A “No Pets” sign, and how this could get my business into trouble

My typical work day involves drafting wills and trusts, forming LLCs and nonprofits, and handling probates. I’ve also had a small niche in representing people and businesses in Americans with Disabilities Act (ADA) matters, and this part of my practice is growing, quickly. Service dogs comprise the bulk of my new ADA clients, including both people with service dogs, and businesses wanting to know what they are permitted to do.

Here are the people who should read this post: business owners; employees at any business; employees at any federal, state or local agency; hospitals; universities; museums; amusement parks; fairs; and I’m realizing that perhaps it would be better to simply list those who do not need to read this post! That would be 1) churches, and 2) private clubs. Churches and private clubs are exempt from complying with the ADA. There could be variations that bring them under compliance, such as a church hosting an event open to the public, but generally they are exempt.

So, how would a “No Pets” sign get my business into trouble? The answer is because you might be prohibiting a service animal which is a violation of federal law, and likely a violation of your state’s laws. Then before you know it you are being sued, or the Department of Justice is contacting you, and if the handler of the service animal is a veteran, you will likely be receiving much negative media attention.

Service dogs, first, are not considered pets. They are actually considered “durable medical equipment,” same as a wheelchair, to a person with a disability. Second, just as you cannot prohibit a wheelchair going anywhere (an historic restaurant actually tried this because the child’s wheelchair wheels would dirty the expensive carpet), you cannot prohibit a service dog from going anywhere with its handler. And as with anything there are exceptions, such as the sterile environments of a hospital burn unit or operating room, but these exceptions are rare.

Refusing a service dog is a violation of a disabled person’s civil rights. It is an actionable legal injury for which you can take legal action. For a law that has existed for 33 years, pleading ignorance isn’t much of an option. However, although businesses should know of a law that is 33 years old now, they often don’t know how it works, and since a lot of attorneys don’t know either, ignorance of the law is fairly common. Businesses are not without options in the service dog arena.

Before discussing possible scenarios, here are a few service dog basics:

1. Only dogs can be service animals. And then, a bit down in the rules, a miniature horse can be too. A miniature horse service animal has about one and a half times the working life as a service dog.
2. Any breed of dog can be a service dog–yes, even pitbulls and even if your town has a ban. A service miniature horse can be kept despite livestock or non-companion animal bans (e.g., chickens).
3. Service animals must be trained to assist the disabled person with tasks. The individual can train the dog–no formal training by a trainer, company or nonprofit is required (see how Ohio law conflicts and is unconstitutional). A dog helping someone in a wheelchair is what people know most, but they can be trained to detect low blood sugar in people with diabetes, engage in search and rescue of an autistic child who has eloped, put full body pressure on their person who is having an anxiety attack or other problem, guide their person with PTSD to an area without a crowd or loud noises, among numerous other tasks.
4. No vest, garb, certificate, registration card, or any of this is required by federal law, which trumps state or local laws requiring such things. It is a violation of federal law to require any of these items. People who buy these items are wasting their money, but many do so simply to avoid hassle in public.
5. You cannot require that the dog wait elsewhere for its handler, or be separated from its handler. For example, the service dog can’t be made to wait outside of its handler’s hospital room, or tethered outside the restaurant while its owners dines, or sit outside a classroom while its handler is in class.
6. Service dogs in training are not covered under federal law (ADA), but might be protected by state law. States cannot require more than federal law (that Supremacy Clause part of our Constitution) but states can allow for more than what federal law allows, so they can protect service dogs in training, but cannot require what I mentioned in point 4.
7. A “no pets” sign does not apply to service animals. I’ve seen “No Pets” signs at public parks, beaches, community pools–they must allow service animals. They are not pets.

“I manage a restaurant and this dog in a service dog vest jumped up with its paws on the table, begging for food, and was running around and barking.” This is a typical complaint from a business. Or, “A woman came into [big box store] with 3 dogs in her shopping cart, all yapping and jumping around, and when I asked her to leave she said they’re service dogs and she’ll sue.” What can a business do?

