Author: Jasper Berg, J.D.

  • Evidence for Unemployment: Tip #006

    Evidence for Unemployment: Tip #006

    Evidence for unemployment can take on many different forms. For some, this means seeking a positive review, while others want copies of a video tape. That said, don’t underestimate the power of the spoken word.

    Unemployment Tip # 006 –  An Applicant’s testimony can sometime be more important than other forms of evidence, like a document, e-mail, etc.  When faced with an appeal, verbalizing facts in a precise order can help Applicants win their appeal.”  

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    After pinpointing one’s own testimony, then start the process of collecting evidence.  Perhaps this means making a decision about a subpoena. Either way, here are a few examples of evidence:

    • An employee handbook,
    • Job posters,
    • History of other employees in a similar position,
    • Positive performance reviews, etc.

    Assuming evidentiary rules are followed correctly, when a person or employer submits evidence, the unemployment office will mark it with a watermark and return it to each party. Usually, this is done using a yellow envelope.

  • Minnesota’s Drug Testing Laws

    Minnesota’s drug testing laws for employees stems from Minnesota Chapter 181.  Sometimes, folks might hear the testing rules called DATWA, or Minnesota’s Drug and Alcohol Testing in the Workplace Act.

    As you can see, this rule is extremely complex, and every situation will produce a different set of facts and or outcome.

  • My Corporate Trustee Increased Their Fees

    My Corporate Trustee Increased Their Fees

    When I meet with families for the first time, identifying a corporate trustee within a revocable trust is always an unusual conversation.

    Before describing why, lets quickly outline what it means to identify a third-party trustee that is unrelated to you and your family.

    A corporate trustee is a business or entity (like a bank or wealth management company) that agrees to manage and administer a trust.  As you might suspect, this agreement is based on paying a service fee.  Generally, this is where people back away.

    Really though, I like the idea of engaging an entity as a back-up to the back-up for one reason:  just in case we all die.  Here is what I mean.

    Corporate Trustee:  Everybody Dies

    Like you, I do not like to think about my death.  Taking this nightmare to the next level, I do not like the idea of thinking about dyeing in a car accident with my closest family matters (minus the one grandchild  or child hanging out with a babysitter).   Far fetched, but possible.

    Anyways, I love the idea of making sure my trust has the power to implement Minnesota statute 501C.074, versus making a trustee or guardian seek authorization from a court to fill a trustee vacancy.  I like this idea because I want my assets distributed amongst my beneficiaries versus court fees.  Also, I cannot predict the far fetched future (North Korea?).

    Even better than adding the Fancy in Trusteeship or Successor Appointment rule is helping out by selecting an entity to act as my corporate trustee.

    Thus, updating a revocable trust to account for vacancies makes sense.

    Corporate Trustee:  Running from Fees

    Of course, the one reason people balk at the idea of selecting a corporate trustee (even as a back-up to the back-up) is the fear of paying corporate fees.  Certainly, I agree.  If ATM fees make you go crazy, corporate trustee fees might make you sick.

    On the other hand, family dynamics can be the deciding factor.  Some realize their family is not sophisticated enough to manage a trust, while others are fearful of family members arguing over silly things.

    The intentions of the settlor (the person who made the trust and identified a third party to manage it) is what matters most.  In my experience, having a person with specialized knowledge to administer a trust can be a breath of fresh air.

    Corporate Trustee:  One of My Favorite Approaches

    The value of thinking through the issue of selecting a corporate trustee is sometimes overwhelming.  Although not for everybody, one of my favorite approaches is selecting a personal friend or family member as my trustee and making a corporate trustee their partner.  In other words, both serving as co-trustees.

    Personally, I think this accomplishes a handful of goals:

    • Reduces fiduciary stress,
    • My trustee can lean on an entity I pre-selected,
    • And, if my trustee gets sick or is no longer able to help, they have a back-up too.

    Final Thoughts

    Just to be clear, a person wishing to create a revocable trust is not required to select or identify a corporate trustee.  Instead, I only bring to your attention because it is a nice alternative for people concerned about selecting a trustee or not knowing enough trustworthy people to manage their affairs.

