Blog, Community, Estate, Events, News
COVID-19: Does Your Family Have A Plan?
Everyone should have a durable health care power of attorney in place and a living will. The COVID-19 pandemic makes me anxious and when I’m anxious, I need to channel that anxiety into action. You probably do, too. Your first action, of course, should be to follow the advice of public health professionals. Diligently wash your hands, self-isolate as long as we’re under restrictions, and stay at least six feet away from others if you have to go out. This will greatly reduce your risk of contracting or spreading the COVID-19 virus, according to epidemiologists. But that doesn’t help you plan for unexpected outcomes and long-term issues that impact your finances and your family’s well-being. Think about the following: What would happen if you were unable to make or communicate financial and personal decisions for several weeks due to a critical illness? Are you the family’s bill-payer? Does anyone else know the log-in and password information for your on-line utility accounts, or your bank account, in case you’re incapacitated? If you became sick suddenly, and were away from your home for an extended period, who would take care of your child, pet, or mail? How would your bills get paid? One positive action you can take while you’re working from home is to plan and prepare for your family’s future by completing a few key estate planning documents. Having your wishes documented and creating a formal plan to manage family finances and everyday needs should be a crucial first step. Face it, most of us have put…
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“How can I make them pay for my attorney?!” – Timing your attorney fee request in Indiana State Courts
Congratulations. You’ve just been served with a summons for a silly lawsuit. You now get the privilege of hiring a lawyer to defend you, but why should you have to pay to defend a frivolous claim? Can’t you make the other side pay for your legal fees? Anyone who has been involved in America’s legal system has probably learned that getting the other side to pay for your legal fees is a challenging battle, certainly not the norm. Under the so-called “American Rule,” a party must pay his own attorneys’ fees unless there is a specific statute or some agreement between the parties that provides otherwise. One such statute is the “frivolous claim” statute, which allows a party who prevails in litigation to recover his legal fees if the other party engaged in frivolous or bad faith litigation. Indiana’s frivolous claim statute is found at IC 34-52-1-1, and most U.S. states have similar statutes. Indiana even has a separate statute specifically dealing with government entities at IC 34-13-3-21. Indiana’s frivolous claim statute applies both ways; that is, either a plaintiff or a defendant can be guilty of engaging in frivolous or bad faith litigation and be forced to pay the other party’s legal fees. So even if you’re defending a silly lawsuit, you’d better make sure that you don’t also engage in frivolous conduct in how you put on your defense. In the past, a party with an opponent litigating frivolously faced a procedural and strategic dilemma—when should they ask the court to award fees for…
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Kinsey to Speak About Self-Publishing From the Author’s Perspective
Partner and author, Madalyn S. Kinsey will be speaking at the Columbian Business Network’s luncheon meeting on September 19, 2014 at The Columbia Club. She will be speaking about “The Ins and Outs of Self-Publishing” from her perspective as a published author. Kinsey is the author of The Ghost of Cheeney Creek, released in April 2014. Information about the book is available on Amazon and Barnes & Noble websites. For more information on the CBN luncheon, please visit their website.
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Common Legal Issues in Residential Rental Real Estate Acquisitions
Common Legal Issues in Residential Rental Real Estate Acquisitions With over 6,000 multi-family units sold in 2013 and three years of uninterrupted occupancy growth, purchasing residential rental real estate in the Indianapolis metro area is as popular as ever. Nevertheless, the astute buyer should be aware of several legal issues that can arise in these types of transactions and have a competent attorney resolve them prior to closing on the purchase. Survey Issues An ALTA Survey is highly recommended prior to the purchase of residential rental real estate. An ALTA Survey is a boundary survey prepared to the minimum standards jointly adopted by the American Land Title Association and the American Congress on Survey and Mapping. An ALTA Survey is often required by Lenders and Title Companies and is a good idea for the buyer regardless of whether it is required by another party due to the comprehensive due diligence involved in its preparation. Some common issues that may be disclosed by an ALTA Survey are: encroachments, easements, gaps & gores, incorrect legal descriptions, set back violations, property access issues, and flood zone issues. All of these issues can be addressed with the help of a competent attorney. Zoning Issues With Indianapolis’ desire to decrease population density in its urban core, a buyer needs to be cognizant that a property’s proposed use conforms to the zoning ordinance. For example, did you know that the zoning ordinance defines a two family residence (duplex) as “[a] building designed originally for residential occupancy by two (2) families living independently…
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Indiana’s New Physician Orders for Scope of Treatment (“Post”) Law
Planning end of life medical treatment for seriously ill patients – Indiana’s New Physician Orders for Scope of Treatment (“Post”) Law Indiana’s new Physician Orders for Scope of Treatment (“POST”) was passed into law on July 1, 2013. This newly enacted law, Indiana Code 16-36-6, et seq., establishes a form to document a patient’s treatment preferences, or their desire to decline certain treatments, into a medical order that physicians can follow. In order to be eligible to complete a POST form an individual must be a “qualified individual”. In order to be qualified the individual must (1) have an advanced chronic progressive illness; (2) an advanced chronic progressive frailty; (3) a condition caused by injury, disease or illness from which there could be no recovery and death will occur within a short period of time; or (4) a medical condition that, if the person were to suffer cardiac or pulmonary failure, resuscitation would be unsuccessful. The POST form is given to an eligible individual for contemplation and discussion with family members and will include the following: (1) a medical order specifying whether CPR should be preformed if a patient is in cardiac arrest; (2) a medical order concerning the level of medical intervention to be provided to a patient including comfort measures; (3) a medical order that specifies whether antibiotics should be provided to the patient; and (4) a medical order that specifies whether artificially administered nutrition should be provided to the patient. A POST form cannot be required of an eligible individual. However, if an…
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Anne Hamilton elected to the Indiana State Bar Association’s Trust and Estate Specialty Board
Anne Hamilton of Kroger, Gardis & Regas was elected to the Indiana State Bar Association’s Trust and Estate Specialty Board. Anne is a Board Certified Indiana Trust and Estate Lawyer; she focuses her practice in the areas of estate planning, estate and trust administration, charitable planning, special needs planning, guardianships, and estate and income tax planning.
