Blog and Legal News

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What is a Durable Power of Attorney and How Do You Set One Up?

Setting up a power of attorney (”POA”) is very useful if you anticipate being incapacitated or unable to manage decisions in the future. It’s also a good idea to set up a power of attorney even if you don’t expect anything preventing your decision making abilities in the future. Life is uncertain and you never know what might happen, so, being prepared is key. There are many different kinds of POA. What is a durable power of attorney and how can you set one up?

What is Durable Power of Attorney?

Durable POA is also known as the financial power of attorney or Power of Attorney for Property in Illinois. When setting up a durable POA, you are appointing a trusted person to act in your place to legally make decisions about your financial matters. This can be set for an indefinite amount of time or for a specific period of time. A specific time can be set for periods where you anticipate or know you will be unable to make financial decisions. This can include reasons such as… 

  • Being deployed in the military
  • Having a major surgery with a lengthy recovery
  • Working overseas or offshore for an extended period of time

The most common reason individuals set up a durable power of attorney is in the case of incapacity. Many individuals who are older or are in poor health feel it necessary to set up a financial POA in the case that things go downhill. To learn about the durable power of attorney is Michigan, please feel free to give us a call or send a us note here. Michigan law has a specific procedure for setting up a durable POA, so make sure that you’re protected in the event that you have major life-changing event.

How To Set Up a Durable POA

To set up a durable POA, certain requirements must be met. Having an experienced attorney can help you meet these requirements when filling out the proper paperwork. It is easy for things to slip through the cracks when you’re filling out legal paperwork on your own. Having an attorney who deals with legal paperwork for a living can make sure your request for a power of attorney is successful. What are some of the requirements that your POA must meet?

When setting up a POA, you are known as the principal and the person you appoint as your POA is referred to as the agent. The proper documentation will name who your agent will be and will detail the scope of what their powers will be. It is also required that you properly sign the documents wherever signatures are needed. As with many legal documents, it is required to have one or more witnesses and a notary public. 

If you need help finding the proper paperwork to fill out or have questions about how to fill out the POA forms, contact the Herbert Machnik Law Firm. We are a Kalamazoo and Southwest Michigan Law Firm that specializes in Estate Planning and Probate. Make sure you are taken care of in the event of major surgery or an unexpected accident. You can call us at 269-459-1432 or you can Contact Us here.

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WHAT ARE THE CONSIDERATIONS IN DECIDING TO KEEP THE MARITAL HOME?

It may be surprising, but it is rare that both married partners want to remain in the marital home. If this happens in a court case, a court may look at how the best interests of the children will be served in making this decision. A court may order the house to be sold, although this is always a last resort.

Often, when one party is considering keeping the marital home, it is because of the desire to maintain consistency for their children. It is understandable that parents are deeply concerned about the impact of divorce on their children and wish to keep them in their home, neighborhood, school and community if at all possible.  As lawyers, our concern is that a decision to keep the family home may be a financial hardship, which itself can be harmful to a family.

In a divorce or dissolution, if real estate is going to be retained by one party, a decision must be made about the value of the property.  This can be done by agreement, where both parties feel comfortable with a certain number.  Often, people obtain a real estate appraisal by a certified appraiser or bring in a realtor to provide comparative sales. To determine the marital equity of a home, the fair market value is reduced by any outstanding mortgage to arrive at the marital equity.  (Note, there may also be separate equity if a party used separate money toward the purchase of the house.)

Traditionally, the marital equity is divided equally which will require a payment from the person keeping the house to the other party. This payment may come from savings, or taking  a new mortgage on the property or surrendering one’s right to other assets, such as retirement, as a trade-off for keeping the home value.  Each of these options will impact the financial position of the keeper of the home.  Most financial planners will question the wisdom of someone relinquishing retirement money to keep a house because it is a short term decision impacting one’s long term financial security.  The alternative of borrowing more money may create cash flow problems, as will a depletion of savings.

