Month: August 2016

  • Minnesota Unemployment Fraud

    Minnesota Unemployment Fraud

    When a person is accused of Minnesota unemployment fraud, the first two feelings generally felt is stress and fear.  I believe every Applicant seeking benefits has the power to clear their name.

    Generally, most Applicants are tripped up when answering their weekly benefit questions.  Unfortunately, reflecting on past application questions can be difficult.

    For this reason, I encourage Workers to consider the following when engaging unemployment fraud:

    • Make a notebook of job search activities,
    • Print out monthly calendars,
    • Map hours worked (if any) on a weekly basis,
    • Map wages (if any) received on a weekly basis, and
    • Make a list of every job sought or applied too.

    Minnesota Unemployment Fraud – Statute 268.18

    Next, I encourage Workers to review the laws and rules.  I believe:

    • Everybody’s situation is different, and
    • Fraud can be limited to one week of benefits or many months of benefits.

    One of the main rules that applies to an unemployment case is Minnesota statute 268.18.

    Legalese of Minnesota Unemployment Fraud

    The rule for fraud says a person has committed unemployment fraud in Minnesota if they received unemployment benefits by:

    • Knowingly misrepresenting, misstating, or failing to disclose any material fact, or
    • A Person making a false statement or representation without a good faith belief as to the correctness of the statement or representation.

    Yes, that is a mouth full.  Not to worry.  I would like to briefly introduce this topic in my video below:

    Criminal Rule for Unemployment Fraud – Statute 609.52

    Yes, sometimes an Applicant can be impacted by a criminal law too.  The criminal rule for unemployment fraud in Minnesota is rule Minnesota statute 609.52.  Rule 609.52 is a criminal rule and different from the rule stated above.

    Overlap of both rules

    Yes, there is overlap between unemployment rules and criminal rules.  The overlap is seen here:  Minnesota statute 268.182.

    What should you do if you are accused of Minnesota Unemployment Fraud?

    Every person reacts differently.  In my experience, it is easier to access a process by pinpointing where the issue may have started.

    If you do not know where it may have started, then I encourage Applicants to practice good judgment in their preparation.

    Other issues to be aware of:

    I believe the office managing unemployment benefits prefer charging a person with unemployment fraud because:

    • The monetary penalties can be up to 40% (which is really high), and
    • Yes, there are ways the unemployment office can create an infinite period of time to collect their money.

    Does Minnesota Unemployment Fraud happen a lot?

    As requests for unemployment benefits becomes more difficult, unintentional Minnesota Unemployment Fraud is happening too.

    Based on various articles I have reviewed and dating back to the year 2009, an unemployment overpayment has become twice as likely.

    As you can see, Minnesota’s unemployment office overpaid Applicants millions and millions of dollars in benefits.

    What is the process for Minnesota Unemployment Fraud?

    Specific to unemployment fraud under rule 268.105, an Applicant can appeal an unemployment overpayment claiming fraud.

    The process for unemployment fraud under Minnesota statute 609.52 depends on the County, the amount owed, and whether or not you are seeking an appeal through the unemployment process.

    What is the difference between Non-Fraud and Minnesota Unemployment Fraud?

    A Minnesota Unemployment overpayment is classified under two categories: nonfraud and fraudulent.

    Unemployment fraud can impact your credit history, professional licensing, and the monetary penalties.

    Although rule 268.105 identifies a standard procedure, your rights and the burden of proof is different.

    Thus, every case is different too.

    What should you do about being accused of Minnesota Unemployment Fraud?

    Yes, Applicants seeking benefits have rights.  However, judicial decisions are important and need your attention.  Otherwise, a Worker might inadvertently waive their rights.

    Should you hire a lawyer for Minnesota Unemployment Fraud?

    Fraud is way to series to mess around with.  Please consider contacting me if you want to discuss your specific situation.

  • Never Create a Joint Account with your Children

    A joint account with children is not a recommended estate planning tool.

    Many times, older adults believe adding one of their children to their checking account is a good strategy.  Even though you love and trust your adult children with all your might, avoid the temptation of making a joint account with children.

    The preferred method versus a joint account with children

    The preferred method to accomplish these goals is using a document called a power of attorney.  The rules that govern a power of attorney are found in Minnesota Chapter 523.  Also, Minnesota’s form for a short form Power of Attorney can be found here.

    Generally, an older adult wants to change their checking account to a joint account with children because:

    Using a document that grants an adult child power of attorney allows them pay your bills, buy things on your behalf, and send out birthday or Christmas gifts.

    Yes, a power of attorney can authorize your adult children to accomplish these goals even if you become incapacitated or are unable to communicate on your own behalf.

    Reasons a joint account with children is bad

    There are two main reasons why a joint account with children is bad:

    • Debt collectors wanting money from your children can garnish your account and
    • Your adult children can be overwhelmed with poor judgment.

    It is my experience folks who create a joint account with children put them in a difficult position of managing your money when you do not necessarily need or want help.

    Also, for people who have more than one child and make only one of their children a joint owner, the left out child can feel slighted.  Other times, the left out child will view scrutinize transactions and claim fraud.

