The Estate Plan List (to get you started)

Will

Do you have a will?  If yes, is it up to date with people you chose to serve as executor and guardian?  Do you want to add or remove any beneficiaries?

Financial Power of Attorney

Do you have a durable financial power of attorney that names trusted people to take care of your financial matters if you are unable to?  How will your bills get paid if you are in the hospital?

Living Will

A living will is a healthcare document that details your end-of-life decisions.  Do you want to be kept alive by artificial means?  Are there some procedures you want to refuse (typically for religious reasons)?  For your living will to take effect, two doctors must agree that you have a terminal condition or are in a permanently unconscious state, and death is being prolonged with no reasonable chance for recovery.  The people you list in this document are merely for contact purposes–they have no decision-making authority.

Healthcare Power of Attorney

A healthcare power of attorney allows you to name people who will have authority to make healthcare decisions for you if you are unable to do so.  If you have a living will, your healthcare power of attorney cannot override your wishes in your living will.

Life Insurance

Why have life insurance?  Obvious reasons include providing money to those dependent on your income if you die.  Life insurance can also be used to pay off your debts so that you don’t burden your family with your financial liabilities, such as medical debt if you were hospitalized or had a lengthy illness.  You can purchase a policy designed to pay off the mortgage on the house if you want to be sure your children and family can keep the family home.  If you own a business, life insurance can be purchased to enable your business partners to buy out your shares and keep the business running smoothly.

There are more components to an estate plan, but the list above explains your first considerations when starting to plan.  This list is specific to Ohio.  Documents described above might be different in your state.

If you have any estate planning questions, email me at julie@juliemillslaw.com.

 

 

Coronavirus and your healthcare decision documents

In Ohio, we have “advance directives” that include a living will and a healthcare power of attorney.  A living will (not related to a Last Will & Testament which distributes your assets after you die) is an end-of-life document that details what medical treatment you want or don’t want if you are dying.  Death must be imminent.  Any treatment is only prolonging death.  A healthcare power of attorney gives a person you choose the power to make healthcare decisions for you if you can’t make them yourself.  This person cannot contradict your living will.

Most living wills state that we don’t want to be kept alive by artificial means such as a ventilator if death is imminent and there is no reasonable hope for recovery.  The scenario that comes to mind is one where someone’s organs are shutting down, breathing is labored, death is near, and the last thing we want is to be hooked up to a ventilator and have a machine breathe for us.  We state these wishes in our living will, and hopefully our agent in our durable power of attorney for healthcare ensures that our wishes are followed by medical personnel.

Some people are reconsidering their living wills in light of the coronavirus.  The need for a ventilator to help us breathe seems common for many of those being treated for coronavirus/covid-19, and there is concern that if you have a living will stating “no ventilator,” then you won’t get one if you are being treated for coronavirus.  This not true.

A living will applies only when death is imminent and a machine, such as a ventilator, will only prolong your death.  With coronavirus, a ventilator is used as treatment for recovery, and ventilators remain in use as long as there is a reasonable hope for recovery.  It is used as treatment to counter the effects of what the virus is doing to your lungs.  That is not a situation where a machine is simply prolonging death.  When you sign your living will, you are not stating that you do not want a breathing machine or ventilator under any circumstance.  A living will is not a document that doctors consult to determine a course of treatment.  It is a document that is used in determining end of life decisions.

If you have any questions regarding healthcare documents, and how coronavirus/covid-19 might affect when the documents are used, please email me at julie@juliemillslaw.com.

 

“Executive session” during a board meeting. What is it?

I have discussed executive sessions a couple of times in the past few months as they relate to my nonprofit clients, to school boards and Ohio’s Open Meetings Act, and to Freedom of Information Act (FOIA) requests.  What is an executive session?

A executive session is any meeting that is closed to the public and outsiders and where contents of the meeting are confidential, and is typically held within an otherwise open meeting (open to the public).  Very generally, executive sessions often occur when discussion involves legal issues and personnel issues.  I believe I see more mishandling of executive sessions and with violations of the law than witnessing smooth and compliant executive session meetings.

The intent behind open meetings legislation–often called “Sunshine Laws”–is to ensure transparency to the public with any group or public body that receives public funds or public support of any kind.  Because you receive public money, and make decisions regarding the public’s money or support, the public has a right to know what you’re doing and how you’re doing it.  However, some discussions need to be kept private, namely, most legal discussions, many discussions involving sensitive personnel issues, discussions involving large contracts, among other topics.  When, in the course of a board meeting, it becomes necessary to discuss sensitive topics, the board moves into private executive session.

Here is where this blog post goes from general executive-session discussion, to Ohio-specific discussion, and where I tend to see problems.

