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Am I really “THAT” Old?!?  And if so, what steps to take once I admit I am no longer 29?

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Written By Karen Elise Robbins
August 22, 2022

 

My birthday is in August. It is a great time of year to enjoy the day and conveniently forget how to count. After all, what is the purpose in subtracting the current year from the year I was born to reinforce the fact that I am no longer twenty-nine, or thirty-nine….? Okay, I believe you get the picture.  Can you imagine my shock and dismay when in the mailbox I recently received a welcome envelope from AARP? I double checked and, yes, it was in fact my name on the envelope. I did not sign up; I did quickly recycle the mailer, and then I determined it was a good catalyst for this blog post.

Most parents realize that they need to have a will in order to specify who will raise their children should the worst come to pass. These wills might simply leave everything to the children in some form of trust, and name the desired guardians. Locating the will and admitting it to probate can take time. Connecticut, however, allows for Guardianship Memorandums.  Simply put, these super brief documents when drafted and executed correctly, can be brought to the probate court and the judge can immediately appoint the chosen guardian while the rest of the will slowly meanders through the legal system.

At a minimum, what other documents in addition to a basic will and guardianship memorandum should you have long before you turn……forty-nine for the second time?

  1. Advanced Health Directives which include:
    1. Designation of a Health Care Proxy
    2. HIPAA release
    3. Living Will
  2. Durable Power of Attorney
    1. This important document grants the power to your designated representative to manage your financial affairs, survives your potential incapacity, and stays in force until you choose to revoke it (you can shred it to pieces if you desire) or your death.
  3. Confirmation that any retirement accounts, life insurance policies and the like have listed beneficiaries.

I am happy to answer any questions you have regarding the above mentioned documents. A bit of your time and money will guaranty that you can pretend to be any age you want, while feeling secure that you and your loved ones are protected.

For the record, I have heard that AARP offers some excellent discounts. For the moment, however, I will stick to the savings during Tax Free Week, which for the record starts today, August 21st and continues through next Saturday. Happy Shopping.

-Karen

Karen Elise Robbins is an attorney admitted to practice law in Connecticut. She has completed her L.L.M. degree in Elder Law and Estate Planning from Western New England School of Law. She can be contacted at (860)871-8000 or [email protected].

 

 

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Posted August 9, 2022

A Receptionist / Legal Secretary Position is available at Marder, Roberson & DeFelice Law Offices, LLC located in Vernon, CT.  The ideal candidate will have some law firm experience, knowledge of Office365, and have excellent communication skills.  The applicant must have high attention to detail, be highly organized and possess an aptitude for multi-tasking.  We are looking for a highly ethical and responsible individual to join our team.  Please submit your resume and references to:  [email protected]

Documents needed when your “no-longer-baby” turns 18 and College is around the Corner

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Written By Karen Elise Robbins
August 2, 2022

Every year as August approaches and summer is on its downward turn I start thinking about the start of the school year and the inevitable date when my college “kids” head back to campus. Though my sons never wanted help with packing, organizing or the like, the one thing I could insure is that when they leave, I have the correct paperwork to talk with their doctors, counselors and the like once they leave the protective walls of my home. Just as there existed no one guide to raising kids, few colleges list HIPAA releases and health care representative forms on their “To do” lists for students.

It isn’t actually leaving the nest that necessitates the signing of the above important documents, but your child’s 18th birthday. With two of my three already past 18, it still strikes me as incongruous that if one were to go to urgent care or the emergency room at 11:59 pm the night before their  18th birthday I could take charge, sign their forms,  speak with their doctors and make decisions for them if that is what I chose. Should the same emergency occur just a minute later, my child would be on their own and my rights to act on their behalf simply vanish. Watching my middle son’s perplexed attempt to fill out the requisite forms to have his wisdom teeth removed the weekend after high school graduation reinforced the fact that becoming a legal adult did not mean he was instantly ready to handle his medical care on his own. Truth is, in our medical system, no one should be solely left on their own to navigate their care no matter what age.

While, most of my practice is spent with the elderly and older clients, August brings in many younger clients. Those whose parents are “in the know” and smartly want to preserve their ability to advocate and act for their child at home as well as when they are away at school no matter the location.

What You May Need In A Medical Emergency to act on your teen’s behalf:

  1. Health Care Proxy(also referred to as a healthcare agent or medical power of attorney, a healthcare power of attorney, or durable power of attorney for health care)

This authorizes you to make medical decisions and it gives you access to their medical records and the ability to converse with their medical health care providers. By signing a healthcare proxy, your teen is appointing you to act on your behalf in making medical decisions should they so choose.

