Wednesday, October 24, 2018

OCTOBER 20-26, 2018 IS NATIONAL ESTATE PLANNING AWARENESS WEEK!


            Congress has designated the third week in October as National Estate Planning Awareness Week (October 20-26, 2018).
            It is estimated that at least 60% of Americans do not have an estate plan.  Most people think that only older adults need to have an estate plan.  However, it’s important for younger people to have a Will, especially if they have minor children.  A proper estate plan will provide for a guardian for your minor children to ensure that they’ll be cared for by the people you want as guardians in the event of your death or incapacity. Yet, based on a recent AARP survey, 78% of people age 18-36 and 64% of people age 37-52 do not have a will. 
Without an estate plan such as a Will or Trust, when you pass away, your affairs will be settled pursuant to the intestate laws of the state where you reside.  The intestacy laws may not provide that your assets go to the people you want to receive your property.  In fact, depending on the size of your estate and how your assets are held, your spouse may not receive the entire estate.  It is especially important to have an estate plan if you have a blended family, especially if you want to provide for your children from a prior marriage.
If you don't have an up-to-date estate plan, including durable powers of attorney, and you are unable to manage your financial affairs due to incapacity, the courts will appoint someone to manage them for you.   If you have not designated the individual that you would like to be your agent, the court may appoint someone that you would not want to perform those responsibilities.
A good estate plan starts with a planning meeting with your attorney and proper drafting and signing of appropriate legal documents such as wills, trusts, financial durable powers of attorney and a health-care power of attorney. Having a properly designed estate plan will help your family get through a very difficult and emotional time.
If you would like to discuss your estate plan, please contact an attorney in our office. The attorneys at Parnell, Michels & McKay have the experience necessary to design an estate plan to achieve each client’s goals and needs.

Tuesday, October 9, 2018

Workers’ Compensation: What am I entitled to?


                A person that gets injured at work is often unaware of the process involved in workers’ compensation cases, and even more unaware of what they are entitled to. In the first instance, the most important thing is getting medical treatment for the injury they sustained. If the injury occurred within the scope of employment, the workers’ compensation insurer is required to pay for all related medical bills. So, if a person hurts themselves badly at work and has to go to the emergency room, then the workers’ compensation insurer will have to pay for it. In order to have them pay in the first instance, the employer and employee complete a first report of injury. This specifies what happened, where it happened, and how it happened. Then the employee gets the insurance information in order to have the medical provider bill the workers’ compensation insurer directly.

                If the injury takes the person out of work, in New Hampshire the person is entitled to what are called “indemnity benefits”. This is a term that really means “wage benefits”. A person gets paid for the time they miss from work, and in NH this means sixty percent (60%) of their average weekly wage. Thus, if the person makes $1,000.00 per week, their workers’ compensation benefit should be $600.00 per week. In Massachusetts, this figure is virtually identical. However, in Massachusetts, if a worker can prove a permanent and total disability, they would be entitled to sixty-six percent (66%) of their average weekly wage.

                A person may also be entitled to a permanent impairment award. This is only in cases where a person suffers a permanent injury. In NH and MA, the person is entitled to a specific one-time award for this permanent disability. Further, while in MA a person may be entitled to scarring and disfigurement awards without the necessity of a permanent injury, a person in NH can only obtain a scarring and disfigurement award if it is part of another permanent disability from the injury.

                Workers’ compensation cases are very complicated, and very often contested. There are usually multiple hearings on any given case, and navigating that process in NH and MA can be very difficult without counsel. The experienced attorneys at Parnell, Michels and McKay can help injured workers navigate this process effectively, and allow them to recover the full amount they are entitled to. If you are in need of legal help from a work related injury, please contact our office to find out what your rights are.

Thursday, October 4, 2018

WHAT ARE CHARGING ORDERS AND HOW DO THEY AFFECT MY LIMITED LIABILITY COMPANY?


