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Why Do I Need a Power of Attorney? And More Free Legal Advice – Free Joe 3/20/12

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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.

Andie: Is it really necessary to have a power of attorney just in case of a medical emergency etc?

Joe Escalante: It’s nice. If you are incapacitated, and there’s someone you trust that could pay your bills while you are in a coma, etc. why not? It’s usually for old people that are facing some sort of dementia in the near future. However, I’ve created them for young couples that are just thinking ahead. It could save some headaches at a time when you could really use the help.

Andie: Thank you, great advise! I’m thinking of doing this for my kids as well. Would you happen to know the cost involved?

LegalZoom: Starts at $35, Andie. Here’s a link. Let us know if you have questions.

EJ: I lived in California, I went away from home for a couple of months, while I was away my wife used my debit card to make transactions and withdraw money without my consent, she was committing fraud, and before I could get to know about it, she withdrew all the money, I lost contact with her, and I did not know where she was, she literally disappeared. The fraud came to light and the company claimed its money back. I called to cancel the account, but it was already blocked due to reported fraudulent transactions. The account had not money but the bank paid the money back to the company, then now the bank is asking me to pay over $16,000. Money which I did not spend, money which I did not touch, and I have proofs that I was not in California at the moment when the transactions and withdraws were made. I am still married to her, but I don’t know where she is right now, I’m not living in California any more, since that happened I could not go back and lost all I had there in my house, I’m literally starting over again.

Questions: Am I still responsible for the account, even if I had not knowledge about the fraudulent use of my debit card? What you recommend me to do? If I don’t know where she is how can I prove that I don’t have anything to do with the fraud. I HOPE YOU CAN GIVE ME AN ANSWER… THANKS!!!!

Joe Escalante: If this was fraud by someone other than your wife, you would be OK. But since it was your wife, it is reasonable for the bank to believe you authorized it. However, what may save you is the bank’s written policies. If they forbid even your wife from using the account, then by allowing her to use it they violated their own written policies. If she signed your name, instead of hers, without your permission, your fraud claim looks better. But if you’re the bank, and someone tells you this story, you wouldn’t believe them, would you?
You need to read the written policies and find out where they blew it, so you can blame it on them, and rely on their customary fraud policies which probably limit your liability.
Of course a consumer rights lawyer would be ideal here, one with experience dealing with credit card companies.

Sharon: also my husband and I have been separated and NOT together in any way for Twenty years now..what would it take for a divorce??

Joe Escalante: This varies by state, but a period of legal separation is usually required so you’ve got that part down. If it is going to be uncontested, this sounds like a job for you and Legalzoom. Click below:

LegalZoom: Here you go, Sharon:

Nancy: my husband and I bought a car in 2008, it is a 2007 Dodge Caravan. We traded in a 2001 Dodge Ram cub cab truck that we would have had paid off in another year. My husband was very ill, and, wanted to trade, I did not want to trade, but, went along with him to keep him happy. Well, I will not have this paid off until 2015!!!
I think that I was cheated, that the car lot did not allow me a trade-in value for my truck. But, had not thought where to go to get help on this issue, except to make the payments which, are now, getting to be too much for me, as I am on social security, and, it is about all I can do to keep gas in it to get me to church!! The payments have been reduced, but, they are still $287 a month! Where I was paying $347 [about], the change in amount was made just this past year. So, you can see how much has already been paid on this car! Can you help me in this?? Is there any hope for me to get out of this, short of bankruptcy ?

Joe Escalante: Unfortunately there is probably nothing you can do. Bankruptcy will not let you keep this car, it sounds extreme for just this one problem. The finance company has a right to rely on the terms of the agreement. If you’ve been paying for a while, that is pretty good evidence that you were not cheated, because if you were, you would have said something earlier. The finance company would have a hard time staying in business if they had to rescind loan agreements based on accusations about “cheating” that are so far in the past it would be hard to proove either way.

Barbara: I would like to begin a fundraising campaign for my local Humane Society. What procedure would I need to follow in order to do so?

Joe Escalante: Well if you’re thinking of forming a non profit corp to receive the funds, that would be extreme at this point. Just contact the Society and ask them what you can do. Some charities will give the money back if it’s not done right. Like you don’t want raise money by having a dog costume contest or something like that.

Robyn: How easy and quick is it to copyright something you have designed and want to put into publication?

Joe Escalante: It’s pretty easy. However, if you do it wrong, it’s a hassle to amend. So I recommend doing it through Legalzoom the first time. Then it’s super easy, and quick. Click below:

LegalZoom: Here’s the link, Robyn:

Ron: Being a Patent owner alreday, Would it be fast to file a Trademark with the USPTO on my current patent?

Joe Escalante: You’d have to go to the back of the line like everyone else.

Teralyn: I can always be counted on to have a question for Joe! This involves E&O in the CA real estate industry. When a realtor goes to work for a broker (C21, Caldwell, etc) the realtor is then subject to the E&O policy the broker has. But that policy can have holes in it. When the Realtor is named in a lawsuit (but the broker isn’t) this can be big trouble for the realtor. It isn’t often that a broker will be aware of what their policy covers or doesn’t cover… & they surely don’t provide the realtor a copy of that policy up front so that the realtor knows. When a realtor then engages in a sale that is excluded from coverage, is it the brokers responsibility to say, “wait, we aren’t covered for that!” or can the broker legally turn his head, allow the realtor to engage & (in this case the realtors being sued for wrongful eviction & thats not covered even though he didn’t evict anyone, there’s no defense provided by the policy) when the realtor gets sued, the broker is in the clear? My logic says the attorney suing the realtor really needs to name the broker in the suit, but in a recent case he didn’t. I need to know because I’m an insurance agent & I need to advise my clients within the industry properly when we are looking for a proper policy. I see a significant exposure to the realtors if it turns out that it’s completely ok to for their broker to leave them hanging in the breeze as the pants are sued off of them. I’d like to help make sure everyone’s covered. Thoughts?

