Author: Jasper Berg, J.D.

  • Independent Contractors and Unemployment in Minnesota

    Independent Contractors and Unemployment in Minnesota

    In Minnesota, two terms do not go together:  independent contractor and unemployment in Minnesota. In most cases, this spells ineligibility.

    That being said, the meaning or definition of an independent contractor is certainly not black or white.  

    As a result, there are a lot of people appealing their benefits that need help.

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    Where to begin?

    First, the term “independent contractor” is a term used by the IRS.  The IRS cares most about whether or not workers are classified as independent contractors.  

    Quite frankly, employers have more to lose than workers when trying to figure out whether a worker fits the IRS definition of an “independent contractor” or an “employee.”  

    For this one reason, applicants requesting benefits might be required to defend themselves in an appeal for benefits.

    Why does the IRS care so much about your job classification?  The IRS cares about the definition used by your former or current “employer” because the IRS wants to assess tax liability to the right party.  

    Thus, IRS cares and the Minnesota unemployment office care too.

    A Simple Unemployment Law applicable to all Independent Contractors in MN

    Second, lets reference a very simple unemployment law applicable to independent contractors in Minnesota.  The law in Minnesota says a person seeking unemployment benefits is automatically ineligible if they are an independent contractor.  Because this is true, there really isn’t any point in claiming or filing for benefits.

    On the other hand, just because a document or a person classified you as an independent contractor doesn’t mean you are automatically ineligible for unemployment.  If this is your situation, then for heaven’s sake, start helping your cause to make sure you are properly classified.  

    But wait, you still don’t know if you are an Independent Contractor or an Employee

    It is the experience of this law office that people claiming unemployment benefits do not find out they are ineligible until their former employer identified them as an independent contractor.

    Often, this law office hears the following:

    • “I was pushed into the role of being a contractor”
    • “They just told me I had to be an independent contractor”
    • “Even though they said I was an independent contractor, they still treated me like an employee”
    • “I never filed any documents with the IRS”
    • “Sometimes I was independent and sometimes I was an employee”
    • “This is the first I have ever heard of this”
    • “My employer is trying to get away with something, but I don’t know what”
    • “I’m a what?”

    Again, these are all very common responses to people, workers, and applicants appealing for unemployment benefits in Minnesota.  

    Thus, do not feel like you are alone or taking on an untamed beast that has never been defeated.  Instead, these types of appeals happen all the time.

    Minnesota Statutes for Unemployment Benefits and Contractors:

    Brace yourself, things are about to get very technical.  In Minnesota, the statute doesn’t explicitly define independent versus employee.  Instead, the laws in Minnesota first try to determine whether your job was “employment” or not “employment.”  The rule is Minnesota statute 268.035.

    As you can see, Minnesota statute 268.035 states “employment” does NOT include services from an independent contractor.  

    Often, employers will use a contract or form to prove why a person was an independent contractor.  However, just because a document classified another person as an independent contractor doesn’t mean they were correctly identified.  For this reason, issues regarding an independent contractor and unemployment benefits are regularly scrutinized by the unemployment office.

    Minnesota Case Law for Unemployment and Independent Contractors:

    In a case called Kirkov v. Helpful Hands Transportation, Inc, the Minnesota Court of Appeals used five factors to determine whether a worker was independent or not and if they could collect unemployment benefits from Minnesota.  

    The five factors were as follows:  did the worker have (1) the right to control the means and manner of performance; (2) what was the mode of payment; (3) who furnished material or tools; (4) who controlled the premises where the work is done; and (5) was there a right to discharge.

    If you are thinking to yourself the list of factors didn’t help you much, then you would wouldn’t be to far off.  Again,  the issue regarding an independent contractor and unemployment in Minnesota is a confusing issue and is fact specific.  

    In other words, your situation is going to be different situations previously decided by an unemployment law judge.  Thus, you need to have a game plan.

    Final Thoughts on Independent Contractors collecting benefits in Minnesota

    The bottom line is this – if you are trying to collect or defend your right to unemployment benefits and your case involves whether or not your role was independent, seek help from a professional.  

    Unfortunately, the classification of workers and their titles has exceeded common sense and there is a lot at stake for both workers and their employers.

  • Do I have to Talk During a Probate in Minnesota?

    Do I have to Talk During a Probate in Minnesota?

    Probate in Minnesota can be a tangled mess, similar to the picture displayed at the right.  None the less, it doesn’t have to be.  If you are reviewing the probate in Minnesota, use the following as a brief introduction.  If you need help with probate in Minnesota, please contact this law office for help.

    What is the process for Probate in Minnesota?