Problem #1: Abuse

The law is clear: public bodies are to vote and to conduct deliberations in public.  As with everything there are exceptions, but transparency is the rule.  Some boards will go into executive session excessively, and since the sessions are private, the public doesn’t know if the executive session is warranted or not.  This is why Ohio has 8 reasons for going into executive session, and the justification for your executive session must fit into at least one of those reasons.  See Ohio Revised Code Section 121.22(G)(1-8).  And, there can be no major decisions made in executive session.  There can be a lot of discussion, but an actual vote must be taken in a public meeting.

Problem #2: Procedure

I’ve been in a meeting that qualified as an “open meeting” where a board member stated that he wanted to break into an executive session, the board said “ok,” and then asked the public to leave.  This was a violation of Ohio law under the Open Meetings Act.

First, there must be a motion by a board member to “adjourn” or go into executive session.  That motion must, by Ohio law, contain the enumerated reason or reasons for going into executive session that are provided in Ohio Revised Code Section 121.22(G)(1-8): “If a public body holds an executive session to consider any of the matters listed in divisions (G)(2) to (8) of this section, the motion and vote to hold that executive session shall state which one or more of the approved matters listed in those divisions are to be considered at the executive session.”

The motion must be specific, not general.  For example, “I make a motion to adjourn into executive session after this board meeting to discuss the following reasons permitted by the Ohio Revised Code.  First, ORC section 121.22(G)(2), to discuss the purchase of public property at 555 Maple Street, where pre-disclosing information would provide unfair competitive advantage, and (3), conference with our attorney Mr. John Joe regarding legal matters.”  As stated, the reasons cannot be stated generally–“Public property discussion.”  The reasons given must be specific–“Discussion related to acquisition of 555 Maple Street.”  Another board member then seconds the motion.

Second, a board can’t state that they are going to discuss reasons (2) and (3), then discuss other reasons in the executive session.  Each executive session must be limited to the purposes stated. (Vermilion Teachers’ Assn. v. Vermilion Local School Dist. Bd. of Edn., 98 Ohio App.3d 524, 648 N.E.2d 1384 (6th Dist.1994)).  In fact, boards are to use wording directly from the statute (above) in their resolution to adjourn into executive session.

Problem #3: Confidentiality

Most board members are aware that executive sessions are private, and disclosing content from these sessions is unethical.  My guess is that most board members are unaware that disclosing what transpires in an executive session can be a violation of Ohio Revised Code Section 102.03(B), which is a first degree misdemeanor.

Problem #4: Consequences

Executive sessions are for discussion only.  All acts and deliberations must be taken in an open meeting.  Actions taken in executive sessions are void, as are actions taken in open meetings that are the result of an unlawful executive session.  Courts have invalidated actions taken by a board because the board had conducted improper executive sessions.

Removal of board members by a Court is another possible consequence of improper executive sessions, and violations of Ohio’s Open Meetings Act.  In two cases, school board members violated the Open Meetings Act by repeatedly holding lengthy executive sessions, then returning to the open board meeting to vote on matters discussed in the executive sessions with little to no public discussion.  (Evans v. Rock Hill Local School Dist. Bd. of Edn., 2005-Ohio- 5318 and In re: Removal of Kuehnle, 161 Ohio App. 3d 399, 2005-Ohio-2373.)

The foregoing cases, and Ohio’s Open Meetings Act’s purpose and language, make it very clear that transparency is expected of public boards, and deviation from transparency should have specific, statutory reasons behind it.  Executive sessions should be used when your reason fits into the list of reasons provided in the Ohio Revised Code, and actions resulting from the executive session must be taken in public during an open meeting.  Trying to justify excessive executive sessions to a court will be an uphill climb for any public body.

If you have any questions about executive sessions or Ohio’s Open Meetings Act, please email me at julie@juliemillslaw.com.

 

Coronavirus’ impact on contracts: can I cancel my vacation bookings? Get out of contract to buy a house?

The current coronavirus/COVID-19 pandemic has created several conditions most of us have not faced before.  It has been termed a national emergency.  For many, their incomes will be negatively impacted, any comprised health conditions may make travel prohibited or extremely dangerous, and life, in short, has been put on hold.

I have seen questions such as, “Can I cancel my vacation bookings without a penalty?” and “I’m in contract to buy a house but now I’m not sure I’ll have a paycheck to afford the home, moving expenses.  Can I back out of buying?”  Some companies are permitting vacation cancellations, maybe your seller will let you out of the real estate purchase contract.  What if they don’t?

In most contracts there is a force majeure contract provision that relieves the parties from performing their contractual obligations when certain circumstances beyond their control arise.  Your ability to claim relief under this clause depends on the terms of the contract and specifically the force majeure provision’s language.

See this excellent article for more information about force majeure provisions and how they might affect you and your ability to comply with contractual obligations.  The article is geared towards businesses but applies to individuals as well.

Happy “National Entrepreneurship Week”!

