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Good Samaritan Laws (Part 1)

Author: Brett Tokarczyk


April 25th, 2016

If you have driven on Buffalo’s I-190 in recent weeks, you probably are familiar with the Department of Health’s new billboard campaign to promote New York’s “Good Samaritan Law.”

Unlike the fictional Massachusetts law that sent Jerry, George, Elaine, and Kramer to jail for mocking a robbery victim in Seinfeld’s famous series finale, New York’s Good Samaritan Law provides limited protection to victims or witnesses who seek emergency services for potential drug or alcohol overdoses, or other life-threatening emergencies. While the billboards have certainly raised awareness of the Good Samaritan Law, they leave several important limitations unaddressed, potentially leading Good Samaritans to believe that the law protects them further than it actually does.

Shield from being “Charged” or “Prosecuted” for Possession.

The law provides a shield from being charged or prosecuted, but only for possession of controlled substances, marijuana, paraphernalia, or alcohol in the case of minors. It does not shield someone from being charged or prosecuted for offenses involving a sale of controlled substances or marijuana. It does not prohibit responding officers from arresting or detaining a witness or victim to investigate potential criminal conduct related to the incident. It does not apply to certain felony possession quantities.

Affirmative Defense to Prosecution for Criminal Sales

Again, the law does not prevent a person from being charged or prosecuted for the sale of controlled substances or marijuana. However, the law does provide a safe haven from conviction. The statute allows a Good Samaritan to assert the law as an affirmative defense to the criminal sale of controlled substances or marijuana, which unlike the possession shield, means that a Good Samaritan would still be required to appear in Court and prove their defense. The defense is unavailable to victims or Good Samaritans who have certain prior felony convictions for drug offenses, or where the sale in question would constitute one of a certain list of felonies.

Mitigating Factor in Certain Felony Prosecutions

For the certain felony possession and sale exceptions set forth above, the law only protects victims or witnesses by requiring Courts to consider the act of seeking health care as a mitigating factor, to lessen the punishment  of a criminal conviction.

Further Limitations

While the Good Samaritan law provides limited protection for the incident leading to emergency medical treatment, it does not prevent seizure of criminal items. Nor does it prevent law enforcement or prosecutors from using evidence in prosecutions for other crimes, such as parole violations or unrelated transactions of controlled substances.

 

New York’s Good Samaritan Law is a useful tool to prevent unnecessary deaths because of victims and witnesses’ fear of getting in trouble for their involvement in overdoses or related medical emergencies. While total immunity would theoretically provide more incentive for more people to seek emergency services, the limitations on immunity are essential for law enforcement to continue to enforce drug laws against “Bad Samaritans,” who may otherwise try to use the law as a loophole.

In an ideal world, people would put aside their own interest to save another’s life, regardless of whether they are immune from prosecution. However, it is important that citizens are educated about the law’s limitations, as it cannot be effective if people feel misled or distrustful of the program as a whole.

What is a DBA?

Author: Cécile Meyer


April 20th, 2016

 “DBA” stands for “Doing Business As”, and can be abbreviated DBA, dba, d.b.a. or d/b/a. It is also known as an assumed name, fictitious name, or trade name. An individual or a business entity can obtain one or more DBAs.

If you are conducting business in your own name, you are a sole proprietor. If you want to do business under a name other than your legal name, then you can register a DBA. “Doing business” means using the name in the course of your business activity or transactions, such as in advertising. If for example your name is Jane Doe, you can file a DBA under “Jane’s Famous Croissants”.

Corporations, limited partnerships, and limited liability companies (LLCs) are required by statute to conduct business under their true legal name. If you formed a corporation, limited partnership, or LLC and you want to conduct business under a name other than your entity’s true legal name, then you must register a DBA. If for example you formed a LLC called Doe Bakery, LLC, you can file a DBA under “Jane’s Famous Croissants”.

 

The benefits of registering a DBA include:

  • For sole proprietors, using a business name that helps market their products or services and create a separate business identity without having to create a legal entity. It is important to note that a DBA is not a separate legal entity like a corporation or LLC. The name is directly connected to the underlying person or entity. They are one and the same. Because of this, obtaining a DBA when you are a sole proprietor does not provide any additional liability protection.
  • For a corporation or LLC, a DBA allows the operation of multiple lines of business without having to create separate legal entities for each business.