There are other considerations. If a mortgage is in joint names, which is common, normally the person keeping the house is required to refinance the mortgage so the other party is no longer liable.  This requires lending approval which may be difficult depending on one’s income and the amount of support that is to be received.

Another consideration is when the home equity is determined, normally the costs of sale, including a realtor’s commission are not considered.  Take for example a decision to keep a $400,000 home with a $200,000 mortgage.  The person keeping the home will likely be required to refinance the mortgage.  This may mean a mortgage rate higher than the current loan.  If the spouse is owed $100,000 for his or her equity, the refinanced loan may jump to $300,000, likely causing a higher monthly payment. Then consider after one or two years, the person who kept the home realizes it is not financial feasible and has to sell. If the sale is for less than $400,000, the home owner loses out, and even if it sells for $400,000, the owner will have to pay a real estate commission, probably around $24,000 and the owner is likely to pay for various repairs to place the home on the market and to pass an inspection.  In this scenario, the decision to keep the house may have been costly.

Of course, there is the possibility a house can be sold for more than the agreed upon value, or sold by owner, or with a mortgage at a lower rate.  The point of this article is to explain the factors that should  be considered in making a decision about keeping a home and to assess the amount of risk one is willing to accept.

If both parties agree to sell their home, normally the proceeds are divided equally, meaning that the parties share the real estate commission and all costs of sale, and there would be no reason to appraise the property.

When facing this issue, one must weigh all factors, including the desire to maintain stability as well as the financial impact of this decision. Please reach out to our firm to have one of our experienced attorneys help you with your divorce and property division. You can Contact Us here or call us at 269-459-1432.

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Protect family assets with probate and trust administration

Many Michigan families have significant assets that are valuable. When the head of a household passes on, those assets might wind up in probate court and subject to a judge’s whims and arguments by potential beneficiaries. Fortunately, you can prevent such a potentially painful and divisive family experience by properly designating beneficiaries and establishing a procedure for probate and trust administration.

Assets get frozen upon death

When a head of household or other person passes on, a probate court will freeze those assets to ensure that the estate’s debts are settled. The probate process goes much more smoothly when a trust and legally designated beneficiaries are in place. When they are not, the process can grind to a slow crawl and cause short-term financial hardships that might have lasting consequences for surviving family members.

Financial advisors can smooth over the process

The creation of one or more trusts can preserve financial and other assets and provide clearly designated beneficiaries and the procedures to follow for eventual distributions to them. Legally designated financial advisors can settle any debts left by an estate and present the results to the local probate court. A financial advisor also can demonstrate a trust’s intent and better enable the probate court to settle the final accounts and issue payments and other distributions in accordance with the deceased person’s final wishes.

You may want to learn more about how to protect valuable family assets and speed up the probate process if the unthinkable were to occur and leave your family in a bind. The loss of a loved one and head of household is hard enough on family members. A prolonged probate process makes matters worse but may be avoided with the help of an attorney experienced in probate law.

Please reach out to our Probate and Estate Administration expert, Attorney Benjamin J. Herbert for help with protecting you and your family’s assets. You can Contact Us here, or call us at 269-459-1432.

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How to Find a Child Custody Lawyer in Michigan

Finding the right child custody lawyer can feel like an overwhelming prospect. The end of a marriage is already difficult to navigate. Trying to figure out parenting arrangements only adds twists and bumps to the road.

The ultimate goal is serving the best interests of your child or children. With that in mind, it’s extremely important to find an attorney who can help you determine what is most appropriate for your situation. Here are a few tips for researching and choosing a child custody lawyer in New Hampshire.

Ask for References

Do you have local friends and family, neighbors or coworkers, who have resolved child custody disputes of their own? Ask about their experiences and what they did and did not like about working with their attorney. Sometimes it can be just as helpful to know who people you trust would not work with as it is to know who they would work with. Parents in support groups can also be good sources for attorney referrals.