  • Quit or Discharge: Unemployment Tip #005

    Quit or Discharge: Unemployment Tip #005

    Quit or discharge is a confusing question. In fact, it isn’t even a question. Instead, it is a legal issue often addressed by an unemployment law judge.

    Sometimes, workers and employees are confused whether they quit their job or were fired.  Applicants should never argue they do not know whether they quit or were terminated.  Instead, find the unemployment law that best supports eligibility. 

    Unemployment Tip # 005 –  When the reason a job ended is an issue, Applicants should never argue that they do not know. Instead, find the unemployment law that best supports eligibility.”

    Before selecting quit or discharge, know that every question is a trick question.  Really though, employees seeking unemployment benefits can take their case under control by knowing which element of rule 268.095 applies to them and why.

  • Grandma’s Revocable Trust Before She Went Into a Nursing Home

    Grandma’s Revocable Trust Before She Went Into a Nursing Home

    When I think about Grandma’s revocable trust, I think about her independence.  Wow, she is unbelievably strong and mentally sharp.  Like you, I love my grandmother.

    That said, there will be a day, when a grandmother will need help from her trustees.  On that day, her trustees will be asked to determine whether Grandma should fund a different kind of trust, to avoid the agony of handing her assets over to the State.

    Here are two possible alternatives:

    • Supplemental Needs Trust
    • Special Needs Trust

    If you have the time, lets take a quick look at these types of documents.

    Supplemental Needs Trust for Grandma

    As an alternative to Grandma’s revocable trust, consider a supplemental needs trust.  A supplement needs trust helps grandma pay for needs not provided by a government-funded program.  These types of trusts are for people of any age, provided they are not 65 years old or older, have a disability and are living in a long-term care facility.

    In other words, if Grandma wants to utilize a supplemental needs trust, she needs to make it happen before she enters a nursing home. Between you and me, I wish this wasn’t the case.  But, Minnesota law 256B.056 tells us differently.  Otherwise, families risk a State audit or declaration document and exposing assets to creditors (like the nursing home).

    Even more cool, is the fact these types of trusts allow for beneficiaries, like children and grandchildren.  Provided the beneficiary themselves doesn’t establish the trust (or act as the trustee), this type of estate planning tool can provide a lot of relief.

    Special Needs Trusts for Grandma

    Another alternative to Grandma’s revocable trust is a special needs trust.  Unfortunately, these types of trust documents are far more strict and less exciting.  Why?  Because Grandma’s assets usually end up with the State or health care provider.

    None the less, a Special Needs Trust is for Grandma when she has a disability and is older than 65 years of age.  The reason Grandma might like this type of setup is because it protects her assets through her lifetime.  For those wondering, the rules applicable to a special needs trust is a fancy law called the Omnibus Budget Reconciliation Act of 1993, or OBRA.

    Grandma’s Revocable Trust is Easy to Covert

    If you stepped away to help your grandma with the cable tv, know that her trustee should be able to covert or transfer assets from a revocable trust to a trust document described above.  Really, it boils down to whether or not Grandma has a disability and her age.

    Personally, I like the idea of adding an amendment or clause to a revocable trust granting the trustee this type of control.  Other times, people create a supplemental needs trust, fund it accordingly and lean on their trustee(s).

  • Unemployment Tip for Covered Employment Appeals

    Unemployment Tip for Covered Employment Appeals

    Covered employment is a significant issue you didn’t know existed. The issue is whether your job was counted as “covered employment” or the opposite, “noncovered employment”.

    Noncovered employment isn’t good for benefits isn’t good for benefits. This specific term means a person is not eligible for unemployment. Sometimes, employers will argue that a certain job was “noncovered employment” to avoid or reduce taxes.

    Unemployment Tip # 004 –  Applicants should always be prepared to make the argument that their job was covered employment.

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    Applicants who see this issue raised are using those working as a contract employee or as an independent contractor. Other jobs that run into problems are those aligned with the State of Minnesota.

    Unfortunately, Applicants in Minnesota are often tricked into assuming it doesn’t matter.  For those wishing to acquire benefits, it matters.

