Saturday, 18 August 2018

Health Care Directives

Health Care Directives

Health care directives are a part of estate planning that most people don’t think much about. As an estate planning lawyer, I’m often shocked to find that most people, even elderly folks, don’t have one.

Health care directives allow you to specify your health care decisions beforehand in case you are unable to express them during a medical emergency. You may be wondering what duty your health care providers have in enforcing your health care directives.

Many people often wonder whether or not their medical care providers have a duty to follow their wishes when it comes to their health care. These wishes are often recorded in documents like living wills and health care directives.

Duty to Follow Health Care Directives

In general, medical care providers are generally held to a pretty strict duty to comply with your recorded wishes that relate to your health care if you become incapacitated. In addition, if your health care directives or living will appoint someone as a legal agent in charge of your health care (called a health care agent), doctors and other medical providers are also under a duty to follow their orders and decisions about your care.

Exceptions to a Health Care Directive

However, there are some situations in which your doctor or medical care provider can go against the wishes that you have set forth in your health care directives. Health care providers can do so when:

  • The directive set forth decisions that go against the conscience of the doctor or individual medical services provider,
  • The directives set a policy that goes against the policies of the hospital or other medical institution based on reasons of conscience, or
  • The directives include decisions that would result in ineffective health care, or asks health care providers to adopt health care standards that violate those of the provider, hospital or other medical institution.

However, even if these factors are present, this does not mean that your doctor or health care provider can simply ignore your health care directives. Instead, if your doctor or health care provider thinks that they will go against the wishes and directions set forth in your health care directives, or against the orders of your health care agent, they must immediately inform you or your agent. When this happens, you or your agent will have the option of taking steps to have you transferred to another doctor or medical facility where your wishes and instructions will be honored. Indeed, if your doctor or medical care provider refuses to do so and still goes against your wishes and orders, the doctor may be liable for damages to you.

Pregnancy and your Health Care Directive

Despite what is written above, doctors and medical care providers may be able to legally ignore your wishes and orders contained in your health care directives if you are pregnant. In order to have your wishes still be carried out, you should specifically state in your health care directives what your wishes are for your care when you are pregnant.

Even if you specify your wishes for when you are with child, your doctor may still be able to override your wishes in order to keep you and your fetus alive. This is especially true if you are in your second or third trimester.

Free Consultation with a Utah Estate Lawyer

If you are here, you probably have an estate issue you need help with, call Ascent Law for your free estate law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Friday, 17 August 2018

How to Get the Best Outcome in Divorce

As you go through your divorce, important to be focused on the long term, making sure you’re ending up with the best possible settlement for you. This requires you to have a clear picture of exactly what it is you want as you move forward with your life.

How to Get the Best Outcome in Divorce

With how stressful and emotional divorce can be, however, this is often easier said than done. To make this process less difficult, you should identify all of the most important issues and your top priorities ahead of time, and stick to them throughout the divorce proceedings. Having a game plan before negotiations actually begin will help ensure you stay on the right track.

The most common issues individuals need to navigate are child custody and support, the division of marital assets and alimony. Let’s take a quick look at each:

  • Child custody and support: If you have children, what happens to them is going to be a significant component of your divorce. Even if custody itself ends up being an easy issue to resolve, you still must consider things like visitation schedules, the division of expenses, the amount of child support that the non-custodial parent will pay and how you will jointly make child-rearing decisions.
  • Property division: The division of martial property and assets can quickly become contentious, especially when there are particularly valuable or sentimental items involved. Consulting a divorce attorney or financial planner will help you figure out how to best address your priorities through this process.
  • Alimony: If alimony (or spousal support) is an issue in your divorce, get an idea of how much you’re seeking or willing to pay out in alimony payments each month. Note that almost all alimony arrangements are temporary in nature.

Child Tax Credits After Your Divorce

Some of the most valuable tax credits are those that are granted to parents to help provide assistance with the costs of raising their children. But when parents are separated or divorced, who gets to take advantage of these tax credits?