    Probate in Minnesota is the legal process of settling your estate in court after you die. Your property is gathered and inventoried, your debts are paid, and everything left over is divided among your heirs. Your personal representative is responsible for “probating” your will. If you have no will or did not name a personal representative, the court will appoint one for you.

    Probate in Minnesota when there is a will begins by filing an application with the probate court. Probate in Minnesota ends when all debts and taxes are paid and all assets are distributed. If there is disagreement over your will, a probate judge assigned to the case will resolve the differences.

    When is Probate in Minnesota necessary?

    The laws specific to probate in Minnesota apply to the estates of people who were residents of Minnesota at the time of their death. Probate in Minnesota also applies to other states’ residents who own real property in Minnesota.

    Having a will does not avoid probate in Minnesota. The need for probate depends on what property you own and whether you own it alone or with others. Real estate. Unless real estate is owned in joint tenancy with right of survivor ship or placed into a trust, it must be probated. Joint tenancy means that the property is owned by two or more people who have an undivided interest in the property, and that interest continues in the survivor after other owners die. If you are a resident of Minnesota and own real estate in another state at the time of your death, the probate laws of that state will apply to that real estate. In other words, real estate is probated in the state where it is located.

    If your estate is worth less than $50,000, your heirs may be able to collect the property without going to court by using an Affidavit for Collection of Personal Property. Your personal representative should notify all of the heirs of the property that they can collect. Heirs may not take your personal property until 30 days after your death. If your personal property exceeds $50,000 or you own real estate in your name alone, your estate must be probated.

    What is not subject to Probate in Minnesota?

    Some kinds of property and assets do not need to be probated. These include property owned as joint tenants, jointly held bank accounts, payable-on-death accounts, life insurance proceeds to a specific beneficiary, and pension benefits with a designated beneficiary in the event you die.

    As discussed previously, holding title to property in joint tenancy means that you and another person each have an undivided interest in the property and a right to own it after the other person dies. In the case of real property, this fact would be stated in your title documents. When a co-owner dies, the surviving property owner must file a certified copy of the death certificate of the deceased property owner and an affidavit of survivorship with the county recorder or registrar.

    As in joint tenancy of real property, you and one or more people may be listed as account holders of the same financial account. If one of the joint account holders dies, the other joint account holders own the money in the shared bank account.

    A payable-on-death account is an individually owned account in which you choose someone else to receive the funds in your account upon your death. The beneficiary, or person getting the money upon your death, has no right to these funds until your death. You may set up a POD by contacting your financial institution. You may change the beneficiary by completing a new signature card at any time.

    Life insurance proceeds. Your life insurance policy can indicate a specific person, called a “beneficiary,” who will receive your insurance proceeds when you die. Call your insurance agent or company if you are interested in naming a specific person or persons to receive your life insurance money.

    How do I Probate in Minnesota?

    Your personal representative starts a probate proceeding by filing an application or petition with the probate court in the county where you lived at the time of your death. Probate proceedings in Minnesota may be either formal or informal, and generally must be initiated within three years after the decedent’s death. The services of an attorney may be needed in order to correctly probate an estate.

    An informal probate in Minnesota includes filing an application with the probate court. In some counties, you must file the application in person. If the probate registrar determines the application is complete, the registrar will issue a statement of probate and appoint a personal representative. In the informal process, the personal representative may pay debts and inheritances and may otherwise administer the estate without the court’s supervision.

    Applications for informal probate in Minnesota should include the following:

    • The applicant’s interest in the proceeding (i.e. spouse, child, attorney, personal representative, etc.);
    • The decedent’s name, dates of birth and death, and the county and state of residence at the time of death;
    • The names and addresses of the decedent’s spouse, children, heirs, and any others named in the will if there is one, and if a person is a minor, listing that person’s age;
    • Statement showing venue if decedent was not domiciled in Minnesota at time of death;
    • The name and address of the person who is, or should be, named personal representative; and
    • Statement of applicant’s knowledge of probate or appointment proceeding concerning decedent filed in Minnesota or elsewhere.

    If there is a will, the following also must be included in the application:

    • A statement that the original will is in the court’s possession, accompanies the application, or an authenticated copy of a will probated in another jurisdiction is attached to the application;
    • A statement that the will has been validly executed;
    • A statement that the applicant is not, upon investigation, aware that the will has been revoked; and
    • A statement that the time for beginning informal probate proceedings has not expired, which is generally three years after the decedent’s death.

    The probate registrar has discretion to either accept or reject the application. It is not a final determination if the registrar rejects the application and does not prevent the will from undergoing formal probate proceedings.

