Jolley Law Group

Choosing an Agent under Power of Attorney- And an Alternate!

Tue, 19 Dec 2023 17:08:00 GMT

Choosing who will serve as your agent under Power of Attorney may seem obvious at first glance. For instance, a married individual may easily choose their spouse to serve as their agent. Choosing one stable, trustworthy agent to manage your affairs if you cannot do so yourself may seem like a no-brainer, but what about the alternate agent? You also have to decide who will step in as an agent if your first choice can no longer serve or is unwilling to serve. Will this be a child? A trusted friend? A neighbor?

The temptation for most is to pick a family member as an alternate. We often see Powers of Attorney with a spouse as the first agent and a child as the alternate. For some families, the child is the alternate for both husband and wife. For other families, specifically families with children from previous marriages and relationships, the husband may choose one of his children, and his wife may choose one of her children.

It is essential to remember that if two different alternates serve as agents for husband and wife, they must work together to care for both husband and wife. Disagreement amongst agents can lead to unwanted results and even litigation resulting from quarrels over a person’s care, joint money management, and how to manage or dispose of joint assets. A litigation scenario we see often is different children serving as agents for each parent. When those children cannot agree, there are unintended results and added attorneys’ costs.

For these reasons, it is helpful to think about who your alternate will be and who will be your first agent’s alternate. In some circumstances, your agent’s alternate under their Power of Attorney may even be able to act on your behalf. For this reason, you must also trust and feel confident in your agent’s alternate. Most importantly, when looking at agents and alternates, always ensure that you feel confident that each agent will be able to work well together to carry out the joint intentions of both you and those close to you.

Making the right choices when getting a Power of Attorney can avoid extensive litigation in the future. Always remember to consider whether any individual who may serve as your agent will be able to fully understand and respond to their fiduciary duties as an agent. It is crucial to elect someone honest, dependable, organized, and who knows your wishes. Contact Jolley Law Group with any questions regarding your Power of Attorney.

Jolley Law Group

Protecting your Beneficiaries Through Ongoing Trusts

Wed, 13 Dec 2023 16:28:00 GMT

Regarding revocable trusts, one of the most important issues estate planning attorneys deal with is how to distribute assets to beneficiaries at the death of the client. For instance, should assets be distributed outright, in trust until the beneficiary reaches a certain age, or should the beneficiary be protected from themselves or from others?

Separate, ongoing Trusts for beneficiaries are great for several reasons. First, they can provide some creditor protection to the primary beneficiary. Upon the Settlor’s passing, an irrevocable trust for the benefit of a beneficiary is created. For maximum creditor protection, there should be an independent trustee, the trustee’s discretion should be guided by ascertainable standards for distributions of income and principal (or be fully discretionary), and the beneficiary should not have the right to withdraw income or principal. Of course, some clients do not want to prevent beneficiaries from enjoying assets freely, which is understandable. However, if the assets are simply distributed to the beneficiary outright – without limitations – those assets become subject to the beneficiary’s creditors. Depending on the size of the estate and the beneficiary’s maturity, financial status, or decision making, this may or may not be a concern for a client.

Often, a happy medium can be found by distributing a specified amount to a beneficiary upon the client’s death, with the remainder of assets continuing in trust for the benefit of the beneficiary and the beneficiary’s descendants. Another option is to distribute a fraction of the assets at certain ages once the beneficiary has reached an age of maturity. A client’s definition of “age of maturity” will often vary, even between their own beneficiaries.

Here’s an example of a client that has two children, Susan and Billy, and $4 million in current assets that will eventually be divided equally between the two children. Susan is 50 years old, a surgeon, has no children and no debt. Client is comfortable giving Susan her share outright and free of trust or keeping the

assets in trust but allowing Susan to be trustee with liberal withdrawal rights. Billy is 27, twice divorced, and has 2 children. Billy is financially irresponsible and makes poor decisions. Client does not want Billy’s share distributed to him outright and free of trust. Client wants someone (a trustee) to manage distributions, wants Billy to have what he needs for his health and well- being, and wants the grandchildren to have something for their future. Billy can be prohibited as trustee and has no right to require income or principal from the trust.

These results may seem harsh and can sometimes cause hurt feelings, especially when children are treated differently. However, it is important to remember that these are your assets and by limiting the chance of those assets being wasted, you are prolonging the usefulness of those assets for the beneficiary. Where appropriate, an ongoing trust protects a beneficiary from himself/herself, and also protects the assets from creditors of the beneficiary.

As always, it is important to consult with your estate planning attorney to figure out which plan is best for you and your beneficiaries. By fully explaining your family situation, your goals, and the types of beneficiaries you are providing for, your attorney can customize a plan that fits you and your family. And don’t forget, as people mature and circumstances change, revocable trusts may be modified prior to the Settlor’s death. That is why we encourage clients to revisit their estate plans with us every 3 to 4 years.

Jolley Law Group

Estate Planning Issues for Blended Families

Wed, 08 Nov 2023 15:01:00 GMT

With the divorce rate in the United States approaching 50%, estate planning for blended families is a big part of any estate planning practice.

It is common for spouses to have separate children from prior marriages. Most people want to ensure their children receive at least a portion of their assets after death. One concern, and an issue that frequently arises, is the children’s relationship with the surviving stepparent after the death of the biological parent. As an estate planner, it is important to toe the line between overly restricting the surviving spouse’s access to assets and risking effective disinheritance of a deceased spouse’s children.

If there are enough assets between the spouses, one solution is to have separate revocable trusts with separate terms for each grantor spouse. Each spouse takes care of their respective children through their trust. However, many clients want the surviving spouse to have access to their assets after they die while also ensuring that their children benefit from those same assets. To provide access to a surviving spouse while minimizing the risk that a client’s children receive nothing (or less than the client desires) after death, separate shares can be created that have different access restrictions. One share would go into a Family Trust, which is more restrictive and designed to be a last resort for the surviving spouse. The other share can either go outright to the surviving spouse or remain in a Marital Trust, which generally has minimal restrictions, if any. Suppose the surviving spouse has significant assets, and there is a prenuptial agreement in place (i.e., the surviving spouse has waived the elective share). In that case, the grantor spouse may altogether bypass the marital share and create a Family Trust.

The Family Trust should have an independent trustee. This trust generally distributes net income to the beneficiary spouse for tax purposes (does not have to) and distributions of principal for the surviving spouse’s health, education, maintenance, and support in reasonable comfort (HEMS). The trust should also provide that no distributions of principal should be made unless the surviving spouse has no other source of income or liquid assets at their disposal. If the estate plan fits the clients, there should generally be no need for the surviving spouse to withdraw principal from the Family Trust. This promotes appreciation of the assets in the Family Trust and allows the trust to be the nest egg that the predeceased spouse intended.

There are additional ways to provide for your children in a blended family and endless considerations and situations that dictate the best action plan. Remember, it is essential to ensure the clients understand what happens after one spouse dies, what access the surviving spouse wants and/or needs, and how that fits into the cumulative estate plan. Contact Jolley Law Group for any questions regarding your estate planning.

Jolley Law Group

Estate Planning with Alzheimer’s

Wed, 18 Oct 2023 18:12:00 GMT

November is Alzheimer’s awareness month.

Alzheimer’s is a progressive brain disorder, NOT a normal part of aging. It is caused by brain cell damage and, as it progresses, cognitive ability declines, and simple tasks become troublesome.

According to the Alzheimer’s Association, every 65 seconds, someone in the United States develops Alzheimer’s. The Alzheimer’s Foundation reported more than 6.2 million Americans currently suffer from this disease and by 2060, that number is projected to jump to 13.8 million Americans.

Receiving an Alzheimer’s diagnosis can be overwhelming, causing a ton of questions to arise regarding how to plan for your future. While you still have the legal capacity to make decisions, it is vital to review and update your estate plan.

But where to start?

First, it is important to understand that an Alzheimer’s diagnosis does not mean immediate incapacity. While the disease will eventually affect your cognitive abilities, early diagnosis does not mean you are automatically considered an incapacitated adult, lacking the authority to make decisions for yourself.

What is Legal Capacity?

Legal capacity is your ability to understand the meaning of the documents you are creating and the consequences of those documents. While Alzheimer’s is a disease that will cause cognitive ability to decline, a diagnosis does not immediately mean you lack legal capacity.

Early diagnosis allows for the opportunity to create a plan that ensures you and your loved ones have the tools in place to effectively care for you and fulfill your wishes.

What Types of Documents Should You Have?

A Durable Power of Attorney is a document in which you name an agent to act on your behalf in the event of incapacity and/or incompetency to manage your affairs. Depending on the terms of the Durable Power of Attorney, the document could give the agent access to bank accounts, safety deposit boxes, buying/selling property, paying bills, assisting with nursing care, etc.

A Healthcare Power of Attorney is a document in which you name an agent to act on your behalf in the event of incapacity and/or incompetency, to make any needed general medical and end-of-life decisions on your behalf.

If the Powers of Attorney are not in place and a person lacks the legal capacity to execute the documents, then the person’s family will have to seek Court intervention to declare the person incapacitated and appoint someone to serve as their Guardian and Conservator. The Court process can be expensive for the family as well as time-consuming.

Last Will and Testament

While having powers of attorney in place is important for your care during incapacity, you should also review your goals for your estate after death.

A Last Will and Testament (“Will”) is a document that gives direction to a Probate Court regarding who will administer your estate and how you want your estate to be distributed. When you fail to create a Will, your estate will be administered and distributed per state laws. Rarely do these laws meet the goals of individuals.

Revocable Trust

An alternative to a Will is a Revocable Trust, sometimes referred to as a Living Trust. This mechanism allows you to create detailed instructions regarding the management of your assets during your lifetime, and the distribution upon your death. A carefully drafted trust will not only allow you to make plans for your future care, but also give you a sense of peace regarding the plans you have established for your family’s future as well.

Be Proactive

Alzheimer’s is a terrible disease affecting millions of Americans. However, you can maintain control of your assets and your care by being proactive after a diagnosis and establishing a solid estate plan. Contact Jolley Law Group for help with estate planning.