    For these reasons, avoid creating a stressful environment by not making a joint account with children.

    Help before creating a Joint Account with Children

    Before making a a joint account with children, please contact me for help outlining other options for you consider.

  • Caring For Your Dog by using a Veterans Power of Attorney Form

    A Veterans power of attorney form can help another person take care of your dog.  More importantly, the VA form for a POA can help families take care of their Veteran.

    Like you, I am a veteran.  Deep down inside, I believe all of us are afraid of VA hospitals and nursing home facilities in some capacity.  Wouldn’t it be nice if a Veteran’s family could make decisions and stand-up in a time of need?

    The process of granting a person within a family or a person outside a family the ability to care for a Veteran, their dog, or manage their affairs is as easy as adding the Veterans Power of Attorney form to an estate plan.

    Dangers of using a Veterans Power of Attorney Form

    Absolutely, the process of using a VA POA or Living will can be a dangerous proposition too.  In my experience, here are four (4) major dangers for Veterans using a Power of Attorney Form:

    1. Granting power to a person they cannot trust,
    2. The form contradicts another form in an estate plan,
    3. Not having a form or document that helps the Veteran in a specific situation needing attention, and
    4. Failing to fill out the form correctly.

    Preventing problems

    Here is how Veterans can prevent problems:

    • Identify a list of people they can trust,
    • Think through what or when the Veteran needs their help,
    • Ask if the Veteran might require medical attention outside the Veterans medical system, and
    • Will the Veteran’s wishes be impacted if another estate planning document contradicts their intentions?

    What can a Veterans Power of Attorney Form do for me?

    The most powerful form on the planet is likely granting another person power of attorney.  In other words, granting another person a power of attorney might allow them to literally do anything and everything without the other person’s consent.

    On the other hand, the form used by the VA does a “good job” of identifying this risk.  Perhaps more helpful is the fact the VA Form does more than granting a Power of Attorney.

    Yes, additionally, the form used by the VA can grant another person power to make healthcare decisions too.  This person is called a Health Care Agent

    Do Veterans need a Power of Attorney or Health Care Agent?

    Believe it or not, a spouse in Minnesota likely cannot act behalf of their Veteran if the Veteran fails to formalize a document granting their spouse power.  Absolutely, having a power of attorney or health care agent is a personal decision.

    However, many families are surprised to find out their abilities to help a Veteran are limited if certain documents are not included in an estate plan.

    In my practice, I prefer working with Veterans by helping them identify risk, alleviate fear, and have a formal estate document in place while trying to account for as many scenarios as possible.  For example, does the Veteran anticipate traveling abroad, traveling domestically or needing care at a Minnesota Veteran’s Nursing Home?

    Again, each process for each Veteran is going to be different because every Veteran has different wishes.

    Where can you find a Veterans Power of Attorney form?

    Yes, every Vet has the ability to download and print the VA’s form.  The form is number 10-0137 and it can be accessed here.  On the other hand, not every Veteran or family should use this form and I encourage Veterans to ask why.

  • 3 Critical Pieces of Evidence to Prove a Negative

    3 Critical Pieces of Evidence to Prove a Negative

    The legal process to prove a negative is hard, but not impossible.

    If a person uses evidence to show an event or situation did not occur, this is called proving a negative.

    When might you see this problem?  Sometimes, workers are asked to disprove employment misconduct or show they were not hurt while working on their house.

    When dealing with a family member’s estate, a personal representative might be asked to prove their Grandma’s mind was in the right place when she gave away her stuff.

    Other-times, a Veteran might be asked to prove their disability was not exclusive to non military activities.

    Regardless of your situation,  I hope this helps your cause.

    What you need to know right now

    To keep your day moving, here are three terms of art I believe work as one when a person is proving a negative in Minnesota:

    • Identify the Process that took place,
    • Define everybody’s Expectations, and
    • Show why you or your witness is Credible.

    If a person is able to put these things together, sometimes they can encourage a judge or hearing officer to conclude the preponderance of evidence was satisfied.

    Why a person should NOT prove a negative

    The number one reason why a person should not prove a negative is because they want to preserve their rights under the 5th Amendment.  In my practice, I see this when a person is concerned with fraud.

    Without going into details, most people have a gut feeling whether this might impact their situation.

    Why a person SHOULD prove a negative

    Quite frankly, none of us should be forced or compelled to prove a negative.  On the other hand, sometimes attempting to prove it through other means can improve a person’s cause or lead to meeting their big picture goal.

    Identifying a Process can help prove a negative

    Proving a process is more than an alibi.  I believe a person can prove a negative by identifying their step by step process.  How might this look?

    Well, it literally can mean taking a piece of paper and creating a timeline.

    Prove a negative by defining everybody’s Expectations

    Usually, people tell me they do not know what the other person or entity expected.  Instead, define every person’s expectations as if it were gospel.

    Yes, proving a negative is hard because most people are forced to prove why something did not occur.  The best of the best are able to show an event did not occur because those involved did not expect it.