    Formal. Filing a petition with the court, starts formal proceedings. The petitioner then must appear before a court at a hearing. Because most people lack experience in formal probate proceedings, it is best to consult an attorney if an informal probate proceeding cannot resolve the estate. If the court finds that the petition is complete, the court will issue an order for probate and appointment of the personal representative.

    How will the estate be distributed to heirs for Probate in Minnesota?

    If there is a will, the personal representative should distribute the estate property according to the will. If there is no will, the estate property will be distributed according to state intestate succession laws.

    The law generally provides that, without a will, your estate will pass to your spouse, if still alive, but in situations where either spouse has children from other marriages, the share of the spouse may be less than the entire estate. If your spouse is not alive, your estate will pass to your children in equal shares. You should consult an attorney to determine exactly how your estate will be divided if you do not have a will.

    Sometimes, relatives cannot be located or traced. In this case, assets of the estate that cannot be distributed are deposited with the county treasurer until claimed.

    What taxes must be paid for Probate in Minnesota?

    Federal law provides that an individual can transfer up to $3,500,000 to someone other than a spouse before incurring estate tax. If you are married, you can transfer any amount of property to a spouse during your lifetime or after your death without incurring federal estate tax. Individual tax law may vary, however, and you should review the tax laws of the states where you have property. For example, Minnesota tax maybe due on some estates over $1,000,000.

  • Is Funeral Planning in Minnesota Dead?

    Is Funeral Planning in Minnesota Dead?

    Funeral planning in Minnesota is a special process. Whether thought through in advance or addressed in a moment of need, funeral planning is different for every person and family.

    Under Minnesota law, you may include directions regarding your funeral and burial in your will or in a special document you sign for that purpose. You may appoint a person who has authority to make arrangements after your death.

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    How should I plan my funeral?

    Some things to keep in mind when planning a funeral:

    • Your budget and true desires should guide your choice of arrangements. You generally have the option of choosing cremation, burial in a cemetery plot, or burial in a mausoleum; and
    • You may wish to involve several members of your family, close friends and/or clergy members when you make funeral arrangements.

    Minnesota law and the federal Funeral Rule give you tools to control the cost of funerals. When you request funeral information, these laws require funeral directors to provide detailed, pre-purchase price information, including a “General

    Price List” of all services offered that lists an effective date. Following the funeral arrangement, a detailed itemization, called the “Statement of Funeral Goods and Services Selected,” must be prepared.

    There are many laws in place that protect consumers from deceptive practices by the funeral industry. For example, a funeral provider cannot require that you purchase a casket for cremation. A funeral provider cannot condition the purchase of one funeral service upon the purchase of another funeral good or service.

    Further, it is against the law for funeral providers to charge a fee for handling, placing or setting a funeral good based upon the fact that the good was not purchased from that funeral provider.

    How should I pay for my funeral?

    You can make your own funeral arrangements before you die. You may set aside funds to pay for your funeral. One way to do this is to invest the needed amount of money, or put it in a bank account, making sure it will be accessible to family members upon your death. A second option is to prepay for funeral goods and services.

    What safeguards exist for consumers who pay in advance?

    To help safeguard prepaid funds, Minnesota law requires a funeral director or cemetery operator to place all prepaid funds in a trust account in a bank or other financial institution until the need for your funeral arises, and to advise you of the financial institution’s name and the trust account number.

    Minnesota law allows you to make arrangements so that you can receive a full refund of all prepaid funds at any time before services are provided.

    There are also safeguards in the law to ensure that funds are available for the long-term upkeep of cemeteries and mausoleums. Certain cemetery operators must place in trust 20 percent of funds received from the sale of cemetery lots and 10 percent of funds from the sale of mausoleum space. These “permanent care and improvement” trust accounts are to ensure the future care and maintenance of cemetery grounds and buildings.

    Finally, the law requires annual reporting and record keeping for both “pre-need” and the “permanent care and improvement” trust funds:

    • Licensed funeral directors must file an annual report disclosing the status of the pre-need trust fund with the State Commissioner of Health;
    • Cemetery operators must file an annual report disclosing the status of the permanent care and improvement trust fund with their County Auditor; and
    • The Minnesota Department of Health, Mortuary Science Section offers information and takes complaints on funeral goods and services.
  • Is Opening an Estate in Minnesota Easy?

    Is Opening an Estate in Minnesota Easy?

    In Minnesota, opening an estate means filing a petition in a Minnesota Probate Court such that assets of the person who died can be distributed.  When a petition is filed to open an estate, the petition requests either an informal proceeding or a formal proceeding.

    When an estate is opened, there are many pitfalls that can cause trouble.  For example, the process of opening an estate can differ depending on whether the person who died had a will, was married, had children, had creditors, or was insolvent.