  • Transgender Veteran Claims and Appeals for VA Benefits

    Transgender Veteran Claims and Appeals for VA Benefits

    Transgender issues in the military received a swift kick in the teeth this week.  On the other hand, because the laws are poorly developed and unclear, transgender military veterans have an advantage.

    Personally, I believe Veterans willing to put forth the work with their VA claim, are going to see a lot of positive outcomes.

    Most military vets know this, but it is worth repeating.  Seeking VA benefits is hard.  Adding a  gender identity issue expeditiously increases the complexity of the claim.  But, it is certainly worth it.

    But, most of this success will not come to fruition until the military veteran is discharged and a claim is filed with the VA.  

    Transgender VA Claims

    As of the date for this post, there are literally, tens of thousands (+10,000) VA cases to search and read.  Would you believe there are only two (2) cases that speak directly to gender identity and transgender issues?

    For those curious, one veteran was somewhat successful (they confirmed a 30% disability rating for PTSD), while the other veteran spent years making the same error.  The value in bringing this to your attention, is to learn from their successes and mistakes.

    Yes, I commend both military veterans for seeking and appealing their VA benefits.  I believe both transgender veterans failed at being more successful with their claims because they focused on the wrong issues.  Here is what I mean.

    Why Veteran Gender Identify Claims Were Denied

    Without knowing the background for either transgender veteran, I believe the appeals were rejected because they, the veterans, focused on events prior to their military service versus issues during their service.  Outlining events related to being a transgender veteran are important.  Attaching a documented concern while serving is more important.

    Successful Transgender VA Appeals

    It is reported that 15,500 people serving in the military right now, claim they have a unique and special gender-related issue.  In my role as a veteran advocate, I cannot stress this enough: gender isn’t the primary issue.  Instead, I believe successful claims look something like:

    • Veterans outlining a physical ailment or injury, or
    • Transgender vets finding a primary mental health issue that started or was aggravated while serving.

    Additionally, military veterans are encouraged to find long-term support outside their VA claim.

    Physical and Mental Health Issues

    Of course, gender definitely highlights physical and mental impairments.  Every veteran has a gender.  Whether the veteran sees value in assigning a term like transgender or gender dysphoria isn’t the starting point for seeking a claim for benefits.

    Instead, start with a physical or mental health issue.

    Long Term Support for Transgender Claims

    Here is what I mean by long-term support:  finding a veteran advocate that can handle a fairly lengthy VA appeal process (both BVA and Court of Appeals).

    Again, whether there is a gender issue or not, a VA claim can take years and years, and worth the fight.  Please contact me directly if you need help with your claim.

  • DOD doesn’t Trust Your Military Power of Attorney Forms

    DOD doesn’t Trust Your Military Power of Attorney Forms

    Military Power of Attorney Forms (POA) are different for each branch of the military.  As I will describe below, I really believe military personnel should have a military version of their POA and a civilian power of attorney.

    None the less, lets quickly break down the military and civil side.

    Because each branch is different, each member of the military is encouraged to take three steps when trying to formalize a POA:

    1. Contact their local JAG office and schedule an appointment,
    2. Follow the formalization steps recommended by JAG, and
    3. Seek out an non-JAG attorney and acquire a document exclusive to a permanent residence

    Military Power of Attorney Forms

    Nobody really knows when or for how long they will be on or at a military installation.  Those living state side or elsewhere are always prone to the requirements of a military installation.

    As a result, I believe a quality estate plan for members of the military includes a completed military power of attorney form.  So you know, each branch uses a different form.

    Thus, here are links for each branch.

    Interestingly enough and as the websites suggest, Marines are trusted with an actual form while the remaining four military branches are asked to make an appointment with their local JAG office.

    Even so, Marines are encouraged to seek out their JAG office too such that they can properly formalize the form suggested by the USMC.

    Civil Power of Attorney Forms

    Lets be clear, using an estate planning document like a POA isn’t used to collect the mail.  Instead, it is used to help us when we cannot help ourselves.  Whether we are sick, injured, or deployed, these types of documents are life-savers.

