killing Employee Morale”.

Five Common Reasons To Consult An Elder Law Attorney

You may have heard of the term ‘elder law’ and wondered what, exactly, it meant. Simply put, an elder law specialist has taken the time to learn as much as possible about any laws affecting the lives of senior citizens and their families. There are many different issues that fall under the elder law heading, but some of the most common are outlined here.

Protecting Seniors From Abuse

This is one of the most distressing examples of why you may want to consult an attorney specializing in concerns of the elderly. If you have an aged parent who is in a nursing home, receiving skilled nursing care, or being cared for by someone else and you suspect that your parent is being neglected or abused, you must consult with a litigation attorney as soon as possible who specializes in cases of elder abuse. They can give you the guidance and support you need while investigating and filing suit against the abuser or abusers. Protecting the dignity and welfare of seniors is one of the most rewarding aspects of handling legal issues for the elderly.

Helping With Financial Planning

If you’re getting ready to retire, an elder law specialist who has experience in financial planning can help you develop a solid, long-term financial plan that will protect your finances while allowing you to live comfortably in your golden years. Estate lawyers can also help you choose an appropriate nursing home or assisted living facility when the time comes and oversee your finances to make sure your bills are paid and your property is handled correctly.

Estate Planning

It’s crucial that a properly executed will is prepared for you in order to make sure your estate is handled properly after your death. Meeting with estate lawyers to discuss your heirs and last wishes is crucial if you have an estate of any size. A will that clearly and concisely states who will inherit what and how your estate is to be distributed can prevent your heirs from squabbling about your estate after you’ve passed away. Writing a will and structuring an estate in order to protect your assets even after your death is one of the most common reasons people consult with elder law attorneys.

Social Security Disputes

Social security is a financial safety net for many seniors after retirement. Depending on the monthly checks you receive from social security can be difficult, particularly if you don’t feel you’re receiving appropriate benefits. If you have a dispute over your social security payments, an elder law litigation attorney can represent you and protect your interests, helping you get the social security benefits you deserve.

Grandparents’ Rights

Litigation attorneys can represent grandparents who have lost contact with their grandchildren through no fault of their own. A divorce or separation is always heart wrenching, but when parents use their children as weapons in an unpleasant divorce, it is often the grandparents who suffer when an unhappy parent won’t let children visit grandparents who are the family of their ex-spouse. Fortunately, there are elder laws that cover such situations, and an experienced litigation attorney can work with family courts to ensure you are able to continue enjoying a relationship with your grandchildren.

If you or a loved one is facing an elder law issue, consulting with experienced estate lawyers or getting a litigation attorney who is familiar with legal issues concerning the elderly is your best bet for resolving the issue to your satisfaction.

Things to Consider When Hiring a Family Law Lawyer

A family law lawyer specializes in matters relating to issues that surround the family. These can include marriage, divorce, child support, spousal alimony, guardianship, adoption, domestic violence and child abuse.

Choosing a family law lawyer is an important decision, especially when dealing with child abuse and domestic violence. These legal issues are highly-charged events that require attorneys who are well-versed in domestic relations law and child advocacy.

Divorce can also be an emotionally-volatile arena that requires lawyers who can help both parties work through their differences while obtaining a fair settlement. When children are involved it is important to work with attorneys who will fight for the rights of minor children to ensure adequate child support is provided.

Issues related to family law often require clients to work closely with their chosen lawyer. It is best to determine what qualities you prefer before interviewing attorneys. Do you prefer a male or female lawyer? Do you require an aggressive attorney or one who remains calm? Do you need a lawyer with years of experience of would a recent law school graduate suffice?

It can be helpful to create a list of questions, concerns, and the desired outcome. Organize all records pertaining to the legal issue. For example, divorce lawyers will require financial records, real estate deeds, automobile titles, current and previous years’ tax returns, and information surrounding minor children.

It can be beneficial to interview three or more attorneys to determine which is best suited for your needs. Most law firms offer gratis meet-and-greet consultations while others assess a minimal fee. When arranging appointments inquire about initial consultation fees and what documents should be brought to the meeting.

During the meeting it is important to determine cost estimates. Family law lawyers normally require clients to provide an upfront retainer. This typically ranges between 25- and 50-percent of expected costs.

Legal fees are usually assessed at an hourly rate, but some cases are charged as a flat fee. Cases requiring extensive research and court appearances are typically billed hourly. Cases involving minimal work, such as a legal name change, are billed at a flat rate.

Law firms also assess backend fees to cover the cost of phone consultations, court filing fees, copying and faxing documents, and postage fees. Some attorneys deduct these costs from the retainer, while others remit monthly invoices.

The majority of family law lawyers require payment at the time services are rendered. However, some will allow clients to develop a payment plan. It is important to determine payment schedules to ensure you can comply. When payment plans are allowed, it is smart to obtain the plan in writing so that all parties understand payment amounts and due dates.

Individuals who require services from a family law lawyer, but cannot afford legal fees may qualify for pro bono services. Much depends on earned income and circumstances surrounding the case.