    When an estate is opened in Minnesota, a petition will request the designation of a “personal representative.”  Once formally designated, a  personal representative has the duty to administer assets of the estate.  Without opening an estate a personal representative cannot be assigned.  As a result, the most significant element of a petition asking a Minnesota Court to open an estate is the designation of a personal representative.

    Also, opening an estate in Minnesota is a significant process when trying to distribute assets of a loved one because both creditors and “interested persons” can serve as a personal representative despite a Will stating otherwise.

    Additionally, opening an estate is a public process.  Once opened, notice to creditors is required and the contents or value of a person’s estate becomes public knowledge.  Once an estate is opened, the remaining elements of the process include administering estate assets and closing an estate.  Between opening an estate and closing an estate, this process can take many consecutive months.

    If you are considering opening an estate or need representation with this process, please consider contacting an estate lawyer for help and advisement.

  • What are the New Rules for an Unemployment Reconsideration?

    What are the New Rules for an Unemployment Reconsideration?

    MN Unemployment Request Reconsideration is a fancy term meaning you want your unemployment case re-reviewed.

    Generally, the party who lost after having their case reviewed by an unemployment law judge can have their case re-reviewed by filing a MN Unemployment Request Reconsideration.  MN Unemployment Request Reconsideration is the second level (Level II) to an appeal for benefits.

    What is the goal of a MN Unemployment Request for Reconsideration?

    If done correctly, there are two goals when a person or an employer files a request for reconsideration in Minnesota:

    (a) Reverse the Unemployment Decision; and or

    (b) Ask the Unemployment Law Judge to order an additional phone appeal (Level I).

    What does a MN Unemployment Request for Reconsideration look like?

    First, both the Applicant and Employer can file a request for reconsideration on-line.  However, the on-line system limits you to a small box to write information in.  As a result, it is hardly ideal to file a request for reconsideration on-line.

    On the other hand, if you file a formal legal document called a Memorandum of Law, your unemployment request for reconsideration in Minnesota can be drafted in a manner that supports your request.  In other words, you are likely going to need more than a small box to highlight case law, Minnesota rules, and space to outline legal arguments favoring your cause.

    Generally, a MN Unemployment Request Reconsideration includes a section highlighting the issue identification number, a statement affirming your appeal, an outline of issues you are requesting a re-review of, and an explanation of laws relevant to your situation.

    As a result, a MN Unemployment Request Reconsideration can be extremely lengthy depending on issues and exhibits.

    Who reviews the MN Unemployment Request for Reconsideration?

    In most cases, a MN Unemployment Request Reconsideration is reviewed by the same Unemployment Law Judge that reviewed the unemployment phone appeal.  However, there are exceptions to this possibility.

    When will a MN Unemployment Request for Reconsideration be changed?

    The likelihood of a request for reconsideration in Minnesota being granted in your favor depends on legal arguments, whether this includes a reference to Minnesota laws, case law, or other legal doctrines, a  MN Unemployment Request Reconsideration should be approached with care.

    What are the results for a MN Unemployment Request for Reconsideration?

    After a MN Unemployment Request Reconsideration is filed, there are three potential outcomes:

    (i) The Unemployment Law Judge reverses the original decision;

    (ii) The Unemployment Law Judge grants another phone appeal (Level I); or

    (iii) The Unemployment Law Judge  denies the request for reconsideration and the losing party must consider an appeal to the Minnesota Court of Appeals (Level III).

    When should a MN Unemployment Request for Reconsideration be filed?

    Time is definitely not on your side.  Because research will likely be involved in your request and Minnesota law mandates the filing of a reconsideration within a specific period of time, you are limited to a couple of weeks from the date you received the decision from the Level I Phone Appeal.

    Also, time is of the essence because you will need time to seek out other documents and or exhibits relevant to your case.

    Is a MN Unemployment Request for Reconsideration necessary?

    According to the unemployment laws in Minnesota, the losing party in an appeal for unemployment benefits must, as a predicate to appealing the matter to the Minnesota Court of Appeals, seek a request for reconsideration from the Unemployment Law Judge’s (ULJ) determination.   In other words, failing to file a timely request for reconsideration in Minnesota can be detrimental to the person or employer seeking an appeal.

    If the other party files a MN Unemployment Request for Reconsideration, should you file one too?

    If you do not stand up for yourself, nobody else will.  In other words, it is critical that you respond to a request for reconsideration if filed by the other party.  This is true for both employers and applications.  Otherwise, the Unemployment Law Judge may reverse their decision because you failed to respond accordingly.

    Who can help you with an Unemployment Request for Reconsideration?