    For the military personnel with a Minnesota, a free power of attorney form can be found here.  Really though, acquiring a short-form power of attorney and more significantly, a durable power of attorney is a much stronger approach.

    Again, why?  Because those serving in the armed forces (including Guard and Reservists), want to reduce problems and headaches on their family in a time of urgency.

    Why Military need more than one form

    I wish this wasn’t the case, but encouraging landlords, banks, doctors and other professionals who do not work on military bases or near a military installation is challenging.  Also, a lot of folks serving in the armed forces have property (bank accounts, real estate, cars, stuff) spread out.  In other words, we cannot always bring all of our possessions with us when we travel abroad or get deployed.

    For example, if I joined the military and my spouse brought an Air Force power of attorney form to an insurance agent in Minneapolis, the likelihood of the agent understanding what they were looking at is unlikely.  As a result, they might not honor the form.

    On the other hand, if I brought a power of attorney form consistently used in Minnesota (like in this example), I am less likely to have a conflict.

    Again, I certainly wish this wasn’t the case, but experience tells me otherwise.

    Military Power of Attorney Forms Risks

    The risk of having more than one form that shares or expresses a power is contradiction.  If your military power of attorney form contradicts a non-military power of attorney form, then the end goal can come to a halt.

    Here are a few examples of Minnesota military members contradicting their power of attorney forms:

    • Allowing or denying decisions while unconscious,
    • Allowing or denying decisions while incapacitated,
    • Requiring accounting practices, and
    • Durable power of attorney form contradicts a shorter version power of attorney form.

    Why DOD Doesn’t Trust You?

    Any 18-year-old person can find a power of attorney form and fill it out on their own behalf.

    Compare this to a member of the military.  Members of the military are forced to answer a bunch of questions and seek an appointment with their local JAG office.  And, Marines are granted access to a POA form while other branches are not.  I am in favor of customer service, but sometimes we need a POA immediately.

    Other times, a member of the military needs confirmation that their possessions back home are protected even more than their possessions within the confines of a military base.

    I believe taking charge of my own affairs is the best process.

    Military Power of Attorney Forms for Veterans

    No, the above referenced forms are not necessarily the same forms that veterans of the military should be using.

    Therefore, if you are serving in the military and need estate planning support, please contact me directly.

  • Using a Power of Attorney While In Hospice Care

    Hospice care can be a difficult position for planning needs. Using a power of attorney to change a will or estate plan in hospice care is hardly ideal. Now add an element of incapacity or duress, and you have a recipe for disaster.

    On the other hand, perhaps there are significant reasons, even monetary reasons, that a change needs to occur. My source of truth comes from situations when people have tried and died. Luckily, a well drafted durable power of attorney form can reduce the potential for misery and help our love ones move forward under any moment of stress or condition.

    Evidence For Capacity

    Evidence for the mental capacity isn’t the first thing a person or family thinks about when visiting their loved one. Capacity isn’t necessarily something that is documented. Some families use medical note and doctor’s opinions. Others utilize eye-witness accounts. Even better, the documents formalized include critical language and sworn by a notary.

    Mental Capacity In Hospice Care

    In Minnesota, the intent of the person is always a controlling factor. Creating new documents in a hospice care facility is hardly ideal. As an example, let’s assume a court scrubs or scrutinizes a relevant document.

    Why?  There was a major Minnesota case called In re Estate of Healy.  Ultimately, this case tells us the testator (the person who died) was required to know the nature and extent of the document they were signing.  If even for a brief second, the person dying and changing their will must have a thought in their mind long enough, that a rational decision was made.

    When a power of attorney document or will is reviewed by a court, whether a district court or probate court, the referee is looking at the mental capabilities of the person who had created the document.

  • Submitting Job Applications to Remain Eligible for Unemployment

    Submitting Job Applications to Remain Eligible for Unemployment

    Submitting job applications to remain eligible for unemployment benefits is an art.

    A lot of unemployed workers fail at giving the right answers when audited on their resume submission process.  Thus, I want to quickly address this issue.

    Job Applications and Unemployment

    As you can read under Statute 268.085, workers and employees are required to to seek suitable employment while unemployed.

