Month: June 2017

  • Non-Compete Agreements and Minnesota’s Blue Pencil Doctrine

    The Blue Pencil Doctrine is a law in Minnesota that allows a Court to change and make a contract clause more “reasonable”.  Unfortunately, what is reasonable is going to be very fact specific and likely exclusive to the parties involved.

    Generally, the blue pencil rule or doctrine has applied against non-compete agreements.  But, it would not surprise me to find or see a court apply it to other contracts unrelated to employment.

    In my experience, the blue pencil doctrine in Minnesota is a difficult rule because it is left to the mercy of the courts.  For those wishing to read a court case reviewing this issue, consider reading Klick v. Crosstown State Bank, Inc.

    Otherwise, contact me directly.

  • Aid and Attendance Benefits through the VA

    Aid and Attendance benefits are fantastically easy to request.  The idea behind today’s article is to share how and what to think about when military families are seeking aid and attendance.

    Thus, I hope you find value in this short outline.

    Aid and Attendance Benefits:  First Issue

    The first issue is determining how to seek this all important benefit.  When I advise a Veteran and their family on this issue, I always ask where the Veteran is living.  Here is why this question is important.

    • If the Veteran (or their spouse / dependent) is living in a nursing home, VA Form 21-0779 is used to request aid and attendance.
    • If the Veteran lives anywhere else, then VA Form 21-2680 is the better form to utilize.

    VA Forms for Aid and Attendance

    Between you and me, I like the second form much better.  First, I believe it gives more control to the family seeking this benefit on behalf of their loved ones.  Second, it requires seeking help from the Veteran’s )or their spouse / dependent) personal medical doctor.

    Compare this to VA Form 21-0779.  Although helpful in requesting benefits, I generally dislike this type of application because it asks the nursing home for their input.

    The point I am trying to make is this: I trust my personal medical doctor more than my nursing home.  Also, experience tells me it is easier to acquire help from a medical professional versus a nursing home administrator.

    Pension Management Centers for VA Benefits

    Once a Veteran and their family has selected the form that applies to their situation, the next step is the process of submitting it to the right people or department.

    Because the aid and attendance benefit aligns with pension benefits, the PMC or Pension Management Center is the place that reviews the VA forms referenced above.  As of the date of this article, there are 3 different Veteran PMC offices and they review issues based on the state where the Vet resides.

    Here is a link to the three Pension Management Centers.

    Nobody is Getting Rich from their Pension

    The greater the disability, the greater the benefit.  Very few military families and Veterans contact me because they are looking to get rich from their aid and attendance benefits.  This is an earned benefit about acquiring help and assistance.

    As a result, I think it is to the Claimant’s advantage to describe their personal situation as a detriment.  In other words, if the Veteran (or spouse / dependent) needs help cooking bathing, using the restroom, etc., then stop the doctor or nursing home administrator from sugar coating the need.  Again, the greater the disability, the greater the benefit.

    Aid and Attendance Benefits vs. Housebound Benefits

    Here is another important and surprising point:  by rule, Veterans and their families cannot receive household benefits in addition to their aid and attendance.  In other words, it is one or the other.  Obviously, the next issue turns on acquiring the benefit that offers the highest monetary return.

    Thus, choosing which benefit is better calls for weighing a hodgepodge of disability ratings and need.

    Do This Before Veterans Need Aid and Attendance

    Before I close, I want Veterans and their families to realize that planning for every life event is hard.  As they say, hindsight is 20/20.  If there is time, I think Veterans, their spouses and dependents should consider acquiring a power of attorney and healthcare directive as soon as possible.

    I make this suggestion because it gives our loved ones power to act on our behalf when we need it the most.  Even more significant, the generic form of these types of estate planning documents are free.  Otherwise, part of my law practice includes drafting more personalized health care directives and related estate planning documents.

    If you and your family need help, please contact me directly.

  • Prevent Cyberattacks on Estate Plans By Doing 1 Thing

    Today’s news of a cyberattack on the banking system in Ukraine is a horrible reminder how vulnerable we really are.

    On the other hand, none of my Clients leave my office without understanding whether they should store their estate planning documents in the cloud.