A service dog must be under the control of its handler, and must be housebroken. In the examples above, I would have advised the managers to require the patrons to remove their dogs. The dogs were not under control. Again, there are some exceptions–some service dogs bark and jump as a way to alert their handler of an impending medical event (epileptic seizure, low blood sugar). But that alerting dog who’s barking will be very attentive to its handlers, not running around begging for food. And remember to eject the dog, not the person, even though most people will leave with their dog.

If a business has concerns about whether the dog or miniature horse is a service animal, and the person’s disability is not obvious, you can ask about the animal. The agency that makes the rules with this part of the ADA is the Department of Justice (DOJ), which states in its guidance materials that you can ask two questions: 1) is the dog a service animal required because of a disability?, and 2) What work or task has the dog been trained to perform? Be careful of what you may not ask. You may not ask about the nature or extent of an individual’s disability, or require proof that the animal has been certified, trained or licensed as a service animal, or require the animal to wear an identifying vest or tag, or ask that the dog demonstrate its ability to perform the task or work.

My advice for businesses regarding service animals:

1. Train your employees. Your business can have the most compliant service animal policy, and it can be undone (and create liability for you) by an employee not trained on the policy or the law’s requirements.
2. Look at the animal’s behavior, not whether it is wearing a vest or the owner has a card or certificate. Is it being disruptive, barking, pulling on its leash, jumping around (likely not a service dog)? Or is it almost invisible, down by its owner’s feet or if not at its owner’s feet, is it quiet and attentive to its owner?
3. If the person’s disability is obvious, and the dog is not being disruptive, do not question whether it is a service dog.

My advice for service animal handlers:

1. Video any interactions with employees.
2. Don’t expect the police to know the ADA, but they should be expected to uphold state law. Know your state’s service animal laws.
3. You do not need to answer questions or justify your service animal to customers or patrons, only to the people who have the right to inquire, such as employees, managers, etc.
4. You do not need to explain your disability, and it is illegal to ask. Your answer to “what task is your dog trained to perform?” can be answered without going into your disability, such as “medical alert.”
5. Contact the business’s corporate office, if it has one, and consider contacting an attorney and/or filing a complaint with the DOJ.
6. If you have a service dog for your child, have it as a 504 accommodation at school, not in an IEP.

Feel free to contact me with any service animal questions at julie@juliemillslaw.com, http://www.juliemillslaw.com.

Can children fly alone?

Spring break is approaching for many school districts, and children might be flying alone to visit family or for any number of reasons. This article discusses details and requirements of children flying by themselves without an adult. I note that the article states that you’re an unaccompanied minor if your child is between 5 and 18. Someone who is 18 is an adult–I would have written 5 through 17.

https://www.findlaw.com/legalblogs/findlaw-for-teens/can-kids-travel-alone/?dcmp=cons_times%3Anwl%3A2023march%3Agen%3Aimage%3Ablogs

Mental incapacity: what is it?

Grandpa is in his 80s, Grandma died not too long ago, and since then he has spent most of his life savings on his new companion, buying her expensive gifts. His decisions are impulsive and he’s never spent extravagantly before. Might he be mentally incapacitated? Great Aunt Mary sent almost all of her life savings to a small charity that promotes her favorite flower. Was that a good financial decision? Your friend Alice suffered a stroke, has been forgetting things a lot lately, is bouncing checks, late on all of her bills, and is withdrawing the bulk of her 401k but thinks it is a traditional savings account. Is she mentally incapacitated?

Most people know someone who has started making questionable financial decisions, and the instinct is to assume mental incapacity–do Grandpa, Great Aunt Mary, and Alice know what they are doing? Does management of their finances and assets need turned over to someone else?

Ohio law defines incapacity as where “the individual has an impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance.” How do you apply this definition to real-life situations?

Whether someone has “capacity” to perform a certain act is determined by looking at the person at the time of the act, versus looking at the act. There is what some call “the right to folly,” or the right to make bad or foolish decisions. Has Grandpa never bought expensive things but wants to now and does not care about how much he spends? Great Aunt Mary is not incapacitated just because she might be acting foolishly with her finances, even if it entails sending all of her savings to a small charity that promotes daffodils. We all have a right to make bad decisions, or what others would say are foolish decisions.