 

A corporation, limited partnership or LLC must register its DBA with the Department of State. All other entities, such as general partnerships, sole proprietorships, and limited liability partnerships must register their DBA with the county clerk in each county in which the entity conducts or transacts business.

If you formed a business entity, you do not need a new Taxpayer Identification Number (TIN) for your DBA. The TIN of your entity applies to your DBA. If you are a sole proprietor, your TIN is your own social security number (SSN). However, you can obtain a separate TIN for your DBA so that you do not have to use your SSN for business purposes.

A DBA does not have the same effect as a trademark. Registering a DBA does not prevent other individuals or businesses from using the same DBA. In fact, several individuals or businesses can register the same DBA. If you want to protect the name used as your DBA, you will need to file a trademark registration.

 

2016 National Healthcare Decisions Day

Author: Linda Grear


April 15th, 2016

National Healthcare Decisions Day is Saturday, April 16, 2016.  The theme for 2016 is It Always Seems Too Early, Until It’s Too Late.”

Over 100 million American adults have not designated an agent to make medical decisions nor documented the type of medical care they desire.  Although it is a difficult issue to address, it is important for all adults to consider who is best-suited to make medical decisions for them the event they become too ill to convey their wishes personally.

Family Health Care Decisions Act:   On March 16, 2010, New York passed the Family Health Care Decisions Act.  The FHCDA allows family members to make medical decisions, including decisions about the withholding or withdrawal of life-sustaining treatment, on behalf of patients who have lost their ability to make such decisions and have not prepared advance health care directives (such as a Health Care Proxy or Living Will) if the patient’s wishes can be shown by “clear and convincing evidence”.

Warning:  The Family Health Care Decisions Act may give some a false sense of security and belief that written advance health care directives (Health Care Proxy or Living Wills) are not needed.  That is not the case.

The legislation established a protocol for health care practitioners to determine whether a patient has decision-making capacity. When it is determined that a patient does not have decision-making capacity, the legislation requires the selection of a ‘surrogate’ from a list of individuals ranked in order of priority, including family members, domestic partners and close friends.

The FHCDA does not solve problems where individuals desire to make very specific medical decisions for themselves based upon their own personal, religious or moral beliefs.  Additionally, in family disputes, there may still be issues.  For example, if several siblings have differing opinions regarding medical care for a parent, there will be problems to address.

Without advanced written directives for medical care, family members are left in the precarious situation of trying to figure out what to do.  The FHCDA clarifies a decision-making hierarchy that may be helpful in emergency situations; however, the FHCDA does not obviate the need for a Health Care Proxy and/or Living Will.  Under the statute, the health care surrogate is obligated to make decisions based on clear and convincing evidence of the patient’s wishes.   The best way for a patient to express his/her own wishes, avoid family conflicts and select one’s own health care agent is to have a written health care directive (Health Care Proxy and/or Living Will).

The failure to specifically designate an agent to carry out your wishes may create a bitter, lengthy legal battle among family members and doctors in an effort to determine what treatments you would want.  If you wish to give someone the ability to refuse treatment on your behalf (such as ventilator assistance, feeding tubes or cardio-pulmonary resuscitation), it is important to leave a written document (Health Care Proxy and/or Living Will) giving an agent authority to refuse treatment on your behalf.

 

Health Care Proxy:  A Health Care Proxy is a document which allows you to designate an agent to make health care decisions in the event you are unable to do so.   Your health care agent should be a person you trust to be able to carry-out your wishes and deal with your physicians.

 

Living Will:  A Living Will supplements the Health Care Proxy by allowing you to document your wishes concerning treatment under certain instances, such as a terminal illness, or in the event you are in a vegetative state where there is no reasonable likelihood of recovery.

Appointing a health care agent is a good idea even if you are not terminally ill. A health care agent can act on your behalf should you ever become temporarily impaired. For instance, if you are unconscious as a result of a general anesthesia or have become comatose because of an accident, your agent would be able to make any necessary health care decisions on your behalf and could also arrange for the payment of your health care costs.

You are to be commended if you had the foresight to execute a Health Care Proxy; however, be advised that privacy rules have been enacted which could have a serious impact on your designation. On April 13, 2003, the Health Insurance Portability and Accountability Act (commonly referred to as “HIPAA”) took effect. These HIPAA regulations apply to virtually every physician, dentist, nurse, and health care provider in the nation. The intention of the HIPAA legislation was to standardize the transmission of health care information and require providers to take “reasonable efforts to limit protected health information to the minimum necessary to accomplish the intended purpose of the use, disclosure or request.”

