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Why you may need a parental power of attorney

If you are the parent of young children, you may occasionally need to leave them in the care of a close friend during a quick business trip, or perhaps with the grandparents while you take a kid-free holiday. Or, you may routinely leave your children in the care of a nanny. When and if you do, you should consider taking the step of creating a Parental Power of Attorney (POA), also called a Power of Attorney for Child.

Like all POAs, this legal instrument grants another person, called the “agent,” the authority to make decisions that only you would otherwise be able to make. If you are not immediately reachable during a time-sensitive situation, whether a life-threatening emergency or a more routine matter, the parental POA allows your trusted agent to make decisions for your child on your behalf.

An example of such a situation is a case of a medical emergency, perhaps a broken limb or appendicitis. Another is an activity that requires parental consent, such as a field trip for school or a visit to the go-cart track with friends. In these cases, a parental POA allows your agent to provide consent, preventing delayed medical care or exclusion from activities.

Like any POA, a parental POA is highly customizable in terms of the scope of authority granted and its duration. Sometimes a simple note is sufficient, but this more robust option can give you greater peace of mind and flexibility. If you plan to leave your child in the care of another for any significant length of time, speak with your estate planning attorney about a parental power of attorney.

Posted on Friday, December 30th, 2016 at 7:06 pm under Divorce and Family Law.
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Special Limits on Wage Garnishment

In a previous blog post, http://www.brandonlawoffice.com/2016/06/heres-how-much-of-your-wages-can-be-garnished-to-pay-your-debts, we covered the broad limitations that federal and state laws place on wage garnishment. Wage garnishment is when a creditor sues you to have part of your income diverted directly to them to pay your debts. There are certain general limitations on how much of your income may be garnished and special limits on certain types of garnishment.

Wage garnishment for unpaid, court-ordered child support is generally limited to 60 percent of your disposable income. If you are additionally responsible for supporting a spouse or child not covered by the order, the limit is 50 percent. For support overdue by 12 weeks or more, an additional five percent may be garnished.

For federal student loans in default, the Department of Education may garnish up to 15 percent of your disposable income. But they cannot garnish more than 30 times the federal minimum wage ($217.50) per week.

If you are subject to more than one wage garnishment, the total garnishment permitted by law is 25 percent of your income.

One additional protection offered: Because complying with wage garnishment creates a certain burden on your employer, they may be inclined to fire you rather than comply. Federal law protects you from this if you have one wage garnishment. However, that protection does not apply if you have more than one garnishment order against you.

As you can tell, the law provides an assortment of protections against excessive garnishment, but these can be quite complicated. If you are having trouble paying your debts, you need the help of an attorney. Contact Olivero Law today.

Posted on Wednesday, July 27th, 2016 at 5:15 pm under Bankruptcy.
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Here’s how much of your wages can be garnished to pay your debts

If you do not pay your debts, your creditors may try to take a portion of your income directly from your employer. This is called wage garnishment.

Fortunately, there are limits to how much of your income may be garnished so that you can hopefully keep paying your basic living expenses. The limits are based in part on “disposable income,” which is income remaining after certain deductions, such as income taxes, Social Security and required contributions to retirement plans.

The maximum garnishment for most creditors is the lesser of

  • 25 percent of your disposable income, or
  • the amount by which your weekly income exceeds 30 times the federal minimum wage ($7.25), or $217.50

In Florida, if your disposable income is less than $217.50, no wages may be garnished at all.

Florida also has a “head of family” exemption. The head of a family’s wages may only be garnished if they exceed $750, and only if they agree in writing to have their wages garnished. This is a very powerful exemption against wage garnishment, but importantly, it does not automatically apply — it must be claimed in an affidavit filed with the court.

If you are facing wage garnishment, contact Olivero Law today.

In a later post, we’ll cover special limits on certain types of wage garnishment.

Posted on Wednesday, June 15th, 2016 at 5:05 pm under Bankruptcy, News and Press.
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Another family law reform bill falls to Gov. Scott’s veto pen

Florida Gov. Rick Scott vetoed a contentious bill that would have reformed the state’s alimony system and altered rules on child custody in divorces.

The bill would have required judges in divorce proceedings to adopt a premise for approximately equal time-sharing of children between spouses. Judges could adjust the split based on 20 factors listed in state law.

Scott objected to that provision, saying it would put some parents’ interests ahead of those of their children.

Scott did not comment on the bill’s proposed changes to alimony rules, which would create a formula for payments based on each spouse’s income and the length of the marriage. It also would have terminated permanent alimony payments upon a spouse’s remarriage and allowed for a review upon their reaching retirement age.