If bouncing a check, being late with a few bills, or making questionable financial decisions isn’t incapacity, then what is? Having a pattern of this behavior might evidence mental incapacity. Misplaced funds, a recent history of bouncing checks, unexplained gifts, and being unduly influenced by others could all signal incapacity. Alice above is the example that strongly suggests incapacity, and she should be evaluated by a physician–her behavior seems erratic, and she doesn’t appear to know what she is doing. Did Grandpa get coerced into handing over his finances, or into buying gifts? Did Great Aunt Mary hand over her life savings after repeated phone calls to do so from the charity, and she has never had an interest in daffodils before? Then purposeful “folly” might instead be susceptibility and undue influence, and mental incapacity. Therefore, the legal issue is not whether a person has made the wrong decision, but the capacity of the person making the decision.

If there is mental incapacity, how one proceeds depends upon the facts of each situation. Mental incapacity in one realm does not equate to it in a different realm. The necessary capacity to sign a will is less than signing a deed. Perhaps a full guardianship that takes away all right to make decisions is not needed where a conservatorship (court-appointed management of finances) would suffice. If a certain level of competence exists, that person could sign a financial power of attorney that designates someone to handle finances or a medical power of attorney to make healthcare decisions.

There is a difference between mental incapacity and making bad decisions. Despite concern from others for bad decisions or “foolish” behavior, we are presumed competent unless proven otherwise.

Email or call me if you have any questions about mental incapacity in the context described in this post. See my website at http://www.juliemillslaw.com for my contact information.

How decision making disables the estate planning process.

When you decide to put documents in place to care for your loved ones after you are gone, you must make decisions. Many of those decisions carry great weight: a guardian to raise your child, an executor to pay your final bills, an agent to serve as your power of attorney who will handle your finances if you can’t. The biggie is a trustee of a special needs trust who will ensure that your disabled child gets what he or she needs, without jeopardizing government benefits like Medicaid. My pet estate planning clients will stall the entire process because they cannot decide who they trust enough to care for their pet if they die. It can be a gut-wrenching process, and I get it from my own personal experience. But…

As difficult as it is to choose a guardian to raise your child from a pool of family or friends who you don’t truly trust, you must consider the alternative–a judge who you do not know, and who does not know your child or family, who will be forced to decide for you. If this struggle surrounds a caregiver for your pet, numbers show that your pet has a high likelihood of ending up in a shelter. From attorney Jennifer Sawday:

“Perfection is not the goal in estate planning. Yet it is often the first objection. ‘I don’t know who would be the guardian for my kids or who should be the trustee.’ Yeah, I don’t either and neither does the court. You have someone in mind. Put them down. Something is better than nothing in the context of estate planning.” Jen Sawday, TLD Law, Long Beach, California

Something is better than nothing. See my blog post here and here for things to consider in choosing a guardian for your children, and here for a trustee for a special needs trust. Set a deadline with yourself for deciding on two or three people for these roles. Otherwise, your loved ones have a risk of living with the decisions of someone who does not know them.

To get started on putting a plan in place, email me, contact me through my website, or call me. http://www.juliemillslaw.com; julie@juliemillslaw.com.

Are you considering starting a small business?

I am so energized by entrepreneurs.  Someone who decides to take an idea or a desire to do or provide something, start their own business and risk so much, then work hard to turn the business into something that will provide for him- or herself, and maybe a family…I enjoy providing as much as I can for clients who ask for my assistance in realizing these goals.

Starting your own small business can be daunting.  While it does take time, energy and money, all three of these requirements can be kept simple, minimal.  Many would-be business owners get completely bogged down over-researching and over-planning the start-up of their business.  Unless you plan to court investors or venture capitalists, then keeping it simple might be the recommended plan for starting your small business.

