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What is Cultural Property Law?

What is Cultural Property Law?

shutterstock_135669671-300x200 What is Cultural Property Law? Lawyer Palm Springs | Orange CountyCultural property law protects buildings, artifacts, and other items that are important to a people and their heritage. Cultural property refers to the collection of rare and personal property that is meaningful to a culture.

The team of competent and caring lawyers at SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) law firm provides professional legal advice and services to clients in Palm Springs, Palm Desert, Rancho Mirage, Inland Empire, Orange County, San Diego, New Jersey, New York, and surrounding locations.

 

Inclusions in Cultural Property

The following may be included in cultural property:

  • Cultural buildings such as museums and performing arts centers
  • Ancient buildings
  • Religious and ceremonial artifacts
  • Historical edifices such as old houses
  • Important sites such as burial grounds and historic sites
  • Ancient remains
  • Other ancient relics

 

Cultural Property Law is Civil as well as Criminal

The area of cultural property law encompasses civil as well as criminal law. Sometimes the blatant theft of personal property is a criminal issue in which the offender may face imprisonment and fine.

In other cases, the enforcement of cultural property law involves civil law. This may include drafting and filing a civil claim for the restoration of the property. Attorneys practicing cultural property law may focus entirely on civil actions or criminal prosecutions. Conversely, they may come into contact with cultural property law as a part of a more extensive practice.  

 

The Native American Graves Protection and Repatriation Act

The Native American Graves Protection and Repatriation Act of 1990 refer to a US law that instructs federal bodies and federally funded state and local organizations to restore cultural artifacts belonging to Native Americans to their descendants and related tribes.

This law is overseen by US Secretary of the Interior, and there are federal grant funds to assist in the compliance of agencies. People involved in Native American human remains or cultural artifact trafficking without ownership of the items may face up to one-year imprisonment and a fine of up to $100,000.

 

Larceny of Major Artwork

The Federal Theft of Major Artwork law aims to protect cultural property. It makes the theft of major pieces of artwork from a US museum unlawful which can result in the offender facing ten years in federal prison and a fine.

The stolen artwork must be over 100 years old and worth more than $5,000 to qualify as major artwork. In case the artwork is less than 100 years old, it can still qualify as major if it is valued at over $100,000.

 

Other Significant Cultural Property Treaties and Legislation

  • Theft of Government Property Act
  • American Resources Protection Act
  • Perjury laws
  • National Stolen Property Act
  • Hobbs Act
  • Obstruction of Justice laws

 

Challenges in the Protection of Cultural Property

The protection of cultural property presents some unique legal issues. Firstly, it may take years for the stolen item to be recovered. The item may be transferred to many owners in this duration.

Furthermore, lawyers practicing cultural property law should be prepared for continuing jurisdictional challenges. The theft of cultural property usually starts at one location but then goes to another jurisdiction when the item moves across state borders. It can be challenging to work with enforcement agencies and courts both domestically and internationally.

 

Focused and prudent attorneys at the SBEMP law firm serve clients from Palm Springs, Palm Desert, Rancho Mirage, Inland Empire, Orange County, San Diego, New Jersey, New York, and nearby locations for a range of legal practice areas.
For more information or to request a consultation please contact the law offices of 
SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) by clicking here. 

SBEMP LLP is a full service law firm with attorney offices in Palm Springs (Palm Desert, Inland Empire, Rancho Mirage), CA; Costa Mesa (Orange County), CA; San Diego, CA; Princeton, NJ; and New York, NY.

DISCLAIMER: This blog post does not constitute legal advice, and no attorney-client relationship is formed by reading it. This blog post may be considered ATTORNEY ADVERTISING in some states. Prior results do not guarantee a similar outcome. Additional facts or future developments may affect subjects contained within this blog post. Before acting or relying upon any information within this newsletter, seek the advice of an attorney

What is Copyright Law?

shutterstock_109615592-300x212 What is Copyright Law? Lawyer Palm Springs | Orange CountyCopyright law refers to the area of law that protects the rights of artists, authors, and innovators to profit from their work. The purpose of this law is to encourage the development of innovative works.

Experienced attorneys at SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) law firm provides professional legal advice and services to clients in Palm Springs, Palm Desert, Rancho Mirage, Inland Empire, Orange County, San Diego, New Jersey, New York, and surrounding communities.

 

Protections under Copyright Law

Copyright laws protect the rights of individuals who create artistic works ensuring that they are the people who profit from those works. This law safeguards various creative works, such as:

  • Written papers and poems
  • Books
  • Sound
  • Art
  • Music
  • Singing
  • Video recordings
  • Movies
  • Sculpture
  • Theater and drama
  • Architecture
  • Derivative works of any of the above

Copyrights are distinct from patents as they protect creative works while patents safeguard technologies and discoveries.

