Sunday, August 17, 2014

Justice in Ferguson, Missouri

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A PERSONAL STATEMENT BY ROD POWELL


 Recent events in Ferguson, Missouri, have garnered international headlines and been the subject of sensationalized news treatment. During my career, I invested considerable effort to improve Ferguson, Missouri, by serving as chairman of its Board of Housing Appeals and as president of the parent-teacher’s organization at one of its schools. I was active in city council politics, and I was even invited to sit on the school board that included Ferguson. This was while I was employed as the managing attorney for the St. Louis County Office for Legal Services of Eastern Missouri – the legal aid office for the St. Louis, Missouri, area.

Because of that background, I have watched unfolding events in Ferguson with considerable interest. Ferguson was not – and is not – a wealthy St. Louis suburb. I know from my years as an active Ferguson resident, though, that the citizens of the community are decent, hardworking Americans – no matter what their race may be. Like most Americans, they are the victims of the growing income inequality illustrated by prominent economists such as Thomas Piketty, Joseph Stiglitz, Robert Reich, and Paul Krugman. This inequality does not abide by racial boundaries, but affects most middle and lower class Americans. It inevitably leads to the types of confrontations that are occurring in Ferguson. The fact that the Ferguson police department, like many other departments across the country, has become over-militarized did not help the situation on the frontlines.

My friend and colleague Richard B. Teitleman, who is past chief judge of the Missouri Supreme Court, put it best in his comments at Drake University in Des Moines earlier this year when he noted that as lawyers, we must be concerned about seeking justice for all of our citizens. That justice, however, must not be of the kind noted by French author Anatole France in 1894, when he observed, “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”  This is an example of “legal injustice.” Our justice system must be one in which all levels and arms of our government actively endeavor to end income inequality by increasing real, meaningful equality of opportunity and thereby promote the “general welfare” envisioned by the authors of our Constitution.

The preamble to the U.S. Constitution adopted at Philadelphia over 225 years ago by the founders of our nation sets forth six goals for our nation. They are (1) a more perfect union, (2) justice, (3) domestic tranquility, (4) a common defense, (5) promotion of the general welfare, and (6) secure the blessings of liberty to ourselves and our posterity. Each of those components depend on each other for our nation to achieve the remaining goals.

Ferguson, Missouri, is merely a symptom of America’s failure to achieve meaningful progress toward the true justice envisioned by our Constitution. It is not an easy journey. As a friend observed this morning, today it is Ferguson, but tomorrow it will be somewhere else in America. Most Americans now hang by the thread of one paycheck. Racism is still with us because of the failure of our nation to achieve true justice and promote the general welfare. We must redouble our efforts to end income inequality, enhance the equality of opportunity, and achieve true justice.

Saturday, June 14, 2014

Probate - Is It Really a Dirty Word?

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PROBATE

WHAT IS IT AND IS IT REALLY NECESSARY?



We often hear people say that they don't want their estate to be tied up in probate court. There is a popular television financial “advisor” who has made a great deal of money preaching that listeners should avoid probate at all costs and that it is financially unwise to permit their estates to go through probate. This is at the same time that the “advisor” is selling “one-size-fits-all”/ “do-it-yourself” trust and will kits. Given the prevalence of such views, it's important to have a no-nonsense, down to earth discussion about what probate really is.

What is probate?

Probate is simply a legal procedure to ensure that your wishes, as the author of your will, are honored. Similarly, it is also a way that your rights, if you are the beneficiary or an heir of an estate are protected. An impartial judge through court procedures supervises this process, and an executor (if there is a will) or an administrator (if there is no will) will be appointed by the judge to do the work necessary to handle the affairs of the deceased person. The executor of administrator usually designates an attorney to assist with the legal filings required in a probate matter.

What is an estate?

Your estate is simply all the assets you own and all of the debts that you owe on the day of your death. This includes household goods, bank accounts, retirement accounts, motor vehicles, and other personal property, but also real estate such as your home, timeshares, oil and mineral rights, and other rights to real estate.

