Where is Your Parents’ Shoebox?

Hey there! Yes, we are talking to you - the 20 to 30 somethings out there! You are just starting to really live your lives: launching your careers, starting families, and maybe even buying a home, yet you are also starting to think about your maturing parents and the harsh reality of what that means. This is not an article to make you sad or depressed, but an article to prepare you for the future. Where do you start? By digging through and locating your parents’ “shoebox”, which holds their very important financial and legal documents.

So how do you go about finding that mysterious shoebox? The first step is to have that really uncomfortable conversation with your parents and discuss what will happen when your parents are no longer around. It is a difficult conversation to have, but a necessary one. It is crucial to KNOW what your parent’s wants and desires are so that when the time comes, you will be able to do right by your parents and carry on their wishes. For example, a will, also known as a “Last Will and Testament,” will state how your parents want their property to be dispersed and who they will choose to manage their property once they pass away. Some parents will think ahead of time and will prepare “advance directives” – documents that will select the person or persons whom they want to make health or financial decisions on their behalf in the event of incapacitation (being unable to make one’s own decisions) or death, such as Health Care Proxy, Living Will, and/or Power of Attorney.

Okay, suppose you don’t want to deal with any of this right now?  What’s the worst that could happen? Well, in the event your parent becomes disabled or dies, you may have to deal with outdated documents or documents that still need to be executed and or signed. You also might be scrambling and spending a lot of time locating essential documents and information such as: your parent’s lawyer, bank account information, accountant, life insurance policies, annuities, pension and retirement accounts, divorce records, birth and adoption certificates, real estate deeds, and stock, bonds, and mutual funds.

Knowing where your parents’ shoe box will save you a lot of time, frustration, and pain during a difficult time when you are experiencing a loss. It will bring you peace, direction, and closure when it comes to executing your parents’ final wishes. If your parents’ have not done any estate planning, now it is your time to have that conversation. As the fall season approaches and families are brought together, remember how important it is to spend quality time with your loved ones, and plan to make sure their desires are met.

This article is for informational purposes only and is not offered as legal advice as to any particular matter in any particular jurisdiction. No one should rely or otherwise act on the basis of these materials without consulting an attorney as to the particular facts and applicable law involved.

Supreme Court 5-4 Decision on The Texas Abortion Law Explained

At the federal level, a woman is able to obtain an abortion any time before “viability,” a fetus’s ability to survive or live outside the uterus, any time before 22-24 weeks.

Texas “heartbeat Bill” became state law on Wednesday, 9/1/2021, which allows enforcement of individuals, who do not need to show a connection or injury to the respective abortion procedure, to sue abortions providers and anyone involved in helping an abortion after a “heartbeat” is detected. The law further forbids most abortions after six weeks of pregnancy and pregnancies resulting from incest or rape.  Further, defendants are not entitled to legal fees but successful plaintiffs are entitled to at least $10,000 and their legal fees. 

On Friday, 8/27/21, the Fifth Circuit Court of Appeals in Texas canceled the hearing scheduled on Monday where providers were going to testify against the bill. On Saturday, 8/28/21, provider groups filed emergency motions with the Fifth Circuit Court of Appeals asking for the Court to either send back the case to a lower court, district court, or issue a “stay” a temporary block of law enforcement. Thereafter, the Fifth Circuit denied the request to block the bill.

So why did the Supreme Court not act?

To prevail in an application for a stay or an injunction, an applicant must carry the burden of making a “strong showing” that it is “likely to succeed on the merits,” that it will be “irreparably injured absent a stay,” that the balance of the equities favors it, and that a stay is consistent with the public interest. Nken v. Holder, 556 U. S. 418, 434 (2009); Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 66 (2020) (citing Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7, 20 (2008)).

The Supreme Court did not act based on the providers’ lack of standing. The Court stated that the providers failed to show that there was a real physical danger that would occur within an immediate timeframe that would require the court to order the prevention of that threat. That it is unclear whether the defendants, noted in the providers’ suit, will seek to enforce the Texas law and therefore require the Supreme Court’s intervention. Nor is it clear, based on precedent, whether the Supreme Court can issue an “injunction” against state judges asked to decide the Texas law.

What does this mean for the future? The possible filing of frivolous lawsuits in Texas, the possibility that other states will pass similar laws, the forcing of Texas individuals to obtain abortions by crossing state lines, the physical and emotional effect on those who cannot obtain an abortion out of state, and the causal effect of the new law and rise of unemployment.

Can the Texas law be overturned? The answer is yes. As noted by the Supreme Court, their order “is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.” The Supreme Court certainly predicts challenges to this new Texas law and it is only a matter of time that this enacted law will be challenged.

This article is for informational purposes only and is not offered as legal advice as to any particular matter in any particular jurisdiction. No one should rely or otherwise act on the basis of these materials without consulting an attorney as to the particular facts and applicable law involved.

Labor Day Weekend BBQ anyone?