If possible, obtain family law lawyer referrals from family or friends. This can minimize time spent searching for or consulting with attorneys. Those unable to obtain referrals can utilize the Internet or telephone directories to locate law firms.

Another source for locating reputable attorneys is the American Bar Association website at abanet.org. The ABA does not offer recommendations, but instead publish a list of nationwide family law lawyers who are in good standing with the organization.

Working with a reputable family law lawyer can ease the burdens often associated with legal cases. Real estate investor and probate liquidator, Simon Volkov, shares additional tips for locating the best attorney to handle your case. Learn more by visiting www.SimonVolkov.com.

Finding Family Law Attorneys

Family law is a body of law that encompasses a wide array of issues related to family and domestic matters. A person faced with a family or domestic law issue may feel stress because of it’s often complex nature. There are attorneys that specialize and practice primarily in this area of law.

Lawyers can deal with many issues that involve family and domestic related matters. Family law addresses marriage, civil unions and even domestic partnerships. Other issues that fall under the body of family law include adoption, legitimacy, surrogacy, spousal abuse, child abuse, and child adoption. Family law further encompasses matters such as divorce, property settlements, annulment, alimony, and parental responsibility (child support, child custody/visitation, and alimony).

Many attorneys limit their practice of law to the area focusing on family matters. Many family attorneys receive additional education and certification after passing the bar exam. These attorneys can become board certified to practice in family law.

When choosing the right family attorneys you have a variety of different options to help you find and select an experienced attorney. One way to locate reputable family law attorneys is to use the attorney referral service through the state or city bar association. The attorney referral service through the bar association will provide you a number of qualified attorneys in good standing.

Referrals from relatives, friends, neighbors or co-workers are also extremely useful in locating family law attorneys. This type of referral is useful because it will help you choose an attorney based on knowledge from someone who has been through an experience that may be similar to your situation. It will also help you evaluate the attorney based upon their representation of an actual client.

Once you have selected at least three of four potential family law attorneys you can then prepare for you initial consultation. The initial consultation not only provides you the opportunity to discuss your matter but to also evaluate the attorney. You will want to focus on key indicators such as how well the attorney carefully pays attention while you are discussing your specific family issues.

Another important indicator to focus on will be the response of the attorney after you go over the facts of your case. A good attorney will explain the law as it relates to your situation so you can understand and ask additional questions if necessary. An attorney that uses legal jargon and does not clearly explain the law is one you may not want to retain as this indicates their lack of skill when working with a client.

Initial consultations with attorneys will also cover retainers, fee agreements, and other necessary information. Always be prepared to provide documentation that relates to and supports your position and your case. With respect to the retainer and fee agreement you will want to carefully read over and ask questions so that you understand what agreement you will be entering into if you decide to hire the attorney.

When dealing with a family law matter you will want to take you time in choosing an attorney. Family lawyers recommend that prospective clients take some time to reflect on their initial consultation before making a selection.

For more information on finding the right general practice attorneys [http://www.thebestattorneysonline.com/] and to access more resources on child support attorneys [http://www.thebestattorneysonline.com/child-support-attorneys.html] visit our site today.

Personal Injury Law Attorney – How Soon Should I See a Lawyer After a Personal Injury Or Accident?

You should see a personal injury law attorney AS SOON AS POSSIBLE after you’ve been hurt or injured in an accident. Better safe than sorry. Too many clients with legitimate claims sadly discover their claim is ruined because accident victims have waited too long to consult with a lawyer. By the time some clients get around to visit a personal injury law attorney for their free consultation, the limitation period to make a claim may have expired, important forms have not been filled out correctly, or a proper treatment/action plan has not been set up such that the personal injury claim is destined to fail. This is not good. You should take advantage of your personal injury law attorney’s offer for a free no risk consultation so that your claim is not ruined.

In Ontario, you generally have two years from the date which you knew or ought to have known you have a cause of action to advance your claim. This limitation period generally commences from the date of the injury, accident/loss. Some claims have different limitation periods. The limitation period in dealing with minors begins to run as soon as that person reaches the age of majority. In cases against a municipality, you have to give written notice of your claim within 10 days of the date of loss. Different limitation periods and different facts make it very important to consult with a personal injury law attorney as soon as possible.

If you’re not able to leave your home or the hospital because of the severity of your injuries, any personal injury law attorney worth his merit will gladly visit you at your home or at the hospital to meet with you and your family to discuss your personal injury claim in order to protect and preserve your rights.

Your personal injury lawyer likely knows what steps need to be taken in order to put you and your family in the best possible position to succeed and cope following the traumatic injury and loss of an accident. Not consulting with a lawyer immediately after the accident is sitting on your legal rights and allowing the wrongdoer to get away with his/her bad actions which may have caused your loss/injury.

A personal injury law attorney can only help you if you following the law. The longer you wait the more difficult it becomes to prepare a strong case – and a strong case is extremely important for YOU. So don’t let time go by after you have been injured. And remember the law is on your side and a good personal injury law attorney can make it easy and painless to collect a fair sum of money that is rightfully yours.