 

How do you get a Copyright?

Copyright is automatic in the US. The individual producing the creative work is the person who has the right to profit from it. The creator does not need to formally register a copyright with the United States Copyright Office to receive a copyright.

But there are reasons which may encourage a creator to undergo the process to register their copyright. Upon registering their copyright, a person has prima facie evidence that their copyright exists.

If there is a violation, the creator can also seek statutory damages as well as lawyer fees that are not available to them if they do not register their copyright.

 

Available Remedies for Copyright Violation

Monetary payments for a reduction in profits may be a penalty for a copyright violation. Penalties may also include receiving the injunctive relief that disallows the offending behavior from continuing.

Sometimes an individual who violates copyright might also have to turn over the equipment they use to create illegal copies such as copying machines or other tools.  

 

Copyright Law is both Criminal and Civil

Clients facing criminal, as well as civil violations allegations, may work with copyright attorneys. Federal prosecutors can prosecute deliberate violations of copyright law.

They possess prosecutorial discretion meaning that they can decide whether or not to bring a criminal action for a possible copyright violation. If the prosecutors do not bring criminal prosecution, the individual holding the copyright can still start their own civil litigation.

 

Common Issues in Copyright Enforcement

 

  • Employer and employee disputes: When an employee is the creator of a work, conflicts can arise regards the ownership.
  • Joint authorship: When more than one individual create a work and wish to control it.
  • Conflicts on whether the work is eligible for copyright protection
  • Disputes on whether a new creation falls under the purview of the Fair Use Doctrine
  • Debate on whether a work is still protected under copyright
  • Questions on the originality of the work contextual to a copyright claim
  • Registration concerns and assistance
  • Execution of actions for copyright violations
  • Challenges in providing proof of lost sales and other damages due to violations

 

 

Copyright Laws and Emerging Technologies

Attorneys practicing copyright law must understand how emerging technology impacts these laws. Today, new technology has made it easier than ever to record a work. It has also become very easy to violate copyright. The copyright attorneys of today must develop ingenious ways to detect and enforce copyright violations.

 

Committed lawyers at the SBEMP law firm serve clients from Palm Springs, Palm Desert, Rancho Mirage, Inland Empire, Orange County, San Diego, New Jersey, New York, and nearby locations for a range of legal practice areas.
For more information or to request a consultation please contact the law offices of 
SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) by clicking here. 

SBEMP LLP is a full service law firm with attorney offices in Palm Springs (Palm Desert, Inland Empire, Rancho Mirage), CA; Costa Mesa (Orange County), CA; San Diego, CA; Princeton, NJ; and New York, NY.

DISCLAIMER: This blog post does not constitute legal advice, and no attorney-client relationship is formed by reading it. This blog post may be considered ATTORNEY ADVERTISING in some states. Prior results do not guarantee a similar outcome. Additional facts or future developments may affect subjects contained within this blog post. Before acting or relying upon any information within this newsletter, seek the advice of an attorney

DE MINIMIS TIME

Do you have to pay an employee for answering an after-hours work related call that only lasted a few minutes? 

labor-law-Palm-Desert-Inland-Empire-Rancho-Mirage-CA-300x200 DE MINIMIS TIME Lawyer Palm Springs | Orange CountyThe Industrial Welfare Commission Orders, Section 2, describes “hours worked” as time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so. So, answering short calls, texts, and emails would fall under the definition of hours worked.

These small increments of time can be hard to track and previously were disregarded as “de minimis” time.  De minimis time is commonly defined as a few seconds or minutes in duration, and where the failure to count such time is justified by industrial realities. However, the California Supreme Court held in 2018 that the de minimis rule has not been adopted by California laws, which require that employees be paid for “all hours worked.”

If it is not necessary for your employees to answer calls after-hours, create a policy that prohibits employees from working off the clock. If an employee still works after-hours, pay them for the time worked, but you can also discipline the employee for violating your policy.

For any questions regarding new laws, or existing laws, contact the Labor and Employment Law Attorneys at SBEMP.

For more information or to request a consultation please contact the law offices of SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) by clicking here. 

SBEMP LLP is a full service law firm with attorney offices in Palm Springs (Palm Desert, Inland Empire, Rancho Mirage), CA; Costa Mesa (Orange County), CA; San Diego, CA; Princeton, NJ; and New York, NY.

DISCLAIMER: This blog post does not constitute legal advice, and no attorney-client relationship is formed by reading it. This blog post may be considered ATTORNEY ADVERTISING in some states. Prior results do not guarantee a similar outcome. Additional facts or future developments may affect subjects contained within this blog post. Before acting or relying upon any information within this newsletter, seek the advice of an attorney.

