Tuesday, June 30, 2009
1. You are entitled to be treated with courtesy and consideration at all times by your lawyer and the other lawyers and personnel in your lawyer's office.
2. You are entitled to an attorney capable of handling your legal matter competently and diligently, in accordance with the highest standards of the profession. If you are not satisfied with how your matter is being handled, you have the right to withdraw from the attorney-client relationship at any time (court approval may be required in some matters and your attorney may have a claim against you for the value of services rendered to you up to the point of discharge).
3. You are entitled to your lawyer's independent professional judgment and undivided loyalty uncompromised by conflicts of interest.
4. You are entitled to be charged a reasonable fee and to have your lawyer explain at the outset how the fee will be computed and the manner and frequency of billing. You are entitled to request and receive a written itemized bill from your attorney at reasonable intervals. You may refuse to enter into any fee arrangement that you find unsatisfactory.
5. You are entitled to have your questions and concerns addressed in a prompt manner and to have your telephone calls returned promptly.
6. You are entitled to be kept informed as to the status of your matter and to request and receive copies of papers. You are entitled to sufficient information to allow you to participate meaningfully in the development of your matter.
7. You are entitled to have your legitimate objectives respected by your attorney, including whether or not to settle your matter (court approval of a settlement is required in some matters).
8. You have the right to privacy in your dealings with your lawyer and to have your secrets and confidences preserved to the extent permitted by law.
9. You are entitled to have your attorney conduct himself or herself ethically in accordance with the Code of Professional Responsibility.
10. You may not be refused representation on the basis of race, creed, color, religion, sex, sexual orientation, age, national origin or disability.
Monday, June 29, 2009
Sunday, June 28, 2009
2. A Power of Attorney (NOTE: the rules change on the proper form on 9/1/09)
3. Health Care Proxy and/or Living Will
4. Medical Orders for Life-Sustaining Treatment (MOLST) Program
5. Do Not Resuscitate Orders
6. Standby Guardian Designation (if you have minor children)
7. Life Insurance Designations
9. Property Transfers To Avoid Probate
Now each item mentioned is complex, there are many variations, etc. to each one - and, of course, always consult a lawyer. Many of these will be discussed later.
Saturday, June 27, 2009
Friday, June 26, 2009
Thursday, June 25, 2009
"How do I obtain a copy of my Mortgage or Deed? The fastest way to obtain this information is to come to this office. We are located at 240 Old Country Road, Mineola. Computer terminals are located within our office and are available to the public during normal business hours to research mortgages, deeds and other documents affecting real property within Nassau County. Knowing your section, block, and lot will be helpful when researching a property. If you are unable to come in person, title companies can do the research for you. For a referral to a reputable title company, you can contact the New York State Land Title Association at 212-964-3701. Please provide us with as much information as possible. If you know the section, block and lot the charge is $1.30 for a document up to 2-pages; $.65 per page for every page thereafter. If you require us to do a search for that information, the charge is $7.00, for up to a 4-page document, plus $1.00 per additional page. "
Wednesday, June 24, 2009
At the heart of the President Barack Obama's ambitious plan to rescue the housing market is the conviction that restructuring distressed mortgages will keep struggling borrowers in their homes and help insert a floor beneath plummeting property values. Whether you call it a loan modification, mortgage modification, restructuring, or workout plan, it’s when a borrower — who is facing great financial hardship and is having difficulty making their mortgage payments — works with their lender to change the terms of their mortgage loan. The workout plan could result in temporary or permanent changes to the mortgage rate, term and/or monthly payment of the loan as the plan’s goal is to help the borrower reduce their monthly mortgage payments. One word of caution: this new bill has spawned a whole new wave of loan modification salespeople who might be perfectly fine and those who are not. Be careful. Also, it’s always good to hire legal counsel. Get a referral from your local bar association. Because when dealing with anyone who specializes in this field, it may be best to deal with someone who is local in the event any problems arise - it is easier to speak to someone who has an office a mile away from you than someone who has an office at the other end of the country.
