On Wednesday, November 18th, 2009, Governor David Paterson signed the Child Passenger Protection Act, also known as  “Leandra’s Law,” into effect. “Leandra’s Law” is named for 11-Year old Leandra Rosado, killed in a fatal crash  along the Henry Hudson Parkway in New York City.  The deadly accident involved a drunk driver and several child passengers, including Leandra.  Prior to the incident leading to “Leandra’s Law”, there were several other deadly incidents involving drunk drivers, with children in tow.

Leandra’s Law- Felony

Leandra’s Law increases the penalty for those who drive drunk with child passengers in tow, age 16 and under.  Prior to Leandra’s Law,  the penalty for DWI and child endangerment was a misdemeanor. However, the new law renders this crime a felony.  The purpose of the new law is both preventative and punitive.

DWI- Ignition Locks

Aside from a felony charge, the new law compels all those convicted of drunk driving to install ignition lock devices.  The locks would prevent a car from starting when a driver’s alcohol levels, determined by a breath test, exceeds the legal limit.

Conclusion

Aside from child passengers, other drivers and passengers should be protected from drunk drivers. By increasing the penalty, perhaps drunk drivers will consider alternative means of reaching their destination.

A radio producer from Hype Media Global’s Community Central TV contacted me to request a radio interview about basic estate planning.  My first thought was WOW.  Not only was I gratified that I was “the chosen one,” but I also appreciated the opportunity to explain the importance of basic estate planning, along with reasons why many people choose not to avoid estate planning.  The radio program is entitled “Up Close and Personal with Debrina Washington.” Take a listen and let me know what you think.

Divorce Decree

A New York Appeals Court upheld a ruling in favor of Philip Smith, President of the Shubert Organization, awarding him a divorce from his wife on the basis of cruel and inhuman treatment.  The court, specifically, referred to Tricia Smith’s very public YouTube video regarding her separation, as a determining factor for the divorce. 

Public Humiliation– Cruel and Inhuman Treatment

The Court of Appeals specifically referenced Tricia Smith’s use of YouTube videos, to embarrass her husband as grounds for cruel and inhuman treatment.   As most know, New York is a unique state, in that we don’t recognize no-fault divorces.  In New York, one must allege a specific reason for divorce. During her YouTube video, Mrs. Smith referenced her lack of a intimate life with her husband.  Lack of a sex life constitutes constructive abandonment in an action for divorce in New York. 

Public Forum, Private Issue

What’s painfully clear is that people should be very careful about their use of the Internet and especially social marketing.  It makes sense that people would rely on public forums to vent relationship frustrations, however, there has to be a limit as to what to say and what not to say.  After all, Facebook, Twitter, LinkedIn, etc. are public forums and, therefore, searchable and admissible in any court of law.  Word to the wise, if things get tough, pick up a phone and call someone you trust, don’t trust your deepest emotions to the Internet.

You see, this week alone, 3 people that I either knew personally or knew of passed away, unexpectedly.  Causes range from a sudden heart attack to a seizure.  The surprising thing is all the recent deceased were under 40.

When you hear of young people who suddenly die, it begs the question “What happened”? Hey, I’m sure if the dead could speak, the deceased might be wondering the exact same thing.  As younger people, we move in a sort of invincible way; a little like my little boy’s favorite superhero, “Bipperman” (Spiderman.) We take everyday for granted and we rarely think about tomorrow. We eat what we want,  we drink what we want, and we rarely make financial plans for the future, because hey, there’s always tomorrow.    Well tomorrow is not promised.  Today is the day to take better care of ourselves in every aspect of our lives.

Recently, I accidentally left my car lights on.  The next day I saw my neighbor, who told me he tried to reach me to tell me.  He then said “I hope you don’t mind my saying so, miss, but every time, I see you, you’re in a rush.” He then begged: “Please, slow down.” He’s right.  I’m practically always running from place to place to place and my mind is racing as fast as I am.

So, on Monday, I was exhausted and feeling slightly under the weather.  I decided life is too short.  So, I took the day off and laid on the couch all day. Best day I had in a long time.  So, my advice today to all, heed my neighbor’s advice and “Slow Down.”

Time and time again, I’ve heard single people say “I don’t have a large family or much property,  I don’t need an estate plan.”  I have to be honest, prior to the birth of my son, I thought the exact same way.  Admittedly, it took me a year after my son’s birth to complete my estate plan.  Upon completion, I packaged it up nicely and told my close relatives of its contents and explained where exactly to locate my most important documents.  Then, I breathed a sigh of relief.  Why in the world did it take me so long?