Vee Sotelo answers a client’s question regarding a sick day taken before/after a holiday:

This question was recently posed to Vee Sotelo regarding employees that called out the day before or after a paid holiday (day off):

Our company has a policy that requires employees to be at work the day before and after a company-observed holiday in order to be paid for that holiday. If an employee calls in sick the day before or after the holiday, can the company require the employee to produce a doctor’s note in order to receive pay for the holiday?

Here is Vee Sotelo’s response:

As you know, the Labor Commissioner has adopted the position that as long as the employees have job-protected sick days available under the Paid Sick Leave Law to be used, requiring the employees to produce a doctor’s note in order to use their available sick days is a violation of the Paid Sick Leave Law. Therefore, the focus of the analysis is on whether or not the employees are using their accrued and available sick days in order to call out sick the day before or after the holiday. If employees call out sick the day before or the day after a scheduled holiday closing and they have no sick days accrued and available, it does not matter that they claim to have been sick or were legitimately sick before or after the holiday. The absence is not protected by the Paid Sick Leave Law. Under these circumstances, the employer can apply its policy of requiring a doctor’s note to substantiate the absence. Once the employees run out of the accrued and available sick days, any further absences (even for legitimate reasons) would not be protected under the Paid Sick Leave Law.

If an employee still had sick days available and called out sick the day before or after the scheduled holiday closing, the employer will not be able to require the employee to produce a doctor’s note to substantiate the absence, even though the employer has a policy that allows it to require a doctor’s note when an employee is absent under these circumstances.

The bottom line is that, if an employee has not yet depleted her accrued and available sick leave and uses one or more of those days to extend her holiday, there is nothing the employer can really do about it. The employer cannot ask for a doctor’s note and cannot discipline the employee for violating the employer’s policy prohibiting employees from calling out sick the day before or after a holiday. However, if the employee has already used all of her accrued and available sick days for the year, then any subsequent absence from work would not be protected under the Paid Sick Leave Law, even if the employee was legitimately sick or needed to take the time off to care for a legitimately sick family member. In that case, the employer can ask for a doctor’s note if the employee calls out sick before or after a holiday.

For any questions regarding new laws, or existing laws, contact the Labor and Employment Law Attorneys at SBEMP.

For more information or to request a consultation please contact the law offices of SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) by clicking here. 

SBEMP LLP is a full service law firm with attorney offices in Palm Springs (Palm Desert, Inland Empire, Rancho Mirage), CA; Costa Mesa (Orange County), CA; San Diego, CA; Princeton, NJ; and New York, NY.

DISCLAIMER: This blog post does not constitute legal advice, and no attorney-client relationship is formed by reading it. This blog post may be considered ATTORNEY ADVERTISING in some states. Prior results do not guarantee a similar outcome. Additional facts or future developments may affect subjects contained within this blog post. Before acting or relying upon any information within this newsletter, seek the advice of an attorney.

What is Contract Law?

shutterstock_154353836-300x200 What is Contract Law? Lawyer Palm Springs | Orange CountyContract law refers to an area of law that relates to creating and enforcing agreements. A contract is a legally enforceable agreement, and contract law is the body that governs the creation and implementation of contracts. It also offers a fair solution in case of a breach.

Contacts can be used by both corporations and consumers when they purchase and sell products, license activities or products, create employment and insurance agreements, and more. They lead to smoother transactions and no misinterpretations, helping both parties have better clarity on the transaction terms.

Dedicated lawyers at SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) law firm provides professional legal advice and services to clients in Palm Springs, Palm Desert, Rancho Mirage, Inland Empire, Orange County, San Diego, New Jersey, New York, and surrounding communities.

 

Mutual Intent to Enter into an Agreement

A valid contract requires that most parties must intend for the contract to be binding. The parties may not have a mutual agreement to enter into a contract if a document states that it is only a statement of intent, such as verbal agreements between friends.

In general, a promise or an offer of a reward in exchange for specific behavior is an enforceable contract with the individual who performs the activity, for instance, the person offering information in return for an advertised reward can seek the enforcement of the reward.

Conversely, an advertisement is not a contract unless it has an additional, individualized invitation from the seller to the buyer to purchase the product.

A contact can be implied. For instance, a patient has an implied contract with the physician who treats them to pay a reasonable fee for their services.

 

Breach of Contract

In case of a disagreement on the terms of a contract or a breach of contract, the parties may turn to a court for dispute resolution. The party that seeks damages must prove the existence of a valid contract. On top of this, they must convince the court of the availability of a suitable remedy.

 

Remedies for Breach of Contract

Among several remedies, the most common remedy for a breach of contract is compensatory damages. These are the actual financial losses that a party incurs due to the breach of contract.

Liquidated damages are those damages that the parties agree to beforehand in case a breach occurs. The aggrieved party can still win a small amount of damages, known as nominal damages, when a breach happens without any actual damages.