    In my opinion, storing some or part of an estate plan in the Cloud can prevent problems down the road.  Provided hardcopies are not compromised by changes or edits, nothing beats a cyberattack like having hardcopies

    If you need help or advisement how to store, preserve and keep such things, please contact me for help.

  • 22 Legal Cases on Veteran Appeals for Anthrax

    Anthrax is still a hot issue for Veterans like myself and others.  Right now, there are 22 public legal cases that make specific reference to Anthrax.

    Unfortunately, it jus just a matter of time before there are going to be many more Anthrax cases.

    If you need help, please keep me in mind.  I wish you the very best.

  • Unemployment Penalties Can Bite Back

    Unemployment penalties are getting out of hand in Minnesota.  Even worse, unemployment laws in Minnesota are getting worse.

    Applicants scratching their head as a result of a sanction or penalty assigned to their overpayment can consider appealing.

    For those unfamiliar, let me explain.  Under various statutes, including MN law  268.182, an unemployment law judge can attach a penalty to a claim, even if benefits were incorrectly paid.  This includes administrative and criminal penalties.

    Unemployment Penalties:  Why There Are Problems

    I believe there are four main reasons why penalties get assigned to an unemployment appeal:

    • A poorly worded application for benefits,
    • An applicant didn’t understand what they were trying to accomplish during their hearing,
    • The folks denying unemployment claims don’t understand the issues, and
    • Minnesota has a huge overpayment problem.

    In my experience, these are the main reasons Applicants see unemployment penalties associated with their claim.

    Appeal Unemployment Penalties

    Yes, there are many factors that applicants can use when trying to decide whether they should appeal a period of ineligibility or monetary penalty.  One of the first big issues of concern is timing.

    Second is showing why an Applicant was right.  I very much wish this type of conflict could be resolved by following a list of steps.  But, every situation is different.

    To be fair, I think every appeal should be reviewed with care.  Here is why:  every employee / worker encounters their own specific situation and facts.  Minus a mass layoff,  most employees do not share the same boss, employment policies or story how the job ended.

    As a result, I think every person should have their personal situation checked out.

    Evidence for an Unemployment Penalty

    Evidence is a tricky thing because in my experience, problems arise because an Applicant is unprepared what to say and why they are saying it.  In other words, verbal evidence can be critically important.

    When time allows, other types of evidence includes:

    • Documents (from a worker’s employment file) and
    • Witnesses.

    When one isn’t available or the employer is making life difficult, seeking a subpoena can be a strong response to what seems like a  900 pound gorilla.

  • Can my Ex Spouse Really Inherit my Stuff?

    Can an ex spouse inherit property from their former spouse after a divorce?  In Minnesota, absolutely yes.

    Although there are laws like the Ex Souse as a Beneficiary Rule, I believe it is critical to update every estate plan after a divorce.

    What is the Ex Spouse Beneficiary Rule?

    Minnesota has two important laws that help revoke an ex spouse from a will and trust.  The rules are:

    On the other hand, I believe failing to update an estate plan puts intended beneficiaries (like children, siblings or a future spouse) at risk of not recovering your assets.

    For one, there was a recent case reviewed by our US Supreme Court that says certain types of assets do not fall under the revocation laws referenced above.  Keep in mind, this issue was reviewed by the highest court in the land.

    Second, why take a chance?

    Minnesota’s Laws on an Ex Souse Inheritance

    I apologize for adding fuel to the fire, but Minnesota’s court system has produced two opposite opinions on this issue.  Can you imagine an ex spouse taking an inheritance issue to court because they stand to inherit something substantial?

    None the less, two cases come to mind:

    Even if you never read these cases, please notice this:  each case involves a financial institution.  In other words, even if we think our ex-sposue will never encourage a problem with an inheritance, we cannot rule out our banks and insurance carriers.

    In simple terms, making changes to update a will, trust, 401K, etc. is worth the effort to reduce conflict.

    Will my Ex Spouse Inherit from my Will?

    Right now, there is a strong law in Minnesota that revokes an ex spouse.