Jolley Law Group

1031 Exchanges – Defer, Defer, Defer

Mon, 07 Aug 2023 15:35:00 GMT

Tax Free Exchanges of like kind real property used in a trade or business, or for investment, are

allowed under to IRC Sec. 1031. Real property generally qualifies as a like kind asset to other

real property, even if the difference in value or appearance is significant. This technique allows

growing companies to move into bigger buildings and defer tax on any appreciation. It also

allows investors to exchange one rental property for another. 1031 Exchanges do not always fit

the fact pattern, but when they do, they are a great option.

If you receive “boot” (cash) as part of the exchange, you will be taxed to the extent of your built-

in gains on the relinquished property, even if it otherwise qualifies under Sec. 1031. There are

other well-established rules and guidelines that taxpayers should heed in order to defer the built-

in gains on currently owned business or investment properties.

Timeline and Property Classification

The property must be used in a trade or business, or for investment. If you own a rental property

and have decided to upgrade to a different investment property, then you can defer the built-in

gain of your current property. You must identify a like-kind property to purchase within 45 days

of the first sale and close on the replacement property within 180 days. Generally, you can

identify up to three properties. This is helpful if you are unsure of which property you will

actually purchase. Failing to properly identify properties within 45 days of the first sale is

frequently where taxpayers lose the benefit of using Sec. 1031.

The classification of the property as investment must be able to withstand IRS scrutiny. The IRS

has provided a safe harbor for mixed use rentals that allows personal use of the property for up to

14 days in the 12 months before the sale, with a post-exchange period of 24 months that ensures

the replacement property continues to be an investment property. If you eventually want to retire

in the investment property or make it strictly a personal residence/vacation home beyond the 24

months, you can do that.

Use a Middleman

Also referred to as a Qualified Intermediary. This professional ensures the IRS rules are followed

so you get the intended results. Using a Qualified Intermediary avoids pitfalls like commingling

assets or losing track of certain deadlines. The Replacement Period (the time after the first sale

and before the purchase of replacement property) is often a danger zone for taxpayers. A

seasoned middleman can help you through this without incident. Frequently, CPAs or lawyers

will also serve as Qualified Intermediaries.

1031 Exchanges are a great option for taxpayers who want to upgrade business or investment

properties, or simply to relocate. As long as the rules are followed, this (usually) tax-free

exchange is available to defer tax and keep more money in your operating account.

Jolley Law Group

Dissolution of a Corporate Entity: When Legal Proceedings are Necessary

Fri, 09 Dec 2022 04:01:00 GMT

In South Carolina, there are three types of dissolution processes for a corporation: voluntary dissolution, administrative dissolution, and judicial dissolution. Planning ahead can help avoid a situation where court intervention and litigation is required to wind-up your entity and distribute its remaining assets.

Voluntary dissolution is the process by which a corporation’s members choose to dissolve and wind-up a corporation. Corporations can also be involuntarily dissolved for administrative reasons (such as failure to pay taxes or to follow statutory corporate procedures), or by court decree. If your corporation cannot or is not voluntarily dissolved, for example, it becomes necessary to have the corporation dissolved by court decree, which takes additional time and expense.

To voluntarily dissolve a corporation, there may be important terms in the corporation’s operating agreement that can assist with the process. Most operating agreements have specific provisions and rules for how to dissolve. This process will be easiest when the corporation’s initial documents contemplate an eventual dissolution and set these rules at the outset. Oftentimes, the rules for dissolution contain a vote of the members. Some issues may arise if a corporation continues its existence after all corporate members have passed away or are no longer affiliated with the corporation, and in that case there may be a requirement for a judicial dissolution instead. Trying to anticipate these matters ahead of time will likely save time and expense. A lack of dissolution provisions in an operating agreement will likely mean that the corporation must seek an attorney’s expertise to determine the proper next steps for dissolution.

If for some reason a corporation cannot continue its existence, but it cannot be voluntarily dissolved (for example, if the corporation has no living members or members have abandoned the business), the judicial dissolution process must be followed. A Circuit Court in South Carolina has the authority to issue a court decree dissolving a corporation. Such an action is typically brought by the Attorney General, but it may also be filed by an interested party, such as a shareholder or a creditor. Some statutory reasons for a judicial dissolution include, but are not limited to: misapplied or wasted corporate assets, exceeding or abusing authority, fraudulent actions of the corporation, or the corporation has abandoned its business and has failed to dissolve. The law also allows for a corporation to specifically ask the Circuit Court to supervise its voluntary dissolution under certain circumstances. The court may also order a receiver or custodian to assist with the judicial dissolution process.

It is important to keep in mind that even after a vote to voluntarily dissolve a corporation, or an order requiring the same, the corporation must wind-up and take care of all corporate assets, and distribution of the same. In this sense, the corporation will continue its existence for the sole purpose of winding up its affairs. If there is disagreement among interested parties as to how the winding-up process should proceed, court intervention may sometimes be necessary. There are also very particular procedures for how to officially wind up a corporation, and it is best to consult an attorney on this topic to ensure the process is completed effectively and without other implications, including tax penalties.

Jolley Law Group

Important Reminders for Providers’ Professional Review Activities and Civil LiabilityProtections

Tue, 04 Oct 2022 23:15:00 GMT

The National Practitioner Data Bank (NPDB) requires that hospitals and other health care entities report physicians or dentists who have had a professional review action taken against them for more than 30 days. It’s important to be familiar with the rules regarding professional review actions and the impact of the civil liability protection. Here is a refresher on NPDB requirements as they relate to professional review activity and civil liability protections.

National Practitioner Data Bank Overview

The NPDB’s mission is to improve health care quality, protect the public, and reduce health care fraud and abuse in the United States. The NPDB is a health workforce tool to assist organizations in making well-informed credentialing, privileging, and licensing decisions. It contains information on medical malpractice payments and certain adverse actions related to health care practitioners, entities, providers, and suppliers.

Health care entities and their staff have protections if they take an action against a practitioner. The Social Security Act (the Act) includes provisions to protect individuals, entities, and their authorized agents from being held liable in civil actions for reports made to the NPDB unless they have actual knowledge of the falsity of the information contained in the report. These provisions do not protect staff and entities from being sued, but they do protect against monetary damages.

These protections are in place to promote effective peer review and appropriate reporting by entities in an effort to improve patient safety. The Act even provides additional protections to encourage and support professional review activity of physicians and dentists.

Providers’ Civil Protections on Professional Review Activity

A professional review activity as it is referred to in the Social Security Act is better known as the “peer review process,” which is a key element in all health care providers’ processes. Peer review is typically carried out through formally adopted written procedures that provide for adequate notice and an opportunity for a hearing. There are laws in place to provide protection for individuals providing information to improve the quality of health care through professional review activity.

Peer review is defined as “an action or recommendation of a health care entity taken in the course of professional review activity . . . based on the professional competence or professional conduct of an individual health care practitioner which affects or could affect the health or welfare of a patient . . . which adversely affects or may adversely affect the clinical privileges . . . of the health care practitioner.” The steps in a proper peer review include thorough research and use of the NPDB database, and close adherence to accurate presentation of the provider’s due diligence findings, adequate notice of the right of a hearing, opportunity to rebut the evidence and present a defense. Peer review panels must ensure that they include a significant number of persons at a similar level of training.

If a professional review action of a professional review body meets these standards and those specified in section the Act, they are not be liable in damages “under any law of the United States or of any State.” This is a broad liability protection. In addition, the Act provides that individuals who provide information in a peer review hearing are also covered from civil liability, unless of course the information is false and the person providing it knew that such information was false.

Conclusion

Providers are reminded to maintain and follow their peer review procedures, and understanding that professional review actions and NPDB reporting requirements are important for promoting health care quality and safety. It is also important for entities to know about and be generally familiar with or seek counsel regarding the regulations that provide civil liability protections to support professional review activity. Ultimately, health care entities must report adverse clinical privileges actions on providers if the actions meet NPDB reporting requirements, and should have these requirements in written policy that is reviewed periodically.

Jolley Law Group

Quiet Title Actions in South Carolina

Tue, 30 Aug 2022 17:36:00 GMT

The need to “quiet title” to real property often arises when someone has recently purchased property without the benefit of a title search; for example, when purchasing property at tax sale, in a foreclosure auction, or at an estate sale. Such actions can also arise after an owner runs a title search and learns that someone else is claiming an ownership interest in real property that they were unaware of. Types of claims may include creditors’ liens, heirs’ claims, or even possible fraudulent deeds staking claim to the property. Ideally, a title search is performed prior to purchasing new real estate, but if others stake a claim to real estate that you own, it is important to bring a quiet title action to cure any defects in title. Without clear title, an owner will not be able to enjoy their property free and clear, or to sell the property.

Bringing a quiet title action simply means that the owner of real property is asking a court to eliminate any other interests claimed to the real property. In South Carolina, “any person in possession of real property… or claiming title to vacant or unoccupied real property may bring an action against any person who claims or who may claim” an interest in the real property. See S.C. Code § 15-67-10. A quiet title action will determine the rights of all parties claiming an interest in the property, clarifying ownership through a court of law. In some situations, instead of seeking court intervention, deeds are inaccurately filed with the Register of Deeds offices throughout South Carolina, which only complicates matters further. It is always best to run a proper title search and use the court system as the method for eliminating title issues to real property, rather than relying on Register of Deeds filings.

Once a quiet title action is filed, all parties staking a claim to the real property, including any unknown parties who may have an interest, must be served with the lawsuit. In some instances, other parties fail to appear in a case or do not contest the action, and a final hearing can conclude the matter fairly quickly. In other cases, there may be parties contesting ownership of the property, at which point a trial is necessary in order for a judge to hear all of the evidence from all parties and issue a final ruling on the matter. A final determination and order from the court will quiet title and bind all parties to the court’s findings. The final order is then recorded with the Register of Deeds in the county where the property is located, clearing title and becoming part of the real property’s chain of title.

If you find yourself in a situation where you need help or guidance in filing a quiet title action, please contact Jolley Law Group and we will help you navigate your next move.