Sometimes, a party acts in a poor and inexcusable manner to contravene a contract. In such cases, the court may award the aggrieved party extra damages known as punitive damages.

But it is a rare occurrence as is the court ordering the parties to perform the contract. This may happen in lawsuits where the compensatory damages are insufficient, such as in a contract of sale for a unique and exceptional item.

 

Emerging Issues in Contract Law

Similar to any other area of law, contract law also grows and evolves. In the past few years, the acceptability of electronic signatures on a contract has become a pertinent and disputed matter in contract law.

 

Competent attorneys at the SBEMP law firm serve clients from Palm Springs, Palm Desert, Rancho Mirage, Inland Empire, Orange County, San Diego, New Jersey, New York, and nearby locations for a range of legal practice areas.
For more information or to request a consultation please contact the law offices of 
SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) by clicking here. 

SBEMP LLP is a full service law firm with attorney offices in Palm Springs (Palm Desert, Inland Empire, Rancho Mirage), CA; Costa Mesa (Orange County), CA; San Diego, CA; Princeton, NJ; and New York, NY.

DISCLAIMER: This blog post does not constitute legal advice, and no attorney-client relationship is formed by reading it. This blog post may be considered ATTORNEY ADVERTISING in some states. Prior results do not guarantee a similar outcome. Additional facts or future developments may affect subjects contained within this blog post. Before acting or relying upon any information within this newsletter, seek the advice of an attorney

What is Consumer Law?

shutterstock_159169643-200x300 What is Consumer Law? Lawyer Palm Springs | Orange CountyConsumer law comprises the group of laws that protect the public at large from dishonest and exploitative business practices. Consumer laws offer the public protection from corrupt ways of conducting business. These laws require compliance from the corporations under its purview.  

Reliable attorneys at SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) law firm provides professional legal advice and services to clients in Palm Springs, Palm Desert, Rancho Mirage, Inland Empire, Orange County, San Diego, New Jersey, New York, and surrounding locations in these parts of the US.

 

What does Consumer Law Regulate?

The practice of consumer law involves protecting people from unfair trade, incorrect information, and unscrupulous ways of conducting business. For most people, the phrase “consumer law” pertains to only banks and fair debt collection practices.

But in reality, consumer laws control a wide range of industries. Some significant areas of federal consumer protection legislation are:

 

Federal Food, Drug and Cosmetic Act

The Act provides the federal government the authority to manage a wide array of products ranging from drugs and food to tobacco. The Food and Drug Administration has the authority to require consumers to procure a prescription from a medical practitioner to access specific drugs.

 

Fair Debt Collection Practices Act

This legislation was passed in 1977 and places restrictions on the actions of debt collectors such as disallowing debt collection in the middle of the night or making harassing phone calls.

 

Fair Credit Reporting Act

The Fair Credit Reporting Act requires businesses to report details on individual credit reports correctly. Consumers can see a copy of their credit report free-of-cost. Inaccurate information in a report can be disputed through a formal process.

 

Truth in Lending Act

Lawmakers wanted to make sure that creditors fairly and transparently make loans and extend credit when they passed the Truth in Lending Act in 1968. Lenders must employ standardized costs while lending.

 

Fair Credit Billing Act

The Fair Credit Billing Act offers consumers protection against questionable billing practices. For instance, a consumer can dispute credit card charges that were not made by them.

 

Gramm Leach Biley Act

This Act was passed in 1999 and is also known as the Financial Services Modernization Act. It enables banks to consolidate and provide more extensive services to customers than was possible earlier.

Consumers tend to save in a weak economy and invest in a robust one. Therefore, this Act enables financial institutions to offer savings as well as investment services.  

 

Products Liability Claims

Along with laws that regulate corporate behavior, there are legal actions as well that exist in statutory and common law. A product liability claim is when a person brings a claim against a company due to a defective product.

A person who experiences an injury or other losses by using a defective product can file a claim for compensation. They may seek compensation for financial loss, pain and suffering, and other losses. The three theories of product liability cases are as follows:

 

Failure to Warn

The business did not properly warn the consumer regarding the perils associated with the product.

 

Defective Design

The product was designed in a manner that it was likely to cause harm. The company could have developed a better product design.

 

Manufacturing Defect

There was an oversight in the manufacturing process that led to a defect in a particular product.

 

Competent attorneys at the SBEMP law firm serve clients from Palm Springs, Palm Desert, Rancho Mirage, Inland Empire, Orange County, San Diego, New Jersey, New York, and nearby locations for a range of legal practice areas.For more information or to request a consultation please contact the law offices of SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) by clicking here. 