  1. HIPAA (Health Insurance Portability and Accountability Act)authorization (also called a HIPAA release) A more narrow document that permits the healthcare providers to disclose your  teen’s healthcare information to you or anyone they specify, in person, over the phone or through email, etc.  This document alone will often suffice for you to get information from the health care institution treating your child. In a HIPAA authorization, a young adult can stipulate that they don’t want to disclose information about such things sex, drugs, mental health, or other details that they prefer to keep private. As with the broader healthcare proxy, a HIPAA release can also include a Living Will if your teen so chooses.
  2. Durable Power of Attorney (Durable POA)

This enables a parent or other adult to make financial decisions on the student’s behalf. The POA can provide that power vests in you immediately after signing the document or that it vests only if your child becomes incapacitated. The POA permits the designated representative, among other things, to sign tax returns, access bank accounts, pay bills, make changes to your child’s financial aid package, or figure out tuition problems.

Call me so I can discuss the above documents with you. A bit of your time and a small fee will bring you invaluable peace of mind when your child heads towards their next stage of independence.

Now – on to Bed Bath and Beyond or Amazon to purchase the requisite XL sheets.

 

-Karen

Karen Elise Robbins is an attorney admitted to practice law in Connecticut. She has completed her L.L.M. degree in Elder Law and Estate Planning from Western New England School of Law. She can be contacted at (860)871-8000 or [email protected].

Connecticut Residential Evictions: Sept. 30, 2020 Executive Order No. 7X

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On September 30, 2020 Governor Ned Lamont issued Executive Order No. 9E, which has a significant impact on residential evictions, including:

 

  1. Extension of Eviction Moratorium. The provisions of Executive Order No. 7X, Section 1, as modified by Executive Order Nos. 7NN, Section 4, 7DDD, Section 1, and 7OOO, Section 3 shall remain in effect until January 1, 2021, with the following modifications:

 

  1. No Notice to Quit or Service of Summary Process Before January 1, 2021. Section 47a-23 of the Connecticut General Statutes is modified to provide, “(g) No landlord of a dwelling unit, and no such landlord’s legal representative, attorney-at-law, or attorney-in-fact, shall, before January 1, 2021, deliver or cause to be delivered a notice to quit or serve or return a summary process action, for any reason set forth in this chapter or in sections 21-80 et seq. of the Connecticut General Statutes, except for nonpayment of rent due on or before February 29, 2020, for serious nonpayment of rent as defined herein, for serious nuisance as defined in section 47a-15 of the Connecticut General Statutes, or, provided the notice to quit is not delivered during the term of any existing rental agreement, for a bona fide intention by the landlord to use such dwelling unit as such landlord’s principal residence. For the purposes of this subsection, ‘serious nonpayment of rent’ means a rent arrearage equal to or greater than six months’ worth of rent due on or after March 1, 2020, which shall exclude all other costs, fees, attorney fees, and other charges arising from the tenancy.”

 

  1. All notices to quit issued before January 1, 2021 shall be delivered with a copy of the Declaration (“CDC Declaration”) attached to the CDC Order “Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19,” 85 FR 55292 (September 4, 2020) (“CDC Order”). The CDC Declaration shall be attached in English and Spanish. Upon delivery of the executed CDC Declaration to the landlord, landlord’s legal representative, attorney-at-law, or attorney-in fact by a tenant or representative of the tenant, the landlord shall immediately and for the effective period of the CDC Order cease all action to evict.

 

  1. All notices to quit for nonpayment of rent for rent due on or before February 29, 2020 that are issued before January 1, 2021 shall specify and recite the period of nonpayment of rent before February 29, 2021 for which rent has not been paid.

 

  1. All notices to quit and all complaints in summary process actions for serious nonpayment of rent that are issued before January 1, 2021 shall specify and recite the amount of the rent arrearage due on or after March 1, 2020, the months for which rent has not been paid, and in what amounts.

 

  1. All notices to quit issued before January 1, 2021 based upon the bona fide intention by the landlord to use such premises for the landlord’s principal residence shall state that reason and specify the expiration date of the lease.

 

A copy of Executive Order No. 9E is available here:

https://portal.ct.gov/-/media/Office-of-the-Governor/Executive-Orders/Lamont-Executive-Orders/Executive-Order-No-9E.pdf

Attorney Dale C. Roberson attends CBA Annual Bankruptcy Conference

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Attorney Dale C. Roberson attended the Connecticut Bar Association, Annual Connecticut Bankruptcy Conference, on October 4th, 2018, at Water’s Edge Resort and Spa, in Westbrook, Connecticut. The seminar was a full day of discussing bankruptcy issues involving; new Local Bankruptcy Rules, trends in Consumer Bankruptcy, Article 9 Sales, Chapter 13 Updates, Individual Chapter 11 Bankruptcy, Not-for- Profit Insolvencies and Legal Ethics. Several bankruptcy judges attended this conference, including, Honorable Julie A. Manning, Honorable Ann M. Nevins and Honorable James J. Tancredi. The event was attended by approximately 150 members for the Connecticut Bar Association. Attorney Roberson has practiced in the bankruptcy field for over 35 years.