Jolley Law Group

Caution to Physicians Regarding Telemedicine Arrangements

Thu, 18 Aug 2022 16:08:00 GMT

Earlier this summer, the U.S. Department of Health and Human Services’ Office of Inspector General (OIG) issued a Special Fraud Alert warning physicians and other practitioners to exercise caution when entering into telemedicine arrangements that have certain suspect characteristics. Companies that purported to provide telehealth, telemedicine, or telemarketing services have been known to have exploited the growing acceptance and use of telehealth.

For example, in some of these fraud schemes Telemedicine Companies intentionally paid physicians and nonphysician practitioners (collectively, Practitioners) kickbacks to generate orders or prescriptions for medically unnecessary durable medical equipment, genetic testing, wound care items, or prescription medications, resulting in submissions of fraudulent claims to Medicare, Medicaid, and other Federal health care programs.

Based on both the OIG’s and the Department of Justice’s experiences in bringing fraud and abuse enforcement actions, the OIG identified the following characteristics as suspect and caution that physician and practitioners need to be vigilant and aware:

*The patients for whom the physician/practitioner orders or prescribes items or services are identified or recruited by the telemedicine company, telemarketing company, sales agent, recruiter, call center, health fair, and/or through internet, television, or social media advertising for free or low out-of-pocket cost items or services.

*The physician/practitioner does not have sufficient contact with or information from the patient to meaningfully assess the medical necessity of the items or services ordered or prescribed.

*The telemedicine company compensates the physician/practitioner based on the volume of items or services ordered or prescribed, which may be based on the number of purported medical records that the physician/practitioner reviewed.

*The telemedicine company only furnishes items and services to Federal health care program beneficiaries and does not accept insurance from any other payor.

*The telemedicine company claims to only furnish items and services to individuals who are not Federal health care program beneficiaries, but may in fact bill Federal health care programs.

*The telemedicine company only furnishes one product or a single class of products (e.g., durable medical equipment, genetic testing, diabetic supplies, or various prescription creams), potentially restricting a physician/practitioner’s treating options to a predetermined course of treatment.

So beware – Physicians and practitioners who become involved with suspect telemedicine arrangements are at risk for civil, criminal and administrative liability for accepting illegal kickbacks and submitting or causing to be submitted false claims to Federal health care programs.

The OIG’s Special Fraud Alert was issued the same day that the Department of Justice announced a nationwide enforcement action that levied criminal charges against 36 defendants in 13 cities across the U.S., for more than $1.2 billion in alleged fraudulent telemedicine schemes. The investigation primarily targeted alleged payments of illegal kickbacks and bribes by laboratory owners and operators in exchange for the referral of patients by medical professionals working with telemedicine and digital medical technology companies. According to the DOJ, telemedicine schemes accounted for more than $1 billion of the $1.2 billion in losses associated with this enforcement action.

If you are a physician or practitioner involved with a telemedicine company, or are contemplating entering into such an arrangement, we urge you to carefully consider the OIG’s warning and seek legal counsel to ensure compliance. If you need assistance, we are here to help.

Jolley Law Group

What is Probate: A Discussion of Fact v. Fiction

Tue, 02 Aug 2022 17:29:00 GMT

The term “Probate” is a broad term that can often elicit confusion and is misunderstood by individuals when reviewing their estate plan or administering an estate. Simply put, Probate is the process whereby a person’s estate is settled, and it is overseen by the Probate Court in the county where the person was domiciled at the date of death.

Fiction: Probate is only necessary for persons that pass without a Will.

Even those who have set up an estate plan often have to go through the Probate process. A decedent’s estate must pass through Probate if he or she had assets that are subject to the process. In South Carolina, some common items that will be subject to Probate are any items owned solely in the decedent’s name at the date of death; and real property (real estate) held as tenants in common at the date of death.

Some common items that would not be subject to Probate are 401k or other similar retirement accounts, or insurance proceeds, that have a named beneficiary; and real property (real estate) titled as a joint tenancy. Generally, non-Probate assets are those that transfer upon death to another. Another common way to move assets from Probate to non-Probate is to set up a trust and put assets in the trust. The assets that have been moved to the trust would transfer to the named successor upon the decedent’s death, and are generally not subject to the Probate process, with some exceptions.

Fiction: I set up a trust, so all of my assets are non-Probate.

Setting up a trust plan is only the first step to moving assets from Probate to non-Probate. If a person passes away without finding the trust with his or her assets, the assets will not be trust assets at death, but will instead be Probate assets. Only assets titled in the name of the trust become trust assets.

Fiction: an estate cannot go through Probate if the original will is missing.

As discussed above, all estates with Probate assets will need to go through the Probate process. If a decedent never created a will, his or her estate would pass through intestate succession, which is still a Probate process. If it is unclear whether a decedent destroyed a will because the original will cannot be found, a formal Probate process can determine whether assets will pass through intestate, or whether a copy of the decedent’s will can be used. These circumstances differ greatly based on the facts of each case, but there is still a Probate process even when an original will cannot be located.

Fiction: the Probate process always takes several years to complete and is expensive.

The length of time to administer an estate in South Carolina differs depending on the facts of each case and the assets in each estate. A contest over the validity of a will, creditors’ claims, or heirs’ claims are some factors that can prolong the Probate process. Generally, a less complex estate with no contests will take a year to complete, and it is often the case that very small estates may end more efficiently and will not be very costly to administer.

If you need help with estate planning, or need clarification for questions you have regarding Probate, please contact us.

Jolley Law Group

Blockchain and Smart Contracts

Wed, 20 Jul 2022 01:03:00 GMT

What is The Blockchain

Blockchain is a record keeping technology that is a digital system for recording transactions and related data in multiple places at once. Instead of using traditional methods of storing data, such as in rows or columns, the data is stored in blocks and is decentralized. This means that every participant on the network has access to the data. Because of this, blockchain creates greater security and transparency for transactions. Every transaction may only be recorded once, and any changes to the transaction must be recorded as new, for everyone on the network to see. Blockchain is designed to be nearly impossible to hack. Each record is chained to each other, meaning the hacker would have to hack every part of the chain, and not just one piece of information.

Smart Contracts

There are many ways in which blockchain technology is changing how the world conducts business. One way is the implementation of “Smart Contracts” into everyday business. Smart contracts are programs that are stored on a blockchain that run when predetermined conditions are met. They work by following simple “if/when… than” statements. A simple example would be, If A releases funds to B, then B will automatically authorize the shipment of a product to A. Smart contracts are completely self-executing and are typically used to automate the execution of an agreement so that all participants can be completely certain of the outcome, without any involvement from a third party.

There are many reasons to implement smart contracts into your business. For starters, it increases the speed, efficiency, and the accuracy of the deal, because there is no time spent filing, no human error, and no paperwork. There is much greater transparency and trust because encrypted records are shared amongst participants. Just like other things on a blockchain, it cannot be altered. If there is an error, a new transaction must be added to correct the error, and all of it is visible to both parties. It is also a huge money saver because you can save time where you would have been billed by someone to execute the agreement.

Some common industries that smart contracts are being utilized are trade and finance, real estate, and most notably, massive corporations are using smart contracts to better track and stay updated on products moving through the supply chain. At Jolley Law Group, we want to keep you updated on the lasted technology for your business. Contact us with any questions you have regarding contracts.

Jolley Law Group

Employee Handbooks: Is your Arbitration Clause Valid?

Thu, 14 Jul 2022 18:52:00 GMT

Recently, the Fourth Circuit Court of Appeals in Coady v. Nationwide Motor Sales Corp issued an opinion regarding the enforceability of Nationwide Motor Sales Corporation’s arbitration agreement contained in the company’s employee handbook. Applying Maryland contract law, the Fourth Circuit held that Nationwide’s arbitration agreement failed because the signature page found within the same document contained terms allowing Nationwide the option to unilaterally change the terms of the agreement therein.

Similar to the law in South Carolina, Maryland’s courts hold that unless there is a binding obligation, there is not sufficient consideration to support a legally enforceable agreement. Simply put, there is no contract if the promise given in exchange is illusory, and the terms capable of changing. Basic contract principles apply to form this rule. According to Corbin on Contracts, an “illusory promise” is one that appears to be a promise, but it does not actually bind or obligate the promisor to anything. An illusory promise is composed of “words in a promissory form that promise nothing.”

Prior to the Fourth Circuit’s decision in Coady v. Nationwide Motor Sales Corp, previous case law in Maryland held that a promise to arbitrate is illusory, and cannot constitute consideration to form a contract with an employer, if the employer reserves the right to alter, amend, or revoke the arbitration clause at any time. In the recent Fourth Circuit case, this concept was expanded further to the scenario where the arbitration clause, while a separate paragraph, was contained within the same document as a signature page and acknowledgment which allowed the employer to revoke or amend its contract’s terms.

While the Fourth Circuit’s decision was not based on South Carolina law, it raises the question whether similar issues could arise in South Carolina employment contracts. South Carolina generally holds that where an employer proffers a contract to arbitrate, and there is a mutual promise to arbitrate, that is sufficient consideration to uphold an arbitration agreement. However, to ensure an arbitration clause is not illusory, it is important that arbitration clauses can stand alone and that language integrated into the clause itself would not alter the mutual promise made under these agreements. With the ever-changing law in this area, it is always helpful to speak with legal counsel when creating or re-drafting employment contracts. Contact us with any concerns you have with employee contracts.

Jolley Law Group

Importance of Monitoring the CMS Open Payment Program

Fri, 17 Jun 2022 19:01:00 GMT

As the CMS Open Payments program expands towards its 10-year anniversary in 2023, this is a key time for healthcare providers to enact basic compliance procedures that monitor the public database regularly. The database is expanding this year to include important categories of covered recipients, which providers will need to include in their conflict reviews.

For background, the Open Payments database was created to enable a range of healthcare manufacturers, including drug and medical device companies, make their federally mandated reports of payments to “covered recipients.” Penalties for failure to make these accurate and timely reports can be severe, so these groups are incentivized to report properly. The database serves as the public reporting tool that allows consumers, physicians and others to review and research financial relationships with providers that can cause a conflict.

The Open Payments program expanded in 2021 to include five new provider types as well as new payment types. June 30 of this year is when data that was collected last year by drug and medical device companies and submitted to CMS is expected to be published.