In other words, if your Health Care Proxy was executed prior to 2003 and disclosure of protected health information is necessary for your treatment, your agent could be denied access to your health or medical information, which would then have an impact upon your agent’s ability to provide care for you. Therefore, it is prudent that you complete a HIPAA authorization or execute an updated Health Care Proxy, which should include the appropriate HIPAA language to authorize your agent to make informed medical decisions as a result of having full access to protected health information.

 

If you have any questions about the above material, or wish to speak to an Elder Law/Estate Planning attorney, please contact HoganWillig, Attorneys at Law at (716)636-7600 or visit www.hoganwillig.com. HoganWillig’s main office is located at 2410 North Forest Road in Amherst, New York with additional offices in Lockport, Lancaster, Ellicottville and Buffalo.

Choosing the Executor of Your Estate Plan



April 13th, 2016

When you are taking steps toward establishing your estate plan and getting your documents in order to protect against future uncertainty, there are several items to consider. As part of your plan you will choose agents to act in your place for health care decisions (Health Care Proxy) and legal or financial decisions (Power of Attorney) which need to be made if you are alive but unable to make the decisions for yourself.   In addition, you must select an individual that you trust to be primarily responsible for the implementation of your Last Will and Testament as well as the management of your estate after you have passed away. This may or may not be the same individual you have chosen as your agent under your Health Care Proxy or Power of Attorney. Deciding who should be the executor of your Will is not a light decision to make—follow the tips below to make an educated choice.

What criteria should be in mind when choosing an executor?

There are few legal limitations constricting who can be your executor. The threshold requirement is that the individual is a legally competent adult who has not been convicted of a felony. You may name your spouse, sibling, adult child, close friend,  business associate, or perhaps a financial or legal advisor as your executor.  In some instances, a corporate entity or  bank may serve the role. It is also possible to name two or more individuals to act as co-executors.

What duties does an executor perform?

Being an executor entails many complex and time-consuming duties that necessitate knowledge of both legal and tax matters. Typically, and executor works closely with the estate’s attorney to administer the estate. An executor’s responsibilities include:

  • To locate the Will once the individual has passed
  • To contact an attorney to represent the estate
  • To “marshal” the estate assets (collect assets and keep them safe until they are distributed to beneficiaries)keep them
  • To issue notices to the beneficiaries of the estate;
  • To make distributions to the assigned beneficiaries;
  • To prepare and file estate tax returns and be sure taxes are paid;
  • To prepare and maintain accounting records;
  • To attend federal and state audits, if needed, to defend estate tax returns;
  • To collect the income on the estate; and
  • To pay any and all estate expenses.

If you are in the process of preparing your estate plan, trust our Elder Law department to help with any issues you may have. Please contact HoganWillig with any questions about the above material, or if you wish to speak to an attorney, at (716) 636-7600. HoganWillig is located at 2410 North Forest Road in Amherst, New York 14068, with additional offices in Buffalo, Lancaster, Lockport, and Ellicottville.

Discoverability of Social Media Evidence in Litigation

Author: Chanel Maddigan


April 11th, 2016

Author Erik Qualman once said, “[t]he power of social media is it forces necessary change.”

While some might differ in opinion as to the use of the word “necessary” in the aforementioned quote, the fact that technology has changed the world is undeniable. With the explosive growth of social media, lawyers and clients are impacted by the evolving nature of discoverable evidence in a civil lawsuit.

In New York, Civil Practice rules require full disclosure of all “material and necessary” evidence in a civil suit. New York’s liberal threshold for discoverability has been dubbed “generous and sweeping.”1

How do traditional discovery principles shake out amidst the social media surge? Lawyers and courts grapple with the answer to this question as it is posed with increasing regularity. One thing is certain: social media isn’t going anywhere any time soon. In the spirit of embracing that reality, a few thoughts:

 