            Congratulations!  You are opening your first business and you have decided to form a single member limited liability company (LLC).  The LLC provides similar liability protection as that of a corporation.  For example, if there is a judgment against the LLC for money damages, in most cases, the LLC judgment creditor cannot attach your personal assets.  However, what if one of your personal creditors has a judgment against you?  If you had incorporated, the judgment creditor may be able to reach your shares in the company as they are personal assets.  But can the creditor reach the assets of your single member LLC?  This is where the charging order comes in.  A creditor may ask the court to enter a charging order requiring the company to forward any distributions you are entitled to receive from the LLC to the creditor.  Although the charging order can reach distributions (usually profits) payable to you, it generally cannot require the LLC to forward any monies which are earned income (i.e. wages) and it cannot force the LLC to make distributions.  In other words, the judgment creditor doesn’t get to stand in your shoes and vote your membership rights.
            But wait a minute – if you are the sole member and the charging order doesn’t allow the creditor to direct any distributions from the LLC, what if you just don’t take any distributions until the statute of limitations on the judgment expires?  In that case, the judgment creditor does not receive anything.
            Well that seems too easy – and it is.   If the creditor can show that the judgment cannot be satisfied in a “reasonable time,” the creditor has the right to challenge the LLC protection.  If successful, the court would force a sale of both your financial and management rights of the LLC.   If there are significant assets of the company, this could be a financial disaster to the member, both personally and for his or her business.  Often, the creditor is the successful bidder at the execution sale and, the creditor can take over your company and, presumably, vote that the LLC pay the distributions or sell off the assets to satisfy its judgment.  But whether it is the successful bidder or not, the creditor would get paid what it is due from the proceeds of the execution sale.
            For all of the reasons above, you may want to consider bringing in a spouse or adult child as a minority member.  This makes your company a multi-member LLC with you as the manager.  As a multi-member LLC, the judgment creditor can still get a charging order against your economic interest in the LLC but it cannot force a transfer of your noneconomic interest (i.e. voting and management rights).  The state law makes a distinction between multi-member and a single member LLCs to protect the other members of the LLC under a theory called “pick your partner.”  In other words, the other LLC members did not intend to become partners with your creditor and the state is reluctant to force them to accept the creditor as a potentially unfriendly owner of your interest.    
When forming your business and choosing the correct entity, contact the attorneys at Parnell, Michels & McKay, PLLC.  We offer advice to all types of corporations, limited liability companies and other business entities designed to achieve each client’s goals and needs. Contact us here if you need our assistance.

Wednesday, August 22, 2018

FANTASY SPORTS: LEGAL OR ILLEGAL SPORTS GAMBLING


                Fantasy Football is gearing up, and we are on the eve of many drafts and leagues forming for the new season. As attorneys, we often get asked about the legality of sports gambling and in particular, fantasy sports. As some of you are aware, the U.S. Supreme Court struck down a gambling ban from 1992 called the Professional and Amateur Sports Protection Act. Thus, sports gambling is no longer illegal under federal law. However, each state can have laws that restrict or forbids gambling within their state borders. As for fantasy sports, that has been dealt with separately.

                As of May 16 of this year, fourteen (14) states have specifically allowed fantasy sports, and daily fantasy sports to exist (SEE: http://www.espn.com/chalk/story/_/id/14799449/daily-fantasy-dfs-legal-your-state-state-state-look). New Hampshire is one of those states, as Governor Sununu signed the bill into law on July 18, 2017.

                As noted here, the law provides the following:

·         Regulation of the industry will fall to the New Hampshire lottery commission, which is given the power to promulgate some rules to oversee the industry.
·         There is no fee or tax for operators that register with the state. An earlier version of the bill had both an upfront fee and a tax on revenue.
·         Operators must register with the commission, but may continue to operate in the state while the law is taking effect, if they apply for registration.
·         The law sets up basic consumer protections for users at registered DFS sites, including a ban on employee play; the segregation of player funds and operational funds; and responsible gaming protocols.
·         The minimum age for users is 18.

                Thus, daily fantasy sites like FanDuel and DraftKings are specially legalized in the State of New Hampshire. Most importantly, the law mandates you must be eighteen (18) years of age, and provides consumer protections to those using those sites.

                Fantasy sports is something many of us are involved in, and it’s evident that right now all of those that play are not in danger of breaking the law. However, laws can change quickly, and it’s important to know your rights. Here at Parnell, Michels & McKay, we keep ourselves updated on the developments in the law to help he assist all of our clients dealing with legal issues. Contact us today if you need help navigating the legal playing field.

