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PRIVACY POLICIES

Privacy policies are often an afterthought, especially for new businesses. They’re widely perceived as a pile of boilerplate—a term many mistake as a synonym for “unimportant.” While I’ll save that axe for grinding in another post, I do want to focus in here on the significance of privacy policies and a few tips on how to go about getting them in place.

What’s A Privacy Policy And Why Should You Care

In a nutshell, a privacy policy describes how a business collects, uses, shares, transfers, and stores personal information. The acronym “PII” which stands for “personally-identifiable information” is commonly used in place of “personal information” but there are enough acronyms in life and so I’ll use the phrase “personal information” here.

Note: Personal information includes things like name, address, social security number, credit card number, biometric data (like fingerprints), and more.

Businesses should care about privacy policies if they collect personal information, which nearly every business does, whether from employees, customers, or others. They should care because they may be subject to privacy laws that regulate how they deal with personal information and, regardless of the laws that may apply to them, they may be subject to consumer scrutiny concerning privacy practices.

While privacy regulation in the US still consists of a patchwork of laws, there are no shortage of headlines for companies that have fallen short of societal expectations for safeguarding personal information. For a recent example of this, look no further than the negative response to Zoom’s privacy practices during Covid-19.

What You Need To Know To Put Together A Privacy Policy

Realistically, if you’re creating a custom privacy policy for your business, you’re likely doing it with the help of a lawyer. But that doesn’t mean you get to take your hands off the wheel. You’ll need to help educate your lawyer on how you deal with personal information in order to make the privacy policy tailored to fit your practices.

How Your Business Deals With Personal Information

Remember, a privacy policy describes how a business collects, uses, shares, transfers, and stores personal information. So you need to know how your company does these things (or how it plans to) before you can prepare and implement a privacy policy, whether you do it yourself or with the help of a lawyer. Figuring this out may, depending on the business, require you to talk to people in operations, HR, IT, marketing, legal and more.

Tip: It may be useful to create a data map to help with the process of tracking how personal information is handled.

No matter what tools you use, make sure you’re describing how things are, rather than how you think they ought to be, unless you plan to align your company’s privacy practices with the policy once drafted.

What Privacy Laws And Regulations Apply To Your Business

The US lacks a comprehensive federal privacy law. But the Federal Trade Commission regulates consumer privacy and so you may have obligations at the federal level. There are also certain states—California, with the recent passage of the CCPA, chief among them—that have their own privacy statutes that your business may be subject to. And if you’re collecting personal information outside of the US, you may have to deal with other privacy laws, including, for instance, the GDPR in the EU.

Also, depending on the industry in, the type of personal information you’re collecting, and certain other factors, you could be subject to more niche pieces of privacy legislation. Without going into great detail, if you’re a financial institution, a healthcare institution, or a collector of personal information about children or students, just to name a few, you should work with a lawyer to understand additional privacy obligations you may have.

Whether Institutional Gatekeepers Will Require Privacy Policies

Even if you’re not concerned about privacy laws and regulations, you may have to contend with privacy policy requirements from institutional gatekeepers. A good example of this is for businesses with mobile applications. If you have a mobile app, you’re likely planning to make the app available for distribution through one of the major app stores (i.e., the “institutional gatekeepers”). If so, you’ll find that Apple requires your app to have a privacy policy and Google requires most apps to have a privacy policy.

What You Need To Do To Implement A Privacy Policy

You could have the most comprehensive, beautfully formatted, user-friendly privacy policy out there, but if you don’t implement it correctly, it won’t do you much good. The best practice is to provide real and timely notice when users are given the option (or the requirement) to share personal information. A common example of this is providing a link to the privacy policy wherever personal information is collected.

Tip: It’s a good idea to require your users to acknowledge having read and understood your privacy policy at certain points of collection of personal information.

Keep in mind too that some notices must be delivered in a certain way to be effective; for instance, HIPAA has particular delivery methods that must be followed. This is just one example, though. There are plenty of others that may need to be considered.

Remember also that once you’ve put your privacy policy out there for all to see, you’re telling the world how you deal with personal information. If you, for whatever reason, fail to make good in practice on what you’ve told the world you would do in your privacy policy, the world may not take kindly to that. So it’s important to make sure what’s on paper (or online) matches what happens in practice.

What You Need To Do After Implementation

Implementation should not only be user-facing. Your employees should be aware of and understand their obligations under the policy. And if policies change, they need to change in both writing and in practice, meaning that regular auditing should be conducted. Changes that impact users may also need to be communicated directly to those users (for instance, in the form of an email or a website banner notifying users of an updated policy).

You should also be regularly reviewing and updating your privacy policy to ensure it aligns with your company’s current practices and with any changes in the laws.

Example: In late December 2019 and early January 2020, you probably received a deluge of privacy policy update emails from various large companies. This was in response to the CCPA going into effect, which caused many companies to change their privacy policies.

As part of this, it’s wise to include the privacy policy’s effective date, which should change every time the policy is udpated. That way it’s clear at which points in time the various terms of your policy are in effect.

Finally, it’s a good idea to tell how consumers can contact your business if they have questions or issues regarding your privacy policy or practices.

Takeaways

The biggest takeaway here—that is, once you have a privacy policy in place—is to view your privacy policy as a living document, rather than a template you park in the footer section of your home page and never think about again. If you’re able to view your policy through this lens, you’ll be more likely to review it regularly and revise its terms when your company’s practices or privacy laws change.

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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.