There are different stipulations for each type of tax credit:

  • Child and Dependent Care Credit. This credit covers expenses for child care options like day care so that you can work or look for work. The total credit amount of up to 35 percent of care expenses, up to $3,000 for one child and $6,000 for more than one, so long as those children are under 13 or disabled. For divorced parents, only the custodial parent is able to claim the credit.
  • Child Tax Credit. This tax credit gives parents that have incomes below a certain level a $1,000 credit for each child under the age of 17. The custodial parent will usually take this credit, but the noncustodial parent can claim it if the custodial parent decides to release the dependency exemption to the noncustodial parent. The credit is also lowered for single parents or could be completely unavailable if gross income is over $75,000.
  • Earned Income Credit (EIC). EIC is meant to provide low-income workers with tax breaks. A taxpayer’s ability to claim this credit depends on adjusted gross income and earned income, and for parents, the total amount of the credit depends on the number of kids. Only the custodial parent can claim EIC in a divorce. Alimony and child support paid to you does not qualify as earned income.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will fight for you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Employers and Harassment Claims

Employers and Harassment Claims

The Pendulum swings.  Recent times have demonstrated just how far.  Earlier, sweat shops led to child labor laws.  Decades of racial discrimination led to quota systems.  Of late, claims of “sexual harassment” and “hostile work environments” have led to laws and lawsuits that make employers wonder what they can do to avoid both claims and lawsuits.  The purpose of this note is not to discuss “the why,” but to educate employers as to the “what to do.”

Listen Here Employers to an Employer Lawyer

First, tell employees, in writing, that as their employer, you will not tolerate harassment.  Tell them “harassment” is not limited to just unwelcome sexual advances or requests for sexual favors.  Besides inappropriate verbal, graphic, or physical conduct of a sexual nature, it includes slurs, jokes, and other offensive comments concerning an individual’s race, color, sex, religion, national origin, age, disability, or marital status.

Tell them that if an employee believes he or she has been subjected to harassment, the employee must report it.  Not may.  Not should.  Must.

Next, have related procedures in place and made known to all employees, including management.  The procedures have to tell all employees how they are to report their claims and direct your management staff members on how to handle (evaluate, investigate, and resolve) the allegations.   Be sure all employees are given the instructions, even if they are located at a two-person branch office at a remote location.

HERE ARE REAL WAYS YOU CAN BEAT HARASSMENT CLAIMS

Follow through IMMEDIATELY on all claims and allegations.  Speed (rationally applied) cannot be overemphasized in the sense of response or reaction time by an employer.

Identify the issues.  Conduct the investigation.  Analyze the findings.  Adopt and implement a response or determination, including taking corrective action.

In the meantime, separate the involved parties.  In doing so, do not show favor to the alleged wrongdoer – even if the position held has greater importance to your company’s productivity and profitability.  If the accusations are serious, you may need to suspend the alleged wrongdoer with pay, until the process has been completed. I know you may not want to do this part, but as an employer lawyer, I’m telling you, this is one of the best practices.

The first step is to gather information from the complainant.  Encourage open communication by confirming the employer’s anti-harassment policy.  Emphasize there will be no retaliation.  Conduct an interview and obtain a written statement.  Do the same with all witnesses.  Request all possible tangible evidence (i.e., diaries or journals, photographs, “love letters,” cartoons).

After gathering the information, inform the alleged wrongdoer of the nature of the charges, and obtain his or her response.  Again, interview the employee and obtain a written statement.   In doing so, repeat the employer’s anti-harassment policies, and request other possible evidence relevant to the investigation.

As to all of the involved employees, make three things clear: (1) you are only investigating the claim and will not pre-judge its merits; (2) they are to keep the investigation confidential; and (3) they are not to interfere with the investigation by speaking to others about it.

After interviewing the accused and obtaining his or her statement, you will probably reconvene with the complainant to cover factual and even legal points made in defense of the alleged wrongdoer.

Each claim must be assessed by the employer as to where it may lead.  Some can be handled easily – your designated human resources employee or in-house counsel may undertake the investigation.  Regardless of whom you select, make sure the procedures are followed, and the documentation is done with at least moderate formality.