1. Write a one-page business plan. Business plans help you formulate your vision and communicate your plan with others.  I’ve seen people omit this step altogether, or become mired in creating an unnecessarily in-depth plan.  You need a business plan for yourself to stay on track, plan goals and develop a financial budget, so I do not recommend skipping this step.
   • What is your mission (why does your business exist)?
   • What are your goals or objectives that will help you accomplish your mission?
   • What steps will you take to meet your objectives?
2. Develop a budget. Keep start-up costs as low as possible.  How much money will you need to get up and running?  Do you need a computer, software, printer, supplies? Will you need office or retail space, or are you set up to work from home? What licenses or permits will you need, if any? Take that number and add 20% to account for things you hadn’t anticipated.  How long can you run your business before you need to turn a profit?
3. Select a business entity. Should you form a limited liability company (LLC)? Partnership?  C-corporation?  Elect s-corporation status?  Operate as a sole proprietor, without forming a business entity?  In some states, filing fees for forming an entity are steep.  Consequently, some articles recommend operating as a “sole proprietor” (no separate business entity) for a few months until you can afford incorporation filing fees.  Ohio’s incorporation filing fees are not steep (generally under $200), and the personal exposure risk in operating as a sole proprietor is too great to justify not incorporating if you are starting a business in Ohio.
4. Operate as a business.
   • Open bank accounts in the name of the business and keep business money completely separate from personal money.
   • Get letterhead and business cards.
   • Sign all business-related matters as “John Doe, President” or whatever title you choose.  Signing just your name might subject you to having made a personal guarantee.
   • Get an employee identification number (EIN) even if you do not have employees—you might need it for IRS or other matters.
   • Get a website.
   • Determine whether you need insurance.

If you want to research on your own, the Small Business Administration website and your state’s Secretary of State’s website are good places to start.

If you would like to discuss starting your own small business, please contact me at julie@juliemillslaw.com, http://www.juliemillslaw.com, or via my office’s Facebook page at https://www.facebook.com/juliemillslaw

Who decides what happens to your body after you die?

The “disposition of bodily remains” is a topic that doesn’t seem to be discussed much. I just took it for granted that there was a procedure followed for our bodies after death. To the contrary, there is no procedure–the disposition of your bodily remains is just one of several decisions that have to be made by your surviving family members if you have not put your wishes in writing.

Will you be buried? Cremated? If you are going to be buried, then where? If you are going to be cremated, what will happen to your ashes? Or are you planning to donate your body for medical research? There is the belief that family fights occur over personal possessions such as jewelry or sentimental items, but it is the “disposition of bodily remains” where serious arguments happen. Sherman Helmsley (“George Jefferson”) wasn’t buried for months because of the fights surrounding his remains.

No one likes to think about dying, but it alleviates the pressure off of your survivors if you make decisions now about what will happen to your body after you die. In Ohio we have a “Declaration for Funeral Arrangements” where you state any specific wishes you have regarding cemeteries, funeral homes, burial or cremation, visitation, etc. Most importantly, and most desired by funeral directors, you name people who will make decisions about your bodily remains for you if you have not. Funeral directors do not want to be in a position of making sensitive decisions at a sensitive time regarding a person’s remains.

In Ohio, a surviving spouse has the right to make decisions about your bodily remains if you have not put your wishes in writing. What if you have no surviving spouse and you haven’t put your wishes in writing? Ohio law assigns the right of making decisions to the following people, in order of priority:

1. surviving children;
2. surviving parents;
3. surviving whole and half blood siblings;
4. surviving grandparents;
5. surviving grandchildren;
6. surviving lineal descendants of grandparents;
7. a guardian of the deceased person;
8. anyone willing to assume the right of disposition if no previous persons can be located.

What if there is no one listed above? If there is absolutely no one to assume the right of disposition, then the state takes over. What if you have four children who are to make these decisions and half want you buried, and half want you to be cremated? State law requires a majority vote and if a majority cannot be reached, then a probate court decides.

It is a gift to your survivors to put your wishes in writing regarding healthcare, asset distribution, and–importantly–disposition of bodily remains. If you would like to prepare a Declaration for Funeral Arrangements in Ohio, email me at julie@juliemillslaw.com, or complete the “Contact Me” section on my website at http://www.juliemillslaw.com.

New Year’s Resolution: Protect Loved Ones by Planning

One of the best things you can do for your family is to protect them if something should happen to you. Protect your minor-aged children by choosing who will raise them if you die. Arrange to protect your family financially throughout their lives with a trust or other estate planning vehicle if you die. More clients than ever are deciding who will care for their pets in estate planning documents should they die. What plans have you made? If you have made no plans, then state law, courts, and others will have to make decisions about your children, burial plans, medical decisions, and distribution of what you own.