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Does contamination mean a reduction in property value?
Is benzene under your home bad? Depends. Earlier this year, the Seventh Circuit Court of Appeals heard the case of Parko vs. Shell Oil, 739 F.3d 1083. Although this is essentially a loss of property value class action case, Judge Posner gave us several of his patented pithy sayings, this time about toxic torts. In Parko, a Shell refinery operated for ninety years across the street from the Plaintiffs’ subdivision. Benzene was found under the homeowners’ property although the groundwater was not being used as a drinking water supply. Plaintiffs’ sued as a class for the loss of their property values. Cutting to the chase, Judge Posner observed that: There are many things commonly found in soil beneath rural or suburban houses that homeowners would very much like not to enter their homes (such as earthworms, fungi, ants, beetles, slugs, radon, chemical residue, thousands of different types of microbes – and groundwater), but as long as there is no danger of such unwanted visitors their underground presence should not affect property values. Benzene in the water supply is one thing; benzene in groundwater that does not feed into the water supply is quite another. (emphasis added) The Seventh Circuit sent this case back to the trial court to take evidence on these issues before granting a class certification. Most importantly, this gives us insight into the Seventh Circuit’s analysis of whether property values are affected simply because the groundwater is contaminated.
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Phase 1 Environmental Site Assessments Revised
Just when you think you understand what “due diligence” means, somebody goes and changes the rules. The standard the environmental community has used for the past 8 years for conducting Phase 1 Environmental Site Assessments was revised recently by the American Society for Testing and Materials (ASTM). US EPA has now formally adopted the new standard (ASTM E 1527-13) as satisfying the “all appropriate inquiry” rule for parties seeking protection from liability under CERCLA or the Superfund law. US EPA will remove the prior standard, ASTM 1527-5, from All Appropriate Inquiry Rule in the near future. ASTM E 1527-13 is more stringent and adopts additional environmental conditions that must be reported. These generally deal with past remediation efforts where some contamination remains in place and the property is subject to engineering or institutional controls. Vapor intrusion must also be investigated and the impact of subsurface contamination on indoor air quality must be considered. Air quality concerns have typically been excluded from prior Phase 1 environmental audits. Purchasers seeking liability protection under CERCLA should now instruct your environmental consultant to use ASTM E 1527-13.
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James Knauer Named Indianapolis Litigation-Bankruptcy Lawyer of the Year
James Knauer was recently named the Best Lawyers® 2014 Indianapolis, litigation – bankruptcy “Lawyer of the Year.” Copyright 2013 by Woodward/White, Inc., of Aiken, SC. Mr. Knauer, leads the Litigation – Bankruptcy Practice Group at Kroger, Gardis & Regas and has substantial experience in all aspects of business transaction and business litigation, including environmental matters, shareholder litigation; business fraud; secured creditor enforcement; guaranty litigation; RICO actions; lender liability defense and class action representation; and non-compete covenants. Mr. Knauer has represented secured and unsecured creditors, receiver’s, bankruptcy trustees, creditor’s committees and business debtors in many of the most significant business insolvency and bankruptcy cases that have been filed in Indiana during the past 30 years. Best Lawyers lists of outstanding attorneys are compiled by conducting exhaustive peer-review surveys in which tens of thousands of leading lawyers confidentially evaluate their professional peers. If the votes for an attorney are positive enough for inclusion in Best Lawyers, that attorney must maintain those votes in subsequent polls to remain on the list for each edition. Lawyers are not permitted to pay any fee to participate in or be included on our lists. The Best Lawyers Board of Advisors includes legal luminaries from almost every major world economy as well as general counsel from global companies with business on every continent. This very distinguished group of professionals contributes to our knowledge of an ever-changing legal marketplace to ensure that all of our initiatives are responsive to both the concerns of the legal profession and the needs of clients. Copyright 2013 by Woodward/White, Inc., of Aiken, SC.
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Attorney, James Lauck Honored
On Tuesday, October 29, 2013, James G. Lauck was honored by Hoosier Park Racing & Casino and Indian Grand Racing & Casino for his eight years of service as a member of the Indian Horse Racing Commission. Jim served on the Commission from 2004-2012. The purpose of the HRC, which was established in 1989, is to develop the Indiana horse racing community and regulate pari-mutuel wagering.
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