    On the other hand, I am worried about bigger assets like retirement accounts, insurance policies and real estate.

    If you need help with this issue, please contact me directly.  Otherwise, I hope you found value in the links shared above.

  • Naming “To My Estate” as a Beneficiary is a Broken Plan

    When a person says they want to leave everything “to my estate” [their estate], they are often surprised to find out that this is a broken plan.

    I know folks do not read my posts to get the third degree.  But, this is serious stuff.

    Instead, I encourage my Clients to pick specific beneficiaries, use a will and identify a quarterback to administer an estate.  

    If you are wondering about the quarterback process for an estate plan, please take one of my upcoming classes.
    The alternative is this: telling the whole world that we don’t care and we want our remaining savings spent on creditors and probate costs.  

    Even if you you only have $100, wow…how nice would it be to pass that money onto a grandchild versus Comcast.

    To My Estate is Not a Beneficiary

    The reason “to my estate” is not a beneficiary is because it doesn’t identify specific heirs or decedents.

    The idea behind picking a beneficiary is to offer precision so our Court System isn’t required to guess or use laws that contradict our intentions.  

    The idea of protecting against dead beneficiaries is the process of dying testate (the opposite of dying intestate).

    My Will Versus My Estate

    Beneficiary forms and wills do a great job of helping loved ones administer our stuff.  Whether folks use the per stirpes method or a different process, doing so can really take the pressure off of a probate court and loved ones.

    What Does To My Estate Feel Like?

    Again, I don’t mean to be critical, but I think this post calls for it.  Stating “to my estate” is lazy.  In my experience, people telling their bankers and financial advisors they want to leave their account in a hodgepodge mess is literally being one step away from doing something wonderful for our loved ones.

  • Translate Unemployment and a Different Language

    Applicants that speak and read a different language should always ask the unemployment office in Minnesota for a translator.

    Whether applicants are asking simple questions by phone, appealing benefits or filling out questionnaires, the same rule applies.  Ask for a translator.

    Different Language is Obscure?

    Different dialects?  Different tribes or regions?  Be specific.  I believe people should make the unemployment office adapt to their specific language or needs versus an applicant adapting to DEED’s availability.

    Translator Requests

    In my experience, requesting a translator or translation should always be in writing because Applicants need to generate a paper trail.  A paper trail showing a need or request for help is a great way to show support for due process.

    Translator gets Denied

    Generally, translating services through Minnesota’s unemployment office are free.

    On the other hand, asking a second person (like a family member or through a paid service) is an excellent strategy when applicants are unsure of the translator hired by the court.

  • Appealing to the VA for a Service Connected Death

    Yes, many military families are asked to appeal a service connected death.  At first, receiving a letter from the VA like this can be detrimental.

    On the other hand, setting aside our emotion is critical and sometimes families need help.

    Does a Service Connected Death Matter?

    Absolutely.  This issue isn’t even debatable.

    The Department of Veterans Affairs is wrong, and you know it.  The number one reason cause of a service connected death should be appealed is because it impacts benefits for spouses, children and dependents.  In other words, compensation for dependents and family members.

    Had the service member died as a civilian, they might have wrongful death rights or other tort system rights.  The military doesn’t use this same process.  As a result, appealing the VA for a service connected death is important in the short-run and long run.

    Why is this happening to my Family?

    The letter produced by the VA should not be viewed “gave over”.  In my experience, government agencies deny benefits for one reason:  so the Veterans Affairs Department doesn’t process an invalid claim.

    it is easier for the VA to make families jump through hoops than trying to recoup an overpayment.  In Q1 of 2017, the VA claims they overpaid nearly $1.6 million in benefits.

    Luckily, military families who act fast can appeal the VA’s denial.

    How to Appeal a Service Connected Death Matter

    Unfortunately, there isn’t one right answer on how to appeal a service connected death matter.  This is true because cases can be heard by:

    Generally, military and VA benefits are appealed by filing a Notice of Disagreement (NOD).  I believe the evidence gathering process is just as important as a NOD because facts and laws should support a NOD.

    For example, does a family have a copy of DD Form 1300 outlining the casualty repot?  And, what factual discrepancies can be identified or what facts should have been included in the report?