SBEMP LLP is a full service law firm with attorney offices in Palm Springs (Palm Desert, Inland Empire, Rancho Mirage), CA; Costa Mesa (Orange County), CA; San Diego, CA; Princeton, NJ; and New York, NY.

DISCLAIMER: This blog post does not constitute legal advice, and no attorney-client relationship is formed by reading it. This blog post may be considered ATTORNEY ADVERTISING in some states. Prior results do not guarantee a similar outcome. Additional facts or future developments may affect subjects contained within this blog post. Before acting or relying upon any information within this newsletter, seek the advice of an attorney

Trusts, Estates, Probate – January Update

New Case Alerts

Meleski v. Estate of Hotlen

Cite as C080023
Filed November 29, 2018
Third District

Summary: A decedent’s insurer can be liable for costs beyond policy limits where the insurer obtains an outcome at trial that is less favorable than the Plaintiff’s C.C.P. 998 offer.

Amanda Meleski was injured when Albert Hotlen ran a red light and collided with her vehicle. At the time of the accident, Hotlen had a $100,000 policy limit through Allstate Insurance. Hotlen then died and, as authorized by the Probate Code, Meleski filed a probate action against Holten’s estate for the policy limits of $100,000, serving her complaint on Allstate. Allstate rejected Meleski’s C.C.P. 998 offer to compromise of $99,999. At trial, Meleski recovered $180,613.86, and sought costs, including expert fees, of $66,017.08 under C.C.P. 998. The Court denied Meleski’s requests for costs, holding that Plaintiff’s recovery was limited to the $100,000 policy limit. Plaintiff appealed.

The appellate court reversed. Allstate, although technically not a named party, was nevertheless a party for purposes of C.C.P. 998. The notion that the “estate” is the defendant is a legal fiction. In the context of this claim against the decedent’s insurer, Allstate alone controlled the litigation, was exposed to any liability, and rejected Plaintiff’s C.C.P. 998 offer. Allstate had made its own C.C.P. 998 offer, and the legislature did not intend for asymmetrical application of the statute. Lastly, the appellate court held that the insurer is liable for such costs even in excess of the policy limits. Click here to read more.

 

Estate of Stockird

Cite as A152538
Filed December 19, 2018
First District, Div. One

Summary: A lapsed gift to a residuary beneficiary passes to the other residuary beneficiaries instead of intestacy, regardless of whether the beneficiary whose gift lapsed was kindred.

Cheryl executed a holographic will leaving her entire estate to her life partner, John, and her aunt related by marriage, Patricia. Patricia predeceased Cheryl and the will contained no provision directing the disposition of Patricia’s share in that event. After Cheryl died, her will was admitted to probate and John petitioned the court for a determination he was entitled to Cheryl’s entire estate under Probate Code section 21111(b) because he was the sole surviving residuary beneficiary. Cheryl’s half-brother, Bruce, filed a competing petition arguing the lapsed gift to Patricia must instead be distributed to Cheryl’s estate under Section 21111(a)(3) and ultimately to him as Cheryl’s sole surviving heir under the laws of intestacy. Both parties agreed Patricia’s share did not pass to her heirs under the antilapse statue because she was not Cheryl’s kindred. The court applied the definition of “transferee” from Probate Code section 21110 to Section 21111 and ruled that because Patricia was not Cheryl’s kindred she was not a “transferee.” Section 21111’s requirement that lapsed residuary gifts to “transferees” pass to the other residuary beneficiaries therefore did not apply to Patricia’s gift, so the lapsed gift instead passed to Cheryl’s estate. John appealed.

The appellate court reversed. The gifts under Cheryl’s will of 65% and 35% to John and Patricia, respectively, were residuary gifts, but the trial court misconstrued the statute governing disposition of lapsed residuary gifts. The definition of “transferee” found in Section 21110 does not apply to Section 21111 as that definition is expressly limited to Section 21110. Instead, the Probate Code’s more general definition of “transferee” found in Section 81.5 applies, and Patricia was a transferee under that statute as it does not hinge on status as kindred. Since Patricia was a transferee, Section 21111(b) applied to her gift, resulting in her lapsed gift passing to the other residuary beneficiary, John. The legislative history makes clear that California abandoned the no-residue-of-a-residue rule in favor of modern trust law aimed at avoiding intestacy. Click here to read more.