If you’re looking for more formal recommendations, try the Michigan Bar Association, which offers a lawyer referral service. And consider asking any lawyers you might already know. Even if he or she doesn’t practice family law, it’s likely they can give you the name of a good attorney who does.

Investigate the Attorney’s Reputation

Whether you’ve obtained names from references or are searching for Michigan child custody lawyers on your own, you should always research an attorney’s reputation.

Note that the Michigan Bar Association does provide an online searchable database of licensed attorneys. You can, also contact the MBA to find out if a lawyer is licensed to practice law and is in good standing with the state.

Once you find out the attorney’s standing, look to confirm the intangibles. Every lawyer will claim to be the best in local advertisements—but what’s the word around town? Is he or she not only ethical and sensible, but also compassionate? Those are key assets in this scenario.

Conduct an Interview of the Child Custody Lawyer

Your first meeting with the lawyer who might take your child custody case is an opportunity for an interview. The relationship could last longer than the initial engagement, especially if young children are involved and the case is contested, so you should find out everything you can to feel comfortable before making a decision.

Questions you might want to ask include:

  • What percentage of your family law cases go to trial and what percentage are settled out of court?
  • How much experience do you have with handling my particular type of case?
  • What is your strategy for resolving child custody cases?
  • What is your fee structure like? Do you charge an hourly or retainer rate?
  • What is your communication style? How will you update me about my case?

You owe it to yourself—and your children—to work with a lawyer who understands the complexities inherent in the child custody process. With these tips and some research, you can find an attorney with the combined knowledge, experience, and skill in litigation to safeguard your rights in and out of court.

Please reach out to Herbert Machnik Law Firm and speak to our child custody experts at 269-459-1432 or you can Contact Us here!

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Digital Account and Asset Access

As more pieces of our lives move online, new questions present themselves as we become incapacitated or walk on.

Have you given any thought to who gets your digital music library? Or, if you do all of your banking online, will your guardian/conservator be able to access those accounts and records to take over paying your bills?

The Fiduciary Access to Digital Assets Act, a uniform law now enacted by most U.S. states, was passed in Michigan in 2016. Its aim is to allow fiduciaries (guardian/conservator, trustee, or executor) access to “digital assets” while respecting an individual’s reasonable expectation of privacy in related communications, like email and electronic messages.

This law might be most important to you at present if you are named as a “fiduciary” and need to access such digital information.

What are “digital assets?” The Act defines them as “an electronic record in which an individual has a right or interest.” Think electronic – especially electronic-only – bank accounts, investments, digital music, videos, social media accounts, etc. Neither the act nor the definition give a fiduciary any more ownership or control over an underlying asset – the money in the bank account, for instance – than that representative already possessed. And of course there are platforms and accounts that we have not yet imagined that should be captured by the provisions of this act.

This Act might also prompt you to think about this issue: should your will direct your executor to close (and delete?) all of your social media accounts following your demise? Do you own any cryptocurrency (Bitcoin, Ether or Qtum)?

As we go digitally deeper, consider this from two angles: first, which of your digital assets do you want to make sure your spouse, your executor or your children have access to? Which accounts might you want to make sure no one has access to? Second, might you be a fiduciary for someone else? If so, will you need access to their electronic accounts and records? You might want to talk with them about it.

Please Contact Us here or you can call us to set up an appointment at 269-459-1432. We specialize in Family Law and Estate Planning to help you address situations like the ones mentioned in this blog!