The new provider types included in the CMS Open Payments database are physician assistants, nurse practitioners, clinical nurse specialists, certified registered nurse anesthetists and anesthesiologist assistants, and certified nurse-midwives. The types of payment reported are broad, and include consulting fees, ownership and investment interests, entertainment, travel and gifts, and the royalties or licenses. The database allows organizations to become informed about various potential conflicts of interest, standards for which should be stated in policy and adopted by the organization.

Your compliance program will need to identify those employees who now fall into the new provider categories and ensure that they are included in conflict reviews. Contact us with any questions regarding your compliance program.

Jolley Law Group

Achieving Asset Protection Through an LLC

Tue, 07 Jun 2022 14:48:00 GMT

Any time you are running a business you have a greater exposure to liability. It is important that you develop a structure or entity for your business to protect your personal assets from being subject to any potential judgment against your business. This is called asset protection.

One type of legal entity in South Carolina we commonly use to achieve this goal for small businesses is the Limited Liability Company, also known as an LLC. LLC’s are popular because they provide protection from liability and flexibility in taxation. Additionally, they have less formal requirements than corporations.

Governed by the Uniform Limited Liability Act of 1996, South Carolina law provides for the organization of an LLC by simply filing the Articles of Organization with the South Carolina Secretary of State. To best set up your LLC for asset protection, you will need to 1) ensure you properly organize your LLC with the Secretary of State; 2) have an attorney prepare the requisite company documents; 3) consult with a tax specialist on specific tax election you should make for your LLC, and 4) operate the LLC according to the law’s requirements to maintain protection.

Operating Agreement

To be properly organized, we recommend you always hire an attorney to complete this process for you. The Articles of Organization will identify the name of your LLC as well as the registered agent for your business. In addition to the Articles of Organization, you will need to have prepared an Operating Agreement, retrieve a federal tax identification number for your business and open up a banking account separate from your personal accounts.

The operating agreement is highly recommended to ensure your company operates smoothly. The operating agreement can be very simple to complex. This is the legal document that outlines the membership of your company. An LLC’s owners are called members. You may form a single-member LLC or have multiple members. You may also structure your LLC to be manager-managed which would allow a manager who is a non-member to act on behalf of the company. Your operating agreement needs to address membership, who has authority to act on behalf of your company, capital contributions of the members, dissolution of the company and more.

Taxation

It is important to note that you should consult with a tax specialist, CPA or accountant regarding your business and personal taxes. One of the great attributes of an LLC is the flexibility it provides in taxation. You can elect the tax treatment that best suits your business and your personal circumstances without changing the legal structure of the company. You may elect to be taxed as a sole proprietor or as an s-corporation, or any other type of available tax election that you may choose based on your needs and goals. A CPA can assist you with making this decision and file the appropriate paperwork to be sure you achieve the best tax treatment for your business.

Operating Your LLC

Asset protection requires that you not only create the proper entity but that you operate it according to the laws of the state to maintain those protections over time. South Carolina case law has recognized an equitable remedy available to Plaintiffs referred to as piercing the corporate veil. This remedy can be achieved by the Plaintiff if the requisite elements are established allowing the Plaintiff to set aside the protections of the legal entity and reach the personal assets of the owner. Operating your LLC according to the requirements of the law is necessary to be sure you avoid this type of remedy in the event of a lawsuit. In operating your LLC you will need to be sure your personal and business funds, expenses and accounts are kept separate at all times; you observe formalities required of businesses, such as keeping meeting notes and minutes, agreements of the members in written form, have readily available company records; be sure your company is properly capitalized and insured; and further take steps to ensure the business is not simply a mere façade for the operations of the owner.

Jolley Law Group

Mediating in Probate Court

Fri, 03 Jun 2022 13:59:00 GMT

Mediation is now required in the majority of courts in South Carolina, which have adopted South Carolina’s Rules for Alternative Dispute Resolution (“ADR”). Probate Courts do not fall within the ADR rules, but the Probate Court has adopted its own rules on mediation that are implemented in most courts throughout the State. When litigating a matter in Probate Court, it is important to understand the expectations and requirements of mediating in this unique court. A mediation is an opportunity for parties to a lawsuit to meet at an agreed-upon place and time to attempt to find a solution to their legal issues, rather than proceeding to a trial before a judge. If a legal issue is resolved at a mediation by agreement of the parties, the court will no longer need to determine the outcome of the litigation through witness testimony and legal arguments.

By Order of the South Carolina Supreme Court in August of 2007, our State began a Probate Court Pilot Mediation Program. The Supreme Court’s Order recognized that Probate Courts are unique and that they present issues that are not found in South Carolina’s Criminal, Family, or Circuit Courts. For example, a Probate judge may be faced with an array of legal issues affecting those that are very young (minors), very old, incapacitated, or those that have passed away. These groups of individuals are some of the most vulnerable. Probate Courts are also unique because the probate judges in our State are elected by popular vote and each county pays the probate judge’s salary. Over the years, cases in the probate courts have risen, putting more strain on our judges. Mediation can help alleviate some of the stress on our Probate Court system, and it also may assist in resolving probate matters early and with less costs to the parties involved.

A majority of Probate Courts in South Carolina have adopted the Mediation Pilot Program, which requires mediation of contested Guardianship and Conservatorship matters, and allows for mediation in all other contested matters upon motion of a party or order of the court. Rule 5 of our Probate Court Rules states that all contested litigation in Probate Court is eligible for a referral to mediation. In most circumstances, a judge will order the parties to mediate in order to address many of the contested issues in these case, and it is often encouraged to mediate early.

Mediation can offer many benefits to all parties involved. This is often a first opportunity for each side to communicate with the other in a neutral setting following the filing of a lawsuit. Oftentimes, Probate Court parties are family members, and emotions run high. Mediation can be useful in tempering tough feelings and allowing family members to let their guard down in a controlled setting. Each party is encouraged to talk freely, and no discussions at mediation are admissible in court later. Trained mediators serving as neutral third parties can be helpful in resolving many issues through group discussion and separating the parties when appropriate. Although there are costs associated with mediation, these costs are generally much greater than those expended when taking a litigated probate court issue to trial.

Have questions about mediation or Probate Court? Contact us and we’ll help guide you in the right direction.

Jolley Law Group

Making the Most of Compliance Surveys

Thu, 12 May 2022 18:30:00 GMT

One of the best opportunities for healthcare compliance officers to engage with leadership and staff is by conducting compliance surveys. These surveys have a number of benefits, and help leaders keep a good pulse on the overall health of their organization. And particularly if you have already been engaging with staff at regular intervals to check on the effectiveness of your program, then you will be able to measure your success over the years, and determine where you need to be spending additional time.

First, it is important and helpful to use various methods in conducting your surveys. Larger hospital systems, for instance, typically engage consulting firms to obtain a breadth of key information that can determine the health and direction of the compliance program. These web-based surveys, typically delivered to all staff by email, can provide across-the-board metrics that inform senior leaders as to the effectiveness of their staff and initiatives. But compliance staff at small and large organizations should also strive to conduct informal Q&A sessions with staff. These sessions can be a great way to “shake things up” while also providing valuable face time for the compliance officer. Don’t underestimate the value in speaking with frontline staff and letting them share their concerns and observations in these one-on-one opportunities.

Second, while surveys should generally cover compliance program elements, over time surveys should not necessarily cover strictly compliance related topics. With input from the organization’s human resources department, it can be beneficial to use survey opportunities to inquire about employee satisfaction, accessibility of resources and leadership, and overall ethics of leadership. Test the employees’ general knowledge of laws, rules and regulations that apply to their role – or at least the policies of which they need to be aware. Do they take their “see something-say something” responsibilities seriously? Do they have any specific matters to share with you in the moment? These conversations will help you understand if staff are sufficiently knowledgeable about compliance, and importantly, key staff into what they need to be aware of in helping the organization fulfill its compliance obligations.

Overall, formal and informal surveys demonstrate a compliance program’s capacity to improve and evolve. Ultimately, the survey is a form of audit of the performance and effectiveness of the program and the compliance staff’s engagement, accessibility and recognizability. But more than that, good, regular surveys will help continue to move the needle on your program, and are a valuable form of two-way communication between compliance personnel and staff.

Jolley Law Group

What Rights Does a Surviving Spouse Have to Inherit?

Wed, 04 May 2022 15:41:00 GMT

In many instances, a married individual will more than adequately provide for their spouse in their estate planning documents. However, there are circumstances in which wills and trust materials do not adequately provide for a spouse. For instance, what if a married individual completely omits a spouse from inheriting his or her assets after death? Or, what if an individual gets divorced but fails to change his or her will? Fortunately, these scenarios are addressed in South Carolina’s Probate Code.

In South Carolina, a surviving spouse of a decedent could be entitled to what is called the “elective share” of a decedent’s estate, unless a valid waiver of elective share exists. A waiver may exist if a surviving spouse has previously waived rights in a prenuptial or postnuptial agreement, or if he or she signs a waiver. Assuming there is no waiver of elective share, a surviving spouse of a decedent who was domiciled in South Carolina is entitled to, and can claim, one-third of the decedent’s probate estate, pursuant to Sections §§ 62-2-201 through 62-2-207 of the South Carolina Code of Laws. Although seemingly simple language, the overall valuation of what is considered the probate estate, and the assets therein, can be tricky and it has its nuisances. For example, South Carolina law states that a revocable trust is illusory for purposes of calculating the elective share and that those trust assets are included in calculating the value of a probate estate. Moreover, to make such a claim, the surviving spouse must file a summons and petition in the Probate Court in the county where the decedent was domiciled within a specified period of time, or they waive their claim. It is important that surviving spouses with possible elective share claims discuss their options with an attorney before proceeding with a claim.

In the case of divorce, a former spouse will not be considered a surviving spouse for purposes of elective share claims. Therefore, even if an individual executed a will while married, and later divorced, the effect of the divorce will be to void any will provisions affecting the former spouse. However, as a general practice, it is always best to execute a new will after getting divorced. It is also worth keeping in mind that if an individual gets remarried, but fails to account for their spouse in their will, that spouse will likely be entitled to claim the elective share, although some exceptions exist. If you think you may have a surviving spouse elective share claim, it is always best to speak with an attorney to discuss your options.