    If you are considering a MN Unemployment Request Reconsideration, please consider contacting an unemployment lawyer for help.  As you proceed through the appeal process, your rights related to unemployment benefits become more complicated.

  • How do I know if I am guilty of Unemployment Fraud MN?

    How do I know if I am guilty of Unemployment Fraud MN?

    Unemployment fraud MN is defined in two areas under Minnesota law.

    First, it is defined under Minnesota statute 268.18 as any person who receives unemployment benefits by knowingly misrepresenting, misstating, or failing to disclose any material fact, or who makes a false statement or representation without a good faith belief as to the correctness of the statement or representation, has committed fraud.

    Second, unemployment fraud can turn into theft under Minnesota statute 609.52.  This is in addition to potential criminal penalties and or administrative penalties supported under Minnesota statute 268.182.

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

    Although the unemployment office sometimes miss-classifies unemployment fraud issues, approach an accusation like this with extreme care and diligence.  This is true because time is not on your side.  In other words, Minnesota law has time restrictions that requires you to file an appeal by a certain date.  If you don’t file an appeal accordingly, it could bring forth unintended consequences and bar your rights.

    Does Unemployment Fraud MN happen a lot?

    As the request for unemployment benefits becomes increasingly more complicated, unemployment fraud MN is occurring more and more frequently.  

    Although not exclusive to unemployment fraud, in the year 2012, the Minnesota unemployment office overpaid applicants more than eighty-five million dollars ( $85,000,000) in unemployment benefits.  Since the year 2009, an unemployment overpayment has become twice as likely to occur as it did in previous years.

    What is the process for Unemployment Fraud MN?

    Specific to unemployment fraud under rule 268.105, you can appeal an unemployment overpayment.  Generally, an appeal related to an MN Unemployment Overpayment follows the same procedures and steps as that required during other levels of the unemployment appeal process.

    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 Unemployment Fraud MN?

    A Minnesota Unemployment Overpayment is classified under two categories: a nonfraud unemployment overpayment or a fraudulent unemployment overpayment.  

    Other than the criminal component, the biggest different is an a fraudulent claim can affect your credit history, professional licensing, and the monetary penalties and interest are more significant than those imposed for a nonfraud unemployment overpayment

    Although the process for a fraud and non fraud under rule 268.105 is the same, your rights are different and the burden of proof is different.

    What should you do about Unemployment Fraud MN?

    Yes, you have rights when accused of unemployment fraud MN, but you need to act fast.  If to much time expires and you do not properly file an appeal, you will automatically waive your right to reduce or negate your unemployment overpayment.

    Should you hire a lawyer for Unemployment Fraud MN?

    Unfortunately, yes, this is likely an issue that you will need help from a lawyer.  Of course, you have the right to proceed without a lawyer.  However, the consequences specific to fraud can be severe.  As a result, you should consider proceeding with care.

    If you want to review your rights or need help understanding the process, please consider contacting this law office for help

  • Employees Who Quit Job For Health Reasons

    Employees Who Quit Job For Health Reasons

    If you are looking for an example why a worker should consider having their unemployment appeal reviewed by an unemployment lawyer, look no further than a recent decision in Minnesota called Newkirk v. Gerard Treatment Programs, LLC.

    In this case, an applicant from Minnesota requested unemployment benefits after she quit her job for medical or health issues.  That being said, the applicant for unemployment benefits made an argument regarding the fact that she quit her job for medical or health issues despite the fact that other arguments could have been made that would have assisted her in her request for unemployment benefits.

    Unfortunately, the worker in this case chose to utilize a weaker argument and insisted that she quit her job for medical or health issues.  Stating that she quit her job for medical or health issues was a weaker argument because she didn’t satisfy all of the conditions required when a person quits their job for medical or health issues.  After she was identified as eligible, it was identified that she didn’t quit.  Despite this, the employer appealed the applicant’s claim for unemployment benefits and an unemployment appeal hearing occurred.

    Case Law Discussing Health Issues

    As outlined by the Minnesota Court of Appeals, the applicant in Newkirk v. Gerard Treatment Programs insisted on a legal argument that failed to help her qualify for unemployment benefits in Minnesota.  In Minnesota, a worker who quits their job is ineligible for unemployment benefits. 

    On the other hand, a worker who quits their job for medical reasons might be eligible for unemployment benefits if they quit their job because of a serious illness or injury made it medically necessary for the worker to quit.  But, a worker who quits their job has nearly a dozen other legal arguments available to them on why they should be eligible for unemployment benefits.  

    Despite this, the applicant in this particular case limited her argument to one issue – she quit her job for health issues.

