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Sunday, July 26, 2015

Terminating an Employee: How to Minimize Litigation

 

 

Terminating an employee is always a difficult job for an employer.  One of the biggest concerns an employer may have is that the employee will sue the company for wrongful termination.  There are some things an employer can do to reduce the chances of litigation.  First, the company should have a clear, written policy regarding termination, including procedures to be followed.  Someone at the company should be responsible for clearly and methodically documenting an employee's poor performance or wrongful behavior.  Occurrences should be reduced to writing and the employee should be promptly notified and/or warned,  in writing.  Additionally, it is often helpful to offer the employee some amount of severance pay and have that employee sign a release, promising not to bring legal action, as part of the severance package.

  


Thursday, July 16, 2015

The Differences Between a Health Care Proxy and Living Will

 

Clients often inquire about health care proxies and living wills and wonder what the difference is between the two, if any.  A health care proxy is simply a document where you appoint someone to make health care decisions if you become incapable of making them on your own.   These decisions are usually general in nature and include items such as surgery, blood transfusions, and other treatments.  Ordinarily, unless combined with a living will in the same document, the health care proxy does not permit the agent to make end-of-life decisions.   A living will is usually a free-standing document which states to the world one's wishes regarding life and death decisions, and does not usually give the right to make these decisions to anyone in particular.  Of course, the health care proxy and living will can be combined in one document, in order to give the agent the authority to make end-of-life decisions, in which event the decision is usually at the discretion of the agent.


Sunday, July 5, 2015

Important Estate Planning Considerations For Dual Residents

   

               It is quite common for people to have two homes, usually one in New York and one in Florida or some other southern state.  While a will prepared in one state is usually valid in all other states, if done in accordance with the law of one's residency, that is not the case with health care directives.  Each state usually has their own laws and forms regarding  health care proxies and living wills, and is is quite common for institutions not to honor or recognize forms prepared in another state.  This is usually also the case with power of attorney documents, since they are state-specific.  It is highly recommended, then, if one spends a good deal of time in another state, to have a second set of these documents prepared by an attorney licensed to practice law in that state.

 

 

 

 

IRS Circular 230 disclosure: We inform you that any tax advice contained in this communication is not intended or written to be used, and may not be used by your or anyone else for the purpose of avoiding penalties imposed under the Internal Revenue Code.

 

 

                                     


Sunday, May 31, 2015

Guardianship of Disabled Children

If you have a child who suffers from a type of disability which makes it impossible for the child to make his/her own decisions, then you will need to obtain legal guardianship of that child once the child nears the age of 18.   At eighteen years old, a child is considered an adult and, so, the parent is not able to make decisions for the child unless the parent has been appointed the legal guardian.  Of course, the guardianship can be done after the child's 18th birthday, as long as it is clear that the disability began before the age of majority.

   New York has made it relatively easy for the parents of disabled children to become the legal guardians.  It is accomplished through an Article 17A proceeding, and is done through the Surrogates Court.  This is a simpler, less expensive procedure that is specifically for disabled children.  There are several forms required to be filed with the Court and then a hearing date is set when the parents and child appear personally.  One of the many advantages of the procedure is that the parents can list other family members or persons to step in as legal guardian in the event they become unavailable. 

   Guardianship will permit the parent (or other guardian) to make all decisions for the child, including health care decisions, and to manage the child's income and assets, if any.  While the proceeding can be done without an attorney, it is highly recommended that a lawyer experienced in handling these proceedings be retained for this purpose.


Thursday, May 14, 2015

Long Term Health Care Planning: How To Protect Your Home

                                 

It is a well-known fact that nursing care, whether rendered at home or in a nursing facility, is extremely expensive. Even if one possesses substantial assets, those assets will be eroded quickly as a result of spiraling health care costs.  Often, the most significant asset owned by the person needing such care is the family home.  Therefore, it is important to take steps to ensure its protection.

A common method of financing long-term health care costs is the utilization of benefits available under the federally funded Medicaid program. Unfortunately, in order to qualify for benefits, the value of the assets which you own (including your residence) must be minimal.

A properly drafted irrevocable trust can preserve your home, and at the same time, avoid adverse gift tax and capital gains tax consequences.  It can also provide you with a great deal of flexibility and some degree of control. For example, the trust can be designed to provide you and your spouse with the right to reside in the home for the remainder of your lives.  If you later decide you want to move, you can require the trustee to sell the home and either buy another home in its place or invest the proceeds of the sale in order to provide you with income.  Lastly, such a trust can provide for disposition of the home upon your death without the necessity of your heirs going through probate.

 

 

 

IRS Circular 230 disclosure: We inform you that any tax advice contained in this communication is not intended or written to be used, and may not be used by your or anyone else for the purpose of avoiding penalties imposed under the Internal Revenue Code.


Sunday, May 3, 2015

How to Improve Your Company's Collections

Unfortunately, not getting paid promptly, or at all, for services or products supplied is a common problem experienced by businesses.. There are a number of simple steps a business owner can take in order to decrease the occurrences of such non-payment, without resorting to litigation.   

       Of course, it is always better to be paid in advance, but most customers are not  willing to do so.  
One of the first things a business owner can do in order to improve collections is to make sure that detailed invoices are promptly sent  to the customer, with the total owed shown clearly and boldly, along with a prominently displayed statement that payment is due within a certain, short time period, and that interest will accrue if the invoice is not paid promptly.  Putting this additional language in your invoices may invoke a negative response from customers, but it also shows customers that you are serious about getting paid. 