Another controversial provision would have permitted alimony renegotiation if the recipient’s income rises by 10 percent. Opponents of the bill said that trigger was set too low, endangering the welfare of recipients, primarily women, who through hard work made progress in providing for their children.

In 2013, Gov. Scott also vetoed a major family law reform bill, which likewise created a presumption for equal child custody. He said that bill would have been unfair to alimony recipients because it would have applied retroactively to longstanding alimony judgments. This year’s bill did not contain retroactive provisions.

Posted on Wednesday, May 18th, 2016 at 11:29 am under Divorce and Family Law, News and Press.
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Bankruptcy can be a good thing

When businesses declare bankruptcy, sometimes they come back better than ever.

That’s what executives at retail giant Sports Authority are hoping they can achieve. Like many businesses focused on brick-and-mortar stores, the chain has struggled in recent years as consumers have shifted toward online shopping. The company has filed for Chapter 11 bankruptcy protection, giving it a period of time to reorganize, during which it will be protected from creditors.

Some people mistakenly think that when a business declares bankruptcy, that means it goes out of business forever. And indeed, about 140 of the chain’s 463 stores will close, including at least two in the greater Tampa Bay area. However, CEO Michael Foss said the move will allow much-needed investments including upgrades to stores and website enhancements, resulting in an improved experience for customers.

In January, Sports Authority missed a $20 million interest payment to creditors.

Many companies have filed bankruptcy and later achieved stability, or even impressive growth. Examples include General Motors, Marvel Entertainment, Six Flags, American Airlines and Kodak.

Posted on Friday, April 15th, 2016 at 11:24 am under Bankruptcy.
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No, you won’t be arrested for nonpayment of debts

The headlines on stories about a recent incident in Texas may have debtors worried about what could happen to them if they fall behind on their debts.

A Houston man named Paul Aker was involved in a sequence of events that began with defaulting on a student loan and ended with his arrest. In a subsequent interview with a local Fox affiliate, the caption displayed on-screen said that Aker was “arrested by US Marshals for student loan debt.” Print headlines weren’t much better. Viewers could be forgiven for thinking that we had gone back in time to the days of debtors’ prisons.

Fortunately for all of us, law enforcement officers are not, in fact, arresting anyone simply for nonpayment of debts. In 2007, a default judgment was entered against Aker when he failed to respond to a complaint of nonpayment. Five years later, Aker was ordered to appear at a deposition to explain why he was still not making loan payments. The court specifically noted that he would be arrested if he did not appear in court.

When Aker still failed to comply with court orders, a warrant for his arrest was issued, and U.S. Marshals began searching for him. It took nearly four years for them to locate him, at which point they arrested him at his Houston home and took him to court to sort out the matter.

Falling behind on your debts is a serious matter, but not so serious as to lead directly to your arrest. That is, of course, unless you repeatedly fail to respond to court orders. If you have debt problems or are ordered to appear in court, seek the help of an attorney right away.

Posted on Wednesday, March 9th, 2016 at 12:17 am under Bankruptcy.
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Protect yourself against these common debt collection scams

There will always be someone out there who, given the chance, would not hesitate to steal your hard-earned money from you. This post will help you spot a scammer a mile away and keep what’s yours.

One popular racket among scammers involves calling people on the phone, pretending to be from the Internal Revenue Service, and demanding immediate payment of taxes owed. They threaten jail time and often demand payment by a specific method. According to the IRS, at least 5,000 victims were cheated out of some $26 million since 2013 — an average of over $5,000 each.

You should know that the IRS virtually never calls taxpayers, and absolutely never demands immediate payment over the phone. They never demand a specific form of payment. And jail time for unpaid taxes is not common; it is a punishment usually reserved for people willfully avoiding large tax liabilities.

Criminals running more general scams often fraudulently obtain people’s credit reports. That way they can call about a debt you actually owe. Like those posing as IRS agents, these scammers will demand immediate payment via a specific method and threaten jail time or law enforcement involvement. They may be unusually harassing and rude.

Again, no legitimate debt collection agency is going to demand payment “today,” refuse to accept various forms of payment or threaten jail time. Another tell-tale sign is if the caller refuses to give a physical mailing address. If you call back and a live person immediately answers, or if you speak with the same individual each time you call, these are red flags. Real debt collection agencies have phone menus or receptionists and multiple agents, any of whom might work on your case.

Ignoring scare tactics and knowing how scams work can help protect you against scammers. For real problems with real debt, contact Olivero Law.