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Trademarks, Domains and Your Brand Name

When picking a company name, it’s vital to initially conduct research to avoid trademark infringement or domain name conflicts. You may be infringing someone’s trademark if the use of your mark is likely to cause confusion among customers as to the source of the goods or services. The following are potential steps to avoid naming issues:
 

KEYS TO SUCESS

 
1. Conduct a Google search on the name to find what other companies may be using the name.
2. Conduct a search at the U.S. Patent and Trademark Office site (www.uspto.gov) for federal trademark registrations on the name you are considering.
3. Conduct a search of Secretary of State corporate or LLC records in the states where the company will do business to determine if anyone is using the same or a similar name.
4. Conduct a search on a name registrars to see if the domain name you want is available. Should the “.com” domain name be unavailable, this can be problematic and have potential conflicts.
5. Endeavor to think of the name that is both distinctive and memorable.
6. Consult with an intellectual property lawyer to do a professional trademark search.
7. Don’t make the name so limiting that you will have to change it later on as the business changes or expands.
8. Think of a number of names you like, and test market it with prospective employees, partners, investors, and customers.
9. Think about international implications of the name (you don’t want to have a name that turns out to be embarrassing or negative in another language).
10. Avoid unusual spellings of the name. This is likely to cause problems or confusion down the road (though some companies like Google or Yahoo have been successful with unusual names, such success is often the exception rather than the rule).

For more information or to speak with one of our attorneys, please Contact Us here or call us at 269-459-1432.

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Owning Commercial Property In A Digital Age

The digital age has affected most aspects of life, not only in Michigan but globally. People can now find quick bits of information online, but they can also perform many serious and life-changing actions, such as finding a mate, filing for divorce and even earning a college degree.

For about 96 percent of consumers, shopping online is a common behavior, and many can even go to work digitally in the comfort of their homes. While all of this makes things convenient for most people, it may not be such a good thing for someone like you who owns commercial property.

Be flexible and adapt

Finding and keeping tenants in your office and retail space may be getting more difficult. Fewer people venture out to shop, and more employees are able to work from home. Business owners no longer require brick-and-mortar space for their offices and stores, which leaves you with empty properties and no income. However, there may be ways to adjust your focus so you can draw tenants to your buildings despite the conveniences of the digital age.

It may be necessary to become more flexible with the space you have to offer. Since fewer tenants are looking for office space or retail storefronts, you may be able to re-purpose your building to meet current trends. For example, more workers are looking for co-working space, and you may be able to adapt your vacant space to suit that need.

Think outside the box

To avoid having empty buildings without tenants, you may have to devise a plan beyond seeking the traditional tenant. Some examples real estate experts recommend include the following:

  • Instead of single-use properties, invest in properties with multiple uses, such as strip malls, so you have less chance that all your units will be vacant at once.
  • Make sure your properties are tech capable.
  • Cluster your tenants to create customer zones, which will make your property a destination for consumers.
  • Create an experience that will draw customers away from their computers to physically visit your tenants.
  • Always be ready to adapt to current market trends.

You may also choose to move away from commercial retail space into residential space. Multifamily properties always seem to be in demand, and you may even consider purchasing a property that offers residential units along with office space, entertainment, retail units and restaurant opportunities.

If this seems like a grand undertaking, you are right. In fact, any commercial real estate investment is a serious and risky venture that you may not want to enter without some solid advice and guidance from an experienced legal advocate.

Please contact our Real Estate and Business Law expert, Jason, at Herbert Machnik Law Firm. You can reach us at 269-459-1432 or Contact Us here!

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Retirement for the childless – Steps to create an Estate Plan for your future care

As the baby boomer generation ages, there is an increase in people who do not have a spouse or children who will take care of them in their old age.

There are increased risks for a person to become diagnosed with Alzheimer’s, dementia, and other disabilities that diminish a person’s ability to care for themselves. Not everyone has someone to protect them when age or disability denies them the ability to protect themselves.

Living on your own has several advantages, including independence and living a life as a self-sufficient individual. However, as a person starts to age they need to think of the long term. By creating an estate plan, a person can ensure they are comfortable and cared for as they age or their health worsens – even if they have no children.

Living as an Independent Senior

The fear of being sick or incapacitated without anyone to advocate for your needs is a natural and genuine fear. According to a report by the United Census Bureau, the proportion and number of people over the age of 65 is going to increase significantly between now and 2050.

