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Legal Information - Legal Opinions
The Legal Blog from Resources For Attorneys is published as a legal resource for attorneys, lawyers and the general internet public. Resources For Attorneys is not a law firm and nothing contained herein is offered as actual legal advice. All information and comments contained herein should be verified with a retained attorney before being acted upon.
Power of Attorney - Use With Caution
by Staff at Resources For Attorneys
8 Apr 2011 at 4:03pm
A power of attorney is an instrument that authorizes an "agent" to act on behalf of someone else (the principal) in a legal or business matter. When an elderly woman executed a power of attorney that gave her younger sister certain powers, a dispute arose when the younger sister used her power to name herself as the beneficiary of the elderly woman's life insurance policy. The dispute was with the elderly woman's children and grandchild, who had been beneficiaries under the policy until the younger sister with the power of attorney put herself in their place.
The children and grandchild argued to no avail that the terms of the power of attorney instrument did not give the younger sister the authority to name herself as the beneficiary of the life insurance policy. Unfortunately for them, the instrument language was broad enough to authorize the agent to change the beneficiaries of the principal's policy, where it authorized the agent "to transact all insurance business on [principal's] behalf, to apply for or continue policies, collect profits, file claims, make demands, enter into compromise and settlement agreements, file suit or actions or take any other action necessary or proper in this regard."
It was significant that the power of attorney did not incorporate by reference the various powers listed in the Uniform Durable Power of Attorney Act. In cases in which the powers listed in the Act are incorporated by reference into the power of attorney, an agent is not authorized to change the beneficiary of the principal's life insurance policy unless the principal has expressly authorized the agent to do so within the power of attorney. Since there was no mention of the Act in the instrument in question, but only a broadly worded grant of authority, the sister had not exceeded her powers.
Although the children and grandchild lost on the issue of how to interpret the agent's powers, they were still free to raise other arguments if they had factual support. These included arguments that the elderly woman did not have the mental capacity to execute the power of attorney, that her execution of the instrument was not of her own free will but was rather the result of the duress, coercion, control, and/or undue influence exercised by her sister/agent, and that the sister/agent's action in changing the beneficiary of the policy to herself was a violation of her fiduciary duty to the principal.
A power of attorney can be a valuable tool in estate planning, but it should be properly drafted to ensure that the powers contained therein are appropriate. Always consult with a qualified professional before executing a power of attorney.
By: Bill G Peterson
Bill Peterson is a Minnesota Probate Attorney with over 40 years of experience as a lawyer. His firm, Peterson Law Office, is pleased to help sort out the intricacies of Minnesota Probate. For more information, please visit http://www.mnprobate.com or call toll free at 1-888-910-5297.
The contents of this article are for information only and is not to be interpreted as legal advice. For personal legal advice you should consult with an attorney who is experienced in probate law or estate planning.
Rape and Aggravated Sexual Assault
by Staff at Resources For Attorneys
12 Mar 2011 at 11:59pm
Sex crimes carry heavy penalties no matter what the specifics are regarding the offense. For those accused of illegal sexual acts such as rape or aggravated sexual assault, there can be damaging social repercussions even before a conviction. An important way to help avoid harm to your personal and professional life is to take immediate action to defend your innocence in this sort of case.
Penalties for Rape and Aggravated Assault
Aside from the social stigmas associated with a sex crime accusation, there are many legal consequences to a conviction. Although the details may vary from state to state, there are general standards for the penalties attached to this sort of crime. The following is some basic information regarding the offenses and punishments for these two illegal acts:
Aggravated Sexual Assault- An individual commits this crime when they demand or force sexual activity on another by threatening physical violence, death, or kidnapping. If the victim is under a certain age or considered elderly, any type of sexual activity may result in this charge. If the aggressor uses a deadly weapon or compromises the lucidity of the victim with drugs, any subsequent acts may be considered aggravated sexual assault. In most states, this is a felony and may be punished with extensive jail time, heavy fines, and a permanent entry to a sex offender database.