Jolley Law Group

The Basics of Guardianships and Conservatorships in South Carolina

Thu, 14 Apr 2022 16:32:00 GMT

Oftentimes, there are estate planning tools (such as trusts, wills, and powers of attorney) that an individual can develop with the help of a Wills and Trusts attorney in order to plan for the future. Most individuals are able to contemplate what to do with their assets once they are gone, or what end of life care they would want. However, it is often harder for individuals to imagine a time when they may show a decline in mental capabilities, leaving them, and their assets, vulnerable. In the event that an individual has not planned ahead, it may be necessary for a family member, or even a concerned third party, to initiate an action in the South Carolina Probate Courts to have a person declared incapacitated and to appoint a Guardian or Conservator for them. Here are some basics to navigating Guardianships and Conservatorships in our State:

What is Incapacity?

South Carolina Code Section 62-5-101 defines “incapacity” as an individual’s inability to effectively receive or evaluate information, or make decisions, in a way that he or she cannot care for their own physical health or safety, and cannot manage his or her own property or financial affairs. This definition can include someone who is of advanced age, has a physical illness, has a developmental disability, or mental illness, among other things. In every proceeding for a Guardianship or Conservatorship, the testimony of a licensed medical professional will be necessary to opine on an individual’s incapacity.

What is a Guardian?

A Guardian is a person, or agency, that has been appointed by the Probate Court to handle the physical person when one can no longer look after his or her own physical well-being. The decision to appoint a Guardian must be approved by the Probate Court through a Guardianship proceeding. Once appointed, a Guardian, which often can be a close family member, is able to make decisions regarding where the incapacitated person will live as well as all medical and healthcare decisions. It is important to keep in mind that South Carolina statutes list persons that may have priority to be appointed as a Guardian, such as previous agents under Powers of Attorney, or a spouse. The person ultimately appointed as the Guardian must file a report with the Probate Court each year.

A Guardian differs from a Guardian ad Litem in that a Guardian ad Litem is an individual (typically an independent third-party attorney) appointed during the pendency of a Probate Court proceeding to represent the alleged incapacitated individual, investigate the allegations of the Petition filed, and look out for the incapacitated individual’s best interests.

What is a Conservator?

In South Carolina, a guardianship involves decisions for the person, but not decisions involving money or other assets, such as real property. In the event that protection over an incapacitated person’s assets is needed, an interested person may request that the Probate Court appoint a conservator to protect money and property. Like a Guardian, a Conservator also has to update the Probate Court by submitting forms and inventories. South Carolina Code Section 62-5-408 designates individuals that have priority of appointment for this role.

Final Considerations

Ultimately, the Probate Court will have to assess the evidence presented by the Petitioner, the Respondents in the action, the Guardian Ad Litem, and any witnesses presented at a hearing to appoint a Guardian or Conservator. The Court will have ultimate authority to appoint a Guardian or Conservator, and will do so upon clear and convincing evidence that these appointments are necessary to protect the alleged incapacitated individual. The process for appointment is lengthy and can be costly. It is best to consult an Attorney to determine the best options for each specific case.

Jolley Law Group

HHS OIG’s Spring 2022 Focus on Hospitals and Nursing Facilities

Fri, 08 Apr 2022 21:04:00 GMT

The Department of Health and Human Services (DHHS) Office of Inspector General’s (OIG) office is quickly ramping up its 2022 audit program as identified in its Active Work Plan. There is no shortage of expenditures, regulatory requirements and collected data to audit, and nursing facilities and hospitals have a few big-ticket reviews directed their way. These audits also reflect continuing priorities of the OIG as described in their 2021 Top Unimplemented Recommendations publication. Overall, OIG is looking at efforts that would bring about positive results in “cost savings, public health and safety, and program effectiveness and efficiency.” We highlight below four audits that have kicked off in recent months and advise that your compliance and regulatory staff give some attention to these areas.

COVID-19 Vaccination Status of Nursing Home Staff

Right out of the gate, OIG is going to be auditing nursing facilities’ compliance with the amended 42 vaccinated against COVID-19. The regulations allow nursing homes to grant staff exemptions from the vaccination requirements based on Federal law (e.g., for specific medical and religious reasons). The regulations, among other things, also require nursing homes to track and securely document the vaccination status of staff, exemptions requested, and exemptions granted. OIG has indicated from its review of collected data that while nursing homes have made significant progress in vaccinating their residents, approximately one in five nursing home staff were not vaccinated as of the end of 2021. The effective date of the regulations varies by State, but all States must comply by March 21, 2022. Facilities should ensure that exemptions are well documented.

Nursing Home Capabilities and Collaboration to Ensure Resident Care During Emergencies – Development of New Key Performance Indicator

OIG recognizes that nursing facilities face a broad range of challenges from public emergencies, such as emerging infectious disease outbreaks and natural disasters, and wants to ensure that facilities develop and maintain an emergency preparedness program that addresses a wide range of issues. OIG is aware that recent emergencies have exposed weaknesses in nursing home emergency preparedness. This study will survey the challenges nursing homes face in preparing for emergencies, with specific focus on their capabilities for managing resident care during emergencies, as well as their collaboration with community partners (e.g., other health care providers, emergency management agencies). OIG will also use a portion of the data collected for this study for a new Key Performance Indicator that will track the prevalence and severity of challenges experienced by nursing homes over time.

Hospital’s Compliance with the Provider Relief Fund (PRF) Balance Billing Requirement for Out – of – Network Patients

Several Covid-19 legislative Acts appropriated a combined $178 billion in relief funds to hospitals and other health care providers. This funding is intended to reimburse eligible health care providers for health care-related expenses or lost revenue attributable to COVID-19. Hospitals must attest that they will not pursue the collection of out-of-pocket payments from presumptive or actual COVID-19 patients in excess of what the patients otherwise would have been required to pay if the care had been provided by in-network providers. OIG refers to this limitation on balance billing, commonly referred to as “surprise billing,” as the “balance billing requirement.” OIG will be auditing to determine whether hospitals that received PRF payments and attested to the associated terms and conditions complied with the balance billing requirement for COVID-19 inpatients. They will assess how bills were calculated for out-of- network patients admitted for COVID-19 treatment, review supporting documentation for compliance, and assess procedural controls and monitoring to ensure compliance with the balance billing requirement.

Medicare Payments for Inpatient Claims with Mechanical Ventilation

The OIG has long had mechanical ventilation on its audit radar, and COVID-19 of course put special focus on this intervention. OIG will review Medicare payments for inpatient hospital claims with certain Medicare Severity Diagnosis Related Group (MS-DRG) assignments that require mechanical ventilation to determine whether hospitals’ DRG assignments and resultant Medicare payments were appropriate. For certain MS-DRGs to qualify for Medicare coverage, a beneficiary must have received more than 96 hours of mechanical ventilation. Previous OIG reviews identified improper payments made because hospitals inappropriately billed for beneficiaries who did not receive at least 96 hours of mechanical ventilation. Hospitals should be conducting regular audits on its respiratory therapy interventions and long-term mechanical ventilation patients.

The Jolley Law Group’s health law team is continuously monitoring information released by HHS and OIG regarding its auditing priorities. Please contact us for additional information and guidance on your compliance and regulatory risk program.

Jolley Law Group

Personal Guarantees: What They Are and When They Are Required?

Wed, 30 Mar 2022 18:06:00 GMT

Your new business needs a capital infusion to get off the ground. The only problem is that a new

business is not established enough to have generated a business credit report. It may also be lacking

assets that can be used as loan collateral. Without a business credit report or business assets, lenders

cannot judge whether your company is a safe bet for a loan. Being stuck in this cycle is a bit like applying

for a job that requires previous experience in the field—but the only way to get that experience is to

first land a relevant job. If your business does not have the assets or track record needed to secure a

loan, a personal guarantee of a business loan may make it easier to borrow money. A loan guarantee,

which essentially makes you the cosigner on a business loan, undermines the personal asset protection

that you may have been seeking when you set up your business as a corporation or a limited liability

company. However, it can be a way to break the frustrating cycle of needing credit to get credit. Before

making a personal guarantee on a business loan, you should be confident that the benefits outweigh the

risks.

Business Credit Scores

You are no doubt familiar with personal credit scores from credit bureaus like Equifax and TransUnion.

These scores range from 300 to 850 and are based on factors such as payment history, amounts owed,

credit mix, and length of credit history.

Business credit scores are similar to personal credit scores. Provided by business credit reporting

agencies like Dun & Bradstreet and Equifax Small Business, they range from 1 to 100 and are a snapshot

of a business’s creditworthiness.

A business credit score reflects the details of a small business credit report. This report affects the

amount of credit you can receive, loan repayment terms, interest rates, and other lender decisions. A

small business credit report typically includes information about the company’s historical data,

governance, operations, employees, payment and collections history, and public filings.

The Loan Request Review Process

Personal savings are the primary source of startup capital for new businesses. You can also obtain

startup financing by borrowing from family or friends, taking out a home equity loan, finding investors,

or applying for a small business loan from a bank or credit union.

Small business loans come with plenty of red tape. Lenders are understandably careful about extending

credit to businesses that do not have a proven track record of success. Lenders view new businesses as

high risk. They also make less profit on small loans. Small business bank loans are denied approximately

80 percent of the time.

Business owners should be prepared for an extensive vetting process. If you apply for a loan, the lender

will put your venture under a microscope. Your business plan and revenue projections are just a starting

point. Expect personal scrutiny as well, including consideration of your personal credit score. In fact,

unless you are applying for a Small Business Administration (SBA) loan or a term loan from a bank, the

lender may not even consider your business credit score (which, again, may not exist for new

businesses).

A lender will not finance 100 percent of your business. Lenders additionally will want to see that you are

investing a reasonable percentage of your personal funds in the business. From a lender’s perspective,

the more equity you have pledged to the new business, the more skin in the game you have, and the

more motivated you are to succeed. To the lender, this makes you a stronger bet.

What Is a Personal Guarantee?