    For example, a nurse likely expects their co-workers to communicate verbally versus writing a note because their patient was new and their well-being depended on it.  Maybe an adult child expected their Grandma to show signs of incapacity because Grandma was consistently incoherent in the afternoon.

    Unfortunately, every situation is different.

    Prove a negative by showing Credibility

    Credibility is all about trust.  Why should a judge believe your story?  Having a history of telling the truth or being under oath isn’t good enough.  I believe a person can use evidence to prove a negative by making explicit references to time, dates and describing a situation in detail.

    Other times, a person or witness needs to make subtle references to an award, accolades or using past experiences to set a tone.  Even more significant might include a history of making a certain decision based on sound reasoning.

    For example, a worker or Veteran might show they would never consume alcohol because they were training for a marathon or divulging credit card statements that fail to identify bar tabs or spending money at a liquor store.

    Final Thought

    If you are able, please share this post with others.  I acknowledge this might seem ridiculously tedious.  However, attention to detail is important when trying to prove a negative.

  • Pets In Your Will, But Should You?

    Pets in your will you say? As a pet owner myself, pets are significant to a family and those caring for them. As a result, being creative with their care and long-term planning is a must.

    Unfortunately, our estate laws treat pets as property, versus the loveable family members they really might be. This means having a plan for your pets is a legitimate planning goal.

    Naming Pets In Your Estate

    The preferred method of assuring your pet is cared for is the process of creating a “pet trust.”

    From a practical perspective, this means creating a trust for your larger assets and including a specific claws (or clauses) exclusive to your pets. Ideally, the section takes into account the Trust Act.

    On the other hand, a will can certainly be another method of caring for a cat or dog. But, animals needing care for medical issues or maintenance will likely benefit more from an owner deciding in favor of a pet trust versus other planning tools.

    Pet Trust Claws

    Obviously, nobody knows your furry friend better than you. But, there are many animal owners who forget the significance of adding a photograph to their trust, addressing feeding schedules, being clear on which veterinarian is desired, etc. In other words, a pet trust should be drafted in a way that is exclusive to your animals.

    Also, an article of the trust can allocate money to the needs of your cat or dog. For example, suppose you have your animals groomed once per month and it costs $70 dollars per grooming.  If your dog or cat was expected to live for 8 years, then ideally your pet trust would be funded accordingly.

    Now, this doesn’t necessarily mean having $6,720 dollars readily available ($70 x 12 x 8). But this does might mean gifting a motor vehicle to the pet guardian selected that takes into account the maintenance of your four legged friend. Again, creativity is the name of the game when considering placing pets in your will.

    Guardians Named In Your Trust

    Money aside, selecting the best animal guardian in your will or trust means addressing this issue before it comes up. In other words, ask your friends and family members. Ask them whether they would be willing to care for your pet is highly encouraged.

    As the saying goes, an ounce of prevention is worth a pound of cure. Unless you ask, you may never know whether the person you selected is allergic to hair or physically unable to care for more than themselves. Thus, asking questions or interviewing potential guardians is a strong proactive move.

    Are There Other Options

    Yes, there are other options versus naming pets in your will. Whether you are considering a will, a trust, or want to leave a charitable contribution to an animal friendly organization, I think we all agree that our furry friends are family.

  • Over My Dead Body: Pay Back Your Inheritance

    What if you had to pay back your inheritance?  Sounds crazy, right?  Well, not so fast.

    Recently, I came across a personal representative who completed an informal probate process on their own through the probate process in Hennepin County.  The person that died was their parent.

    During the this process, no will was found and the probate court divided the estate into three parts:  50% to the personal representative, 25% to a niece and 25% to a nephew.

    Unfortunately, a will was found AFTER the estate was closed.  Even worse, the will stated the personal representative (the parent’s child) should receive 100% of the estate, which was different than what had been previously provided.  Now what?

    Luckily, there are rules and laws in place to help facilitate this problem.

    Laws to pay back your inheritance

    In Minnesota, rule 524.3-1006 limits an ability to force or make another person pay back your inheritance if it has been more than one year after the estate was distributed or three years after the decedent’s death, which ever is “later”.

    This means Minnesota probate laws support not returning an inheritance if it was incorrectly paid only if the time periods have expired.

    Pay back your inheritance – exceptions

    On the other hand, a beneficiary might be compelled to pay back your inheritance for the following reasons:

    • You are within the three year time limit, or
    • A beneficiary engaged in fraud.

    Balance the value of your inheritance

    Another element I believe is very significant is the balance of relationships.  In other words, should the personal representative re-open the estate to “take” more money?

    In the above example, the personal representative was excited about finding their parent’s will because it meant their inheritance should have been $5,000 more.  Is an extra $5,000 worth engaging a lawyer, re-opening a probate case and using procedure to make beneficiaries pay back your inheritance worth it?

    Would your answer change if the gift increased to $10,000 or $50,000?

    Yes, these are difficult questions to answer and the dynamic of your family is a critical piece to consider.  In my opinion, there are multiple factors to consider, which makes every probate different.

    Do you need to pay back your inheritance?

    Please contact this law office if you need help with determining if you should pay back your inheritance.