Do all estates have to be probated?

State law and probate rules provide procedures for all levels of estates. In Iowa, unless there is real estate, estates with the gross value of less than $50,000 can be probated informally through an affidavit process. Estates between $50,000 and $100,000 are permitted to go through an expedited small estate procedure with a minimum of supervision by the judge. Finally, estates with a value of over $100,000 are required to go through a more formal and regulated probate procedure.

What will it cost me to probate the estate?

In most cases, it will not cost the heirs or beneficiaries anything to have an estate probated. The fees, court costs, and expenses come from the assets of the estate itself. In Iowa, for estates with a value of over $100,000 the attorney’s fees will be approximately 2% of the gross value of the estate. If, however, the attorney is required to provide assistance over and above what is normally required, then “extraordinary fees” may be awarded. This type of situation could occur, for example, if someone challenges the will or if complex real estate matters need to be attended to. In estates valued at under $100,000, the attorney can charge a reasonable fee based upon the attorney’s hourly rate. In most cases this will be over 2% because much of the same work must be done as in a larger estate.

What if I die without a will, does my estate still have to go through probate?

Yes, all estates must be probated. The procedures are very similar both for an estate with a will and those without a will. If there is a will, this is called a "testate estate." If there is no will, then it is called an "intestate estate." Unfortunately, however, because the deceased person has left no direction for the court, the personal representative appointed by the court will have much less flexibility and need more court approval for items than if the deceased person had actually just left a will.

How long does it take to Probate a Will or an Estate?

In his book, Bleak House, about life in Victorian England, British author Charles Dickens describes an estate that took generations to work its way through the courts. Fortunately, that is not the case in modern America. Although, there are circumstances such as when there are appeals and disputes among the heirs, or people who believe that they should be heirs that can give rise to a probate case taking many years, most probate matters can be finished within one or two years. If it is a small estate, then it is not unusual for it to be closed in a matter of months.



What if the deceased has a will, but did not want to pay a lawyer to help write it?

All wills are carefully scrutinized to ensure that Iowa law was followed relating to execution and content of the wills. This is especially true when a will was executed without legal guidance. Potential red flags in a will are the failure to acknowledge children of the deceased, or execution irregularities. Examples of these are situations where the will was witnessed on a different date than it was notarized. Sometimes individuals who are beneficiaries have also acted as witnesses. Finally if the will was not notarized, then it may be necessary to find the witnesses and have them execute affidavits or in some instances give in court testimony. This can make probate of the will more difficult and possibly much more expensive.

Do I need to hire a lawyer to help me go through probate court?

There is no law that requires you to hire a lawyer to help you to probate a deceased person’s estate. Nevertheless, probating that estate will go much quicker and smoothly if an attorney who understands the probate system is involved. This is a situation where trying to save a little bit of money could cost a great deal of aggravation.

What if the person who died had no property or belongings of value?

Even if the person who died had no property or belongings of value, you should nevertheless consult with an attorney to determine if anything needs to be done. It may be that the person who died was owed money by others, or had claims to property that was not actually in their possession. In any event, that person’s will should be filed with the clerk of court in the county where the deceased last resided.

If I don’t like how the executor or administrator is handling the probate case, can I hire my own attorney and contest what they are doing?

Yes, any heir, person who believes they should be an heir, co-executor, or co-administrator can hire their own attorney. You should be aware though, that if you do, you are personally responsible for the fees, not the estate, and the judge is not required to approve the fees.

© Rod Powell 2014

Saturday, May 31, 2014

MAKE YOUR NEW BUSINESS A SUCCESS

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“To believe your own thought, to believe that what is true for you in your private heart is true for all men – that is, genius.”  Ralph Waldo Emerson, Self-Reliance (1841)



Over the years, the Powell Law Firm has been privileged to be selected to serve many aspiring entrepreneurs with the launch of their new businesses. These businesses have included manufacturing concerns, retail businesses, restaurants, financial enterprises, and construction firms. They have ranged from purely local businesses to enterprises that have been national in scope.  Because of the long standing experience which we have had with new businesses and because we are dedicated to our new business clients, we are in the special position to assist you in creating your new business.