  • “Privacy”- It might not mean what you think it means. Social media users may think that by self-regulating their privacy settings to restrict the audience of their profiles or posts, they are in the clear. However, in the litigation context, courts have, on occasion, required disclosure of a litigant’s social media information despite the user’s seemingly stringent privacy settings. For instance, in one case, the Court allowed discovery of nonpublic portions of a personal injury plaintiff’s Facebook and MySpace pages, given the possibility that her content might challenge her claims of injury.2 The Court quoted a commentator, who stated the following regarding privacy and social networking: “[i]n this environment, privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking.” This is not to say that attorneys can engage in fishing expeditions for all social media content; requested information must still be relevant to the claim or defense and reasonably calculated to lead to admissible evidence.
  • Thinking Twice before Posting. Posting information on a social media platform about pending or ongoing litigation may jeopardize the lawyer-client privilege, as the user is technically sharing that information with third parties.
  • Preservation of Evidence. When involved in a lawsuit, a litigant may be tempted to delete damaging posts and pictures from social media accounts. However, just as one cannot simply shred relevant paper documents in contemplation of a pending lawsuit, one cannot delete relevant social media evidence, despite the ease of doing so with a single “click” of a mouse.

Technology continues to paint an ever-changing landscape in the civil litigation discovery realm, uncovering both challenges and opportunities for legal practitioners and their clients. Attorneys are wise to educate themselves on rules and court decisions governing social media, and clients should discuss social media issues with their lawyers at the onset of litigation.

 

1 See O’Neill v. Oakgrove Constr., Inc., 71 N.Y.2d 521, 532, 523 N.E.2d 277, 282, 528 N.Y.S.2d 1, 6 (1988).

2 Romano v. Steelcase Inc., 907 N.Y.S. 2d 650 (N.Y. Sup. Ct. 2010).

2016 Estate Tax Planning Updates

Author: Linda Grear


April 1st, 2016

Effective estate planning may reduce estate taxes, which will benefit you and your family financially. In the face of ever-changing tax laws, there is growing concern about how to best protect assets and secure them for future generations.

Anticipating your potential estate tax liability is a great place to start planning.  Estate taxes are due within nine months after the date of death. Therefore, advance planning is key to addressing tax liability.

Estate Tax Exemptions: The Federal estate tax exemption for 2016 will be $5,450,000.00 for decedents dying after January 1, 2016, with future adjustments for inflation.

The New York State estate tax exemption will be increasing to $4,187,500.00 for decedents dying after April 1, 2016 and before April 1, 2017.

For deaths as of April 1, 2017 and before January 1, 2019, the NYS estate tax exemption will be $5,250,000.00.  Beginning on January 1, 2019 and later, the NYS estate tax exemption will be linked to the Federal estate tax exemption

Below is a brief overview of a few estate planning techniques that may shield assets from future estate tax liability:

 

Last Will and Testament with Disclaimer (credit shelter trust) provisions: This technique provides a married couple the opportunity to utilize estate tax exemptions of each spouse while giving the surviving spouse the opportunity to elect how much he/she shall receive from the deceased spouse’s estate. Any assets disclaimed or renounced by the surviving spouse are held in trust for the benefit of the surviving spouse. The trust assets are distributed to the ultimate beneficiaries only upon the death of the surviving spouse. The use of a Disclaimer Will may result in significant estate tax savings.

 

Annual Gift Tax Exclusion:   One of the simplest ways to reduce the size of your estate would be to begin making annual gift tax exclusion gifts. An annual exclusion from gift taxes applies to each person to whom you make a gift. In 2016, you will be able to gift up to $14,000 each to any number of individuals without those gifts being taxable.

 Benefits:

  • Allows you an opportunity to reduce the size of your taxable estate.
  • No gift tax returns are required if the gifts are $14,000 or less each year.
  • You can make these gifts each year, thereby dramatically reducing the size of your estate.
  • Receipt of the gift is not taxable to the recipient (unless the item gifted was a tax-deferred asset).

 

Payment of Tuition and Medical Expenses:  Tuition payments made directly to a medical or educational institution are not taxable gifts. The payment must be made directly to the medical or educational institution providing the services. Please note that the exclusion covers tuition payments but not books, supplies, board and dorm fees.

Benefits:

  • Allows you an opportunity to reduce the size of your taxable estate.
  • Allows you an opportunity to make additional gifts over and above the annual gift tax exclusion.
  • This unlimited exclusion can be used for all levels of education.
  • This exclusion is permitted for tuition expenses of full-time or part-time students.

 

Irrevocable Life Insurance Trust:  A life insurance trust is a vehicle by which the grantor

gifts money to the trust and the trust, in turn, buys a life insurance policy on the life of the grantor. When the grantor dies, the life insurance proceeds are paid to the trust and distributed to the beneficiaries designated within the trust. This is a good wealth replacement tool to offset projected estate taxes to be paid.