Removing the burden of family making decisions for you if you die is also a gift for your surviving family who are grieving. Resolve now to put your end-of-life wishes in writing. For example, have you made plans for whether you want buried or cremated? Have you put in writing whether or not you want to be kept alive by a breathing machine? “My family can decide those things.” Yes, but what if half of your children want to bury you, and half want you cremated? What if some family want you alive longer on a breathing machine that could keep you alive in an unconscious state for a decade? Your gift to your family would be that you make sensitive and often gut-wrenching decisions about your life and death without burdening them with having to decide what to do.

Do you already have a will, trust, and other estate planning documents? Then resolve now to review what you have and to make sure your documents reflect your current wishes. Here are some prompts to ask yourself when reviewing your will, trust, and other documents:

1. If your children are minors, confirm who you listed as guardian to care for your children if you die.
2. Are you recently divorced? You obviously need a new estate plan but be sure to check the beneficiary documents on life insurance, etc., to be certain you have the correct beneficiaries named. Getting divorced does not automatically remove an ex-spouse from documents.
3. Check all your documents to see who you listed as agent (powers of attorney), executor (will), trustee (trust)–are these people still alive? Still able to serve? If not, be sure you have successors named.
4. Have you moved? A new residence might affect some estate planning documents and you will want to update.
5. Have you changed your mind regarding where your assets go? What does your will or your trust state? Do you have assets that you want to leave to someone specific? A different charity?

The best New Year’s resolution to make is to protect your family should something happen to you. Contact me with any questions about preparing a plan that covers these decisions, rather than leaving it up to family. Email me at julie@juliemillslaw.com, or via my website’s Contact Me page at http://www.juliemillslaw.com.

“How do I know if I need an estate plan?”

“A man’s dying is more his survivor’s affair than his own.”–Thomas Mann, 1924.

Thomas Mann is correct–your survivors are the ones handling your affairs after you are gone. How will they do that?

Good news–everyone has an estate plan already. There is a plan waiting for you in each state called the statute of descent and distribution. Ohio’s is found here. These statutes typically leave your assets to your spouse, if no spouse then children, if no spouse or children then surviving parents, then to surviving siblings, etc. If you like this plan that the government has set up for you, then you are set. (Note, however, that I very strongly advise you to not accept this plan if you are a blended family.)

So what if you have minor children–who takes them if you die? What if you have a stepchild who has been a part of the family his or her entire life and you want that child to inherit from you? Who pays your bills for you if you are incapacitated? Who makes health decisions for you if you can’t? What if you do not want to be on life support to avoid living in a prolonged vegetative state? These (and many other) issues are not addressed in the statute above. The statute applies only to your property.

Consider these questions if you are not sure whether you need something more than what state law decides for you:

1. Do you want to be the person who decides who will care for your minor-aged children if you die? Then you need to designate who will take them in a will or trust. You don’t want a judge deciding for you.
2. Do you want to leave anything to a charity? You do this in a will or trust.
3. Do you want to decide who cares for your pets if you die? You do this in a will or trust.
4. Do you want to disinherit anyone? Then you need to specifically do this in a will or trust.
5. Are you a blended family? Then you need a will or trust, or some children could become unintentionally disinherited.
6. Do you not want your children to receive their entire inheritance at age 18? That is a lot to expect of a child who turns 18 to suddenly inherit and be responsible for large sums of money. You will want a trust that can provide for distributions at various ages or stages in life.
7. Do you want someone to handle your financial affairs (pay bills, taxes, etc.) if you are unable to? You will want a financial power of attorney.
8. Do you not want artificial life support? Then you want an advanced directive called a living will (it’s not really a will.)

Perhaps the state’s plan for you accomplishes what you want, and further planning is not necessary. However, if you said “yes” to any of the above questions or you do not want the state to make these decisions for you, then you need to prepare your own estate plan.

If you have more questions about estate planning, or would like to get started on your own plan, email me at julie@juliemillslaw.com or through my website at http://www.juliemillslaw.com.

Five End-of-Year Things Every Nonprofit Should Do

For tax-exempt nonprofit organizations, the end of the year is the time to reflect on what you have done such as what goals were met, what donations were received, what was accomplished to further the organization’s mission. A reflection of the prior year is essential in planning for the upcoming year. These are five things every nonprofit organization should do before the end of the year.

