LegalZoom Blog

Legal news and small business tips.

Financial Power of Attorney vs. Medical Proxy? And More Free Legal Q&A – Free Joe 12/4/12

no comments yet


On Tuesdays and Fridays, attorney Joe Escalante answers legal questions for free on the LegalZoom Facebook Page. Did you miss the last Free Joe? Don’t worry. We’ve got it all right here.

Robert: Please explain the connection or contrast between legal power of attorney, and, health/medical proxy? Are they mainly redundant, complimentary, mutually exclusive, or, do you need the former in order to acquire the latter?

Joe Escalante: A legal power of attorney usually refers to a document to take over checking accounts, etc. and to be able to buy and sell property. Financial stuff. However, it can also grant the right to make medical decisions if it is drafted that way. These are all just pieces of paper that describe the rights and responsibilities being transferred. They can say just about anything as long as they don’t run afoul of the constitution. A health/medical proxy, would probably not allow someone to buy and sell property on the other’s behalf.
Living Wills and Advanced Medical Directives are relevant documents that are triggered to allow someone to make end of life decisions when the “grantor” becomes incapacitated.

Stephanie: I wanted to know how much it would be for me to get my poetry book copy written and how long would it take, also what are your views on self publishing your own book ?

Joe Escalante: The term is “Copyright.” So the past tense wouldn’t be “Copy Written.” It could be “Copyrighted” maybe. But that’s not even really a word. The proper way to say it is probably “how much would it be for me to get the copyright in my poetry book registered.”
Sorry about all that, but here’s the answer. It will cost about $35.00 if you do it correctly with the copyright office. They charge more for amending copyrights if you do it wrong, so that’s why some people would use Legalzoom’s service to get it right the first time.

Regarding self-publishing, you are lucky to be living in a time where self-publishing is not only a viable alternative to wasting a lot of time sending your work to various publishers, there’s no stigma attached to it. It’s perfectly respectable as long as your releasing quality stuff and your presence on the internet is somewhat professional looking. I.E., you should ave a good web site.

Matthew: When my wife and I purchased our home we had an inspection done. Now a year later we are finding that because the house had not been lived in for some time and the previous owners use of paint and cheap carpet to intentionally cover what was obvious damage to the home as well as masking ongoing problems we have spent over $10,000 making emergency repairs and expect toto spend twice that properly making permanent repairs. We were informed that long non-use and these cosmetic repairs made the damage almost undetectable to a standard inspection. Can we sue the previous owner for failure to disclose and on what grounds would we move forward?

Joe Escalante: On principle, yes. But the amount of damages you suffered is too low to initiate expensive litigation in today’s world. You will most likely not prevail unless you can prove intent to deceive. This will be expensive. You will have to subpoena experts and take depositions.
You may also have a case against the inspector, but here you will run into the similar problems proving he should have detected these issues.
One thing you could try is small claims court. Go for the maximum and you have one tiny, yet inexpensive, shot at proving the previous owners tricked you. That’s the route I would go for this amount of money. Even if the maximum is $5,000 in your area (it’s 10K in mine), I’d rather spend nothing getting 5k, than spend 25K to get 10.

Kama: My father passed away 10 years ago (testate, Washington State), and Probate was opened. My mother has never had it closed. What problems will we encounter if she passes without closing it? They both had wills and a Revocable Family Trust.

Joe Escalante: The main problem is that the title of property could not change hands if probate isn’t closed. Eventually the county will take over and figure out what to do with all this stuff instead of the executor, who will be removed for not following through with the duties committed to in the document an executor signs to open probate.
However, this is not as much of a problem if all the property was owned by a trust.
The trust lives past the death. The problems you will have will depend on what’s actually being probated, and whether there are valid claims from creditors. A phony claim could come in, and the state could pay it from assets it seizes because if the executor is removed, the state or county is in charge.

Wilburt: What is the time limit on appealing arbitration? What would constitute grounds for colusion? Going up against a County government and union who seem not to have best interest at heart.

Joe Escalante: Without seeing the actual terms of the arbitration clause you agreed to, I can give you this general information: Arbitration decisions, to be enforceable, must be confirmed by a court in most cases. If a court finds the arbitration results unconscionable, they will vacate the decision or “cancel” it.
At this confirmation/vactur hearing is where you would challenge what you think is wrong about the decision.

Derek: How do you transfer ownership of a trademark from your business to your self?

