The Power of the “Power of Attorney”

A “Power of Attorney” is an important legal document that grants to another person the legal right and ability to act on your behalf.

Powers of attorney can be broad or narrow, depending on your needs.  A “general” power of attorney grants broad powers to another to do just about anything you can do for yourself, such as enter contracts, open bank accounts, or make other financial decisions.  A power of attorney can also be “limited” to specific actions, such as signing a single document on your behalf.

A “durable” power of attorney remains valid even if you become incapacitated and can’t make decisions for yourself.  A “Durable General Power of Attorney” is commonly used in estate planning for just such a circumstance; making it possible for your designated agent to make financial decisions on your behalf if you are incapacitated for any reason.

It’s important to remember, however, that the Durable General Power of Attorney allows your agent to act on your behalf even if you are not incapacitated, and you will bound by the actions of the agent.  Some people feel uncomfortable with this and choose to execute a “Springing General Power of Attorney,” which “springs” into effect upon a persons incapacity.  While the “springing” power of attorney grants no authority to act in your name until you become incapacitated, it has the negative feature of needing certain formalities to occur before your agent can act for you.  For example, many springing powers of attorney require that a physician issue a letter documenting your incapacity before the agent can act for you.

All powers of attorney become void upon your death.

It is advisable to have some form of power of attorney in place in case of your incapacity.  Otherwise important financial assets may become locked and actions delayed upon your incapacity.

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Know Before You Rent!

With the advent of the sharing economy and websites such as airbnb.com and vrbo.com, many people have considered renting their primary or second residences to supplement income or defray maintenance expenses.  This practice can lead to disputes with neighbors and local governing authorities.  While renting is typically a “property right” that inures to the owner of real estate, it can be limited by restrictive covenants, home owners association agreements, and/or local zoning ordinances.

Most modern subdivisions include “covenants, conditions, and restrictions,” or CCRs, that run with the land.  CCRs often restrict an owners ability to rent the property or, in the alternative, set certain conditions that must be met before rental can occur.  Similarly, some properties are part of a home owners association, or HOA.  HOAs impose, by contract, certain restrictions on the use of member properties.

Local zoning ordinances may also restrict or prohibit renting of a residence.  In some cases, the zoning ordinance will only allow rental as a “conditional use.”  As the term implies, in these instances, rental is allowed so long as certain “conditions” are met.  Establishing that a property meets the imposed conditions can be a complicated process that typically requires notice to surrounding property owners, interaction with local fire, building, and other authorities, and public meetings.

Renting prior to fully understanding restrictions that may apply to the property can lead to disputes and imposition of fines.  We are often asked to assist homeowners to determine if they have the right to rent out their residence or to assist in the “conditional use” process.  We would be happy to assist you in the event you are contemplating renting out your residence (or are already doing so).

Co-Owners and Property Rights

We are often contacted by clients who find themselves in difficult situations because they purchased real property with a non-spouse third party such as a boyfriend, girlfriend, in-law, or child. The reasons for doing so are varied and usually good-intentioned. For example, a parent might want to help their child or a child’s spouse build a credit rating. An unmarried couple may be engaged and purchased the property together in anticipation of marriage. In the most difficult cases, while both parties take title to the home, only one is obligated under the mortgage loan. If these relationships deteriorate, it leaves the parties in a very difficult situation. Especially the person who is liable for the loan. It is important to understand that when people take title to property together, they each have an undivided right to occupy or otherwise enjoy the property. If the relationship sours or one party finds themselves paying all of the bills related to the real estate, there are very limited measures that can be taken to unwind the transaction if the other party does not cooperate. The property cannot be placed on the market without the consent of both parties and the parties cannot charge each other rent, even if only one is living in the property. Short of litigation, there is no way to force a co-owner to vacate the property or to pay their fair share of expenses. Litigation, in these case, typically takes the form of a Complaint for Sale in Lieu of Partition, in which the Plaintiff asks the Court to force the real estate to be sold and any equity split among the owners. This litigation is time consuming, expensive, and often leads to a sale for less than market value. If you are considering purchasing real property with someone who is not your spouse, consult with a competent attorney to discuss measures to protect your interest and avoid costly litigation if the relationship deteriorates.

Will the Real Property Line Please Stand Up?

The advent of satellite and GPS technology has unexpectedly increased property line disputes.  Now that we can map property line descriptions with incredible accuracy, many land owners are discovering that the “old fence line” is not on the “real property line.”  This has led to neighbors, and even whole neighborhoods, fighting over who owns what and where the real property lines are.