Tuesday, June 23, 2009
Monday, June 22, 2009
Sunday, June 21, 2009
Saturday, June 20, 2009
Friday, June 19, 2009
Thursday, June 18, 2009
I. Designation of Standby Guardian. New York's standby guardianship law is developed for parents who are fatally ill or progressively, chronically ill, and who want to plan for their children's future. There are two ways that a standby guardianship may be formed: by petition, prior to a triggering event; or by designation at any time, ideally to be followed by petition even after a triggering event. A particular person may be nominated as standby guardian under either method. The early-petition strategy requires the parent to declare that she has a "progressively chronic illness" or an "irreversibly fatal illness. She must state the basis for this, although she does not have to file a physician's statement. [Surrogate 1726.3(b)(ii)] The petition must list any or all of four triggering events: mental incapacity, physical debilitation plus consent, consent alone and death. [Surrogate 1726.3(b)(i) and (d)(ii) and (e)(iii)]
The designation strategy, on the other hand, is a step toward guardianship, with formalization through the court occurring at some later point. The parent prepares a document that lists two triggering events: mental incapacity and physical debilitation plus consent. An optional designation form is provided in the statute. By contrast with the early-petition process, the statute does not require death to be listed as a triggering event, although legal practitioners' designation forms in New York City do so list it. The law permits the designation to go forward if the parent dies after the designation is created but before the petition is filed. [Surrogate 1726 4.(b)] In practical terms, the major difference between the two strategies is that the early-petition process allows a parent to resolve all issues relating to future care of her child in court, before she becomes severely incapacitated. The designation process allows the plans to develop privately, and shifts the administrative burden to the standby guardian. The parent retains "full parental rights" after the guardianship begins. [Surrogate 1726.4(b)(iii)] This amounts to concurrent authority shared by the parent and the standby guardian. [Surrogate 1726.7] In practical terms the parent has primary authority unless she is unable to exercise it. The parent may revoke the designation either orally, in writing, or in any other way that indicates intent. [Surrogate 1726.4(f)] (Practitioners forms used in New York City state that a revocation is to be in writing.] The designation is filed in court together with a petition requesting appointment of the standby guardian.
II. Agreement of the Non-Custodial Parent. The standby guardianship law is silent as to the involvement of the non-custodial parent. He is not required to sign the designation. The legal provisions applicable to general guardianships require notice to be given to parents if they are in the state and their residences are known. Moreover it says that "No process shall be necessary to a parent who has abandoned the infant or is deprived of civil rights or divorced from the parent having legal custody of the infant or an incompetent who is otherwise judicially deprived of the custody of the infant…." [Surrogate 1705.1(a) and .2] At a minimum, there must be notice to the parent, or an affidavit describing why no notice is necessary, or consent of the parent. (Attorneys state that in Family Court, where standby guardian cases usually are heard, judges typically would require notice to an out-of-state parent if the residence is known.)
III. Role of the Standby Guardian. A standby guardian's authority does not begin until one of the triggering events listed in the petition or designation document occurs. Upon the occurrence, the standby guardian must gather the required evidence. Evidence would be a physician's determination of incapacity or debilitation, a parent's written, attested consent, a death certificate or funeral home receipt. Under the early-petition strategy the standby guardian has 90 days to gather the evidence and file it in court to activate the guardianship. [Surrogate 1726.3(e)] Under the designation strategy, the standby guardian has 60 days to do this, and the evidence must be accompanied by a petition for appointment. [Surrogate 1726.4 ( c)] If the documents are not filed within 60 days, the guardian's temporary authority lapses. If lapsed, a later filing can occur, and usually the request for renewed authority is granted. [Surrogate 1726.4(c)] The standby guardian's authority is concurrent with the parent's, and may include parental kinds of decisions relating to the personal welfare of the child, unless Surrogate's Court has also granted authority over the child's property. [Surrogate 1726.7] Once the guardianship becomes permanent, unless it is revoked or rescinded, it lasts until the child's majority or until another intervening event like the child's marriage. [Surrogate 1707.2]
IV. Court Process. Court process for a standby guardianship can commence either with filing a petition for appointment prior to a triggering event; or with filing a designation document along with a petition for appointment after the triggering event occurs. The law states that the filing is for "the sole purpose of safekeeping and shall not affect the validity of the appointment or designation." [Surrogate 1726.8(a)] In other words, the guardianship is not effective until the court makes a finding based on declarations in the designating document and the petition. The court must ascertain whether the guardianship will promote the child's best interests. [Surrogate 1726.3.(d)(I). See also Matter of Guardianship of Rene O.C.606 NYS 2d 872 (1993)] To do that, a court hearing is implied, even if the petition is uncontested. [Matter of Guardianship of F.H., 632 NYS 2d 777 (1995)] Notice is given to any parent living in the state in a known residence, unless the parent is adjudicated unfit, incompetent, etc. Notice must also be given to children named in the petition who are 14 years or older. [Surrogate 1705] A parent's presence in court can be waived, if she is too ill to appear. [Surrogate 1726.3 ( c)]
Under the early-petition strategy, once the court has made a decision, the matter lies dormant until one of the specified triggering events occurs. The standby guardian then files confirming documents within 90 days of the event, along with a petition for appointment as guardian. [Surrogate 1726.3(e)] Under the designation strategy, the documents are filed within 60 days of the triggering event, along with a petition for appointment. [Surrogate 1726.4( c)] The court then examines whether the facts are as stated and the child's interests will be promoted. [Surrogate 1726.4(e)] Note that this process can take place either in Family Court under the Family Court Act, Title 6, or in Surrogate Court under the Surrogate's Act, Title 17.
Overall, the New York Court retains a great deal of flexibility and discretion.
See McKinney's Consolidated Laws of New York Annotated Surrogate's Court Procedure Act, Chapter 59-A of the Consolidated Laws, Article 17 – Guardians and Custodians, Section 1705, 1707, 1726.