Aside from contributing some money to your business and having your personal credit score reviewed,

the lender may expect you to make a personal guarantee.

Loan agreements are contracts between you and the lender describing the mutual promises the two

parties owe each other. One of the promises you may be required to make is that, in the event of a

default on the business loan, your personal assets can be used to satisfy the debt. This is a personal

guarantee.

Personal guarantees take different forms. They could require you (i.e., the guarantor) to pledge personal

assets—like your home—as collateral. Some limit the guarantee amount to just a portion of the loan,

while others put the guarantor on the hook for the full loan amount, including interest and fees

(unlimited guarantee). The lender might even insert a clause that converts a limited personal guarantee

to an unlimited guarantee under certain conditions, such as missing a loan payment.

Personal guarantees are standard on business loans, providing a layer of protection for lenders. They are

also common with commercial leases. The SBA requires unlimited personal guarantees for their loans.

Weighing Risks versus Benefits of a Personal Guarantee

Owning a business involves making risk-benefit calculations all the time. This may be true from the

beginning if you decide to sign a personal guarantee as part of a loan agreement.

The following are some of the benefits of a personal guarantee:

● It can make it easier to secure a loan.

● You could get a better interest rate on the loan.

● You could receive more favorable repayment terms.

● It can be used in place of business collateral if you are lacking business assets.

These benefits, though, do not come without risks. A personal guarantee gives lenders the right to sue

you personally for loan repayment. They may be able to go after your bank account and other assets

and even garnish your wages. While the lender may not deny your loan if you refuse to sign a personal

guarantee, it could make the loan more expensive as a way to manage risk. That may be less daunting

than having your personal assets exposed in the event of a loan default. If you sign a personal

guarantee, it is important for your business to succeed, since failure could mean personal liability for

business debts. Success is never guaranteed, but at the very least, you should have a strong business

plan and a solid understanding of future risks. An impartial evaluation of your business plan can help you

to take a step back, identify red flags, and have a fiscally sound approach to starting a business.

For help with starting a business, contact Jolley Law Group and schedule a consultation.

Jolley Law Group

Will vs. Trust? How to Choose the Right Estate Plan

Tue, 22 Mar 2022 16:44:00 GMT

An Estate Plan consists of legal documents that govern distribution of your assets at death and

memorialize your wishes regarding healthcare and financial decisions if you are incapacitated.

Creating an estate plan is a necessary step to ensure the money and property you own at the time

of your death passes to your loved ones in the manner you choose. Without legally binding estate

planning documents, the default laws of your state will apply to administration and distribution

of your assets at the time of your death. It is important to determine whether those laws are

consistent with your wishes, and if not, to be sure your estate plan is completed properly.

A foundational estate plan generally consists of a Last Will and Testament or a Revocable Living

Trust. A common question estate planning attorneys are asked is whether the client should

choose a will or a trust.

Last Will & Testament

Your Will is the legal document that directs the Court to distribute your probate assets after your

death to the individuals or charities you identify, also known as devisees. Probate assets are those

assets you own at the time of your death that are titled in your individual name and that do not

pass according to rights of survivorship or beneficiary designations.

For example, if you own your home jointly with your spouse with a right of survivorship, upon

the first of you to die, title to the home will vest in the survivor upon one’s death. Therefore, the

home is not a probate asset at the time of the first death and will not be distributed according to

your Will. If you own your home individually, i.e. in your name only, then at your death it is a

probate asset and will be distributed according to the terms of your Will. Another common

scenario is any life insurance policy or investment account where you have identified

beneficiaries or transfer on death designees at the time you opened the account. If you have not

updated those beneficiaries or designees in quite some time, those individuals will receive the

benefits or assets in the account at your death and not those identified in your Will. This may be

inconsistent with your wishes if you have since remarried or had additional children. Your

attorney can walk you through what assets are probate assets and what assets are non-probate

assets. This is important to understand to be sure your estate plan is consistent with your wishes.

Your Will also directs the Court to appoint a Personal Representative, also known as Executor,

who will administer your estate according to the terms of your will and the laws of your state.

Additionally, your Will contains distribution provisions to your loved ones or to charities you

may choose. If you have minor or disabled children, it is important to identify your choice of a

legal guardian for those children in the event of your death, as well as a financial trustee to

manage the assets they inherit from you for their benefit. For a Will to be legally binding, it must

be executed according to the laws of the state in which you reside at the time you execute the

document.

If you choose to distribute your probate assets by a Will, your estate will be subject to the

Probate Code and your Personal Representative, once appointed, will be required to file

necessary court documents according to the procedures and timelines set forth in the Code.

Commonly, Personal Representatives will hire attorneys to assist with the administration of your

probate estate. The process of probate administration can take up to a year or longer depending

on your specific case. During probate, your file is part of the public record and notice must be

provided to all legal heirs of your estate. These are the people who would inherit from you

according to the laws of your state, had you died without a will. A Will serves as the

foundational document of your estate plan to ensure at your death that once your estate is opened

through probate, your wishes are clearly known and legally enforceable.

Revocable Living Trust

A Revocable Living Trust is a legal document that provides an alternative route to Probate

administration and distribution of your estate at the time of your death. A trust is a legal entity

that can own property, real and personal property, including being the titleholder of brokerage

accounts or checking accounts. If you choose to have a Revocable Trust as the foundation of

your estate plan, you will fund or title your assets in your trust during your lifetime or at death to

ensure you do not have probate assets at the time of your death. If done properly, your estate can

avoid probate administration. This is usually one of the main reasons clients choose to have a

Revocable Living Trust. Trust administration can be completed outside the requirements of the

Probate Code and outside of Court. There are always exceptions in the event of contests from

heirs or creditors’ claims; however, distribution of assets can be achieved without the

involvement of the court in most cases if the trust was done properly.

A Trust Agreement will provide administration and specific distribution provisions in the event

of your incapacity and death. It can also provide for extensive management of your assets post-

death for your loved ones. This is another main reason clients choose a trust, because it is a

useful tool to manage money for loved ones even after you’ve passed away. At your death the

trust becomes irrevocable and can serve as a creditor or asset protection tool for your loved ones.

Other benefits to a trust are the seamless and timely transition at your incapacity or death to a

successor trustee who can immediately step in and manage your assets for you or your loved

ones. Additionally, clients with high net worth estates can take advantage of tax planning

strategies provided for in their trust. Tax planning can be better achieved through revocable

living trusts to ensure that if the estate tax were to apply to your estate, your trustee can act in the

most efficient and advantageous way for your beneficiaries to lower tax implications.

During your lifetime, the living trust is revocable, able to be amended easily and is treated as an

estate planning tool only, therefore, it does not affect or change income taxation or property

taxation. A Revocable Living Trust is a recommended estate planning document when your

goals include probate avoidance, management of assets post-death, or tax planning.

Key Takeaways

A Will governs distribution after your death of probate assets only.
A Will directs the Probate Court to distribute your assets according to the terms of your
Will through a process administered through Court by the use of court-imposed timelines
and forms.
A Trust allows you to avoid probate administration at your death.
A Trust is beneficial for avoiding probate, management of assets after your death,
creditor/asset protection for your loved ones and tax planning strategies.
A Trust must be properly funded with your assets during your lifetime or through
beneficiary designations at death to ensure your estate avoids probate.
If you die without a Will or Trust, the laws of your state will provide for distribution of
your assets.
It is important to consult with an attorney who can review your specific circumstances,
assets and goals to determine the best type of estate plan for you.

Contact Jolley Law Group with any questions regarding your estate planning.

Jolley Law Group

DRAFTING A POWER OF ATTORNEY: THE TIME IS NOW

Wed, 16 Mar 2022 16:29:00 GMT

Just five years ago, South Carolina adopted a new Act governing all Powers of Attorney executed on or after January 1, 2017. While South Carolina attorneys have been drafting Powers of Attorney for decades, these news laws, collectively termed the South Carolina Uniform Power of Attorney Act (SCUPOAA), give attorneys and their clients more guidance as to the powers and duties that a Power of Attorney can provide. Armed with the new SCUPOAA, attorneys often offer this tool to clients when preparing other estate planning materials, such as wills and trusts.

One of the main advantages of a Power of Attorney is that it is a mechanism that gives a trusted loved one the agency and authority to act over an individual’s finances and affairs, particularly in the event that they are no longer able to handle their own affairs.

A common problem that I often see in my litigation practice is this: someone begins to experience a decline in their mental state, or they receive a new diagnosis from a doctor, and family and friends become nervous that the individual is unable to properly manage things themselves. When this scenario arises, individuals or their loved ones are often visiting an estate planning attorney for the first time, asking about a Power of Attorney. Too often, their timing is too late.

The unfortunate aspect is that by the time many people realize a loved one is experiencing a decline in their mental wellbeing, it is often too late for that person to sign a Power of Attorney. Under South Carolina law, a Power of Attorney is considered a contract. Therefore, in order for an individual to sign a Power of Attorney, and for that Power of Attorney to be valid, the individual must have the capacity to enter into a contract at the time of signing.

So what happens when there is no Power of Attorney in place? Well, now we have to get the Probate Court involved. That means judges, attorney fees, and conflict. If an individual no longer has the capacity to sign a Power of Attorney, some families choose to proceed with a Guardianship or Conservatorship proceeding in South Carolina’s Probate Courts, in which they are asking a judge to find their loved one incapacitated and order that another individual be appointed to control their personal wellbeing, their financial wellbeing, or both. Guardianship and Conservatorship proceedings are helpful to many families, and are not always contested. Regardless, they can be emotional and the alleged incapacitated individual may not be capable of speaking for themselves at this stage.

By opting for a Power of Attorney when one is mentally able to do so, much of the emotional and financial toll on families can be avoided. The SCUPOAA provides the ability for an individual designate an agent that has immediate power to act, or to designate someone to act at a certain point in time in the future (i.e: when a doctor provides in writing that an individual is incapacitated). It also provides that an individual may choose to designate a person to be their Conservator or Guardian if a protective proceeding is initiated in the Probate Court, thus eliminating unnecessary protective proceedings and giving the individual a voice in the matter. The SCUPOAA also speaks on the authority that may be designated to an agent, among other things.