In addition to the population growing older, it has become more socially acceptable to stay single and not have children.

There are many reasons that a person can’t or doesn’t want to rely on family members for support: estrangement, geography, death, or simply the social isolation that can accompany the aging and disabled. Without an advocate, the infirm run a risk of losing their dignity, independence, possessions, and health. Having a solid estate plan in place will give others a guide to make sure your needs, wishes, and desires are taken care of.

Preparing an Estate Plan

Being proactive as you age is essential, especially for people who do not have a caregiver within their family or close acquaintances. An elder attorney can assist with:

  • Designating advocates through guardianship or medical proxies
  • Locate a care manager who can monitor and coordinate care; many care managers also act as health care advocates
  • Finding long term care-insurance
  • Disability and Medicaid Planning issues
  • Drafting Powers of Attorney
  • Other general Probate and Estate Administration issues

Most importantly, a competent elder law attorney can help you develop an informed, personalized plan based on what you have, what you want, what you need, and who will advocate for you along the way.

To find out what strategy will work best for you, contact the Herbert Machnik Law Firm today at (269) 459-1432.

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I’m Paying Child Support. Can My Child Support be Reduced if I Have More Kids in the Future?

The short answer to this question is no. In the State of Michigan, if a parent who pays child support has other children with another person, they cannot ask the court to reduce previously ordered child support to support his new children. For example, after David and Linda divorce, David is ordered to pay child support for the couple’s minor child. Two years later, David has another child with Ann. David cannot petition the court for a modification or reduction in child support to support his child with Ann.

Issues of child support can get complicated when a spouse has additional children. Family courts tend to frown on parents who cannot abide by the current child support order to start new families. There are certain defenses you can use, but they are limited and require knowledge of the law. Contact a Michigan family law attorney to discuss the specific details of your child support obligations and how the law applies in your case.

Important Child Support Considerations

Although you cannot use your new children to reduce child support, you might be able to use the subsequent children as a defense against increased payments. This scenario can come into play when you get another job to support your new child.

For example, if you get a second job to support your new child and have a significant increase in income, your former spouse can (and probably will) ask for an increase in child support. This is one of the few occasions when you can ask the court to consider your obligations with your new family and not increase the amount of child support. It is important to understand that in this scenario, you will be asking the court to go against the set guidelines for Michigan child support determinations. You will need to prepare a persuasive argument about why the court should go against the guidelines. Under these circumstances, it is highly recommended that you seek the advice of an attorney before filing a response to a petition for a modification of child support.

Final Note

It can be stressful to deal with child support issues, but the main point is that your children depend on you for financial support. The courts recognize this and will make decisions based on this principle. Be sure to stay current on your child support payments as this will help you get cooperation from the courts. Consult with an attorney before you take any steps that might affect your child support payments. With a better understanding of the law, you will be able to make decisions that are fair and comply with the child support laws in Michigan.

Our family law attorney represents clients in Kalamazoo & throughout SW Michigan. In some cases, the attorney offers ghostwriting services to Kalamazoo divorce clients. To learn more about your family law case call our attorney, Alesha Burnash at (269) 459-1432 for a free case evaluation.

TRADEMARKS: The Secret Property You Didn’t Know You Had

The worst thing that you can do as a new entrepreneur is open a business or create a product or service without doing your due diligence for your trademarks and intellectual property. What if someone already has rights to the name that you wish to use or are already using? You risk the possibility of receiving a cease and desist letter in the mail, being sued, and being forced to rebrand your entire business or product. Trademarks are the secret property that most of us don’t know we have.

It is essential entrepreneurs to understand what is at stake and what is involved. The more informed the entrepreneur is, the more they will appreciate how important it is to protect their intellectual property. When you register your trademark with the United States Patent and Trademark Office (USPTO), you have the full rights to your brand. Registering your trademark protects you and your business enterprises from future liabilities that can be extremely costly to you.