    On the other hand, this unemployment rule fails to identify a specific number.  As a result, you have a very ambiguous rule.  For those who have kept up, this is what I tell newly unemployed workers.  The hard part about an unemployment audit is this:  one never knows when or if it will come.

    For this reason, I like the idea of logging hours specific to the job search process (looking, applying, following-up, networking, etc.) versus the actual job submission process.  After all, careers and jobs are not alike.

    On the other hand, this I know:  the number of jobs applied for should never be zero (0).  For how long though, that is a more significant question, which is why folks generally need advice for their specific situation.

    Logs for Job Applications

    For those still stuck on the logging process, lets keep it simple, but spot on.  A common theme for those that I represent is replacing working hours with job searching.  In other words, if an applicant worked 40 hours, then replace those same 40 hours [if possible] with the job search process (looking, applying, following-up, networking, etc.).

    Job Applications and Unemployment Audits

    As much as it pains me to say it, having an unemployment account audited is a real thing.  In my experience, one of the heaviest areas focused on by auditors includes job applications.  For this reason, I encourage all receipts of unemployment benefits (especially those in Minnesota) to keep their a folder on their computer exclusive to their job search process.

    I agree, there is likely a lot of gray, which again, is an issue that is going to be situation specific.

    Finally, for those wondering how long they should keep this type of information, I recommend one of my past posts on this very topic.

  • Work Force Center: Unemployment Tip #003

    Work Force Center: Unemployment Tip #003

    Continuing on with my new series for unemployment tips, let’s address the work force center. For some reason, newly unemployed workers want to spill their story with the workers and staff members assigned to the workforce center they happen to visit.

    Unemployment Tip # 003 –  Second guess all advice coming from the Work Force Center regarding an appeal or how to handle a claim.

    The call center at DEED and the various workers at the work force center are the eyes and ears of those who deny claims.  Hopefully, applicants do not find out the hard way.  

    So, before contacting the work force center for help, consider the ramifications of doing so.

  • IRA Rollover Into a Trust Can Be a Huge Mistake

    IRA Rollover Into a Trust Can Be a Huge Mistake

    The rules for an IRA rollover change on an annual basis.  Because an IRA cannot be owned by a trust outright, this post is about identifying a spouse as a beneficiary of an IRA and thinking through who or what should be the contingent beneficiary.

    IRA Rollover:  Why Do We Care?

    It is very simple.  We care because we want to reduce taxes.  When our spouse dies, we have 60 days to roll the account over and reduce a tax penalty.

    IRA Rollover Intentions

    Assuming neither spouse has died, making choices to help reduce tax problems is a luxury.  If a rollover is intended, I like the idea of identifying a spouse as a primary beneficiary.

    I like this process for a few reasons.  First, it grants my spouse an opportunity to complete a rollover of an IRA.  Second, I want my spouse to utilize distribution options that favors prosperity.

    Would you believe people identify their trust as the primary beneficiary of an IRA?  Unfortunately, this is a huge mistake.

    IRA Rollover into a Trust

    The bad part about making a trust the primary beneficiary of an IRA is the fact doing so might accelerate withdrawal requirements.

    Without including specific language within a trust like a “pas through” clause, dumping our assets into a revocable trust might create an even bigger tax burden.  For this reason, I believe mapping out a distribution flow plan can help us and our loved ones from accidentally subjecting themselves to a 10% withholding penalty.

    Handling An IRA Rollover

    Ultimately, I believe there are three things to consider when discussing our estate with our spouse.

    • What happens if I die first,
    • What happens if we die at the same time, and
    • How can we preserve or reduce a tax burden for our children and grandchildren?

    My IRA Rollover Process

    When I meet with folks about these types of issues, the first thing I look for is obtaining written copies of the beneficiary designations for all retirement accounts.  Often, people do not remember who is named on their accounts or whether they selected a back-up.

    Additionally, I believe this process requires engaging a CPA or Certified Public Accountant.

    Thus, before you start naming a trust as the primary beneficiary of an IRA Rollover, please contact this law office.