All of these undertakings have carried with them the dreams of the individuals who created them.   Many of these concerns have thrived, but unfortunately, we have watched some be abandoned by the very entrepreneurs who had successfully launched them.  It has been – and is – our earnest goal that each of the new businesses that we assist be successful in achieving the goals of the enterprising person who first had the courage to act on his or her dream. There are two initial keys to the success of a new business.

The first key for a new enterprise is to get good, personal legal advice at the time of creation of the business, as well as at critical junctures of its development, from an attorney who knows and understands your dreams. This cannot be short circuited by “how to” books or unreliable assurances by internet sources. Expensive mistakes are often made by business owners who try to save a few dollars in legal fees.

To ensure the success of your new business, it is important to wisely consider which legal structure you wish to utilize. Once that decision is made, all of the structure should be promptly put in place to ensure business success. This short article will only focus on the most common legal structures that can be adopted by a new business. Those are: 

• Sole Proprietorship:  This type of business is the most popular business entity in the United States. It usually consists of a single individual who is ultimately responsible for the business. This type of enterprise can be risky because all liabilities are personally assumed by that individual. 

• Partnership: A partnership is formed when two or more people, or other business entities, decide to jointly undertake a business. They will jointly share in the profits, losses, and legal responsibilities of the business. If the business is solely for one task, it is often called a joint venture. Partnerships of all types should always have a written partnership agreement which clearly sets forth the responsibilities of the partners. State statutes and case law set forth the content of these agreements.

• Regular Business Corporation: Corporations are formed to help the founders avoid personal liability for the actions of the corporation. State law usually requires that the corporate name must include the words “corporation”, “incorporated”, “company”, “limited”, or their abbreviations. Regular business corporations should not be confused with more specialized professional businesses which will not be discussed in this article. Corporations must always be registered with the Secretary of State for the state in which they are incorporated and provide for the issuance of stock, even if there is only one owner. Regular corporations are also required to follow certain “corporate formalities" set forth in state statute in order to shield the incorporators from personal liability.  An IRS Subchapter S election is available to pass certain tax savings onto the incorporators.

• Limited Liability Corporations (LLC): This type of business was created to combine the protections that corporations enjoy with what was perceived to be greater flexibility of a sole proprietorship or partnership. Like regular corporations, limited liability corporations must also follow certain “corporate formalities" set forth in state statute to avoid personal liability.  LLC’s are increasingly popular with small businesses because they allow the pass through taxation of business profits while still protecting the owners from personal liability.

• Non-profit Businesses: There may be certain instances where the new business  is not set up to make a profit, but instead to work for what the founders believe is some social good. To avoid personal liability, these are often set up as not-for-profit corporations. Like regular corporations and limited liability corporations, certain “corporate formalities" should also be followed with not-for-profit businesses.  This is especially true if the company is seeking charitable 501(c)(3) status with the U.S. Internal Revenue Service.

Successfully creating the legal structure for your business is only the beginning. The second initial key to success is the development of written business and marketing plans that clearly set forth the vision and goals of the enterprise.  Without this step, a new business is unlikely to succeed. All employees of the business should be aware of these plans, and even participate in their creation under certain circumstances, especially if they are being created after the business has been launched. There are many resources available to assist with this step, including some attorneys. Only through the implementation of this second step can substance be added to the legal structure, thereby helping your dream become a success.


Sunday, May 11, 2014

PLANNING AHEAD TO HELP THE ONES YOU LOVE


–FINAL DISPOSITION DECLARATIONS–

 All of the world’s great religious faiths teach the importance of planning – out of love –­ to help our families and those who will be left when our time on this earth is at an end. At the Powell Law Firm, we have been part of that planning process for thousands of families. While most people are familiar with wills, living wills, and powers of attorney, they may not be aware of Final Disposition Directives.