Rape- This offense is defined as forcing participation in sexual activity with another individual This is usually associated with slightly less severe consequences compared to aggravated sexual assault; however, it can still result in lengthy incarceration, hefty fines, and registration as a sex offender.
By: Karen Whitehurst
If you or someone you love has been accused of aggravated sexual assault or rape, contact the Dallas sex crimes defense attorneys at the Lassiter law office.
Filing a Wrongful Death Claim
by Staff at Resources For Attorneys
12 Mar 2011 at 11:55pm
Until one is faced with the realities of filing a wrongful death claim, it is not something that is usually "top of mind". If you are facing the loss of a loved one and considering this type of legal action, there are some very important questions that must be answered before you move forward.
Look for attorneys who specialize in wrongful death suits, they are usually asked about case eligibility first, as each state has different requirements about who is eligible to file such a claim. Most of the time, the deceased person's heirs are able to seek financial damages for their loss, which would include parents, children, siblings and spouses.
It is incumbent upon the claimant in these cases to prove that the deceased party died because of the negligence, recklessness or illegal behavior of another person, and that the damages they seek are a direct result of their loved one's death. This could be interpreted as monetary loss, such as income from a job, that has been incurred because of the death, but it can also be manifested in other ways.
Filing a wrongful death claim and winning compensatory damages usually requires the plaintiff to seek counsel from a qualified attorney. An attorney can help you win compensatory damages, including reparations for the stress and grief caused by the loss of a loved one's companionship. In many cases, punitive damages will be sought to prevent the defendant from engaging in the behavior that caused the wrongful death, but most people seek compensatory damages only.
If you want to learn whether your case could potentially result in a wrongful death suit, the best way to find out is by consulting directly with the attorneys who have the experience and know-how to help you with filing a claim.
Summary
Filing a wrongful death claim is best done by attorneys who specialize in these types of suits as each state has different requirements about who is eligible to file a wrongful death claim. In most cases, the deceased person's heirs are able to seek financial damages for their loss if it can be proven that the deceased party died because of the negligence, recklessness or illegal behavior of another person, and that the damages they seek are a direct result of their loved one's death.
By: Matthew Clawson
Matthew Clawson is an attorney at Clawson & Clawson, LLP. He strives to deliver first-rate legal services quickly, efficiently, and aggressively in Personal Injury Law, Family Law and Criminal Law. He is dedicated to the philosophy that the most effective and cost-efficient legal services are provided by attorneys who maintain their integrity and communicate honestly with clients.
Matthew Clawson updates his blog weekly with valuable legal advise, visit the Clawson & Clawson website at http://www.clawsonlawfirm.com
(c) copyright Clawson & Clawson, LLP. All rights reserved worldwide.
Benefits of Criminal Record Expungement
by Staff at Resources For Attorneys
12 Mar 2011 at 11:47pm
When someone is accused of a criminal act, they face not only the immediate consequences of their actions, but the long term consequences as well. In some states even arrest records are made public, in which case anyone who is accused of a crime, even if they are innocent, may be subject to unfair public scrutiny.
If the accusations proceed to a criminal conviction, the defendant will face sentencing which may include fines, probation and possibly jail time. Their permanent record will also be forever marred by the conviction, affecting future employment opportunities and certainly quality of life.
In some of these unfortunate situations, a defendant may be able to petition the courts for a criminal record expungement which will give them the opportunity to have their permanent record wiped clean of any mention of the conviction. If the expungement is successful, then for all intents and purposes, the conviction will be treated as though it never existed. Some states also allow a complete expungement which will erase even the public record of the arrest. Depending upon the state, certain offenses may have no chance for expungement, such as sex crimes or child abuse.
Situations in which an expungement may be honored include:
• New DNA evidence leading to a finding of innocence.
• Minor violations such as jaywalking or speeding may be expunged from a permanent record.
• Completion of a "deferred sentence" such as probation, anger management, alcohol treatment or
community service within a specific period of time.
• Acquittal at trial or an overturning of the conviction.
• Gubernatorial pardon.