Top Reasons Not to Have an Estate Plan

Well, for all of you naysayers, relax. You wont need an estate plan if:

1. You have no problem being buried next to your father and grandmother.  After all, your mom HAD to use that extra plot she purchased.

2. You have children and you’d rather the Surrogate’s Court decide how to distribute your assets amongst them and who will ultimately be responsible for rearing them.  Your irresponsible brother seems to be a perfectly appropriate guardian.

3. You love the thought of your irresponsible brother, your closest relative, in proximity, making life-changing decisions for you, such as whether the doctor should end life support or keep you on a feeding tube, should you find yourself in a comatose state.

4. That place that you worked so hard to buy.. Yeah, you’d like the Surrogate Court to decide what to do with it;  place it for sale or better yet, let your irresponsible brother move in.

5. You won’t mind that your new cherry red Mercedes Benz (or 1999 Honda Civic) will be sold, in the event of your untimely death, and the proceeds will be distributed to your creditors.

Conclusion

So, if you happen to be fine or even excited about the scenarios mentioned above, by all means, DO NOTHING.  However, if you’re mortified at the thought of having a zero percent say in an unfortunate future, please feel free to contact us and we’ll be happy to develop an estate plan for you.

What may seem like a simple, uncontested divorce may get a little tricky when the Defendant has moved to a foreign location.  However, if your spouse is presently residing outside of the State of New York, it is your responsibility to ensure that he or she is personally served with the divorce summons and complaint.

Recently. I struggled with this issue as I was trying to serve  a Defendant in another country and my client had very little information about his spouse’s whereabouts.  I discovered the following ways to serve a divorce summons and complaint in a foreign country:

Personal Service By a Family Member

A great way to serve someone in another country is to ask a family member or friend who might visit country where the Defendant resides to personally serve the Defendant.  The person who serves the complaint must complete a notarized affidavit of service as proof of service of the divorce summons and complaint.

Foreign Consulate

Many jurisdictions require you to send a divorce summons and complaint to the Consulate in the foreign country.  The Consulate will then serve the Defendant.  The Defendant might then be summoned and served at the Consulate in the foreign country.  The Defendant will complete the Affidavit of Defendant, which will be returned to you.  You should submit the Affidavit of Defendant to the Court, handling the divorce proceedings.

Alternative Service of Process

Alternative methods of service of process might include the mail or a newspaper publication.  Please note:  There are certain countries which do not allow Service of process by mail.  Please confirm your method of service with an attorney, prior to effectuating service of the summons and complaint.

If the Court grants permission of service by mail, the International mail package should be accompanied by a return receipt form.  The return receipt will be signed by the person who accepts the divorce complaint in the foreign location.  The return receipt will be returned to you as proof that service was effectuated.  The receipt will eventually be presented to the court.

Conclusion

The requirements for service of a divorce summons and complaint in foreign jurisdictions vary by country.  It is most prudent to consult with an experienced attorney who can help you decide the most appropriate method of service for your particular situation.

The Department of Homeland Security (DHS) developed a booklet for small businesses, entitled “Planning for 2009 H1n1 Influenza “A Preparedness Guide for Small Businesses”  to encourage businesses to develop a written plan to assist businesses through a possible H1Ni epidemic.  In the Guide’s introduction, Janet Napolitano, Secretary of Homeland Security, writes:  

“Small Businesses are often the backbone of private sector industries and their local communities.  With this in mind, we must partner to ensure the wheels of the nation’s economy continue to turn, even if faced with absenteeism, restricted services, and supply chain distributions. If prepared, small businesses can keep their doors open and our nation’s economic health and security resilient.”

Tips for Small Businesses Facing a Pandemic

DHS shared some of the following tips for small businesses, facing a pandemic:

• Examine leave, telework and employee compensation policies:

Some policies to consider include the Family Medical Leave Act (FMLA) and the American with Disabilities Act (ADA.) Additionally, employees should develop policies that encourage sick employees to remain at home or to work from home, without the fear of repercussion.

• Identify a Workplace Coordinator:

Name someone who will be responsible for handling all H1N1 issues.  That person should be the first point of contact for all employees who might need to report any contact with someone else, exposed to the H1ni virus.

• Share your plan with employees and ensure employees understand proper procedure:

Communicate your plans with your employees. It might be a good idea to gather your employees and explain the policies and procedures to them, in person.  In the process, you can answer any questions asked.

DHS’ Guide concludes with a Q & A and an additional resource listing  for small businesses about the Influenza virus. The Q & A might be useful to assist employers in anticipating any questions.