Boy your guests look thirsty! Maybe you should offer them a drink? Maybe with a little alcohol? Tasty! But wait a minute - before you serve a guest a drink at your Labor Day BBQ, take a moment and think what your liability might be and the type of alcohol-related accidents and injuries that may occur because you served that drink!

In general, a party giver (“the host” in legalese) owes a duty to exhibit “reasonable care” to their guests.  What is “reasonable care” you ask.  Hosts have a duty to warn their guests of dangerous situations on their property, but only if they know about them – or should know about them. For example, hosts have a duty to prevent situations where their guests are more likely to slip, trip or fall. Additionally, in our next article about Social Host Laws, social hosts may be responsible for their intoxicated guests’ conduct and the potential harm to a guest and third parties before, during, or after a party!

So, what happens if a guest is a little buzzed and falls over a branch or slips on a wet floor and gets injured? Does it even matter that the guest who fell was a little tipsy? To start, it does not matter if the guest is a little drunk. What matters is whether you, the “host”, exercised reasonable care to keep your guests safe. If you didn’t, a guest may want YOU to pay for their injuries and in unfortunate circumstances, may sue you (in today’s society - even if you did exercise care).

For your beloved guest to successfully sue you, they will have to prove to a judge or jury that:

1.     You had a duty of care to the guest to prevent the injury.

2.     You breached your duty of care.

3.     The breach caused their injuries; and

4.     There are actual injuries.

Let’s go back to that wet floor that one of your guests (“the beloved guest”) slipped on causing him to break his arm. Are you at fault? Is the buzzed guest at fault? Well, it depends. How long was the pool water left on the tile? Were you aware of the water on the floor? If you were aware of the puddle, did you warn your guests of the water and try to clean up the mess before anyone could get hurt? If you failed to do so, you most likely breached that duty. If your guest broke something because you breached your “duty of care” then you most likely will have to pay for their injuries.

So, what should you do?  Well, we’re all used to seeing those yellow heavy duty “ Caution Wet Floor” stands or orange cones indicating a wet floor in public spaces.  At your home, you’re not expected to have actual signage, but you should block the area off and even make a quickie sign on paper. You must clean things up pronto.  Maybe simply have somebody stand watch while you go get supplies. 

So, party it up, but watch those guests, keep things clean and have a safe party!

This article is for informational purposes only and is not offered as legal advice as to any particular matter in any particular jurisdiction. No one should rely or otherwise act on the basis of these materials without consulting an attorney as to the particular facts and applicable law involved.

Are You Required To Be A Good Samaritan?

Happy Summer everyone!  

Nothing beats going to the beach or laying out poolside with your friends and family. From engaging in water sports to boating to giving swimming lessons, water surrounds us in the summer! We all know it has its dangers though. There’s slip and falls, possibilities of drowning, and other things we much too often fail to consider.  Even more, we fail to think of the legal consequences of all those lurking dangers! 

Suppose someone is drowning? Are you required to be a Good Samaritan? Are there risks for trying to help? What are the good Samaritan laws anyway? Let’s dive in!

Are you required to help someone in danger?

This varies from state to state, but in most states, you do not have a duty to help someone in danger and rescue them unless:

1.     You created the danger;

2.     There is a special relationship between you and the  potential victim; or

3.     You voluntarily undertook the responsibility as a rescuer,  but either failed or abandoned the act.

People have basic duties in society in the U.S.  Negligence is when a person fails to act or behaves in a manner different than a “reasonable prudent person,” someone who uses good judgment in handling everyday matters compared to those in a similar situation.

When a person’s negligence created a risk to others, a person has a duty to stop the harm from occurring and rescue a potential victim.

The Special Relationship Exception:

Although there is generally not a duty to help others in danger, if you have certain relationships with the potential victim, you may have a duty to try to help them.  These relationships include, but are not limited to: family, parent and child, employer and employee, property owners/lessees and the people they invite onto their properties, landlord and tenants, and hotel/motel type entities and their guest(s).

Are there risks for trying to help someone who is in danger?

If a person begins to rescue a person and then stops, a duty may form where the person is required to continue rescuing the victim. Most courts require for the rescuer to act reasonably once the rescue begins and only to continue the rescue if a reasonable person would continue to do so. Some courts further require the rescuer to continue if the victim relies on their rescuer in order to survive and cannot help himself or herself otherwise.

What are good Samaritan laws?

Each state has statutes that provide protection from liability for people who assist others who are in peril.

These laws are in place to encourage people to help others in a crisis without the worry about being sued if their help causes an injury and/or a further injury unless the “helper’s” acts were “willful, malicious or reckless. “

In most states, the laws generally follow the rule that a bystander does not have a duty to rescue others in need. The exception is Vermont, where people are required initially to provide reasonable assistance to those in danger unless it would put themselves or another person, they have a duty to help in danger or are already helping someone else! 

So, enjoy the water; just be mindful and everyone will have a happy summer.

This article is for informational purposes only and is not offered as legal advice as to any particular matter in any particular jurisdiction. No one should rely or otherwise act on the basis of these materials without consulting an attorney as to the particular facts and applicable law involved.