    Quitting A Job for Health Issues

    A person in Minnesota who quits their job for medical or health issues is not automatically eligible for unemployment benefits.  Quitting a job for health issues or medical reasons in Minnesota is an extremely complicated argument because it requires specific communications between the worker and the employer.  

    Without outlining these communication requirements, an applicant for unemployment benefits will likely loose their request for unemployment benefits for not meeting requirements mandated by Minnesota law.

    As referenced above, the Minnesota Court of Appeals recently reviewed Newkirk v. Gerard Treatment Programs where the worker quit their job for medical reasons.  Had the worker not solely argued she was eligible for unemployment benefits after quitting for medical reasons, perhaps the Minnesota Court of Appeals, which heard the applicant’s unemployment appeal, could have used a different legal theory to support her claim for unemployment.  But, because the applicant failed to outline this argument, the Minnesota Court of Appeals didn’t have the authority to decide this element of the unemployment appeal.

    Therefore, please consider using all available arguments rather than one argument when appealing for unemployment benefits and prevent making the same mistakes the applicant in Newkirk v. Gerard Treatment Programs, LLC made.

  • Elder Law

    Planning for Incapacity

    At some point you may need help managing your finances or property. If so, it pays to have done some advance planning. Explained below are a few management tools you may use to help plan for incapacity. If you don’t make advance arrangements it may be necessary for the courts to set up a guardianship or conservatorship for you.

    You might not need a formal arrangement to receive help with your finances. A trusted family member may help write checks, file tax returns and help with other financial matters. If you have someone help you, make sure that person keeps good records and goes over them with you periodically. For your protection, you generally should not transfer money or property out of your name into the name of your helper without first consulting your lawyer. If you do not have a lawyer and wish to consult with one, you can call the Minnesota State Bar.

    Be aware that property transfers can make you ineligible for Medical Assistance (the program that helps pay nursing home and other medical expenses). Transferring your property to another person may also mean that your money will no longer be available to you if that person dies, is divorced, or goes bankrupt. Talk to your lawyer about these possibilities as well.

    Formal Arrangements

    You may want to set up a more formal arrangement for your finances. There are several ways to do this. You should choose the way that best addresses your needs and makes you the most comfortable.

    Banks offer several alternatives that may fit your needs. You can set up a joint account, an “authorized signed” account, or a “payable on death” account. Talk to your lawyer or banker to see which of these might meet your needs.

    You may wish to create a “durable power of attorney.” This is written authorization for someone to manage your property or financial matters according to your directions. A durable power of attorney remains valid even if you should later become incompetent. Forms are available to create durable powers of attorney, but you should be very cautious in completing them — the person you appoint could get authority to dispose of all your property, even by giving it to himself or herself. Talk to your lawyer about ways to protect yourself and your finances if you plan to use a durable power of attorney.

    Guardianship and Conservatorship

    Guardianship and conservatorship result from court proceedings where the court appoints someone to make decisions for you. This is done to protect you, if you become incapacitated and unable to make your own financial or personal decisions. Under Minnesota law, guardianship and conservatorship are very similar, but guardianship limits more of your civil rights, such as the right to vote. Because of this, conservatorship is usually favored over guardianship. The protected person in this relationship is called the “conservatee,” and the person named by the court to make decisions is called the “conservator.” Under guardianship, the protected person is the “ward,” while the person named by the court is the “guardian.”

    If you should become incapacitated and have not previously planned for incapacity, a guardianship or conservatorship may be the only way to handle your personal affairs. Anyone can petition for or be appointed to be your guardian or conservator. A person may be appointed even against your wishes if the court determines such appointment is in your best interests. By planning ahead, however, you can have a say in this process and consequently protect your independence.

    “Conservatorship planning” (also called “nomination of conservator”) involves a written document, like a will, in which you name the person you want for your conservator. You can also include instructions on how you would want your personal and financial matters handled by your conservator. For example, the conservator could be instructed to manage your property, know where you would like to live, and be informed about your wishes regarding health care. (The same person could also serve as your health care power of attorney.) Then, if you should become incapacitated and need a conservator, the court must name the person you chose and order that your instructions be followed, unless the court finds that this would not be in your best interests. Be aware that the person you choose is not required to serve as your conservator — so choose a reliable person and discuss your plan with the person in advance to make sure he or she agrees with it.

    If you have other informal arrangements with relatives or formal planning arrangements such as a durable power of attorney, you may not need to do conservatorship planning. However, if it is likely that someone would challenge your planning arrangements (for example, if there might be disagreements within the family), you should use conservatorship planning as a “backup” to your other planning arrangements. Remember, anyone can petition to be a conservator or guardian for an incapacitated person, and a conservator or guardian can revoke or terminate prior planning arrangements. By naming the person you would want to be your conservator or guardian, you have the best possible protection against the appointment of someone you would not want to be your conservator.