Posted on Monday, February 15th, 2016 at 11:23 am under Bankruptcy.
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Avoid Probate by Making Financial Accounts Payable on Death

Probate can be a time-consuming and, in some cases, expensive process. Probate is not avoidable in every case, but with some advance planning, the need for probate can be minimized. Designating beneficiaries for financial accounts and other assets is a useful tool to avoid or limit probate.

Bank accounts can be made payable-on-death (POD) by requesting the appropriate form from your bank and naming the beneficiary. As long as you are alive, the beneficiary cannot access the funds. Upon your death, the beneficiary simply provides the bank with proof of your death and their identity, and the funds become theirs without going through probate. A joint account can also be made POD, in which case the account becomes the property of the beneficiary after both owners of the joint account die.

Retirement account holders may also name beneficiaries for these accounts upon opening them or at a later date. Further, brokerage accounts and even individual stocks and bonds are, in most states, able to be made POD under the Uniform Transfer-on-Death Securities Registration Act.

Residents of some states can name beneficiaries for their vehicles as part of their vehicle registration. Some states also allow real estate owners to name beneficiaries of the property. This is accomplished by preparing a transfer-on-death deed. If you wish to explore these options, speak with a probate attorney to see if your state allows them.

You should also speak with an attorney if you are married and wish to name a beneficiary other than your spouse or children. Laws vary as to whether they have rights to certain assets that supersede beneficiary designations.

Finally, an important thing to remember is that if you wish to designate a new beneficiary for your assets, for instance if you get a divorce, each individual account must be updated to name your new beneficiary.

Posted on Saturday, January 16th, 2016 at 12:33 am under Estate Planning.
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Keeping your home in Chapter 7 and Chapter 13 bankruptcy

Homeowners considering filing for bankruptcy often wonder whether doing so means they will lose their home, and whether Chapter 7 liquidation or Chapter 13 reorganization is the better option. Most homeowners can keep their homes if they wish, and the situation is even better for Floridians than for most others.

Those filing Chapter 7 bankruptcy must liquidate any non-exempt assets to pay their creditors. This means that if you have equity in your home, your trustee may sell it to pay down your debts. State and federal guidelines exempt certain amounts of home equity from this process. In Florida, however, there is no limit to how much equity is exempt for most homes. Therefore, while most Americans with a good deal of home equity are well advised to file Chapter 13 instead of Chapter 7, that does not necessarily apply to Floridians.

Other situations make Chapter 13 a better prospect than Chapter 7 regardless of where you live. If you are behind on your mortgage payments and file Chapter 13, your mortgage “arrears” will be incorporated into your court-ordered payment plan, giving you three to five years to catch up on missed payments. You are therefore protected from foreclosure during the Chapter 13 process if you stay current on the loan and your bankruptcy payment plan.

If you have a second mortgage or other “junior lien,” the process of “lien stripping” may permit you to get rid of it. When a lien is stripped, the lender is treated as an unsecured creditor and will usually receive little to no money in your payment plan. Lien stripping is permitted in Chapter 13 bankruptcies, but not Chapter 7.

Chapter 13 bankruptcy is probably a better choice if you have missed mortgage payments, if you want to get rid of a junior lien, or if you have significant non-exempt equity. Otherwise, Chapter 7 may be a simpler and faster way to reduce your debt burden and keep your home.

Posted on Saturday, December 12th, 2015 at 11:01 am under Bankruptcy, News and Press.

Keep recent and up-to-date powers of attorney for an effective estate plan

Powers of attorney are a very important part of an effective estate plan. A power of attorney is a legal document that grants a person whom you trust, called your “agent,” the power to act on your behalf in certain ways and under certain circumstances. For instance, a durable power of attorney for health care might enable your spouse to make decisions about your medical care if you become incapacitated. A financial power of attorney might permit your adult son or daughter to execute transactions on your behalf.

A potential pitfall that can make your plans go awry is having outdated powers of attorney. There are several reasons why a power of attorney can become outdated. For instance, if your agent passes away or becomes incapacitated or otherwise unavailable, the document is obsolete. Or, you may decide that you no longer trust your agent and want to name a new one. This is common in the case of divorce.

If you have moved to another state since creating your powers of attorney, this is another reason to update them. Some terms have differing legal meanings in different states, and states have varying requirements for filing powers of attorney with the government.

Even if your circumstances are unchanged since creating your powers of attorney, it is still a good idea to sign new ones every three to five years. Some financial and medical institutions may be hesitant to honor older documents due to liability concerns.

If you have powers of attorney that are more than a few years old, or if you lack them entirely, contact Olivero Law today.

Posted on Wednesday, December 2nd, 2015 at 8:09 pm under Estate Planning, News and Press.
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