This week, February 15-22, 2020 is National Entrepreneurship Week (#NatlEshipWeek).  The U.S. has 30 million small businesses and entrepreneurs.  There is never a better time than now to start a business, and Ohio is a great state for business.  I posted on this blog on starting a business, the Small Business Administration offers a helpful guide, as does the Ohio Secretary of State here, and Ohio offers advice here.  So many of my clients who have started their businesses are going strong, and I hope you have the same success.  Here is my post from January 24, 2019, Starting a Business in Ohio:

The first of the year typically brings clients wanting to begin the new year by starting a business.  I enjoy working with people who want to pursue their dreams, whether it is working for themselves, or turning a hobby into income, or providing a product or service to others.  In addition to filing forms and preparing organizational documents, my role as your attorney is to take all steps necessary to protect you and your assets from personal liability.

The necessary actions in starting a business in Ohio will vary according to what type of business you’re starting.  Basic steps include:

This list is not exhaustive.  If you have employees, you should contact the Ohio Bureau of Worker’s Compensation and the Ohio Department of Job and Family Services to determine any steps you need to take.  Certain businesses will need to obtain special licenses and permits, particularly if your business involves preparing and selling food.

If you want to discuss starting your own business, contact me at julie@juliemillslaw.com.  It is never too late to become an entrepreneur in business-friendly Ohio.

Before you die…

Or this post could have been titled “Ease the burden of loved ones.”  Because I’m an estate planning attorney, the “Before you die…” advice I’d typically give would be to have a will or living trust plan prepared.  I certainly always recommend that advice.  This post, however, is different.

I recently read an article I loved, “You Need to Make a ‘When I Die’ File–Before It’s Too Late.”  The article speaks to the side of estate planning that I rarely participate, and that’s the grieving family part of planning for what happens after you die.  I help my clients get all the documents they need, and advise on decisions that need made.  What struck me about the suggestions in this article though were actions to take that speak to people you love.  The article adds two items to the typical estate planning checklist, i.e., an ethical will and letters to loved ones: “[W]here a legal will transfers assets, an ethical will transfers immaterial things: your life lessons and values.”

An ethical will supplants a traditional will, and might be used to explain why you chose one child to serve as executor over the other child, or why you chose close friends as guardians for your child over your siblings.  “Letters to loved ones” is self-explanatory, and I highly recommend it if you have children who might have difficulty remembering you if you die when they are young.

As the author states:

The point of all this is to make a difficult thing like dying or loving someone who is dying less difficult. In that sense, creating a When I Die file is an act of love. It will always be too soon to tell your story and let people know how much they mean to you, until it is too late.

If you have any questions about estate planning, email me at julie@juliemillslaw.com.

Has a nursing home asked you to sign?

Your mother, father, aunt, etc., is moving to a nursing home.  You accompany your dad, for example, so he won’t be going through this alone, and he might need help completing paperwork.  The nursing home asks, or requires, that you sign as hi—STOP!  Don’t sign!

The nursing home asks you to sign as your dad’s “personal representative.”  Or to sign as guarantor.  Or to sign anything.  What you are likely doing is signing an agreement to be held financially responsible if your dad, through his insurance or Medicaid, does not or cannot pay his bill.  This might happen if his Medicaid application is not approved, or if insurance denies his claims, or any number of reasons.

But, the nursing home simply wants you to sign as the “responsible relative,” the person who will take steps to see that Medicaid or insurance pays your mother’s nursing home bills, right?  Or as the point person who will track down information, call the insurance company, provide information, right?  You would certainly agree to help your mother this way.  The problem is that you have unwittingly agreed to also be financially responsible to the nursing home for your mother’s bills.  Just ask Judy Andrien.

This practice by nursing homes occurs regularly, at least according to what I see and hear.  It happened to my family member, where the nursing home left his sibling lying out in the hallway on a gurney until the family member signed as “personal representative,” assuring this family member that “oh, it’s just a formality–we never pursue payment.”  They did pursue payment.

It is illegal under the federal “Nursing Home Reform Law” (summarized here) to require or request someone to sign as a guarantor as a condition of someone (usually a family member) being admitted, or of being permitted to continue to stay.  Nursing homes often get “crafty,” however, by asking family to voluntarily sign, whether as personal representatives, the responsible party, guarantor, etc.  “It’s just a formality….”

As an attorney, I have handled matters where stunned family members come to me with 5-figure bills from the nursing home, where the nursing home says that they signed as a financially-responsible party and now the bill is due.  At this point, one of the the only arguments is that my client did not sign voluntarily which can be a difficult argument to make, not to mention costly in attorney fees.

My advice if you accompany someone other than your spouse to a nursing home to be admitted?  Do not sign anything.  Period.

If you have any questions, contact me at julie@juliemillslaw.com.