Joe Escalante: Great question. There’s a couple options in this situation. One thing is to cross complain when you are sued. Ultimately it will be up to the trier of fact to determine if you are liable or if the broker is liable. If the agent is not allowed to see the policy up front, and the broker is aware of the terms of the sale, then it would be hard for the broker to argue that they aren’t liable for things not covered under the policy. However, that may be exactly what the contract between the Broker and Agent says, I don’t know, not having read it.

The other option is to demand to see the policy and insist on changes that provide more protection. Or a letter agreement that states that the agent will not be liable for things not covered by the E&O insurance. This would be an indemnification letter, indemnifying the agent against any harm from law suits related to the sale, as long as the agent followed company policy.

Marcus: My homeowner’s assoication fined me 500 dollars for saying i didn’t have pine straw installed, I told them I did but they had no proof that I did and threaten to put a lean on my house so I paid them what legal recourse do I have to get that money back?

Joe Escalante: Small claims court would be perfect for this.

Colleen: I would like to know to if it’s legal for a judge to order my son to pay child support for a child that’s not even his? he met his first wife when she was pregnant. he married her .and out of the kindness of his heart. he put his name on the birth certificate and gave her his last name. even her first name is part of his first name. KYLE[ KYLA]. anyways. is there anything we can do to reverse it. and have the judge go after the birth father. [even though he's in and out of jail]. the judge knows my son’s not the father. and he divorced her mother and she was suppose to change the last name and take him off the birth certificate.But she didn’t. and the judge was harsh to my son.what can we do.? this is soo my son.

Joe Escalante: There is a presumption at law the the husband of the mother at time of birth is the father. That benefits society as a whole. The judge did the only thing he could. It’s up to your son to rebut the presumption.

June: Question re music copyright…If my husband starts a business where he converts music cassettes, vinyl records to a CD format and then charges the customer for this conversion, would he be violating any music copyrights as long as the person who asks for the conversion already owns the cassettes or records?

Joe Escalante: I say no. If his business got huge, would someone freak out, yes. But he’ll be fine.

Stephen: The wife & I are residents of Michigan. Recently married we were told Iost my Medicaid. I am a senior citizen 1 yr from attaining Medicare & she is handicapped & diabled. Is there anything I can do to keep my prescriptions being paid (or SOME other program?)

Joe Escalante: What you need Stephen is what they call in Michigan an “Elder Law” attorney. Try to get a consultation with one. You might start with the link below:

LegalZoom: Here’s the link, Stephen:

Susan: Question for Joe: We sold our former home in another state to a buyer. The sale included a balloon note payable to us, with a lien on another property of buyer. Buyer filed bankruptcy, keeping home but not having to pay us what was owed. However we learned that they sold the property we had a lien on. Do we have any recourse, eg with a title company that must have cleared the sale even with our lien?

Joe Escalante: If the lien was recorded, and sold without the lien being cleared, some shenanigans have occurred. You need to go to the registrar in the county where the lien was recorded and get some answers. Then start suing everybody.

Teresa: Hi Joe — I want to form a small company that will market a powdered drink product. Should I file as an LLC or ? Other parties involved will probably be family members. I am really looking for the best way to avoid personal liability and for the easiest possible record-keeping and tax advantages. Thank you so much… T e r r y

Joe Escalante: LLC sounds like the perfect document for you in terms of liability protection and ease of creation, however, speak to a tax professional about the tax issues.

Janos: Hello Mr. Escalante, how do I get a resellers license in California?

Joe Escalante: You file with the State Board Of Equalization.

Dennis: Well, kind of. If it is a court ordered settlement, a violation of it is contempt of court, which could land someone in jail.

Joe Escalante: Well, kind of. If it is a court ordered settlement, a violation of it is contempt of court, which could land someone in jail.

Kathy: I have been offered a new job and will start Monday, April 9th. My last day at my old job is Friday, April 6, Good Friday, which is a paid holiday. The employee handbook says that employees have to work their scheduled day before AND after a holiday in order to get paid for the holiday. I’m afraid I will not get paid for that holiday since I won’t be working for that employer the next business day. Your thoughts?

Joe Escalante: I think they will try to stiff you. But I also think there is a good chance they will pay you if you make a stink after you get your final paycheck.

Juan: Is it better to start an LLC in Texas or would an S or C corp be better? I am a start up.

Joe Escalante: It depends on many factors. Click the link below for some good free info, and always check with your tax professional on these issues because it’s really a tax question. You’re going to get the same legal liability with both, although the S or C corp is easier to mess up.

LegalZoom: Here’s the link, Juan:

Karen: if hurt on job (self employed), can you file workman’s comp.?

Joe Escalante: Probably not. Insurance is paid out if premiums are paid. Do you pay premiums? Probably not.

Karen: yes, i pay monthly premiums. they will (a newspaper) not give me info. regarding the insurance for me to take to doctor appt., they told me to bring (in person) all documentation to them from doctor visit.

Joe Escalante: If you are an independent contractor, whether or not you can get workers comp insurance benefits from an injury varies by state. If you are paying premiums into an insurance system, you sound like an employee to me. Regardless, this will all turn on the language of the policy for which you are paying. You’ve got to read it.


Joe Escalante: Not really. You will still have to pay the $800 minimum tax for being a foreign corporation, among other things this state will make you do.

LegalZoom: That’s a wrap for Free Joe Tuesday! More free legal advice from attorney Joe Escalante coming up on Friday–don’t miss it! And in the meantime, don’t forget to enter our biz formation sweepstakes:

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March 22nd, 2012 at 6:27 am