In 2008, the Iowa legislature enacted the Final Disposition Act. This statute provides for an advance directive to cover that period between when an individual dies and when the person’s will or estate is probated. It was meant to solve disputes between family members as to how to deal with the final arrangements and the remains of the deceased. It specifically gives great power to the person who has died by giving them the authority to designate somebody to handle that person’s final arrangements. In Iowa, the document is a normally a simple one page document entitled, "Final Disposition Declaration." The contents of the declaration are specifically mandated by the statute.

Where should I keep my Final Disposition Declaration?

Iowa law expressly requires that the Final Disposition Declaration must be "contained in or attached to a durable power of attorney for health care." The reason for this requirement is to help ensure that the Final Disposition Declaration is immediately accessible for time sensitive end of life decision-making.

What if I change my mind and want to designate a different person as my designee?

To revoke or change a Final Disposition Declaration, you must make a declaration in writing which is signed by you and state that you want the declaration revoked. You can then execute a new Final Dispositon Declaration. Further, if you get divorced, that constitutes an automatic revocation of a spouse as your designee. Finally, a declaration will be ineffective if your designee is unable or unwilling to serve as the designee.

Is there any way that my designee’s authority can be forfeited?

The designee can forfeit the right to act under your declaration if one of two circumstances occurs. First, if your designee is charged with murdering you or is charged with voluntary manslaughter of you, then this declaration is forfeited. No conviction is required because that would only come months later. Second, if your designee does not exercise his or her authority within 24 hours of receiving notification of your death or within 40 hours of your death, whichever is earlier, then the designee’s authority is also forfeited. That is why it is critical that the Final Disposition Declaration be immediately available.

Is my declaration valid in any state besides Iowa?

Yes, it is valid in all states of United States, the District of Columbia, and all territorial possessions of United States. This is because the United States Constitution requires that the laws of one state shall have the full force and effect of law in all other states.

What if I donate my organs or my body as an anatomical gift?

Iowa law provides that the rights of a medical college or other recipient of an anatomical gift are superior to those of your designee under the Final Disposition Declaration. This means that if there is any conflict between your Final Disposition Declaration and the donation of that anatomical gift, that the anatomical gift will be honored before your Final Disposition Declaration.

Why can't I specify in the Final Disposition Declaration how I want my funeral and burial proceedings to be handled?

When the law permitting Final Disposition Declarations to be used in Iowa was being considered by the Iowa legislature, part of the statute originally permitted such directions to be included in the Final Disposition Declaration. That provision, however, was removed prior to final enactment. Because of that action, the Iowa Supreme Court has specifically held that Final Disposition Declarations cannot contain previsions setting forth how you want your funeral to be handled or where you want to be buried. This does not mean that you cannot tell your designee orally or in writing how you want those matters to be handled. Such direction, though, will not be legally enforceable.

Thursday, July 4, 2013

Independence Day: A Time to Rededicate




We usually think of the 4th of July as festivities such as fireworks, parades, and BBQ’s.  What is often lost in that observation is the fact that Independence Day is really a celebration of thinking big, and of overcoming monumental obstacles thrown in our paths by our enemies, events, and our own personal flaws, and misguided strategies.

After independence was declared in Philadelphia on July 4, 1776, there were many difficult and seemingly impossible obstacles faced by our “would be” nation. Battles were lost, the economies of the colonies were in shambles, and many residents of the colonies were actually convinced that the rag tag Continental Army and ad hoc militias were no match for the greatest power of the time – the British Empire. Those enemies of independence were continually throwing up barriers, even on the eve of the final victory of American Independence at Yorktown on October 19, 1781.  For example, just two months earlier on September 3, 1781, a colonial cavalry unit under the command of my ancestor, Capt. John Ridgeway, was massacred in the “Cane Break Massacre” in South Carolina by a loyalist unit subject to the charge of Bloody Bill Cunningham.  Despite this discouraging last minute defeat and others like it, victory was nevertheless realized at Yorktown the very next month.