One Utah legal doctrine that helps resolve these issues is the doctrine of “boundary by acquiescence.”  Under this legal doctrine if you can show that a fence, monument, building, or other visible marker has been accepted as the boundary for a period of at least 20 years, that marker becomes the property line as a matter of law.  In fact the Utah Supreme Court recently ruled that title to disputed property automatically vests, based on the marker, once all of the elements of boundary by acquiescence are met.  In other words, no document need be drafted or filed to memorialize the “new” property line.  Once the 20 year period and other elements are met, the fence, building, or monument automatically becomes the property line, as a mater of law, regardless of what a prior legal description or other document says.  See Q-2 L.L.C. v. Hughes, 2016 UT 8, ¶ 24, 368 P.3d 86, 96, holding modified by Anderson v. Fautin, 2016 UT 22, ¶ 24, 379 P.3d 1186.

The idea behind this legal principle is that if everyone has accepted the marker as the property line for at least two decades, then there is no cause of action because the parties have established the property line by agreement.  So before you tell you neighbor that his fence is on your property, be sure to do a little historical research!

 

Preparation – It’s Easier Than You Think!

As with many new undertakings in life, when you’ve decided to begin planning your estate, it’s easy to be left feeling overwhelmed, intimidated, and wondering where to start. Aside from finding an estate planning attorney, knowing what information you’ll need can help to ease these feelings.

The following is a list of information you can expect an attorney to request when you begin planning your estate:

• Most recent personal tax returns
• A list of any real estate you own
• A list of any businesses you hold an interest in
• A list of all bank/brokerage/retirement accounts
• A list of any other large items of personal property (boats, trailers, etc.)

In addition to providing the above information, giving some thought to some pertinent topics is beneficial. The following is a list of questions to think about before beginning to plan your estate:

• Who do you want to pass various parts of your estate to?
• What are your wishes in regards to life saving measures?
• What are your wishes in regards to the disposition of your body after the time of passing?

The State of Your Estate!

An “estate”, what’s that?  An estate is the sum of a particular person’s assets. This includes legal rights, interests in property, and money, minus all liabilities. The term “estate” is commonly used in reference to what a person owns when they pass away and subsequently, what happens to those things.

If a person does not have anything in place designating where their estate is to go upon death, that person is considered to have died intestate and a court will determine who your estate will go to. Estate planning allows you to designate the person(s) your estate will go to after your death. If a person dies with an estate plan, that person is said to have died testate. Regardless of whether a person dies testate or intestate, the personal representative or administrator (the person in charge of distributing the estate) will necessarily have to go through probate to ultimately distribute the estate.

Each state has intestacy laws that designate the distribution of an intestate estate when such an estate goes through probate. However, as mentioned above, it is not necessary to leave the fate of your estate up to laws that don’t take into account the intricacies of your life. There are many different ways to approach estate planning based on the size of the estate, the particular wishes of the person, and family circumstances.  However, for a small estate, a basic estate plan should include, at the minimum, three important components:

1. Will. A will allows you to ensure that your belongings will go to the desired beneficiaries. Additionally, if you have minor children or are considering having children, you are able to choose a person to act as guardian over your children in the event of your death. A note that probate is still required to validate the will, but the presence of a will often speeds up the probate process considerably.

2. Durable Power of Attorney. A durable power of attorney allows you to assign a person to act on your behalf in the event of your disability. This person, as your agent, would have the power to make legal decisions as if he/she were you.

3. Advanced Healthcare Directive. In an Advanced Healthcare Directive, you are able to designate the person that you wish to make your healthcare decisions for you when you are unable to make those decisions for yourself. Additionally, you are able to record your healthcare wishes.

A basic estate plan will not be adequate for some estates. For instance, larger estates may benefit from a trust,  of which benefits have been written about in earlier blog posts.

If you would like to discuss the benefits of planning your estate in more detail, please contact us. We can assist you in deciding how to best effectuate your wishes!

You’re a Trustee. . . good luck with that!

Okay, it might not be quite that bad.  But, if you have accepted or inherited the responsibility of “trustee” of a trust, you have very specific responsibilities.  By definition, trustees are people “entrusted” with the ownership of assets that they must protect and distribute based on a trust contract document.  Additionally, Utah law establishes specific duties that every trustee must fulfill. For example, a trustee must be impartial to the beneficiaries, must be loyal in complying with the trust document, and must not do anything that would improperly benefit himself. If the trustee does not diligently and competently protect the assets, distribute the assets as required, and fulfill his or her statutory duties, the trustee may have personal liability to the beneficiaries of the trust for any resulting loss. If you find yourself acting as trustee you must understand what the trust document and state law require of you. At Hastings Law we can help you understand, navigate, and successful fulfill your trusteeship responsibilities.

Small Business . . . Not Small Potatoes

Many people dream of owning their own business . . . and it’s a good thing.  According to to the Bureau of Labor and Statistics small businesses (defined as those with 1-49 employees) typically accounts for just as much U.S. job growth as large business (those with 5o0 or more employees).

