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.

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.

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.