    Here are other documents that might be helpful during this process:

    • Marriage Certificates
    • Birth Certificates
    • DD 214
    • Medical Records
    • Base Newspapers
    • Dental Records
    • Letters and e-mail Exchanged by Family Members
    • Independent Medical Examiner
    • Mortician Notes
    • Family Medical History
    • Witnesses Reports

    Again, I know these are difficult issues to address during the grieving process.  As a Veteran’s Attorney, I want to help and I wish the entire family the very best.

  • Help, I Lost my Will

    Every once in a while, somebody will tell me “I lost my will”.  The next question I often get is “what should I do”?

    Well, I think the answer is obvious.  Look in the last place it was placed.  Unfortunately, when we cannot remember, others might start to question our sound mind.

    As a result, I believe time is of the essence and drafting a new will is a necessity (ASAP).

    Lost Will and Its Impact on a New Will

    Generally, the impact of a lost will on a new will is negligible when testators add a revocation clause to their new will.  In other words, a clause that revokes any and all previously formulated wills.

    Assuming the revocation clause is drafted properly, problems can be significantly reduced.

    Have you Seen my Lost Will?

    With the exception of asking the person who drafted it, asking others about the location of a lost will might create more problems.  First, it puts others on alert for diminished capacity.  Second, the threat of a lost will doesn’t negate or prevent the formation of a new will.

    Thus, I hope you find your lost will.  On the other hand, don’t put off the opportunity to enter into a new will, when we still have time!

  • Teenagers are Employees Too

    n Minnesota, teenagers are employees too.  As our local youth look for summer jobs, sometimes employers illegally classify younger workers or make false stereotypes.

    Believe it or not, teenagers (children) are more protected and have more legal rights than adults.

    In fact, Minnesota devoted Chapter 181A to protect children workers.  Likewise, there are federal rules that protect teenage workers too.

    Teenagers Looking for Summer Jobs

    For the teenagers looking for a summer job, I encourage you to consider:

    • Applying for a job in-person,
    • Practice interview questions,
    • Keep calling “them” to see if an opportunity has opened up,
    • Job openings change on a weekly basis,
    • Dress semi-casual for your interview,
    • Put your phone away during the interview,
    • Consider knowing and applying the Fish Philosophy, and
    • Stand-Up for yourself.

  • Land Registration is Always the First Issue

    Land registration is always the first issue when I draft a Transfer on Death Deed (TODD) in Minnesota.

    Finding this information is very simple.  But, it is still a very significant step.

    Land Registration Basics

    Lets keep this simple.  Every piece of land (home, business, farm, rural, residence, etc.) is different and unique.  In theory, every piece of land or parcel is registered within the County it sits.

    Luckily, all of us can visit our local County headquarters and acquire information on any piece of property inside the county.  In general, I look for written documentation showing the following:

    • Is a property titled Abstract or Torrens or something else,
    • Does a property have any attached or recorded liens, and
    • Acquiring the correct legal description.

    In addition to other requirements, the above pieces of information are critical for every TODD.

    Why Land Registration Matters

    The above information matters because the transfer on death deed conveyance forms in Minnesota require the above information.

    Because a death deed is a document that speaks on our behalf when we die, getting this information correct is of critical importance.

    Abstract or Torrens in Minnesota

    From an estate planning perspective, the advantages of property being titled under the Abstract system versus the Torrens system is moot.  Instead, unequivocally knowing which one applies to a person’s property is the primary objective.

    As I mentioned above, we can find out very easily by:

    • Contacting the Recorder’s Office within a specific County, and
    • Acquiring paper records verifying the land registration system.

    For those tempted to look on the internet or ask their neighbors, don’t do it.  Information on County websites are consistently wrong.  And, it is not uncommon for side by side properties being titled differently too (sorry Richfield).

    Land Registration is Always the First Issue

    Personally, I believe land registration is always the first issue because it requires work to verify.

    In my experience, putting in this work helps find answers to the various other questions necessary to complete a MN transfer on death deed.

    Failing to put in the work puts the whole process in jeopardy.