    Planning for Your Estate Wills

    Wills are important documents that help ease the transition of ownership of an estate after a person’s death. An estate consists of bank accounts, houses, land, furniture, automobiles, stocks, bonds, life insurance policies, retirement funds, pensions and death benefits.

    Your will should ensure that your assets are distributed as you wish. And, you still have full use of your property while you are alive.

    In Minnesota, you must be at least 18 years old and of sound mind to make a will. The will must be in writing and must be witnessed by at least two people, both of whom must also sign the will. You must intend for the document to operate as a will. The will must be signed by you, or by another person at your direction in your presence. Handwritten wills are recognized as valid in Minnesota only if the will is witnessed and signed by two people. Notarization by itself is insufficient to make a handwritten will legally binding.

    Your will should clearly state who will get your property upon your death. Minnesota law provides that a spouse inherits a specified amount of property, even if she or he is left out of the will. You may, however, disinherit a child, if your will clearly states that you do not wish the child to get anything.

    A personal representative (also known as an executor or administrator) should be named in the will. This person will be responsible for seeing that the property is distributed as you desire.

    Wills can be changed by writing a new one, or by adding a “codicil,” which is an addition to a will. Wills cannot be changed by simply crossing out language or writing in new provisions. Such alterations will not be effective. The codicil must be written, signed and witnessed the same way as the will, and should be attached to the will.

    If a will specifically states that personal property should be distributed by a separate document, it is all right for a person to distribute most personal property in a handwritten statement. The statement can be written after the will is signed, and it can be changed without revising the will itself.

    A will is effective until it is changed or revoked. It is a good idea to periodically review your will. Changes in your family, the value and kind of property, tax laws, or a move to another state may make changes in the will advisable.

    You may revoke your will; however, revocation must be done in strict compliance with the law and the assistance of an attorney is highly recommended.

    A surviving spouse who is not satisfied with his or her share in the will may elect to waive rights under the will and take his or her share according to state law. (A surviving spouse should seek legal counsel to do this.)

    Your will should be kept in a safe place. The original will should be placed where it can easily be found after your death. In Minnesota, the Probate Court or Court Administrator’s Office will accept wills for safekeeping at no charge or for a nominal fee. You have the right to get your will back at any time. Putting a will in a safe deposit box might make it inaccessible after your death until probate begins, unless you are survived by a person who jointly owns the box and would have access to the box after your death.

    If you do not have a will, your estate will be distributed according to Minnesota’s law of intestate succession. This law generally provides that, without a will, your estate will pass to your spouse, if still alive. If your spouse is not alive, your estate will pass to your children in equal shares. You should consult an attorney to determine exactly how your estate will be divided if you do not have a will.

    Living Trusts

    A trust manages the distribution of your assets. A trust is created by the transfer of property by the owner, or “grantor,” to another person, the “trustee.” The trustee holds the title to the property and manages the property for the benefit of a third party, the “beneficiary.” There are two general types of trusts. The “living” trust is created during the lifetime of the grantor when all or part of the grantor’s property is transferred into the trust. The other type of trust is called a “testamentary” trust. In a testamentary trust, the property is transferred into the trust after the grantor dies.

    There are potential drawbacks to a living will. For example, transferring property into a living trust can make you ineligible for Medical Assistance. Talk to your lawyer about that possibility. Also, if the grantor is also the trustee, the grantor has a fiduciary obligation to the beneficiaries for both present and future income. This, for many, may be the biggest drawback of a living trust.

    There are also good reasons to consider a living trust. A living trust, unlike a will, enables you to have a trustee with financial expertise manage your assets during your lifetime. A living trust can allow for a smooth transition of property if you become incapacitated or incompetent. A living trust can also protect your privacy regarding the distribution of your assets.

    With a will, the probate laws require that an inventory of the estate’s assets is filed with the court. The inventory is public information. With a living trust, generally only the beneficiaries of the trust will be informed of the nature and the value of the assets. In cases where there is both a will and a living trust, this privacy may be lost.

    A living trust is legal in Minnesota if properly written. It is important that a living trust be written to reflect the individual characteristics of each person’s estate while complying with Minnesota law. How a particular trust is drawn up depends on the type of property being placed in the trust and the purposes for which the trust is formed. It is good to have your attorney evaluate the use and legality of a living trust in the context of your other estate planning documents and objectives.

    If the living trust contains all your property, a will may be unnecessary and you can avoid probate. If the trust contains only part of your property, you need a will. If you want your property to go into the trust after your death, your will should include a “pour-over” provision to put the remaining property into the trust upon your death. Also, a will can be used to distribute personal belongings, identify guardians for your children, and provide for an executor to handle any unfinished business.