Some claims or allegations may warrant bringing in a third party for assistance.  Often, outside legal counsel are brought in.  Typically, they are skilled interviewers and can provide objectivity.  Or, legal counsel may provide direction to other independent investigators, such as human resource consultants.

Who should not be the investigator?  Supervisors or managers should not conduct their own investigations.  Even if they could perform adequately, you need to avoid all appearance of bias.  Thus, friends or relatives also should not be considered.

The final step for the investigator is to analyze his or her findings and prepare a report or recommendation of possible action.  If wrongdoing is found to have taken place, the report should reflect a violation of company policy, without labeling the employee as being “guilty” of harassment.  Still, you need to impose an appropriate discipline.  For anything other than minor infractions, you should not give only a warning with the admonition, “do not let it happen again – or else.”  The “or else” needs to be implemented.

If you do not find that a violation has occurred, or has been proved, and there is to be no disciplinary action taken, you should have legal counsel review the documentation and discuss the claim with the investigator.  Be sure that none of the involved parties obtains the impression that he or she was not believed, or that you found for or against him or her.  Further, be certain to follow up with the parties to make sure there are no more perceived problems or allegations of retaliation.

Free Consultation with a Utah Business Lawyer for Employers

If you are here, you probably have a business law issue you need help with, call Ascent Law for your free business law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Thursday, 16 August 2018

Child Support Laws

Child Support Laws

Once a child support order or agreement is in place, the payment amount may be increased or decreased under certain circumstances. If a parent’s earning ability or a child’s financial needs have changed – that could conceivably be enough to trigger a modification. The following resources provide child support modification tips, reasons to modify a child support order and related information. Child Support Modification Tips – Advice for how to obtain a modification of a child support order, such as acting quickly when your income changes. Modification of Child Support Orders FAQ – Answers to frequently asked questions pertaining to child support modifications.

How Do States Calculate Child Support?

Each state has different formulas they use to calculate child support. Child support is formulated at the state level, but some federal guidelines exist under the Child Support Enforcement Act. Because each state sets up its own child support system, there is considerable variation between states in how they calculate child support. However, most states evaluate the following criteria at a minimum based upon the financial needs of the child, including education, day care, insurance or any special needs, the income and needs of the parent with custody of the child, the income and ability to pay of the parent who is paying child support, and the child’s standard of living before any separation or divorce (although court’s typically understand that it is difficult to maintain the same standard of living).

How Do I Get Child Support?

You can apply through the local, state or tribal child support office. Usually, applying to your local child support agency is most effective; however, you have the right to apply to another tribunal if that will result in service that is more efficient. The contact information for state child support agencies can be found in online.

How Can I Enforce a Child Support Order?

Most local child support offices handle enforcement in different jurisdictions of the same state without your having to travel outside your own jurisdiction. Ask your local child support office for details about how enforcement would work in your case.

What To Do When the Parents Live in Different States

When parents or guardians live in different states, a child support case can be opened at the local child support agency where one of the parents lives. The local child support agency with either enforce the child support order or ask the other state or county for help. The Uniform Interstate Family Support Act is a federal law that tells us how to make and enforce child support obligations when both parents do not live in the same county or state. Federal law requires states to cooperate with each other to establish and enforce support orders.

A Child Support Lawyer Can Help

Issues regarding child support can be complicated for both parents. A child support attorney with experience in this area of the law can make things easier to understand by explaining the rules, regulations, and steps involved with enforcing or complying with child support orders and making or receiving child support payments. This legal professional will also ensure that child support rights are adhered to, safeguarding the rights of children to benefits and education in a public institution. Consider contacting a child support attorney in your area today.

Free Consultation with Child Support Lawyer

If you have a question about child support or if you need to collect back child support, please call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Wednesday, 15 August 2018

Baby Boomers Have the Most Divorces

Baby Boomers Have the Most Divorces

As a divorce lawyer, I’m constantly reviewing information and statistics about divorce. As the divorce rate continues to decline among Gen-Xers and Millennials, it’s the Baby Boomers who are still getting divorced at the highest rates.