Associate Professor Deborah Thorne, of the University of Idaho, was a featured speaker on the subject of Consumer Bankruptcy. For two decades, Professor Thorne has studied the economic inequality of consumer bankruptcy. Professor Throne made many observations and predictions as part of her presentation. In years past, Medicare coverage was adequate and out-of-pocket expenses were approximately 12% of income. Defined benefit plans paid 62% of income and post- retirement health insurance was very common. Consistently, the leading causes of bankruptcy are job loss (decline in income) and excessive medical expenses. Households can typically struggle for years in a “sweatbox” before they file bankruptcy. Bankruptcy is not a low socioeconomic status phenomenon; chapter 7 filers are mostly homeowners with some college background. Chronic issues include: inadequate income, health struggles, and being older; which make a fresh financial start unlikely. A situation now exists in the United States, whereby “a myriad of risks that were once managed and pooled by government and private corporations have been shifted onto individuals and families”. Defined benefit plans now pay 17% of income and have been replaced with Defined Contribution plans and investment decisions left to individuals. Full retirement age for Social Security has increased to 70. Inadequate coverage from Medicare, which out-of-pocket expenses has increased to 20% of income. Employers are dropping retirees’ post- retirement healthcare. Given these shifts, increase in future elder filings are predictable.

Implications of the risk shifts for older Americans: The wealth of older Americans is being stripped. At the time of their bankruptcies, older Americans had negative wealth of $17,390. Many Americans have emptied their retirement accounts to repay their debts. The wealth that should have been there to sustain retirees until they die is gone; their wealth has been transferred to the health care industry and the lending industry.

Elder bankruptcy should be rare. The projected increases, which will disproportionately affect single senior women are a result of governmental and business policy changes. Will our government pass legislation to mitigate these future bankruptcies from happening?

Let us help you represent yourself!

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In our opinion, it is always preferable to have an attorney for “full representation”. Custody and divorce cases are lawsuits. A complaint is filed in the Superior Court. If an agreement is not reached, the case will go to trial. The rules of evidence apply. There are ‘discovery’ obligations, and complicated statutes and judicial decisions (“caselaw”) to be aware of. Mistakes can be costly even if an agreement is reached, and there are times when clearly the parties to the case should have full legal counsel. An attorney who files a ‘full’ appearance will go to court for all court events such as “short calendar” proceedings (which are rarely ‘short’), hearings, settlement conferences, and trial.

However the cost to hire full legal counsel in a custody or divorce case can be prohibitively expensive for some individuals. Some parties return to court repeatedly, making the process expensive. Each court appearance usually results in hourly billing. A party does not have direct control over the number of court appearances required, because their spouse may file multiple motions during the course of the proceeding, or even post-judgment. The party can feel that attorney fees are not being controlled, yet the attorney is ethically obligated to appear in court for each event, prepare for the event, and provide competent representation.

Consider these options when faced with a divorce or custody case:

1) Will a motion for attorney fees be successful? The motion can be filed, to request that the Court order the other party, to pay your attorney fees.

2) Is borrowing funds for an attorney an option? The Automatic Orders prohibit incurring unreasonable debt. These orders prohibit ‘encumbering’ property but they provide an exception for “reasonable attorney’s fees in connection with [the] action”.

3) Is “Standby Counsel” appropriate? When an attorney is hired as standby counsel, the attorney typically will not enter an “Appearance” in the case. Sometimes the attorney may file a “Limited Appearance”. When an attorney is hired as Standby Counsel, the individual represents himself or herself in Court. The attorney however can be retained to meet with the client from time to time, such as to give advice relating to procedural or other issues in the case. The attorney can review proposals that the parties might agree to among themselves. The attorney might assist with the preparation of certain court motions.

We encourage you to consider “Standby Counsel” if you feel you cannot afford an attorney.

Marder, Roberson & DeFelice Law Offices, LLC
76 South Frontage Road
Vernon, CT 06066
Email: [email protected]

Neither victim or victim’s attorney has a right to attend settlement conference

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On December 5, 2017 the Connecticut Supreme Court will officially release an opinion. The Court concluded that neither a victim of a crime, or a victim’s representative, is permitted to participate in off-the-record, in-chambers pretrial disposition (settlement) conferences. The decision is available here:

https://www.jud.ct.gov/external/supapp/Cases/AROcr/CR327/327CR117.pdf

Remember the Automatic Court Orders in Connecticut Divorce / Custody Cases

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If you file a divorce, custody, or legal separation complaint in Connecticut (or if you are served with such a complaint), you must read and understand, the “Automatic Court Orders”.