    Minnesota does not have an inheritance tax. Federal law requires that an individual with an estate totaling more than $600,000
    file an estate tax return. If your estate is less than $600,000, there will not be any inheritance tax owed on your estate whether it transfers through the probate courts or in a trust.

    Prepared forms or “kits” used to establish living trusts are currently marketed through magazines, brochures and door-to-door salespeople. Although the forms themselves may not be illegal, they may be too generic to suit you and your situation.

    Planning a Funeral

    Minnesota law and the federal Funeral Rule give you tools to control the cost of funerals. The Funeral Rule requires funeral directors to provide detailed, pre-purchase price information, including a General Price List of all services offered. Following the funeral arrangement, a detailed itemization, called the Statement of Funeral Goods and Services Selected, must be prepared.

    Some things to keep in mind when planning a funeral:

    • Your budget and true desires should guide your choice of arrangements
    • You may wish to involve several members of your family, and perhaps an objective friend or clergy member when you make funeral arrangements.

    Safeguards for Consumers

    You may choose to make your own funeral arrangements, and set aside funds to pay for your funeral. One way to do this is to invest the needed amount of money, or put it in a bank account or insurance policy, making sure it will be accessible to family members upon your death. Another option is to prepay for funeral goods and services.

    Unfortunately, money received from the advance sales of funeral goods and services is sometimes mishandled. To help safeguard prepaid funds, Minnesota law provides several protections. Under state law, a funeral director or cemetery operator must place all prepaid funds in a trust account in a bank or other financial institution until the need for a funeral arises. Minnesota law allows you to ask for and receive a full refund at any time before goods and services are provided.

    There are also safeguards in the law to ensure that funds are available for the long-term upkeep of cemeteries and mausoleums. Cemetery owners must place in trust 20 percent of funds received from the sale of cemetery lots and ten percent of funds from the sale of mausoleum space. These “permanent care and improvement” trust accounts are to ensure the future care and maintenance of cemetery grounds and buildings.

    To help safeguard prepayments for funeral goods and services, state law also requires funeral directors and cemetery operators to give you the name of the financial institu
    tion where your money is in trust, and the account number of that trust. The law requires annual reporting and record keeping for both “pre-need” and the “permanent care and improvement” trust funds:

    • Licensed funeral directors must file an annual report disclosing the status of the pre-need trust fund with the State Commissioner of Health.
    • Cemetery operators must file an annual report disclosing the status of the permanent care and improvement trust fund with their County Auditor.
  • Getting Fired for checking Sports Scores at Work

    Getting Fired for checking Sports Scores at Work

    Were you fired for checking sports scores at work?  As an alternative, were you given a formal warning for checking sports scores at work?  If so, please read on.

    Primarily, there are two times during the year that workers tend to get fired for checking sports scores at work, although certainly not exclusive.

    This law office sees workers are getting into trouble when checking their fantasy football scores.  Also, this law office sees workers are getting into trouble when checking scores during March Madness.

    Can you get fired for checking sports scores at work?

    Obviously, workers are getting fired for checking sports scores at work – but is this legal?  Unfortunately, it depends on the situation.  During a consultation, this law office will review whether you were checking scores on your phone or on the company’s web site.

    Also, this law office reviews the policies in place for technology at your workplace.  Just because your employer doesn’t have  a formal policy doesn’t imply you have been given permission for checking sports scores at work.

    The most significant issue is where you work.  In other words, the rules applicable to your situation depends on the State where your place of employment is domiciled.

    Minnesota’s opinion on checking sports scores at work:

    Minnesota Court of Appeals decision A10-146 affirmed that an employee’s use of a cell phone was employee misconduct.  The Applicant argued that his cell-phone use was not misconduct because of the special considerations given to discharges resulting from a single incident.

    Although Minn. Stat. § 268.095, subd. 6(a) (2008), stated that misconduct did not include “a single incident that does not have a significant adverse impact on the employer,” since 2009 and applicable here, the statute provides: “If the conduct for which realtor [Applicant] was discharged involved only a single incident, that is an important fact that must be considered in deciding whether the conduct rises to the level of employment misconduct under paragraph (a).” Id., subd. 6(d) (Supp. 2009).

    The Applicant testified that he occasionally checked sports scores on his cell phone for other employees and the video indicates that the Applicant used his cell phone on multiple occasions over a lengthy time.

    Because the Applicant’s cell phone use was in knowing violation of the employer’s policy, the Minnesota Court of Appeals conclude that the Unemployment Law Judge did not err in determining that the Applicant was discharged for misconduct.