Conclusion

It’s important to have a plan in the event of a H1N1 breakout.  My son had a H1N1 emergency at his daycare and,at the time, the school wasn’t prepared.  They reacted by closing for several days and encouraging all sick children to remain at home.  Keeping my son at home affected my ability to go to work.  My company had an Emergency Communication plan, which not only required me to reveal my son’s exposure to the H1N1 virus, but I also had to remain at home for three days.  During my absence, I had the option to work from home.  

If you would like more information about developing policies to protect your workforce, in the event of an H1N1 occurrence or any other pandemic, please feel free to contact us.

Working Mother magazine named the best U.S. Companies for working mothers.   Despite the economic climate, some companies have decided to continue to support family-friendly programs and in fact, some companies have allocated more money than previous years to support their family- friendly programs. Such a gesture makes quite a statement on those working moms, seeking employment.

Some of companies named as the top supporters of family-friendly programs are Deloitte LLP and Ernst & Young of New York,  IBM of Armonk, NY, PricewaterhouseCoopers of New York and Abbott Laboratories of Illinois. The companies, mentioned previously, as well as the others featured as the top 100 companies, share benefits such as the option to telecommute (100 percent), job sharing and backup childcare options (and we all know that sometimes your primary child care option fails.)

Additionally, leaves of absence policies were high on the list of priorities for the top named companies.  Several companies provide paid maternity and paternity programs as well as flexible return-to-work policies,  allowing parents to gradually re-enter the workplace.  Some companies provide a greater benefit to the Federal Family Medical Leave Act (FMLA), such as a paid maternity leave benefit.

Small businesses should consider incorporating family-friendly programs into their employee benefit programs and policies.  Family-friendly programs may assist employers with retaining talented employees in the long-run.  The most difficult and stressful time for a new parent can be re-adjusting to work life while handling parental responsibilities at home.  Before my son’s birth, my mother convinced me that my baby would sleep through the night at the age of 3 months.  Needless to say my little night owl didn’t start sleeping through the night until he was 1!  Can you imagine what a walking zombie I was, strolling or dragging myself into the office with only 3 hours of sleep! I would have probably been more productive, during those early years, if I had more flexibility in my work schedule.

If you managed to convince someone to watch your little ones, while you secure yourself some much needed adult time, first of all, Congrats!  Secondly, you should execute a temporary POA, which is effective for up to 6 months in New York.

What should you include

In the event of a medical emergency, specify all authorized forms of treatment, as well as treatments that are not authorized.  If your children are minors and school-aged, the POA will permit a temporary designee to make educational decisions.  Your temporary agent will need to present the POA to school officials or health care providers, upon request.

Single Parents

If a court of law has determined that both parents should equally share in the parental responsibilities including educational or health decisions, a temporary POA, in favor of another person will not be valid, unless both parents have consented to the temporary relationship.  NY GOL §5-1551.

Small Business Owners

You should execute a temporary POA to allow another person to make emergency financial decisions (i.e. bank account withdrawals) for your business,  during your absence.

Conclusion

Last piece of advice parents, RELAX! Your little darlings are probably doing whatever their little hearts desire.  That’s right folks, that includes jumping on furniture, eating loads of candy, staying up late… you get the picture. Regardless, it’s a small price to pay for a little piece of mind.  Ahhh, a girl can always dream.

In conjunction with the amendments to the New York Power of Attorney, effective as of September 1st 2009, previously discussed in detail here, the New York State government enacted a mechanism for a principal to grant an agent the power to transfer gifts to a beneficiary. The New Power of Attorney controls the handling of the principal’s general affairs, while the Statutory Major Gifts Rider (SMGR) will govern the agent’s ability to gift the principal’s assets during the principal’s lifetime. The provisions governing the SMGR are set forth in NY G.O.L. §5-1514.     

Summary of the SMGR Provisions

The SMGR requires a principal to execute a separate addendum to the New York Power or Attorney, permitting an agent to transfer major gifts to spouses, children, distant descendants or gifts to other beneficiaries.  In addition to the power to make gifts, the SMGR may also empower an agent to change or create rights of survivorship or add a beneficiary designation.  Lastly, the principal is also able to give the agent the power to grant a gift to himself/herself. 

Divorce and the SMGR

If two people divorce, the marriage is annulled, dissolved or otherwise invalidated, the agent loses the ability to make a gift to a former spouse under the SMGR.  However, if the principal decides to remarry a former spouse, the agent will be re-empowered to make a major gift to the spouse.

Conclusion

The SMGR must be signed, notarized and witnessed by two disinterested people (those that do not stand to benefit from a principal’s gift).  The principal must execute the SMGR and the New Power of Attorney simultaneously.   The method of execution for a SMGR is similar to that of executing a will.  Should you require any further information about the new Power of Attorney or the Statutory Major Gifts Rider, please contact us.