What are Pendente Lite Orders?

Pendente Lite (a Latin term) refers to those orders that may go into effect ‘while the action is pending’, or ‘during the proceeding or litigation’. You may file a motion or motions (separately from the divorce or custody complaint), for pendente lite relief. This form of relief does not come ‘automatically’; you must ask for this relief by filing motions in court.

The reason why someone would pursue pendente lite orders, is that it could take many months to go to final judgment. A party to a divorce or custody case, may not want to wait many months to ask for specific orders, such as:

  • Orders for child support or alimony;
  • Custody and visitation orders;
  • Other financial orders such as who is required to pay the mortgage, utilities, and household expenses; or
  • Other temporary orders, or emergency orders, to address a party’s unique situation.

What are the Automatic Orders?

The Automatic Court Orders will apply to both parties, without the need for filing for specific ‘pendente lite’ relief. They apply to the Plaintiff when the complaint is signed, and they apply to the Defendant once the Defendant is served with the Complaint, and Notice of Automatic Orders. It is crucial to read them, and understand them, any time you are a party to a divorce, custody, or legal separation case.

Some Automatic Court Orders affect only cases involving children. For example:

“Neither party shall permanently remove the minor child or children from the state of Connecticut, without written consent of the other or order of a judicial authority.” Further, the Automatic Orders state that “If the parents or minor children live apart during this proceeding, they shall assist their children in having contact with both parties, which is consistent with the habits of the family, personally, by telephone, and in writing. This provision shall not apply if and to the extent there is a prior, contradictory order of a judicial authority”. If you think that complying with the Automatic Orders will be harmful to a child, or is not in a child’s best interests, you should consult with an attorney to understand your legal rights and options.

Other Automatic Court Orders apply in all divorce cases (regardless of whether there are children). For example:

“Neither party shall conceal any property”, and “Neither party shall change the beneficiaries of any life insurance policies, and each party shall maintain the existing life insurance, automobile insurance, homeowners or renters insurance policies in full force and effect.”

There are sixteen (16) Automatic Court Orders and they should be read carefully by all parties. As stated in the orders: “Failure to obey these orders may be punishable by contempt of court. If you object to or seek modification of these orders during the pendency of the action, you have the right to a hearing before a judge within a reasonable time.”

The Automatic Court Orders are available at: https://www.jud.ct.gov/webforms/forms/fm158.pdf

Does your LLC protect you from tort claims?

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Individuals starting out in business may misperceive and exaggerate the protections that an LLC offers. A Limited Liability Company (“LLC”) may not protect you from ‘torts’ or ‘negligence’ claims. An LLC may offer significantly greater protections from ‘contract’ claims, i.e. ensuring that business owners do not become personally liable for debts of the company. Take for example a commercial lease agreement, which is a contract. You decide to open a small business selling goods or services. You form a single-member (owner) LLC. You approach a perspective landlord who has an appropriate space. Your intent is to rent the space, allowing customers onto the premises to buy goods or services from you. A lease is signed, and the LLC is identified as the tenant. You, personally, do not sign as a party or guarantor of the lease agreement. Here, if the LLC goes out of business and doesn’t pay the rent, the landlord will have difficulty collecting against you personally (attaching your wages, bank accounts, or other property) unless the landlord can ‘pierce the corporate veil’, which can be quite difficult. However, if you personally guarantee the lease payments to the landlord, then you can be made responsible if the LLC does not pay the rent. In this case the LLC may offer protections depending on how the contract is written. Always look to see if there is a personal guarantee!

Tort / negligence claims are quite different from contract claims. A director or officer who commits a tort, or directs the tortious act done, or participates or operates therein, is liable to third persons injured, even though liability may also attach to the corporation for the tort. (See for example Sacred Heart University v. Voll, FBT-CV15-6048244, Hon. Michael P. Camp, Connecticut Superior Court J.D. Bridgeport.) For example if an engineer operates an LLC, and he or she commits malpractice, causing a structure to collapse causing injury, then the injured will seek out damages for negligence or malpractice against the engineer. The LLC may offer no protection, and insurance may be the engineer’s best defense. The same liability could attach to an owner of a restaurant whose poor sanitation practices cause illness.

An experienced attorney will tell you why an LLC is important, and why its protections are sometimes inadequate. You must also maintain certain ‘business formalities’ to maximize the afforded protections of the LLC. An LLC is just one tool to protect yourself. As illustrated above, insurance is another significant tool. What type of insurance you need, will depend in large part on the nature of your business and you should discuss this with a qualified commercial insurance agent.

If you are starting out in business you should speak with an experienced attorney to understand these nuances. If you elect to form an LLC online, with no attorney consultation, you may be doing yourself a significant disservice.