Benefits of a successful criminal record expungement are that the accused is able to move forward from the criminal proceedings with peace of mind knowing that their criminal record will not be affected by the situation. For some this means that an embarrassing mark on their personal history will be erased, but for others it means the difference between the ability to gain future employment or not. Following expungement, no future employer will be able see the felony or misdemeanor on the record, nor will the defendant be required to report the charge during an employment interview.
In some states, a person convicted of a felony may lose their voting rights or their rights to bear arms. In these situations an expungement can help restore their every day rights.
To successfully get a criminal record expunged, a defendant must consult with an experienced lawyer who has a record of successful expungements in their state. Attorneys can ensure that the proper steps are followed, including petitioning of the correct judges with complete and accurate paperwork.
By: Andrew Sarski
For more information on how to obtain a criminal record expungement, contact an experienced criminal defense attorney with a history of successful expungement wins in your state.
Defective Drugs and Medical Malpractice
by Staff at Resources For Attorneys
12 Mar 2011 at 10:38pm
There is an axiom that goes around which says 'accidents do happen', well, it is true, accidents do happen, but what if that accident was due to negligence which caused injury to someone? It isn't a favourable thought to think that injury could be caused by defect in drugs, but it is a reality that injuries do occur because of either drugs or medical equipment.
There are a number of situations that have caused injury to people either through incorrect use of medical equipment or negligence when giving correct medication to a patient.
Plastic surgery and breast implants have caused a rise in claims against the medical industry due to specialist being negligent when offering their services to people which caused injury. Cases such as women being injured due to defective breast implants where the implants ruptured or caused a reaction to the silicone used in breast implants.
Another common example of negligence is by giving a client incorrect medication. This seems to be one of the more common forms of negligence, but a bottle with an incorrect label given to a patient could turn out to be fatal; especially if a patience takes a number of drugs and the wrong drug is given which interferes with other prescribed drugs.
Defective drug claims are not restricted only to patients. There are many cases when medical equipment is provided which may have a defect which causes injury to either the patient or the person using the equipment.
If sufficient warning is not given on how to correctly use a piece of equipment, this in itself puts the operator at risk of injury. To use an example, if a welder is not informed that looking directly at the light which comes from welding can blind you, therefore blacked out goggles must be worn, it is down to the negligence of the manufacturer for not informing the operator that their product could cause blindness if not used correctly.
Cases have occurred where manufacturers of body parts used in place of actual organs have caused injury to a patient. For example, imagine the effect a defective heart valve would have on a patient or a contaminated prosthesis inserted into a human body which could cause internal infection. We don't only have to imagine these occurrences to happen, since they are actual cases that have actually happened.
In cases such as these a qualified medical malpractice lawyer would be needed who specialises in such areas to legally represent a client where such injury has occurred from negligence either from the manufacturer of a product or someone performing an operation which caused injury to a client.
There are many case studies in these area's which show that injuries do occur due to negligence of either incorrect use of equipment, mislabelling of drugs or defective products being used on clients.
Whenever a claim is made against a manufacturer or person, sufficient evidence is required to ensure success to a claim. This is where a lawyer who specialises in these areas is required, so when looking around for a representative, always look for previous case studies to ensure they have acted in similar cases to ensure they can effectively handle your case with success.
By: Nicola Bullimore
Nicky Bullimore has been writing articles on various topics for a number of years. Find out more on Personal Injury Lawyers New York and Medical Malpractice Lawyers New York.
Basics Of Premises Liability
by Staff at Resources For Attorneys
12 Mar 2011 at 10:32pm
Every year, thousands of people are injured on property that does not belong to them because of the negligence of the owner, property managers, or commercial property owners. Whenever the property is found to fail to protect the visitors to that location from potential injury, action needs to be taken in the form of a lawsuit.
Some of the most common types of premises liability cases come from slip and fall injuries, objects that fall and cause an injury to someone below, animal bites, or an inadequate amount of general security.
In some cases, the process of obtaining financial compensation in premises liability cases can be a bit difficult due to the fact that determining ownership, the reason for the accident, and personal responsibility is not always clear. That being said, making use of a professional personal injury attorney can help a great deal with these issues, and can make the process much more clear. It can also mean the difference between getting a low or average outcome, and a very favorable outcome.