Wednesday, August 8, 2018

Self-Drivings Cars and the Intersection of Human Negligence and Products Liability


                Self-Driving cars are now becoming more and more popular. Other states, like California, are now allowing them to be operated on their roads in controlled settings. For many of us, this will remind us of movies involving cars that drive themselves while the human in the car is able to relax on their drive. It’s almost like a taxi, but it’s the person’s car and a computer program is driving. Technology is always a fascinating thing, but in this context, what happens when self-driving cars cause an accident?

                As many people are aware, if you cause an accident and are liable, an insurance claim and possible litigation may be brought against you. This would require the person that was hit and injured to prove that the other driver was negligent, and that this negligence caused the collision and the injuries to the Plaintiff. But what about if the car was self-driving?

                This makes these cases potentially much more complicated. First, there is typically a requirement that any self-driving car have a human that is alert and attentive at the wheel. If the collision with a self-driving car is caused by the human’s inattention, then a negligence theory will still work. Second, however, is much more complicated. If the car crash was caused by the computer program, then the negligence standard will not work in the traditional sense. In this case, the likely remedy is a products liability claim. Products liability claims require proving manufacturing defects, design defects, or warning defects. In this sense, the fault in a computer program likely involves the first two (manufacturing and design defects). A manufacturing defect involves a problem that occurs when the product is being manufactured, or created. A design defect is when the design itself is problematic.

                In either circumstance, to prove a self-driving car acted in appropriately will likely involve a blend of negligence and product liability laws. While New Hampshire and Massachusetts aren’t currently dealing with an influx of self-driving cars, it is likely going to happen in the coming years.

                If you are injured by any driver (even a computer), the experienced attorneys at Parnell, Michels and McKay can help you. Contact us if you find yourself in a situation where you need to know your legal rights.

Tuesday, July 24, 2018

Adoption - A Personal Perspective by Anna M.


Adoption is about what is best for the child not what is best for the parents. As the law states, a child’s needs should come first, or better put, the best interests of the child should come first. The best situation for a child is sometimes to be adopted into a stable home. Financial security and the love of caring parents are both important to a child’s development. The time spent raising a child affects how the child behaves, feels, and ultimately interacts with the world as the person they become. Many factors play into the decision of what is best for the child. It can be hard for birth-parents to give up their child, but adoption can sometimes be the in the best interest of the child. The child may be afforded a better opportunity with adoptive-parents that love them just as much as or more than the birth-parents and can give the child emotional security and stability.
            Yet, the question often remains, will the child end up knowing their birth-parent? Or better put, is open adoption or closed adoption the best option? Often there are legal issues where the decision is out of the hands of the birth-parent. However, in a lot of situations the choice between open, closed, or semi-open adoption and the degree to which it is open is decided by the birth-parents and adoptive-parents. For those who do not know what open and closed adoption is, open adoption is when the child knows the birth-parents and can even have a relationship with them, while closed adoption is when the child is unaware of who their birth-parents are and the birth-parents do not know who adopted their child. Semi-open is a blend of both.
            Closed adoption can be good for both birth and adoptive parents, and depending on the situation, the child. In a closed adoption, the adoptive-parents do not have to worry about the influence of the birth-parents on the child, and the birth-parents can move on from what they gave up since they are not involved in the child’s life. Closed adoption can also be good for the child in that the birth-parents could be a bad influence and could impact their development in a negative way. However, the child would go through their life not knowing about where they came from and will wonder where they would be if they weren’t adopted. They will also wonder who their birth-parents are, and that can create a fantasy parent. This is when a child imagines who their parent was, and creates an unrealistic person in their mind. Moreover, just like fear of the unknown, not knowing who their parents are can haunt someone and affect their emotional development, relationships with others, and their connection to the parents that actually raised them.
            Open adoption can be good for all parties involved. The birth-parents can still see their child grow up and see the good situation their child is in and that they made the right decision to give them up for adoption. However, the birth-parents might be upset that they are not raising their child themselves. Despite the possible emotional issues with the parents, the child gets to have some closure and a possible relationship with their birth-parents. Instead of wondering for the rest of their lives where they came from, who their parents are, and what their life could have been like, the child has peace from the knowledge they receive from having their birth-parents in their life. However, this can create conflict between birth-parents and adoptive-parents, and is a big factor in deciding what type of adoption is best. Moreover, there may be behavioral issues with the birth-parents that caused the adoption in the first place that may make an open adoption untenable.
I can attest to the idea of constant wondering, as I am adopted. I was adopted at birth by two amazing parents and into a wonderful Christian family with two of the best older brothers a sister could ask for. I do not doubt for a second that I am in the best situation. However, that does not eliminate the wondering I have. I have always been curious as to who my birth-parents are, how my life would turn out if I wasn’t adopted, and how much of who I am comes from my biological parents. I don’t know about anyone else, but not knowing things, especially big things such as this, can cause me a lot of stress and anxiety. My mind wanders and flies around looking for answers, only it feels I am never able to land on solid ground. An outsider might say it’s looking for the part of me that has always been missing. There’s something about the biological connection one has to family that you don’t know is absent until you are in a situation like mine. Now, my adoptive parents are my parents. They’re the ones who raised me and they’re the ones who take care of me. But that doesn’t mean I don’t feel as though something’s missing. Not to mention, everything could have turned out differently. Every argument, every fight, every bad outcome is made worse by the idea that there was a possibility it couldn’t have happened. I could have been adopted into a different family or I could have just not been adopted and this whole problem that’s causing me pain could have never happened in these other scenarios. However, just like I wonder about the good that might come from not being adopted, there is also bad.
I say all this because I strongly believe that if I had the opportunity to meet my birth-parents, the wondering would stop. The mystery would be solved. I would have reached the understanding  that I am where I’m supposed to be a whole lot sooner than I did. I know this understanding that I may be disappointed by what I see in them. Still, I would have closure, and that is valuable in itself.
My adoption is a semi-open adoption, although it often feels like a closed one. I know some details about my birth-parents, such as a medical history and that my birth-mother is now married (not to my birth-father) and has three children. That’s it. That’s all I know. To me, that’s not enough.
Since I have turned eighteen, I have started to make steps towards finding my birth parents. I’m not looking for a fairy-tale ending. I know that fairy tale endings are rare in life, but I would like to know. I just want some closure so I can stop wondering, even if the answers may not be what I was looking for.
Open adoption would have solved all these problems. Yet, these problems are nowhere near the possible problems I could have faced if I was not adopted. I am so thankful for my family and for everything they have done for me. I would not be where I am today without them and I am looking forward to seeing how much more I can accomplish and grow all because they gave me the opportunities needed to succeed.
I am quite passionate about adoption. I wouldn’t be writing this if I wasn’t. If I get married and decide to have children, my first step is to adopt or to foster a child. There are children out there that need a safe home with caring parents or guardians. If you’re considering adoption, know that you could be the best place for a child to be and take the leap to provide your love and care that child needs. If you’re considering giving your child up for adoption, think about the child first and foremost. Do what is best for the child, because that is the most important thing.