In short, the SCUPOAA gives attorneys the ability to draft a Power of Attorney unique to each client. A Power of Attorney can be an effective tool to avoid future Conservatorship or Guardianship proceedings in the Probate Court, but the time to draft these documents is now. In some instances, it may already be too late if an individual is experiencing a declined mental state. Each situation is different, and it is best to speak to legal counsel in order to navigate where you are in your specific case. Contact Jolley Law Group for more questions you have about planning for the future.

Jolley Law Group

How to Resolve Deadlocks in Your LLC

Thu, 10 Mar 2022 15:27:00 GMT

Membership in a limited liability company (LLC) may come with voting rights. Member voting rights

should be addressed in the LLC’s operating agreement, which typically provides that LLC members must

vote on several issues that are material to the continuance of the business. A unanimous or majority

vote may be required depending upon the nature of the matter voted on.

A deadlock occurs when the voting interests of LLC members are evenly split regarding an important

decision. Deadlocks can bring the company to a standstill, and special action may be required to break a

deadlock. Prescribed actions for breaking a deadlock are sometimes found in the operating agreement.

However, if deadlock-breaking mechanisms are not included in an operating agreement, the LLC may

have to turn to the courts.

LLC Voting Structures

Unlike corporations, which are more tightly governed by state corporate laws, the members of LLCs

generally have the freedom to decide how LLCs are run. As many or as few of the day-to-day operations

of an LLC the Members choose can be addressed in the operating agreement. An operating agreement is

the LLC’s foundational contract. It describes, among other things, management structure, Member

obligations, and voting rules.

Per capita vs. proportionate weight voting

LLC members vote on important company issues, but LLCs are not necessarily democracies. The

operating agreement could have a “one member, one vote” structure, also known as a per capita voting

structure. Voting weight can also be assigned proportionally, commensurate with a member’s

ownership share. This voting structure is similar to the majority shareholder concept found in

corporations, where a single member can hold a voting majority.

Unanimous vs. majority voting

The LLC operating agreement can further stipulate voting requirements for major decisions about the

company. Although LLCs do not typically require votes for daily business affairs, the operating

agreement may provide that certain crucial decisions must be put to a member vote. Major decisions

can include things like adding and removing members, amending the operating agreement, and mergers

and acquisitions.

In addition, major decisions may require more than a simple majority vote. They may require a

unanimous vote, as determined by the operating agreement. Unanimous LLC actions raise the potential

for a minority veto that can prevent the proposed action.

If the operating agreement does not specify situations where a majority vote and a unanimous vote are

required, the default rule in that state will apply. Different states have different default rules requiring

majority and unanimous votes.

Deadlock-Breaking Mechanisms in the Operating Agreement

An operating agreement may have been drafted or amended to include deadlock-breaking mechanisms

such as the following:

Buy-sell agreement . A deadlock could be a triggering event in a buy-sell agreement, which is an agreement between LLC members that allows one member or the LLC to buy the interests of another member. In a deadlock, a buy-sell agreement may set in motion the sale of the deadlocked member’s interest to another member or to the LLC. However, the deadlocked member may be permitted to turn the offer around and buy the offering member’s interest for the same price and terms. That is, the member who offers to buy out the deadlocked member could themselves end up getting bought out. The threat of triggering this dramatic buy-sell showdown could facilitate a resolution.

Tie-breaker . The deadlock could literally be broken by flipping a coin, if the operating agreement calls for such a solution. More likely, a tie-breaker will take the form of a neutral group or individual that casts the deciding vote to break a deadlock. The tie-breaker could be a professional advisor, such as an attorney, a mediator or arbitrator, or another party with an understanding of the LLC and the industry.

Partition or forced sale of the LLC or its assets. A deadlock that cannot be resolved could lead to a contractual sale of the company or an equitable divvying up of its assets. As with a buy-sell provision, the pending possibility of selling the LLC or dividing its assets could motivate a resolution of the deadlock.

Arbitration or mediation . An operating agreement that does not have one of the above deadlock-breaking mechanisms may nonetheless contain provisions about resolving disputes using alternative methods such as mediation and arbitration.

Court Intervention to Break a Deadlock

Absent a provision in the LLC’s operating agreement to resolve a deadlock—or when mediation or

arbitration fail to break a deadlock—the remaining option is for the parties to go before a judge,

potentially asking for a judicial dissolution.

However, the court also has the flexibility to take other actions that may allow the LLC to continue,

including:

● Appointing a custodian to temporarily oversee business operations until the creation of a more

permanent judicial remedy.

● Ordering an injunction, which is a court order that requires or prohibits specific actions. An

injunction could create a path forward for the LLC, but dissolution can still be ordered after an

injunction is issued.

● Ordering specific performance, which requires a party to a contract to fulfill an obligation.

● Ordering judicial expulsion of a member, or removing that member from the LLC.

Members should try to avoid litigation or judicial dissolution whenever possible. Litigation is costly and

contentious, and dissolution results in the end of the company. A thoughtfully drafted operating

agreement anticipates deadlock among LLC members and provides several ways to break the deadlock

without resorting to court action.

Our business law attorneys can help you create an LLC operating agreement and amend an operating

agreement to include deadlock-breaking provisions. We can also counsel you on breaking a deadlock

using an existing provision, mediation, arbitration, or litigation. To speak with a lawyer about your LLC

member dispute or how to prevent a deadlock, please contact us and schedule an appointment.

Jolley Law Group

HIPAA Annual Breach Deadline

Mon, 28 Feb 2022 15:58:00 GMT

The annual deadline to report a HIPAA breach is Tuesday, March 1, 2022, for HIPAA Covered Entities and Business Associates to file their annual breach reports with the U.S. Department of Health & Human Services (HHS), Office for Civil Rights (OCR).

Recall that a “breach” is a Privacy Rule violation that also compromises the security or privacy of protected health information (PHI). A covered entity or business associate responsible for an impermissible use or disclosure of PHI will need to report a breach to patients and the OCR, unless they can show that there was a low risk that the PHI was compromised. Organizations need a strong breach notification assessment policy and process that will direct how they analyze whether a HIPAA violation has led to a breach. HHS also has a terrific list of example breach situations here that can help organizations avoid numerous pitfalls.

Smaller breaches involving less than 500 individuals need to be documented throughout the course of the year and reported by the annual filing deadline, but breaches involving 500 or more individuals must be reported no later than 60 calendar days from the date of discovery. And keep in mind that there is no penalty for filing a breach report, and it is good practice to report throughout the year. Doing so shows HHS and the OCR that your organization has a robust infrastructure in place to address privacy violations and potential and actual breaches, and these sorts of ongoing assessments will help you ensure that similar incidents do not reoccur.

Neglecting to log HIPAA breaches carries serious consequences. HHS sees this as a failure to cooperate and has said that failure to do so will likely constitute “willful neglect,” thereby triggering mandatory penalties if discovered. And remember that if your Business Associate logged the breach and you have designated them as responsible for reporting, that is fine. However, you will want to review the breach report before they file it to make sure it contains correct information. Maintaining and following your business associate agreements and cultivating good communications about privacy incidents and responses is a key to HIPAA compliance between and among covered entities and their business associates. A straightforward commitment to processing your privacy incidents and reporting determined breaches will contribute to the continuing success of your compliance program!

Jolley Law Group

The Business of Marriage: Considerations for Married Business Owners

Tue, 17 Aug 2021 17:48:00 GMT

Owning a business can impact every area of a person’s life. The impact is uniquely felt within a marriage. Married business owners must consider the ways in which their marriage may impact their business and vice versa. Failure to think about how these two significant institutions interact can have unforeseen consequences—everything from addressing time management to distribution of liability may come into play. Here are a few things to consider if you are a business owner who is married or plans on getting married.

1. Is your spouse involved in your business? There are a broad range of roles that a spouse can have in a business, from having nothing to do with the company, to serving as an employee, to being the co-owner of the business. This determination can impact:

● the dynamics of your relationship,

● how you plan for taxes,

● the structure and liability of the entity, and

● the classification of your property.

Your spouse’s role in your business, particularly if it is a decision-making role, has a far-reaching

impact and should be carefully considered before making any arrangements.

2. Where do you and your spouse live? State laws affect how your property rights are handled—especially business rights. States vary in the way they treat property acquired during the marriage. The treatment of property is based on whether the state in question is a community property state or a separate property state. In a community property state, the court deems growth of a business that occurs during a marriage to be marital property, in which each spouse has a 50 percent interest. In separate property states, the increase in value of a business during a marriage is allocated based on the actual work done or contribution made by each spouse. Depending on the age and size of the company, this distinction may represent a million-dollar difference.

State law may also impact how rights are passed to spouses of entrepreneurs if they were to die, become disabled, or divorce. Some states, like Texas, statutorily protect business owners from unintentionally putting their spouse in a management or decision-making role by clearly articulating that only a financial interest can be acquired through death, disability, or divorce. 1 Leadership and decision-making authority do not automatically pass. However, some states’ laws allow organizations and businesses to contractually create these protections via the operating agreement in limited liability companies or the bylaws in corporations. Business owners may also include these provisions in a buy-sell agreement. It is prudent to examine how your state’s law deals with these situations.

1 Tex. Bus. Org. Code § 101.106 (2011).

3. What is the current health of your marriage? This question is critical because it can impact how you plan. If your marriage is on the rocks, you may want to strategically implement legal protections for your business. As described above, circumstances like death, disability, and divorce, if not handled properly, can open up opportunities for a disgruntled ex-spouse to fight for the right to manage the business or sell it and obtain a share of the property.

We Can Help

If you are married—or intend to be married—and run a business, there are significant legal issues you should consider. We have a team of skilled professionals who can help develop a solid course of action for you and your business. Call our office to schedule a consultation with a team member today.

Jolley Law Group

What You Need to Know about Severance Packages

Mon, 14 Dec 2020 17:58:00 GMT

Business owners agree that people are the lifeline of a company. The people you hire can make or break your business. Yet as an employer, it is essential to recognize that things change. There are instances when you may have to terminate an employee. Developing a severance package is one effective strategy for dealing with exiting employees.