There is a certain level of responsibility that is to be assumed by everyone. Anytime you are in a public location, you are supposed to act in an appropriate manner, and take reasonable pains to be safe. When this level of care is taken by a person, yet there are other factors that contribute to an injury, there is usually a good chance of a successful premises liability claim. These claims are often filed against retail outlets, such as shopping malls, and supermarkets; sporting event hosts, such as stadiums; hotels and motels; amusement parks; bars and restaurants; and parking lots and ramps. Since these places obviously invite the public to enter and take part in activities on site, and in many cases to spend money, you are entitled to be safe from harm while present.
Here are some examples of cases regarding premises liability that resulted in large settlements:
Carbon Monoxide Injury due to Defective Apartment Heater
In one case, a landlord was held liable for brain damage that was inflicted upon a mother and her young son when they endured chronic carbon monoxide exposure in the apartment they rented. The two experienced an unsafe level of daily exposure to CO levels, because of a gas heater that was not properly working. The landlord did not perform regular inspections on the unit, did not maintain the unit, and did not make the necessary repairs to the heater. The apartment was also not equipped with a carbon monoxide detector. As time wore on, the mother and son began to develop headaches, and nausea.
Once it was determined that the two had been exposed to high amounts of carbon monoxide, both were tested and had carboxyhemoglobin levels that were extremely high. The chronic exposure had caused the mother and son to have mild brain damage that is not reversible, including a lack of emotional liability, concentration function, and executive function. The landlord was held liable and was forced to pay for all past, present, and future care expenses.
Sidewalk Defects Leading to a Trip and Fall
In this case, a sixty two year old physician fell in a city parking lot, which was currently being renovated. The owner of the parking lot had hired a private contractor to perform the work at the city location, which included the installation of embedded planters that were to be located next to the pedestrian walkway. These planters, which required a three and a half inch drop off were left unfilled, unplanted, and unmarked during the last portion of the construction process. Because of this, both the owner and the contractor were held liable because they did not take steps to warn of the hazard. When the man fell, it was in the evening, and there were no clear signs marking the change in the level of the pavement. The man fell, fracturing his right wrist, which prevented him from being able to perform his physician duties. Damages were awarded for medical expenses, as well as for loss of wage earnings.
Merchandise Not Secured, Falling onto Customer
A three year old child was severely injured when a display fell on top of her in a store. The child was with her parents, when the accident happened. The manager of the store first tried to claim that the display fell because the child caused it to fall, when this did not work; the manager claimed the parents should have been watching the child. Since the child was under the age of five, no contributory fault could be assigned. The display was built into a door jamb and was advertising replacement doors. The display weighed more than one hundred pounds, which caused severe cuts to the child, along with scarring that may be permanent.
Defective Chair Causing Injuries to the Back
A thirty six year old woman was dining at a restaurant when the back of her chair broke off, causing her to fall onto the floor. As a result of this incident, the woman hurt her back, causing chronic pain from a herniated disc. The woman was forced to undergo painful surgery to repair the disc. The woman received a settlement for her injuries as well as for punitive damages because it was later proven that the restaurant had been notified that the chair was broken for a period of time before the accident, yet did nothing to repair it.
These are just a few cases of different types of premises liability. Any time you or someone you know has suffered any type of injury due to someone else's carelessness, negligence, or outright disregard for safety it is extremely important that you contact a personal injury attorney as soon as possible. Even though the injuries cannot be undone, damages can be sought to help repair some of what has been lost. A personal injury attorney has plenty of resources available to help you throughout every aspect of your case. Since laws vary from state to state, it is best to consult with a professional immediately to ensure you get the very best outcome.
By: Chris N. Jackson
For information on personal injury lawyers & attorneys, visit the Philadelphia law firm website FeldmanShepherd.com.