Probate v. Privacy
THE TECHNOLOGY BATTLE AFTER DEATH

By Jill Choate Beier

Most of us have some type of “digital presence” on the internet and, most likely, each of us will continue to use the internet more and more. In recent years, the media has reported various stories involving the administration of a deceased individual’s digital assets. For example, family members of a soldier, killed by a bomb while stationed in Fallujah, were unable to get access to email correspondence from the soldier’s Yahoo! account;1 family members of a 15-year-old who committed suicide were unable to access their son’s Facebook account to search for answers;2 or, the full Flickr photo account of a blogger who died suddenly of a heart attack during the night was closed and unavailable to the family after his death.3

In all of these cases, the current federal privacy laws that were created, in part to protect our privacy, ultimately prevented surviving family members from accessing the digitally stored memories that were left behind. Whether you have just one email account or you have several email accounts plus Twitter, Instagram, Shutterfly and Pinterest accounts plus documents stored in the cloud, the question is the same: What happens to our digital presence when we are unable to access our digital accounts? This article will review the issues involved with administering digital assets, discuss New York’s Estates, Powers and Trusts Law (EPTL) Article 13-A and provide some guidance for planning for digital assets. Click here to read the full article from NYSBA Journal.

unnamed-300x200 Trusts, Estates, Probate - January Update Lawyer Palm Springs | Orange CountyWhen is the Right Time to Get Your Estate Planning Affairs in Order?

The answer is, now. Whether it is because you have yet to do your estate plan or that your plan is needing updating due to the passage of time, change in laws, or life events such as marriage, divorce, incapacity, death, or the birth or adoption of a child. Click to continue reading.

unnamed-300x200 Trusts, Estates, Probate - January Update Lawyer Palm Springs | Orange CountyEstate Planning and Special Needs Speaking Engagements and On-Site Training.

SBEMP offers free speaking engagements and on-site check-ups on the topics of estate planning, special needs trusts, guardianships/ conservatorships, and special education. Contact SBEMP to schedule a special engagement or on-site check-up for your group. Visit our Website

With locations in Palm Springs, CA, Princeton, NJ, and Manhattan, NY, SBEMP’S Trusts, Estates & Probate Department is comprised of attorneys with decades of experience in a broad range of issues from planning to administration to when incapacity or death occurs – all while using a mindful approach to identify a client’s special, business or litigation needs. SBEMP’S Special Needs & Elder Law Department has over twenty years of experience including the following highly specialized practice areas: health care insurance, short-term and long-term disability insurance, Medicaid, Medicare, special needs trusts, trust administration, estate planning & administration, guardianships and conservatorships, and accessing disability-based benefits.

TRUSTS, ESTATES & PROBATE and SPECIAL NEEDS & ELDER ATTORNEYS OF SBEMP

Valerie A. Powers Smith

Chelsea Healey

DISCLAIMER: This newsletter does not constitute legal advice, and no attorney-client relationship is formed by reading it. This newsletter may be considered ATTORNEY ADVERTISING in some states. Prior results do not guarantee a similar outcome. Additional facts or future developments may affect subjects contained within this newsletter. Before acting or relying upon any information within this newsletter, seek the advice of an attorney.

What is Constitutional Law?

shutterstock_83682073-300x200 What is Constitutional Law? Lawyer Palm Springs | Orange CountyConstitutional law pertains to the interpretation, implementation, and amendment of the US constitution as well as the constitutions of the 50 states. The main focus of constitutional law is the interpretation, meaning, and limitations of the constitution.

With changes in social and political issues in the US, attorneys practicing constitutional law bring these issues in front of courts to seek clarification regarding the meaning, interpretation, and implementation of the constitution.

Experienced attorneys at SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) law firm provides professional legal advice and services to clients in Palm Springs, Palm Desert, Rancho Mirage, Inland Empire, Orange County, San Diego, New Jersey, New York, and surrounding communities.

 

The US Constitution

The US Constitution was ratified by the founders in 1787 and was a consequent of a debate on the proper role of the government in a free society.

Some believed that the predecessor Articles of Confederation did not provide the federal government sufficient power to conduct business. Ultimately, the US constitution was a compromise between various competing philosophies and interests within the society at the time the document was drafted.

The constitution has undergone many amendments through the years, yet it remains the primary document governing the US government. The constitution provides the federal government power in three branches:

  • The legislative branch (law creation)
  • The executive branch (law implementation and making treaties)
  • The judicial branch (law interpretation)

Furthermore, the constitution defines the relationship between the federal government and the states. Lastly, the constitution defines the relationship of an individual to the federal government.

 

Significant Areas of the Constitution and its Interpretation

Due Process

Due process is based on the idea that the government cannot take an individual’s liberty or property in the absence of a fair judicial procedure. A person who is accused of a crime has the right to have reasonable notice of the charges levied against them and a chance to be heard in the matter.

They possess the right to a fair jury or judge in their case as well as the right to cross-examine witnesses and the opportunity to engage a lawyer. Courts must have records of proceedings and publicly declare the reasons for their verdicts.

 

Freedom of Speech

The government cannot unduly restrict the people’s right to speak, assemble, and practice religion. It can place only limited time and place constraints on speech. In case they place restrictions, these must apply consistently to everyone.

