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What Do I Need to Make Health Care Decisions for My Elderly Mother? And More Free Legal Advice – Free Joe 10/26/12

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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.

Jan: Hi, my mom lives in another state. Do my brother and I need to have a medical power of attorney in place in order to be able to make decisions if she ever needs medical care and can’t make those decisions for herself? She no longer has a living spouse, and we’re her next of kin.

Joe Escalante: It would be a great idea for you to get that underway asap. Legalzoom offers one as part of their Living Will. However, be careful when you fill it out, especially if you’re practicing Catholic or an Evangelical Christian, you should be careful that you don’t put the decisions in the hands of a “health care professional,” unless you want to. Make sure you know who will be making end of life decisions.

LegalZoom: Here is more info about health care powers of attorney, Jan:

Alayna: does one lawyer playing on a golf league with an adversary’s husband constitute a conflict of interest for the entire firm?

Joe Escalante: it sounds like a stretch to me. There’s no law that says you can’t play in a golf league where the spouse of an adversary might be found. That would limit the right of the lawyer to freely associate too much. Also, the affected party could sign a waiver to be safe. The lawyer should disclose the connection and if no one complains, it’s not really much of a conflict.

Jasmin: hi there um i have a question im 19 years old currently living in mexico and i have a 7 and half month old son he was born over here in mexico but i want to go back to the us what can i do?

Joe Escalante: If you were a citizen of the U.S. when your kid was born, the kid is automatically a U.S. citizen. If you got your citizenship after the kid was born, there’s some paperwork involved to get him/her citizenship.
If you are not a citizen, you are just in the same boat as anyone else seeking U.S. Citizenship. You either apply for it, or you do like my grandpa did and just walk here from Arizona.

Geraldo: Can a bussiness( a pawn shop) refuse to sell a me a usted weapon(old rifle) because Of a store policy( in Mississippi) Of not selling guns to people born outside the united states, although im a US citizen, law abiding and never committed any crimes? Just because of the store policy( that it’s unconstitutional to discriminate upon national origin as far as I know).

Joe Escalante: If you are refused service due to your race, and you can supply evidence to that, contact a civil rights attorney in your area and shut that place down.

Dion: What is the procedure to add a partner/cfo to my DBA

Joe Escalante: You should just refile the DBA with the partner. File and publish a new DBA and file and publish an Abandonment. Check with the county clerk on their procedures for this. It varies by each county in the entire country.

Amanda: Walmart linked my checking account with that of my step moms because I had a sams card under her. I had a returned check and my information went to her regarding that info. Anything I can do since they shared my personal info with someone who is not on my account?

Joe Escalante: To sue you need certain and provable damages or the violation of a statute, or breach of a contract. You need to read the terms of all the Sam’s card stuff you supposedly agreed to. You can ask them to provide you with that if you didn’t keep a copy in your little Hello Kitty box where you keep important papers.
After reading it, or having an attorney read it, only then could you discern whether a state or federal statute dealing with privacy was violated, or if they violated their own contract.
If it is anything but a statutory violation, you will have to prove that you were harmed, and you can only recover the amount you were harmed. Good luck.

Dee: I was arrested and charged with obstruction of justice. The charges has been dismissed and an expungement is in the works. Do I have a case for defamtion of character and if so can I get help finding a good attorney

Joe Escalante: The authorities have certain immunities from prosecution if they are acting in the scope of their employment so the answer is no, you probably have no case for defamation. You would only be able to recover certain and provable damages anyway, unless you could prove that it was all a malicious conspiracy to harm you in the way you were harmed. I don’t know of any kind of lawyer that would take a case like this. Lawyers take the ones where you have pictures of your head with cuts and bruises all over it to go along with your story.


Joe Escalante: Cal the state bar association and inquire about the license of the attorney they say they are working for. Get everything in writing from them. Don’t speak on the phone. Then demand to speak with the attorney. If shenanigans are afoot, this may shake it out. If you get a hold of the attorney, ask him why you shouldn’t file a compliant with the state bar association. Make them explain the legitimacy of their claims a little more clearly at least. Right now, they’re just confusing you. Sounds bad.

Michelle: (SD Entrepreneur Meetup) Hi! I was wondering if it’s necessary to transfer a TM registered in my name to my company. Is this required or necessary? Or does it even matter.

Joe Escalante: It would make things cleaner in terms of protecting your personal liability. I, if the company is an LLC or corp. If it’s a sole proprietorship, or a partnership, I wouldn’t bother unless I was bored.

Michelle: (SD Entrepreneur Meetup) 2nd question is if someone used my TM word/phrase before it was officially filed, do i have rights to “back claim”?

Joe Escalante: Not necessarily, registering your trademark provides notice. That’s one of the key benefits. Before you registered, they can claim they didn’t know you were using it. They may ask you to rebut their evidence that they were using it first and you could lose your mark if they can prove they were using it first, no matter who was the first to register.

Michelle: (SD Entrepreneur Meetup) 3rd question is once I TM a word/phrase am I the only one who can use it and if they do, what’s the course of action (lawsuit, payment, etc…)? Thank you for your time!

Joe Escalante: You send them a cease and desist letter that tells them to cease, and desist by the way, by a certain date, and to turn over all records, profits, infringing materials, etc. (How nasty you want to get is up to you and your maker). The threat at the end of the letter is “further legal action” which usually means filing a lawsuit in Federal Court. Federal Court is another one of the benefits of registration. It strikes fear into the defendant, because it’s a Federal Case all of a sudden.

Gilbert: hello Joe i have a legal question about a 8 months ago i twitted a good ideal for a movie to a friend now guess what some one picked up my ideal its on channel 4 tonight at 9 can i sue or not thanks

Joe Escalante: You should not sue. You should just congratulate them for having the ability to steal, write, do pre-production, production, post production, sweetening, and delivery, receive notes, address notes, re-cut, and deliver again in 8 months. That, and the fact that ideas are not protectable. You cannot even copyright an idea. You can only copyright the creative expression of an idea, and per your story, that’s not what they stole. Society has if worked out so that everyone gets a shot at every idea. You still have the right to make this film yourself, better than them. If you can’t, society has already won. :)

Ron: I live in a smaller city (about 7000) here in New Mexico. The city has contracted with Windstream Communications for phone and data services. For over five years I have been paying for unlimited phone services as well as a data service with 6 Mbps. My question is related to two facts. One, Windstream has numerous plans and charges different rates based on your internet speed. Two. Windstream has
n’t attempted to improve the infrastructure in our town to meet their agreed to speeds which they still charge a premium rate for us to receive. I would bet that the contract was crooked in the first place with some of our city fathers reaping profit off it’s adoption. I’ve threatened to start a class action suit and the city manager say’s that they are not responsible for the conditions of service or enforcement either. The city is Truth or Consequences and many times when I test my DSL speeds I’m under 1Mbps. What we have here is a company selling a product that they are not providing as well as a city not acting on the best interests of their citizens. What can be done?

Joe Escalante: This is what class action suits are all about. I would approach as many class action attorneys as you can find. They’re always suing Direct TV, Charter, Time Warner, etc. They say it’s the only weapon an individual like you has against corruption like what you fear is happening. Contact the New Mexico State Bar assoc. for a list of attorneys that do class action work.

LegalZoom: That’s a wrap for Free Joe! More free legal advice coming up on Tuesday–join us then:

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October 30th, 2012 at 5:22 am