Joe Escalante: This is done by executing a written “assignment” of the mark from your business to you. That can be just a simple letter agreement. As long as there’s no self-dealing problems that could be challenged by business partners, it should be OK, but you must register it with the USPTO. You can do this on line at this address: http://www.uspto.gov/main/faq/t125057.htm

David: Hi Joe. Are unpaid internships legal in the US? If yes, what misteps should I avoid that would question its legality?

Joe Escalante: Two things you must do to make them kosher are: 1. Make sure they are getting some kind of college credit. 2. Make sure they are learning things by doing the work assigned. They cannot be stuffing envelopes or doing manual labor. They are there to learn.
Otherwise, you have run afoul of the pesky 13th Amendment Daniel Day Lewis fought so hard to achieve.

David: Sounds good, that is exactly what I thought. Thank you for the answer.
One more question. We may also offer internships abroad to cover different time zones and the intern will work remotely with regular Skype meetings to monitor the process and make sure they are gaining from the internship. My business is located in NY what law upholds for these kind of internships? US law, law of the country of the intern, or some kind of international law?

Joe Escalante: International law may be more strict than U.S. law, but the enforcement problems would make it a non issue unless human trafficking flags were raised.

Josh: I pay a certain amount of child support every month based on my income from my previous job now I make less at my new job how do I get my child support lowered??

Joe Escalante: You petition the court that approved the order you are under now for lower support based on your new circumstances. This can be done using petition forms that you get from going to the courthouse after walking into a bunch wrong rooms on a bunch of wrong floors, and waiting in a bunch of long and wrong lines and talking to a bunch of people that treat you like you’re an idiot, until you finally figure it out. Or your hire a lawyer and pay him all the money you could have used to send your kid to college.

Sue: Question, If I do not have a will and I pass away, Would my 16 year old be forced to live with her father?

Joe Escalante: Most likely. The presumption would be that this is in her best interest.

Sue: If I assigned a different person in a will then she would not have too?

Joe Escalante: That would vary by state. If you had full custody, there MIGHT be a presumption that your wishes were in the child’s best interest, but probably not. The father would still be the presumptive choice unless his parental rights had been legally terminated. In other words, if he wants the child, he would have a good chance at convincing the court to give him what he wants due to traditional presumptions about what is best for a child.

Kumar: Can an off the book side job (cutting lawns/landscaping) give the customer a reciept/invoice? I would like to know if this is fine, and if not, what do you suggest?

Joe Escalante: Sounds like tax shenanigans to me. You can ask Gary on Thursdays here if he will help you in your quest to cheat the government.

LegalZoom: The Tax Pros are here Thursdays 11am-noon. Details: http://zoo.mn/AskTheTaxPro

Tyler: if i see a picture or piece or art i like on fb can i copy on to a tshirt and sell it…..is there any copy writes on pic on tshirts thanks????

Joe Escalante: This is a good way to get sued. Not a good way to make money. http://stopgettyimages.com/getty_images_extortion_attempts.htm

Dawn: I am a small business owner since 1981. How long must I retain records related to the business for example auto, house, tools etc. that were taken as deductions for the business? My attic is overflowing.

Joe Escalante: My tax lady makes me keep this crap for 7 years. You have to talk to your tax lady and see what she says, or better yet, ask Gary here on Thursdays.

LegalZoom: Hi Dawn, here are the details for Ask the Tax Pro: http://zoo.mn/AskTheTaxPro. See you Thursday!

Monica: Hi Joe, While my family is not well-off by any standard, I am looking at ways to protect the small assets we do have, including a partnership in business. What are the advantages and disadvantages of an SPA Trust vs. a Living Trust?

Joe Escalante: I have a hard time thinking that the trouble you would have to go through to create a Special Power of Appointments trust would be worth it if you say you are not well-off by any means. Insurance can be used to protect your assets without paying all the legal bills to create an SPA trust. A SPA Trust is created by a legal document which is prepared by an attorney who has expertise with debtor—creditor law, income tax law, gift and estate tax law, and trust law. Think about how expensive that is going to be.

John: My partner and I co own a condo in Washington DC. He wants to break up, but he’s reluctant to buy the unit on the market until next year. Do I have any ability to force the sale? It’s difficult living with someone who doesn’t love you anymore.