What to Do When Filing For Disability
by Staff at Resources For Attorneys
12 Mar 2011 at 10:21pm
All the work that goes into a disability claim can seem overwhelming to those desperately in need of a source of income to stay out of poverty. Thankfully, social security disability lawyers can help with all of the paperwork and technicalities. However, there are some things you need to keep in mind when making a claim.
Before you begin, you need to make sure you have full proof medical evidence from your doctor stating that you have a disability and how it prevents you from working. Even if you are ordered to take a physical exam by the Social Security office, you should have documentation from your primary care physician in addition to it. During this whole initial process, make sure you keep track of time lost from work as well. The more documentation you have, the better.
During the filing process, you need to keep three things in mind. First, you need to make sure you follow all of your doctor's instructions on treating your disability. If you fail to do so, you will likely find that your claim has been denied. Second, be as helpful as possible by cooperating with whoever is filing your claim at the Social Security office. Yes, there is a lot of red tape to get through. But showing anger and frustration or not complying with their requests will only result in your claim taking longer to go through the processes or worst of all, being denied. Lastly, if you can still manage to do other part time work, make sure you do not exceed $1,000 per month. You are only allowed a maximum amount of $1,000 per month before you are automatically denied benefits because your income is deemed too high. Do not let the system deny you benefits when you know you can no longer actively work a full-time position. Be honest, but do not test push your limits if you have a serious injury.
After your claim has been filed, it is important not to panic if you are initially denied. If you have done everything right, you still have a case to be made and can file an appeal. This is where social security disability lawyers really come in handy. Do not try to file another claim, as not appealing one that has already been denied will count against you when the social security administration looks at your second claim. Always pursue an appeal first. For the best results, be sure to consult with the proper attorney.
By: Darren Hamels
Darren Hamels is a social security disability lawyer with over ten years of experience who maintains a regular blog discussing the field of law.
What Are Blue Laws?
by Staff at Resources For Attorneys
23 Jul 2009 at 12:04am
Whether or not you are familiar with the term, you are almost certainly affected by them in your day-to-day life. Blue laws are laws which are not federally enforced (and have in fact occasionally been struck down as unconstitutional) but are commonly established on a local or municipal level to enforce moral and religious expectations. A common example of a blue law that we see frequently is the closing of liquor stores on Sundays.
History
Blue laws are actually some of the oldest laws in the United States, having been common in the colonial period, especially in the Puritanical strongholds of the Northeastern Seaboard. Such laws often required citizens to attend mandatory church services and conduct themselves in certain "moral" ways. It is this concern about morality that provided the etymological term "blue," which was an 18th century idiom for being overly concerned with morality.
Blue Laws Today
These laws persisted well into the 20th century, especially in southern states. For example, in Texas, it was illegal until the mid-1980s to sell housewares on Sundays. Even today, both Texas and Utah prohibit car dealerships for being open two weekend days in a row. And many states obviously still prohibit liquor sales on Sundays. Somewhat counter-intuitively, the affected businesses often support these laws, as they allow a day off without fearing the competition getting an advantage.
Common Blue LawToday
The following states prohibit the off-premises sale of spirits on Sundays:
* Connecticut
* Georgia
* Indiana
* Minnesota
* Mississippi (some counties are exceptions)
* North Carolina
* Pennsylvania (on a store-by-store basis due to license restrictions)
* South Carolina (with some exceptions for beer and wine)
* Tennessee
* Texas
* Utah
* West Virginia (beer and wine may be purchased after 1pm)
Legality Status
Because blue laws can be purported to have a religious bias, they can often be struck down if brought to a high-enough court. However, the remaining blue laws have usually been deemed constitutionally sound because many of the laws regarding stores being closed have their basis in a secular day of rest; i.e., they do not involve any sort of religious prejudice. This belief was established judicially by the Supreme Court in the landmark case McGowan v. Maryland, which upheld blue laws in the state which prohibited commercial activities on Sundays. The Court noted that while those laws were originally put on the books because of the Christian sabbath, they had since grown to provide a secular, uniform day of rest for citizens.
By: Joseph Devine
If you have more questions about the legality of blue laws, visit http://www.slaterandkennon.com
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