By applying for a trademark, you can protect a word, design (logo), symbol, tagline, or a slogan. Trademarks are either word marks or design marks, you are essentially protecting the name or the design.

The Trademark Process: How It Works

So what does the trademark process practically look like? What are the steps to protecting your name, brand, logo, slogan, etc.? To protect your name, brand, logo, slogan, etc., the first thing you want to do is set up a consultation with a specialized attorney to get an understanding of the overall trademark process.

Some firms charge consultation fees to secure the appointment with their attorneys while others don’t. Attorneys often charge a consultation fee to ensure that the client takes the meeting seriously and is not merely looking for free advice.

In the consultation, the attorney may determine off the bat that the client’s desired trademark will not be successful and will advise the client as such. If, however, the attorney believes that it is fine to move forward to the next stage. At our law firm, our trademark attorneys provide a step-by-step overview both in the meeting as well as emailing the client along with a breakdown of costs throughout the process. The attorney-client relationship is commenced by both parties signing the retainer agreement, either provided at the consultation meeting, or sent via email by the office.

Trademark Search

The next stage in the process is to conduct a comprehensive search across all relevant databases to determine if there would be any potential conflicts for the client’s trademark. These databases include but are not limited to federal, individual states, the World Intellectual Property Organization (WIPO), companies, domains, and social media sites. After a comprehensive search, the attorney will analyze the search report for the client. This could be accompanied by an opinion letter that the attorney drafts, for the client’s convenience, summarizing the findings of the search report and advising the client on the best plan of action.

The trademark attorney may find that it is not advisable to pursue the application for trademark registration since there are other companies or individuals that already have registered trademarks that

are too close and could be deemed confusingly similar in the market. Alternatively, the attorney could find that there are no issues and advise the client to move forward with the registration application with the United States Patent and Trademark Office (USPTO).

Trademark Federal Filing

If the attorney clears the mark for application, the attorney will proceed to draft and prepare the federal application for filing. This requires that the client provide all the relevant information needed for the filling process. This includes information like: whether the mark being applied for is a word or logo; if it’s a logo then a description of it; specimens of the mark (showing how the mark is actually being used); a description of those specimens; the usage of the mark and when it was first used in commerce or if there is merely an intent to use since it has not entered commerce yet.

The application is submitted by the attorney to the USPTO and assigned to an examining attorney from the USPTO offices. The examining attorney is the individual that is assigned to the client’s trademark case and is the point of contact for any necessary correspondence with the client’s attorney. The USPTO’s examining attorneys typically take three to six months to respond to the application. They either approve the application for publication or reply with a particular “Office Action” that requires further attention and action from the client’s attorney. This takes place if there are substantive issues that need to be addressed like the “likelihood of confusion” with other existent marks in commerce, for example.

At this juncture, the attorney should respond to the examining attorney by no later than six months. Otherwise, the application will be abandoned. Even if that deadline is missed, for whatever reason, the attorney can still respond but would need to pay an additional fee for a late response.

Trademark Opposition

If there are no Office Actions, then the examining attorney will approve the trademark to be sent to publication in the USPTO’s Official Gazette. Essentially, this is to be used to give any third party who has legal grounds to oppose the application a period of thirty days from the publication date to file a Notice of Opposition to the application. This rarely happens, but if it does, the client’s attorney will be notified by the USPTO. The attorney should notify the client of this and discuss the appropriate steps forward at that point.

If no opposition is filed, which is what occurs in most situations, then the trademark will be registered after the thirty-day publication period. The attorney’s office will receive the official certification of registration in the mail for the trademark, along with instructions from the USPTO on how to maintain the protection of the trademark.

That is an overview of the trademark process and a breakdown of the steps it takes to get your trademark registered federally with the USPTO. It is essential to work with a law firm that knows the process and has experience delivering results for its clients. Don’t hesitate to schedule your strategy consultation to protect your intellectual property. Remember, if it’s law it’s Herbert Machnik Law Firm.