John: To be clear, I want him to sell the unit. Not buy me out. Forgive my typo. Thank you

Joe Escalante: The good news is that you can file a petition with the court for a “forced partition sale.” Usually, when one receives a letter from an attorney telling them such a petition is going to be filed if they don’t agree to sell, they agree as soon as they get this letter. The court will force a sale.

Vicki: Is there a website for a do it yourself divorce?

Joe Escalante: You’re at it baby. If you have an uncontested divorce you can use Legalzoom’s service. It’s so easy it makes the Pope queasy.

LegalZoom: Here’s the link, Vicki: http://www.legalzoom.com/legal-divorce/divorce-overview.html?cm_mmc=social-_-fb-_-freejoe-_-na

Karen: I am getting prepared to file for 501c3 status. Is it best to proceed with filing this close to the end of the year or should I wait until January 2013? Or does it matter?

Joe Escalante: I would wait. They’ll make you come up with all kinds of budgets, etc. for 2013. You should check with your tax pro, but if it were me, I’d wait. We also have a tax expert here on Thursdays. Click below for info on that.

LegalZoom: Here’s the link, Karen: http://zoo.mn/AskTheTaxPro

Jane: If your state provides someone a disabled card & placard thru the motor vehicle commission which requires a doctor’s evaluation certifying disability, why is this not sufficient enough proof to a Insurance carrier providing Cobra coverage to extend coverage from 18 months to 29 months.

Joe Escalante: The insurance people don’t want to relinquish their control over the situation to that lady at Window B at the DMV.

Tory: I run a small horse therapy business as a sole proprietor an
i’m hearing that I should incorporate. If I do should I form LLC,C CORP or S Corp?
If I do incorporate can

i have several other businesses under same corp?
TY

Joe Escalante: Legally you can run several DBAs out of one corp. What’s right for your business is probably a tax question. Ask Gary this Thursday.

LegalZoom: Here’s all the info for Ask the Tax Pro on Thursday, Tory: http://zoo.mn/AskTheTaxPro

Darcy: If I start an S-corp this month is it retro-active for the whole year for tax purposes?

Joe Escalante: This is another Gary question. Ask this tax genius on Thursday. Click below:

LegalZoom: Here you go, Darcy: http://zoo.mn/AskTheTaxPro

Harold: I live in Massachusetss would like to know how to legally prove someone recieved my invoices. as have sent them in the mail also left them at their residence. it has been two and half months and no payment or correspondence of any type. how should I procede?

Joe Escalante: To legally prove delivery and receipt, you should use either your post office or Fed Ex / UPS “signature required services.” These are valid in court. Also valid is some other kind of proof that they were received, like an email that says, “Ya, I got your invoices Harold, I got ‘em right here. What are you going to do about it.”
That is evidence, in writing, that he got them.

Ted: I am a disabled veteran that suffers from depression and recurring agoraphobic instances and also anxiety attacks. These are debilitating and wouldn’t allow me to make it to work on time or at all. I was written up by my previous employer for this vat this tie I informed them of everything that was going on. They seemed understanding. A week and a half later I had a major anxiety attack that didn’t allow me to leave my residence. Two days later I was fired. The reasoning was leadership. What can I do, if anything? Thank you.

Joe Escalante: This is a tough one. Talk to the people at the State Labor Commission. File a claim there. Consulting with a wrongful termination attorney would also be a good thing to do. Get a free consultation. That shouldn’t be that hard to get. Good luck.

Oscar: Hello Joe I was wondering what steps I need to take to trademark a logo and or a name. Thanks

Joe Escalante: There are two types. One is based on use in interstate commerce. The other is “intent to use” in interstate commerce. (That one only lasts like 6 months.)
For the former, you need to establish USE in interstate commerce so read the FAQs about that on the USPTO site and get the proof ready.
Then file for Trademark registration with the USPTO. Using Legalzoom will make it a lot easier, click below for their services in this area.

LegalZoom: Here’s the link, Oscar: http://www.legalzoom.com/trademarks/trademarks-overview.html?cm_mmc=social-_-fb-_-freejoe-_-na

LegalZoom: That’s a wrap for today’s legal Q&A! Attorney Joe Escalante will be back on Friday to answer more legal questions. Join us then! http://zoo.mn/bFreeJoe

ShareShare on FacebookTweet about this on TwitterShare on Google+Share on LinkedInEmail this to someone

Sign up for the LegalZoom newsletter!

Written by

December 6th, 2012 at 6:15 am