During my legal career spanning over 40 years, I have been witness to the dreams and troubles of thousands of people and small business owners. Those who ultimately succeeded refused to surrender to the enemies in their lives – whether those enemies were external or internal. Often the greatest challenges occurred just before their greatest victory. The lessons of the American Revolution are still with us today through our individual lives.

My own legal career has also faced the challenges of “enemies” – whether that enemy was the well-meaning naysaying of family and friends, my own misguided trust in colleagues, clients, and employees, or my own personal flaws such as over commitment, the procrastinating of difficult decisions, or the failure to exercise proper leadership.

For all of us, this Independence Day weekend is a time to recommit our personal and professional lives to the lessons of the American struggle to be free from colonial rule. These are the lessons of setting high goals, recognizing that many will constantly try to derail our efforts to achieve those goals and the requirment to confront those challenges head on, and the need to be persistent in our efforts to achieve our goals. This is how the American dream can be realized in each of our lives.

© Rod Powell

Saturday, November 17, 2012

Tips for Working With An Attorney


Preparing for Your Visit with
Your Attorney

Chances are that at some point in your life you will find yourself facing a legal problem requiring the assistance of an attorney.  Whether you are involved in a contract dispute, a personal injury dispute, a divorce, or simply need to have a will prepared, the following tips will help your consultation with your attorney go more smoothly, and may save you time and legal fees:

1.         Gather all relevant documents and take them with you to your consultation.  This may include contracts, invoices, receipts, letters, or anything else related to your legal issue.  This will help your attorney thoroughly evaluate your case and could help move your case along faster.

2.         Make a list of all people who are involved with your legal issue, and their addresses and telephone numbers.  This may include potential witnesses, doctors that treated your injury, or other people that have information about your case. 

3.         If you have been served with a lawsuit (or any other papers) by the sheriff or a process server, make a note of the date you were served, and tell your attorney that date.  There are strict time limits for responding to a lawsuit.

4.         Make a list of all issues and questions that you want to discuss with your attorney.  This will help avoid repeated telephone calls and visits, and will save you both time and attorney’s fees.

5.         Remember, what you tell your attorney will be kept confidential.  Do not be afraid to tell your attorney everything that is relevant to your case – even things you think might harm your case.  It is better to deal with problems from the outset, than to be surprised by them later, at some critical stage of litigation.

6.   Finally, be prepared to discuss the payment of legal fees.  You may be asked to sign a fee agreement with your attorney detail how your attorney will be compensated for his or her services  (i.e. flat fee, hourly, or contingency).  Depending on the type of case, your attorney may ask you to pay a retainer before he or she begins work on your case.

© Rod Powell 2012

Friday, March 6, 2009

High Stakes

Most people would rather not think about what would happen if they were to die.  We all suppose that we are somehow immortal. This is true in good times as well as unjust times. 

But, good times or unjust times, we all owe it to our family and those who care for us to ensure that when the inevitable happens, that we have taken at least the basic steps to ensure a smooth transition to the next generation.  

Even if you have little or no property, such planning is always important. In Iowa, as well as most states, there are at least four items that you should have a lawyer draft for you.  They are: (1) a will; (2) a living will and durable power of attorney for health care decisions; (3) a general power of attorney; and (4) a final disposition declaration. Depending on the nature of your estate, you may also want to consider utilizing a revocable living trust.  Although samples of these documents can be found on the internet, you should never undertake to put these into effect without at least consulting an attorney.  The stakes are simply too high to try to save a few dollars at the out set.  During my career I have seen too many cases where individuals tried to save money at the beginning only to have their family pay much more money at the end.

© Rod Powell