A severance package provides pay and sometimes benefits to a departing employee. There are a few reasons why you may want to consider offering severance packages. First, by giving a severance package, you are helping ease the transition away from the company by providing additional pay to the employee. Second, implementing a severance package may protect the company from litigation: Severance pay agreements often (and should!) include a release of potential claims that may exist. These agreements can also include non-disparagement provisions by which exiting employees agree not to speak negatively about your company.

If you are considering offering severance packages, here are several things that you should keep in mind:

1. Eligibility . When crafting a severance plan, it is vital to think about which employees will be eligible for the package. Some business owners limit severance packages to full-time employees or executive employees. If you are involved in a collective bargaining agreement, the agreement may require that you provide severance packages.

2. Design structure. In designing your severance plan, consider what you would like your severance package to include. Some companies offer a lump sum, whereas others provide a few additional payments. Other companies choose to continue to provide benefits for a designated period. Another design element to consider is how your company will determine how much to pay. Some businesses have developed a severance package that provides one or two weeks’ pay for every year an employee has worked with the company. Because severance packages are rarely required by law, there is flexibility regarding how to construct them.

3. Local and federal laws. As you create a severance package, it is important to know whether your practices are covered by state or federal law. For example, when a company participates in a mass layoff, the layoff may trigger provisions under the Worker Adjustment and Retraining Notification (WARN) Act. Under the WARN Act, if you are an employer with one hundred or more employees and fail to provide the required sixty days’ notice to employees before closing a plant or conducting a mass layoff, you must pay the employees severance wages for up to sixty days. Some states impose additional requirements regarding severance pay in similar circumstances. As a result, it is essential to carefully consider how these laws will impact your severance package.

4, Company culture. If your company is creating a severance package, ensure that it is congruent with your overall company culture; even if employee termination is involved and a release is incorporated, the company can maintain its moral and ethical standards. Failure to do so erodes trust, generates negative public opinion, and could, in extreme instances, be used against the company if it is accused of pursuing overly broad waivers.

We Are Here to Help

Determining how to structure your severance package can be complicated as you try to balance business objectives with federal and state requirements and company culture. You do not have to do this by yourself, however. Give us a call – we’re happy to help.

Jolley Law Group

Creative Ways to Adjust Your Compliance Program During the COVID-19 Pandemic

Thu, 30 Jul 2020 13:51:00 GMT

Business owners may be forced to revamp their compliance programs in the wake of the recent COVID-19 pandemic. While compliance programs are designed to provide safeguards for businesses, those safeguards may not be practical during the current climate of the business world. Companies may need to consider adjusting their current compliance programs to one that better suits the work environment due to COVID-19 and the evolving guidelines associated with the pandemic.

One of the main concerns with compliance programs is how effectively they can be applied to telework. During the transition to telework or hybrid between off-site and on-site work, the areas which have been most impacted are: surveillance, record keeping, and easy access to data and sensitive information. Business owners should consider changing certain systems:

Focus on increasing security measures: Business owners can utilize lockdown browsers for their employees who are working from home. Lockdown browsers are an easy way for business owners to ensure that sensitive and confidential information are not compromised.
Update policies that are not conducive to the new work environment
Continue to educate employees on business policies and procedures: Consider using routine training videos or newsletters to ensure that employees are familiar with the current compliance program
Perform frequent audits: Business owners should consider performing frequent and non-formal internal audits to assess any potential risks. Internal audits allow business owners to escalate incidents of misconduct and non-compliance to senior management or board of directors
Increase awareness about the code of conduct and expectations of the company.

It is certain that COVID-19 will create more difficulties for corporate compliance going forward. The risk of fraud and misconduct are more prevalent due to non-traditional working conditions. Companies should place importance on preventative measures rather than waiting for an incident of misconduct or abuse to occur. Due diligence and communication are the most effective tools to ensure that businesses are protected from non-compliant behavior. Failure to adhere to guidelines may cause businesses to be exposed to litigation, fines, and public scrutiny.

Any newly documented policy should place emphasis on the changes made since the COVID-19 pandemic. It is also imperative that business owners keep track of legislation, state guidelines and CDC recommendations while considering changes to their current compliance program. The goal is to mitigate risks and uphold company standards while still following state and local guidelines for COVID-19. Thorough and periodic training on company policies is necessary for directors and employees.

A change in corporate compliance requires commitment from senior management as an example to employees to enforce the importance of commitment to the company’s overall goal of preventing misconduct and abuse during this time. Now is a great time to consider reevaluating your current compliance program and readjusting to ensure post-pandemic enhancement.

Jolley Law Group

Recommendations for Reopening Your Business

Fri, 03 Jul 2020 17:55:00 GMT

Business owners are facing tough decisions as they attempt to safely reopen their businesses to employees and consumers during the pandemic. The workplace as we knew it is on hold as the threat of COVID-19 is still very present. Many businesses have begun reopening in stages and are implementing new strategies to ensure the safety of employees and consumers. However, as you work to reopen, continue to monitor the CDC’s guidelines for business owners. In particular, please check out the “Workplace Decision Tool” on the CDC website featuring various questions which should all be able to be answered “Yes” in order to safely reopen. It is important for business owners to be familiar with these recommendations both because they may help ensure the health and safety of everyone in the workplace and because the CDC guidelines will most likely be referenced as the standard of practice in any future claim for business liability by either customers or employees. The following are some of the suggestions in the guidelines posted on cdc.gov (May 7, 2020). If you decide that you cannot meet a suggestion, document that you considered the guideline and why you decided it would not work for your business and what other steps you are taking instead to mitigate risk.

Employees at High Risk

Increased safety measures should be taken to protect employees at a higher risk
Minimize the at risk employees’ interaction with clients and other employees
Consider telework options for high risk employees
Have a strategy in place if an employee gets sick
Create an ongoing system to monitor signs and symptoms of COVID-19

In Person Interaction

1. Reopen only if your business can ensure social distancing for all employees and clients and reopen in stages to ensure you are prepared and to limit exposure as you adjust to the new normal in your workspace.

2. Enhance space between employees. Consider scheduling employees working beside each other on different shifts.

3. Change the layout of your office or consider different options for your office space. For example, consider removing lobby furniture.

4. Designate a staff member who can respond to COVID-19 questions and concerns and notify your staff who they should contact with concerns.

5. Ensure that your business has adequate single use supplies such as hand towels and utensils.

6. Promote healthy hygiene practices by encouraging employees to wash their hands frequently for at least 20 seconds and wear a face covering.

7. Cancel all group events where social distancing of at least 6 ft cannot be maintained for all in attendance.

8. Make sure your business has a clean water system after a prolonged closure to minimize the risk of diseases associated with water such as Legionnaires’ disease.

9. Provide training for employees on health safety protocol.

10. Consider using touchless payment systems.

Options for Commuting

Consider telework options for employees living further away or using public transportation to get to work
Change shift hours to less busy time for employees utilizing public transportation
Encourage employees to ride alone to and from work and during lunch breaks

Reporting of New Cases

Prepare to close for a few days if an employee or client tests positive for COVID-19 and resume telework operations longer if there is an increase of positive cases in the local area. Promoting a safe and healthy work environment is essential to operating a successful business both during and following the pandemic. While business owners should implement strategies that make sense for their employees and customers, they need to go through a return to work planning process that includes reviewing the CDC guidelines as they change and evolve over the summer.

Jolley Law Group

Why Should I File A Trademark?

Wed, 16 Oct 2019 20:32:00 GMT

Is Filing a Trademark Important For A Business?

Although constructive use in the market provides some intellectual property protection, you should look into filing a trademark or service mark if you are or plan to advertise your product or business on the internet or out-of-state. Being the first to use your trademark or service mark gives you rights against others in your state. By the same token, if another business has been using the same business or product name as you in their state, they have rights against you there. However, if you file and receive a federal trademark, then you will have rights against everyone who begins using your name after you receive the mark. So, if you call your product “Tom’s Allstar Product” and there is a “Tom’s Allstar Products” in Colorado that has been operating since 2006, then you and Tom can generally carve out your turf in your own states. However, if “Tom’s Allstar Products” in Colorado had filed for and received a federal trademark in 2006, then Tom could send you a cease and desist letter or sue you for violating his trademark. So it is important to begin using your trademark as soon as you can and to consider filing as soon as you are ready. As an initial matter, of course, it makes good sense to perform a trademark search on your product or business name before you being spending marketing dollars.

Still have additional questions regarding registering a trademark? At Jolley Law Group, we are here to keep you up-to-date and informed about matters important to your business. Contact us for help with corporate documents, compliance, and litigation. We serve those that serve South Carolina.

Jolley Law Group

What is a Contract Employee?

Mon, 12 Aug 2019 19:04:00 GMT

Are Contract Employees Actually Employees?

We frequently receive questions about “contract employees.” However, usually these workers are not employees at all; they are independent contractors performing services for a business pursuant to a services agreement or independent contractor agreement. Unlike employees, independent contractors don’t receive benefits, taxes aren’t deducted from their compensation, they usually have to supply their own equipment necessary to do their work (such as a laptop), and they aren’t entitled to the statutory rights and protections granted to employees (such as minimum wage, overtime pay, and FMLA leave).

Calling someone an independent contractor alone is not enough to ensure you will not ever be responsible for paying payroll taxes on their behalf. In South Carolina and most states, whether someone is an independent contractor, rather than an employee mistakenly identified as an independent contractor, is largely a matter of employer control. An independent contractor has to be, to a certain degree, independent. While a company can establish parameters for an independent contractor’s work and can require them to comply with company policies, independent contractors must generally be free to perform their services as they see fit. They are not subject to as much oversight as employees and should not be micro-managed by the company. Usually, they should not be given company business cards or otherwise represented to outsiders as if they are employees or have authority to bind the company in any way. However, there are exceptions to this rule for professionals, especially those that provide services for a business or organization on a part-time basis.

Still have additional questions regarding contract employees? At Jolley Law Group, we are here to keep you up-to-date and informed about all employment matters. Contact us for help with employment agreements, manuals, benefits, and payroll. We serve those that serve South Carolina and Georgia.

Jolley Law Group