The challenge for most would-be entrepreneurs is that they have no idea where to begin when it comes to starting a new business.  If you are thinking of starting your own business, here are five basic topics you should consider:

1. Business Idea.  Of course, you need to have an idea about what business you want to be engaged in.  The idea doesn’t need to be earth-shattering or absolutely original, most ideas aren’t.  However, you do need to understand what product or service you want to offer and who your target market is.  Additionally, you need to develop an understanding of the cost to provide the product or service and whether your model can produce a profit.  Try putting your idea on paper.  If you struggle explaining your idea in writing, you need to develop it further.
2. Entity.  Choosing how you want to organize your company is an important initial step.   Two common entity types are the corporation or the limited liability company.  Both provide liability protection and an organized structure for your company.
3. Funding.  Acquiring funding is always a concern when starting a new business.  You will need to identify what the up front costs are and where the funding will come from.  Typical sources include personal savings, loans from family members, bank loans, or contributions from limited partners or preferred stockholders.
4. Company Accounts.  When you set up an entity you will need to acquire a Taxpayer Identification Number.  Use this number to set up company bank accounts and have a strict policy that all company revenues and expenses be paid out of company accounts.  Nothing leads to business failure faster than failing to control the revenues as they start rolling in.
5. Payroll.  If your business plan requires employees, you must bone up on the basic rules and regulations relating to employers.  In general, you must treat employees fairly, pay them on a regular basis, pay workers compensation insurance premiums, pay unemployment taxes, and remit payroll taxes and withholding to both the state and federal governments.  If you are new to payroll, it is advisable to hire a payroll processing company or other expert to assist you.  Making mistakes with payroll can create large liabilities for your new company.

Being a business owner is challenging and exhilarating.  By offering the right product, utilizing the right procedures, and hiring the right people your chances of success will greatly improve.  Good luck!

What’s in a Name?

Name recognition is a value thing.  Just ask Google or Apple.  Although your business may not be quite the size of these behemoths, you still could benefit from protecting your business name, logo, or tag lines by registering them as a trademark with the United States Patent and Trademark Office (“USPTO”).

A trademark can be a word, phrase, symbol, color, or shape that distinguishes your products from those of other businesses.   A trademark can even be a sound or a smell.  The key component is that the mark must be able to identify your business as the source of origin for your products or services.

Trademarks do not need to be registered with the USPTO to be protected.  Some protection is granted merely by being the first to use the trademark in commerce, so long as the use remains continual.  Owners of unregistered marks can use the symbol ™ next to their mark to put others on notice that the item is considered a trademark.  However, federal registration provides more comprehensive protection.  For example, federal registration establishes nationwide protection from the date of the application.  Without registration, your protection may be limited to the geographical area in which you are currently using your mark.   Federal registration provides more comprehensive notice to others, thus discouraging the introduction of confusingly similar marks.  Also, federal registration allows you to use the more prestigious ® symbol next to your mark.

If you think federal registration is right for you and your company, please contact us.  We can help you determine if your application is likely to be approved and, if so, help you through the application process!

Change is Good . . . You Go First!

If you are a member or manager of a Utah limited liability company (“LLC”) that was formed on or before December 31, 2013, changes are headed your way.  In 2013 Utah enacted the Revised Utah Limited Liability Company Act effective January 1, 2014.  However, LLC’s organized before the effective date remain subject to the old LLC Act unless they elected to be governed by the new New Act.  That is, until January 1, 2016.  This coming January 1st all LLC’s in Utah will be subject to the new New Act.  Following is a brief explanation of some of the most important changes:

1. Duty of Loyalty.  Under the Old Act it was unclear if Members and Managers of an LLC owed each other a duty of loyalty.  The duty of loyalty provides that owners or managers of a company owe a duty not to take for themselves opportunities that the company would reasonably take advantage of.  The New Act expressly provides that Members and Managers of a Utah LLC owe each other the duty of loyalty.
2. Oral Operating Agreements.  The Old Act did not provide for oral operating agreements.  Consequently, if an LLC did not have a written operating agreement, the LLC was governed by statutory defaults that often lead to unintended ownership interests.  The New Act allows for oral and implied operating agreements with the aim of reflecting the intentions of the Members even in the absence of a written operating agreement.  Of course, recognition of oral or implied operating agreements introduces more uncertainty in the LLC’s operation.  Therefore, it is best for all LLC’s to adopt a written operating agreement.
3. Indemnification.  The New Act provides default indemnification to Members and Managers from liability for acts or payments made on behalf of the LLC so long as they are not acting outside their duty of care, loyalty, and good faith.  Under the Old Act indemnification was optional.