According to researchers, students, and professors from the University of Maryland, the average marriage is lasting longer than ever, and young people are divorcing less often. This could have quite a bit to do with people being far more cautious in their approach to marriage, as the average age of people getting married for the first time is also higher than ever. Between the 1940s and 1970s, a woman in her first marriage was just over 20 years old on average. Now, she is just over 27. So people are getting married much older now. The Baby Boomer Generation got married a lot younger so that’s on reason that people think divorce is more common among them.

Baby Boomers keeping divorce rates up

Although overall divorce rates are steadily decreasing, they are still as high as they are primarily because of the Baby Boomers. From 1990 to 2012, the divorce rate for people between 55 and 64 year olds more than doubled as Baby Boomers entered retirement age. The divorce rate for people 65 and older more than tripled.

It will take some time to determine whether Millennials are, in fact, simply better at maintaining their relationships for life. The average time it takes for first marriages to end in divorce is 12 years. However, based on how many fewer Gen-Xers have divorced than Baby Boomers, it would seem like today’s young couples are going to continue the trend of fewer divorces overall.

Why Divorce is Better than Being Trapped in a Bad Marriage

There’s a certain stigma associated with divorce that many people have a hard time shaking. Those who are stuck in bad relationships often delay filing for divorce simply because they focus on negative questions, such as “what will other people think?” or “what if this decision ruins my children’s lives?”

Although it’s quite normal to have concerns and fears related to divorce, dissolving your marriage may be a much better option than staying in a toxic relationship. Here are some reasons why:

  • You can set a better example for your kids: While there are many challenges associated with being a single parent, the last thing you want to show your kids is that it is normal to put up with an unhealthy relationship. Children are going to grow up to look for the kinds of relationships they experienced and saw as a young child. Don’t model a bad relationship for them.
  • You can focus on yourself: After you get divorced, you can get back to focusing on yourself, learning who you are and living for you. You are still able to be a great parent, but you may also find a new appreciation for life.
  • You can escape danger: It is especially important to get a divorce if your spouse is at all abusive, whether physically, emotionally or financially. You should never have to accept an abusive relationship. Get out as soon as you can and escape the danger and fear you’re experiencing.
  • You can find a better fit for you: After spending some time alone and finding yourself, you can put effort into finding a partner who is actually good for you and strengthens and empowers you. You deserve to find someone who truly makes you happy.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will fight for you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Estate and Gift Tax Lawyer

Estate and Gift Tax Lawyer

Estate and gift taxes are imposed by the federal government on the transfer of property from person to another, either at death (estate tax) or while the giver of the property is still alive (gift tax). This article provides a brief overview of both forms of transfer.

Estate Tax in Utah

Estates are required to file a federal estate tax return if the value of the “gross” estate, minus certain deductions, is above a certain dollar amount ($5.49 million in 2017). The gross estate includes the value of all property in which the decedent had an interest at the time of his or her death — including such items as real estate, stocks and bonds, mortgages, notes and cash, insurance on the decedent’s life, and jointly owned property. If spouses own property in joint tenancy, and one dies, one half of the value of the jointly held property is included in the gross estate of the deceased spouse.

Utah Estate Tax Exemptions

Personal Exemption. The “personal estate tax exemption” allows a certain amount (or all) of a deceased person’s estate to transfer free of the estate tax. This has changed over time, reaching the $5.49 million mark in 2017. At any time Congress may increase or decrease this amount, or even repeal the estate tax altogether.

Marital Deduction. A deceased person’s estate can pass tax free to a surviving spouse, as long as the surviving spouse is a U.S. citizen and the deceased spouse’s interest in the estate passes to the surviving spouse outright (in other words, the property transfers directly to the spouse upon the decedents death).

To understand how the marital deduction and personal estate tax exemption might work in practice, suppose Bob dies leaving an estate worth $12 million. Putting aside community property issues for the moment, assume that his will states that $6.49 million go to his wife, and $6.49 million to his daughter Kate. In this situation, no part of the $6.49 million Bob leaves to his wife will be subject to the estate tax (as long as Bob’s wife is a U.S. citizen and all the property included in the $6.49 million passes to her outright). Of the $6.49 million Bob leaves to Kate, however, $1 million will be subject to the estate tax (the $6.49 million minus the first $5.49 million that is tax-free under the 2017 personal estate tax exemption).