Written By – Anna M.




Tuesday, July 17, 2018

Why I Check the Box to Donate to Pro Bono

Editor's Note: This letter appeared in the July 2018 edition of the New Hampshire Bar News, and was also published in the NH Bar's E-Bulletin. 


This past year I have begun a new adventure as something I never thought I would be: a father. As I listen to my now one-year old daughter stumble through words like “What’s that!?” and “Mama” and “Dada”, I think a lot about her future, and my own. I feel responsible for who she becomes, and worry constantly about her. I certainly worry too much, but I care a lot about the world she grows up in, and the lessons I teach her as she grows. It’s important to me that my child is someone who helps others. I was raised that way by my parents, and I pray I can do the same for her. As one of my favorite quotes from Abraham Lincoln (and one I have used often), “When I do good, I feel good, and when I do bad, I feel bad. That is my religion”. I hope to impart that on her as she becomes her own independent person.

Pro Bono is something I am passionate about, and always something I will advocate for. As a program, we do really awesome things for so many people. We help domestic violence victims get protection, we help tenants defend themselves against landlords and their expensive attorneys, we help people with old criminal convictions get new beginnings, and help countless others. This is arguably the most important work I am doing, and something I think about how I can be better at.

When I check the box, I think about all the people we are able to help, the incredible attorneys sacrificing their time to help them, and the communities that benefit from this program.  Checking the box and donating to pro bono helps bring a positive message to our fellow citizens, and the people we represent. This message is important to me, especially as a new dad fretting over the world his one year old daughter is going to grow up in. I think about the help our donations will provide to a program that helps provide access to justice to the most vulnerable members of our society.

Check the box. It will feel good, and it will go to a great cause. Please consider it when you renew your dues this year.


Rory J. Parnell
Parnell, Michels & McKay, PLLC