                           It is also extremely important for a member of the Company's staff to be in charge of quickly following up with customers who do not pay in a timely fashion, whether it be by sending out a second invoice, or by calling the customer.  The longer one waits to pursue payment,  the less likely collection will be successful. If  the call and/or second invoice doesn't yield positive results, a letter from the company demanding payment should be sent out on company letterhead.  As a last resort, the business owner should have his/her attorney send a collection letter to the customer, threatening litigation.

 


Saturday, April 18, 2015

Planning For When Your Child Attains The Age Of Majority


Parents are usually relieved when their child turns eighteen (18) years old. One reason is that they no longer need to worry about having a guardian for that child in the event something happens to the parent(s).  By the same token, however, once the child becomes an adult under the law, the parent may experience difficulties in making medical and financial decisions for the child, and even in trying to obtain information regarding the child.  It is essential, then, for the parent to have a health care proxy, living will and power of attorney prepared for the child.  These documents need to be properly executed, thus giving the parent the ability to make health care decisions and assist with financial matters, notwithstanding the fact that the child is now an adult under the law.


Friday, March 27, 2015

Choosing Between A Limited Liability and A Corporation



New business owners are often concerned about liability, and rightly so.  Once a business begins operations, or even before it, one should consider what type of legal entity should be formed in order to protect the owner(s) from personal liability.  The two most common choices are corporations and limited liability companies.  There are two types of corporations: an “S” corporation, which avoids double taxation, but which has restrictions on the number and type of shareholders, and a “C” corporation, which does not contain restrictions but usually results in two layers of taxation, one at the corporate level and another at the individual level.  A limited liability company is another consideration.  It offers a great deal of flexibility, from both a tax and estate planning perspective.  One of the primary disadvantages is the somewhat higher initial cost of forming the entity.  Additionally, it may not be advisable to form a limited liability if there is only one owner, because of the less favorable tax treatment given in that instance.


Saturday, March 14, 2015

The Importance of Establishing A Supplemental Needs Trust

                         

                       It is extremely important for the parents of a child with special needs to embark on estate planning early on in the child’s life. First, in order to permit the child to collect government benefits, assets should not be held in the child’s name.  Perhaps more importantly, the parents should establish a special needs trust, to enable them to leave monies to their child upon their death without jeopardizing those benefits.  The monies in the trust will also be available to the trustee in order to enhance the quality of the child’s life.  While many parents expect that their other family members will look after the special needs child, financially and otherwise, there can be adverse tax and other consequences if they provide financial assistance without the benefit of such a trust.

 

 

 

 

 

 

 

 

 

 

 

 

 

IRS Circular 230 disclosure: We inform you that any tax advice contained in this communication is not intended or written to be used, and may not be used by your or anyone else for the purpose of avoiding penalties imposed under the Internal Revenue Code.


Saturday, February 28, 2015

Protecting Inherited and Gifted Assets in a Divorce

 

In New York, as in many other states, gifted and inherited assets are considered “separate” property for matrimonial purposes.  Essentially, this means that you need not share those assets with your spouse in the event of divorce.  However, it is extremely important that you keep those assets in your own name, and do not use them for marital purposes, mingle them with other assets, or add your spouse’s names to the titling of those assets.  If you do, they lose their separate character and are subject to equitable distribution in a divorce proceeding.




Thursday, January 29, 2015

Buying & Selling Commercial Real Estate: Some Practical Tips


More and more business owners are deciding that purchasing a building for their business use is a better option than leasing space.  While real estate prices are currently at a high level, there has been a renewed confidence in the strength of the real estate market in general. 

Once you have decided on a parcel of commercial property you are interested in buying, it is absolutely imperative that an environmental assessment be done and a professional engineer be engaged to inspect the building.  Ideally, these assessments should be done prior to contract, but the seller will typically insist on having a signed contract beforehand.  At a minimum, the contract of sale should provide the purchaser with a reasonable due diligence period, during which environmental and other assessments can be made.  Additionally, the purchaser should have the unqualified option to terminate the contract in the event these assessments uncover problems.  In the event unfavorable conditions are detected, you will at least be in a good position to negotiate a lower price if you should decide to proceed with the deal.  

It is likely that the purchaser of commercial real estate will find it necessary or desirable to finance the deal with a mortgage loan. It is important for the buyer’s attorney to negotiate a liberal mortgage contingency clause, so that if the loan application is not approved, you can get out of the deal without losing your contract deposit.  It is generally advisable to form a new corporation or limited liability company to take title to the commercial property, one which is separate from your operating company.  In the event someone is injured on your property, it is desirable to limit your liability to the value of the property and not subject the value of the business to any loss.

The seller of commercial real estate may wish to consider utilizing a 1031 exchange, in order to defer capital gains.  In order to defer the gains, you must purchase a like-kind piece of property within a limited period of time.  You need to employ the services of a 1031 intermediary in order to accomplish this objective.  

Even if you are not interested in purchasing commercial real estate for use in a business, you may wish to use the real estate as an investment vehicle.  In these instances, it is still imperative that the appropriate inspections and assessments be made.  Whether purchasing commercial property for use in your business or as an investment, one should retain experienced counsel in order to negotiate the real estate contract and provide guidance in due diligence matters.
 

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At the Law Office of Angela Siegel, we are pleased to offer legal assistance to clients located in Nassau, Suffolk, Queens, Kings and New York Counties specifically but not limited to Garden City, Jericho, East Meadow, Mineola, Syosset, Roslyn, Cedarhurst, Woodmere, Hicksville, Plainview, Merrick, Wantagh, Bellmore, Rockville Center, West Hempstead, Little Neck, Douglaston, Bayside, Flushing, Forest Hills, Astoria, etc., as well as clients located within the state of Florida.



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