1: Verify your status and reporting requirements with your applicable state agencies. Check with your state’s Secretary of State to see that your statutory agent information is current. Revisit your Articles of Incorporation to see if anything needs amended. File your annual report with your state’s attorney general, if applicable. (In Ohio, annual reporting for nonprofits is almost always applicable.)

2. Hold annual meeting. Review and revise bylaws. Elect directors and officers. Review the budget and contracts. Discuss board expectations.

3. Taxes and Finances. Prepare for the annual IRS 990 form–finalize finances, reconcile accounts. Develop a financial report that you can show your donors and the public.

4. Review grant obligations. Review and track grant funding requirements. It is a nonprofit’s obligation to track and report grant funding. Failure to do this could results in the grant funding group or agency “clawing back” their funding, or refusing to provide funds in the future.

5. Review insurance coverage. Does your insurance coverage protect you in all that your organization does? Does your organization engage now in new activities? Work in different locations with different people (e.g., with children)? Take time to ensure your insurance coverage is adequate.

These five steps are basic to a nonprofit’s year-end review. The are used to review what the nonprofit has done, and to serve as a basis for planning future goals. If you have any questions regarding a nonprofit organization’s year-end review, do not hesitate to contact me at julie@juliemillslaw.com.

Pet estate planning–steps every pet owner can take

Providing for your loved ones in a will or trust isn’t just for humans, it’s for our pets too. We have all seen the frenzy to find a home for a pet whose owner died. As someone who helps clients plan with wills and trusts, and most clients include their pets in their estate planning documents, I know that it takes very little effort and money to ensure your pet’s well-being if you die.

Scenario 1: I don’t have money to pay for a will or trust

Having a will or trust prepared is obviously best, but there are things you can do to plan for your pet if you die that cost nothing but your time. The key is to put your wishes in writing, then have the writing signed by two uninvolved witnesses (Ohio law). “What do I write?” You will want to state the pets you have (name, age, breed or description), name and location of people you would like to take your pets if you die. This document is not ideal, but if witnessed correctly, would likely be upheld or followed by a court.

My other suggestion is to complete a Letter of Intent to guide those taking your pets. I wrote about this here.

Finally, leaving a sum of money to people you designate to take your pet is a good idea, just be sure to choose people carefully. There have been situations where people have taken the money left to them to care for a pet, then dumped the pet at a shelter.

Scenario 2: I have money for a will

Providing for your pet in your will ensures that there is a legal transfer of ownership of the pet, and transfer of any funds designated for its care. How much money do you leave for the person caring for your pet? The amount must be reasonable or a court would invalidate the provision–$2 million left for Leona Helmsley’s small dog was ruled unreasonable by a New York court. There are pet cost calculators (this chart by the ASPCA was published in 2011, with inflation increasing the amount by approximately 3% each year since) to provide a general idea of these costs and by insurance companies who provide pet insurance.

You should designate the person who will care for your pet, then two successive alternates. Include a Letter of Intent with your will, and be specific in your will and other documents regarding how you feel about end-of-life care and euthanasia. Include an emergency power of attorney if you can that permits the person you designate to enter your house (and permit authorities to enter) to care for your pet if you’re in the hospital, or take your pet if you have died so it can be delivered to the caregiver in your will.

Scenario 3: I want a pet trust, or to provide for my pets in my trust—compehensive planning

Pet trusts are the absolute best way to ensure your pet’s care if you die. There is a person named who controls the funds used for the pet’s care (trustee), who is separate from the person physically caring for your pet (caregiver). With scenarios 1 and 2, there is no enforcement–you hope people will do what they’re supposed to, which is why you choose people carefully. A trust, however, provides enforcement and oversight of your pet’s care. You can state terms that must be followed, such as how many visits to the veterinarian per year, whether you want the pet boarded or prefer a pet sitter instead–the choices are endless.

I have blogged on pet estate planning here, here, here, and here. If you have any questions about providing for your pet if something should happen to you (incapacity or death), do not hesitate contacting me at julie@juliemillslaw.com, or via my website at http://www.juliemillslaw.com, “Contact Me.”