Other deductions. Other deductions against the gross estate include certain administrative expenses, funeral expenses, claims against the estate, certain taxes and other indebtedness and charitable bequests.

Have a Tax Lawyer File the Estate Tax Return

The executor, personal representative, or person in possession of the estate’s assets must file the estate tax return within nine months of the decedent’s death. The estate can apply for a six-month extension of time to file, but the taxes must be paid within nine months of the decedent’s death. The time for payment of the estate tax may be extended in certain circumstances.

State Estate Taxes

Some states also impose estate taxes. The state in which the decedent lived may impose an estate tax, and states where real estate or personal property is located may also impose an estate tax. The law of each state having any connection to the property in question must be consulted in order to assess any tax consequences associated with the property transfer.

Federal Gift Tax

The gift tax is a tax on the legal transfer of property from one person to another, during the giving person’s lifetime. Certain gifts are exempt from the gift tax, including:

  • Gifts valued at a dollar amount of $14,000 or less to any one individual in a single calendar year (as of 2017);
  • Gifts to a spouse;
  • Payment of tuition or medical expenses on someone else’s behalf;
  • Charitable contributions; and
  • Certain gifts to political organizations.

Free Consultation with a Utah Gift and Estate Tax Lawyer

If you are here, you probably have an estate issue you need help with, call Ascent Law for your free estate law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Does Bankruptcy Affect Divorce?

Does Bankruptcy Affect Divorce

Depending on your financial situation, it may seem like it is a sensible decision to file for bankruptcy at the same time as you file for divorce, especially if large debt was a major contributing factor to your divorce. However, these two legal processes can occasionally complicate each other when they occur at the same time and make the divorce process in particular go quite a bit slower. You’ll want to speak with a Chapter 7 Lawyer to make sure you are doing the right thing. At our office, we have active cases in both divorce and bankruptcy, so you can feel secure knowing that we can help you with your case.

Bankruptcy and Divorce Lawyer

If you file for bankruptcy during a divorce, the divorce court can still make decisions regarding items such as alimony, child support, child custody and visitation. However, the property division process cannot begin so long as bankruptcy courts still have control over your property.

It is also important to understand that just because you file for bankruptcy does not mean you will automatically be excused from certain joint debts that you incurred during the course of your marriage. Although bankruptcy may forgive these debts for you and put the responsibility on the shoulders of your ex-spouse, in most cases that spouse will be advised to take you back to divorce court to get an order for you to pay him or her back.

Certain divorce debts cannot be eliminated at all from bankruptcy. Alimony and child support will never be forgiven through bankruptcy, end neither will any payments that you make to your spouse as part of an exchange for property.

Some Reasons You Should Consider an Annulment Instead of a Divorce

All 50 states allow for no-fault divorces, but there are some circumstances in which you might prefer to get an annulment instead. While most marriages don’t qualify for an annulment, those that do might be better served by this process rather than divorce.

The following are a few common reasons why people choose annulments:

  • New information has come to light: Under Utah law, you must be able to demonstrate something you have found out since the marriage occurred would have stopped you from legally entering the marriage had you known about it earlier. Examples include a spouse who was already married, an enormous debt you were not aware of, lies about identity or other forms of fraud.
  • You are religious: Some religions, such as Catholicism, require you to have your marriage annulled by the church if you wish to get remarried someday. You may have a civil divorce and a religious annulment and still get remarried, although you might wish to get a legal annulment for simplicity’s sake. Keep in mind that the standards for a legal annulment are not the same as those for a religious annulment.
  • You do not want the divorce on public record: Some people wish to keep the record of their divorce out of the public eye. An annulment is not subject to public record like a divorce is, and so it can offer you some privacy in that regard.
  • You expect property division to be an issue: If you expect complications to arise with the division of marital property, going through the annulment process could prevent you from losing a portion of your assets.

Free Consultation with Bankruptcy Lawyer

If you have a bankruptcy question, or need to file a bankruptcy case, call Ascent Law now at (801) 676-5506. Attorneys in our office have filed over a thousand cases. We can help you now. Come in or call in for your free initial consultation.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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