 Benefits:

  • Provides a liquid pool of funds to pay estate taxes, which are due within nine months of date of death.
  • The value of the life insurance policy is not included in the grantor’s estate because it was not owned by the grantor.

 

These are just of few of the available estate planning techniques. In estate planning, timing is critical for the proper protection of your assets to ensure security for future generations and starting sooner rather than later is most important. If you have any questions about the above material, or wish to speak to an attorney, please contact HoganWillig at (716)636-7600. HoganWillig is located at 2410 North Forest Road in Amherst, New York 14068, with additional offices in Buffalo, Lancaster, Lockport, and Ellicottville.

Tips for Buying Foreclosed Property



March 29th, 2016

Are you interested in buying a foreclosed property? Not only should you enlist the help of a real estate agent who has a background in buying and selling these types of properties, but you should also plan to consult with a real estate attorney who understands foreclosure laws and regulations—they are tricky and vary from state to state.

Whether you’re looking at a pre-foreclosure, short sale or bank-owned properties, you’re going to need the guidance of a professional who has a background in buying and selling these types of properties in your local market. The best conversation to have before you consider buying a foreclosure is the one you have with yourself: ask yourself if you have the money, time, patience, and support from those around you to repair any problems with the house.

There are three different stages of foreclosure when you may consider buying the property: pre-foreclosure, the auction phase, and the post-foreclosure stage. Pre-foreclosure is the time when the homeowner still owns the property and knows that there’s a potential for foreclosure. In this stage, the sellers will be extremely motivated and may accommodate for a short sale if the bank allows and they’re able to find a buyer fast.

If you decide not to buy a home in the pre-foreclosure stage, the second option is to purchase at auction. The next Erie County tax foreclosure auction is October 13, 2016. At this time, the date for the City of Buffalo tax foreclosure auction is being determined. Lender foreclosures are announced in local papers, typically the Buffalo Law Journal, and generally occur in the morning at the county clerk’s office.

Some foreclosures might come with baggage in the form of liens against the property, costly repairs, and so on. To get rid of the liens, if you are in the pre-foreclosure stage, you will have to either pay the whole thing off or negotiate with the lien holders to see if they’ll accept a reduced payoff. When you buy a foreclosure at auction, you have to pay cash—and the price of a foreclosure is not just the cost of the house, but may also include other liens, back interest, taxes and attorney’s fees on the property. While the opening bid may seem reasonable, by the time you outbid everyone you will have signed up for a much higher price. However, be aware that if the homeowner files bankruptcy on the day of the auction, the lender adjourns the auction. If you really want this house, you’ll have to bid on it again at another auction.

Know how much you can spend. Identify the neighborhood where you want to buy and familiarize yourself with the process of purchasing a foreclosure. It’s important to secure early financing because it’ll ensure that you’re qualified to purchase the property. Being pre-approved gives you greater bargaining power pre-foreclosure when the time comes to make an offer. For auctions, be aware that you might not have enough time to close on your loan once your bid has been accepted. Focus on one or two neighborhoods so that you are investing your time on properties that also meet your desired criteria such as size and cost. Check comparable recent sales to get a good feel for the market. Even though you’re working with a qualified agent and lender, you need to do some work upfront to become familiar with the basics of the foreclosure process.

Consider purchasing a home warranty to protect yourself in the event of potential future snafus. But be sure the warrant provides sufficient coverage for your needs.

As early in the transaction as possible, you have to check out the property itself. Do your own inspection regardless of whether you’re buying the foreclosed property from a bank or the homeowner. Additionally, a thorough inspection might find problems, or confirm the home is sound.

Lastly, approach the transaction with a long-term perspective as a foreclosed home may decline further in value. While you may be hoping for a quick flip and resell, what do you do if you can’t do that? Determine what will happen fiscally if you hold onto it for five or ten years now so that you are prepared for whatever may happen down the road.

If you are considering purchasing a foreclosed property, trust our Real Estate department to help with any issues you may have. Please contact HoganWillig with any questions about the above material, or if you wish to speak to an attorney, at (716) 636-7600. HoganWillig is located at 2410 North Forest Road in Amherst, New York 14068, with additional offices in Buffalo, Lancaster, Lockport, and Ellicottville.

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