Constitutional attorneys continue to challenge restrictions on free speech while courts continuously struggle with balancing the private right to speech and expression and legitimate public interests.

 

Commerce Clause

A significant part of the legislative authority of the federal government comes from the commerce clause of the constitution. The federal government can only control an industry if the industry affects or has the potential to affect interstate commerce.

One of the most litigate parts of the constitution is the commerce clause. In general, the Supreme Court has a broad and expansive interpretation of the commerce clause.

The court decides in the Swift v. United States (US 1905) case that the government can control an activity or industry as long as the stipulation affects something that will eventually become a part of the stream of commerce.

 

Attorneys at theSBEMP law firm serve clients from Palm Springs, Palm Desert, Rancho Mirage, Inland Empire, Orange County, San Diego, New Jersey, New York, and nearby locations for a range of legal practice areas.
For more information or to request a consultation please contact the law offices of 
SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) by clicking here. 

SBEMP LLP is a full service law firm with attorney offices in Palm Springs (Palm Desert, Inland Empire, Rancho Mirage), CA; Costa Mesa (Orange County), CA; San Diego, CA; Princeton, NJ; and New York, NY.

DISCLAIMER: This blog post does not constitute legal advice, and no attorney-client relationship is formed by reading it. This blog post may be considered ATTORNEY ADVERTISING in some states. Prior results do not guarantee a similar outcome. Additional facts or future developments may affect subjects contained within this blog post. Before acting or relying upon any information within this newsletter, seek the advice of an attorney

When is the Right Time to Get Your Estate Planning Affairs in Order?

By: Valerie A. Powers Smith, Esq.

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When-is-the-Right-Time-to-Get-Your-Estate-Planning-Affairs-in-Order-cover-244x630 When is the Right Time to Get Your Estate Planning Affairs in Order? Lawyer Palm Springs | Orange CountyThe answer is, now. Whether it is because you have yet to do your estate plan or that your plan is needing updating due to the passage of time, change in laws, or life events such as marriage, divorce, incapacity, death, or the birth or adoption of a child.

Estate planning is not associated with the size of your estate; but, rather planning for what happens if you become incapacitated (either temporarily or permanently) during your lifetime and, then, upon your death. The basic elements of a well-crafted estate plan include wills, trust(s), durable powers of attorney, and a healthcare directive. The following are important areas to consider as to whether you have all of your affairs in order:

1. Avoiding Probate & Intestacy Succession

The California probate system is complicated, costly, and time-consuming. One can easily avoid having to interact with the court and probate process by having an irrevocable living trust in place at death. Assets in the name of the trust at the time of death avoid probate and pass as per the dispositive provisions contained in the trust document.

If an irrevocable living trust is not your desire, consider this: failure to do any planning or proper planning will subject you to the laws of intestate succession. Two obvious problems are, one, being subjected to the probate process and, two, your estate potentially going to family members to whom you would not have given had you done the proper planning. This is of particular importance if you are unmarried, have a special needs family member, or are part of a blended-family.

2. Planning for Incapacity

Planning for your own incapacity is just as important as planning for death. Durable Powers of Attorney for financial, business, and health care decision making are essential. It is of particular importance if you are a business owner or have business interests to have an experienced estate and trust attorney create durable p
powers of attorney that coordinate with your business documents. SBEMP offers its clients that very coordination with the experience of both estate & trust and business attorneys to best meet your needs in an integrated manner.
Particularly in California where the incidence of conservatorship petitions is ever increasing with the aging population, it is important to contemplate who you would want appointed, should there ever be a need during your lifetime, as your conservator to manage your personal, financial, and medical decision-making. Left unplanned, the court will determine who that person will be, which may not be who you would have chosen.

3. Succession Planning

Do you own your own practice and are looking toward retirement or; perhaps, just slowing down? Have you put into place your succession plan? What will happen to the practice and your clients? Who will have authority to take it over and service your clients with minimal disruption? Succession planning is just as important as any of the other components of one’s estate plan and can cause unintended consequences if left unaddressed. Again, SBEMP’s estate & trust and business attorneys will work in a coordinated manner to ensure our business client’s needs are met in this regard.

4. Special Needs Considerations

Do you have a family member with special needs? Do you have a special needs trust as part of your overall estate plan? If not, you could unknowingly be creating an ineligibility problem for the very family member you intend to benefit upon your death. Even worse, those inherited assets could be subjected to recoupment by the state in order to continue MediCal (or other means-tested programs) without interruption. A special needs trust is a freestanding trust that preserves current or future eligibility for individuals with special needs and/or disabilities because assets contained therein are not considered to be countable resources for means-tested programs such as Medicaid (aka, MediCal) and SSI.

Other options: ABLE Accounts. Saving for your children’s education? Did you know that saving money in a traditional 529 account can cause ineligibility problems for your child with special needs? While before it was not advisable to do so, now, parents of children with special needs can save for the educational needs of their child with special needs without causing the unintended ineligibility problem that 529s present. In December 2014, the Achieving a Better Life Experience Act of 2014 (ABLE Act) won final approval and was signed into law by President Obama. The ABLE Act is built on the foundation of the current 529 education savings plans that help families save for college. In the case of ABLE, families now have a taxdeferred savings vehicle to save for the care of people with disabilities. The National Disability Institute estimates there are 58 million individuals with disabilities in the United States. Many of these individuals will qualify for ABLE accounts.

5. Same Sex Couples

Prior to the U.S. Supreme Court’s June 26, 2015 decision in Obergefell v. Hodge, 2015 WL 2473451, same-sex marriage was legal in only 37 states (i.e., AL, AK, AZ, CA, CO, CT, DE, FL, HI, ID, IA, IL, IN, KS, ME, MD, MA, MN, MT, NC, NH, NJ, NM, NV, NY, OK, OR, PA, RI, SC, UT, VA, VT, WA, WV, WI, and WY) and Washington, D.C. With legalized marriage for all comes the need to get your estate planning documents in order. The same considerations discussed above in this newsletter apply to same-sex couples. In addition, same-sex couples planning marriage should examine the advantages and disadvantages before doing so, such as healthcare benefits, retiree benefits from the Social Security Administration, and tax treatment, just to name a few.

 

For more information or to request a consultation please contact the law offices of SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) by clicking here. 

SBEMP LLP is a full service law firm with attorney offices in Palm Springs (Palm Desert, Inland Empire, Rancho Mirage), CA; Costa Mesa (Orange County), CA; San Diego, CA; Princeton, NJ; and New York, NY.

DISCLAIMER: This blog post does not constitute legal advice, and no attorney-client relationship is formed by reading it. This blog post may be considered ATTORNEY ADVERTISING in some states. Prior results do not guarantee a similar outcome. Additional facts or future developments may affect subjects contained within this blog post. Before acting or relying upon any information within this newsletter, seek the advice of an attorney.

What is Communications Law?

shutterstock_205932199-300x200 What is Communications Law? Lawyer Palm Springs | Orange CountyCommunications law involves the practice of law associated with the exchange of information using technology.

Any law pertaining to the regulation and use of electronic telecommunication is classified under communications law, including technologies such as cable and internet, television, and radio.

This law involves creating rules and policies that control the use of these technologies. The lawyers at SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) law firm provides professional legal advice and services to clients in Palm Springs, Palm Desert, Rancho Mirage, Inland Empire, Orange County, San Diego, New Jersey, New York, and surrounding communities.

 

What do Private Communications Lawyers do?

Lawyers engaged by private communications companies help their clients with the various federal laws that they need to follow to conduct business legally. Licensing is usually the initial step.

A license is a necessity for most telecommunications companies to conduct operations in their industry. For some types of media such as radio, this includes attaining the right to use a specific frequency to broadcast.

Communications lawyers also assist their clients in understanding lawful ways to conduct their businesses. For instance, if the law requires a broadcaster to provide a political candidate the amount of airtime that they purchase, the communications lawyers must ensure that their clients are aware of as well as compliant with the regulation.

Another vital practice for communications attorneys is proposed mergers. While mergers are common in the communications industry, there are market share regulations in certain telecommunications sectors and antitrust concerns in all cases.

Therefore, communications attorneys have the crucial task of assisting their clients in expanding and merging their organizations in legal ways. In addition, communications attorneys handle routine issues that are common to any enterprise.

They may be required to help with contract negotiation for on-air talent as well as respond to personal injury cases. Communications lawyers must also assist their client in tax filings and compliances.

Finally, they may serve as lobbyists to inform lawmakers of issues pertaining to communications and ask for changes in the legislation.

 

Major Areas of Telecommunications Law

Telecommunications law controls the manner in which Americans use technology, and communicate. A telecommunications company must fulfill multiple requirements before it can commence operations, including:

 

Content Regulation

The US strongly disallows public broadcast content that regulators perceive to be obscene. Some broadcasters must follow compulsory children’s programming requirements as well.  They may have to cover local news or events and ensure that they provide equal opportunity to different viewpoints.

 

Ownership Regulations

Lawmakers want to ensure that a single telecommunications company does not wield excessive power in one market. Therefore, they set limits on the amount of market share one television company can own in a single market. Broadcasters must make sure that they are compliant with ownership limitations and do not violate antitrust law.

 

Licensing Regulations

A majority of telecommunications companies require a license to be operational. The practice of telecommunications law usually involves the vital task of deciding who procures a license and under what terms. Attorneys assist their clients in applying for the required licenses, and government telecommunications lawyers decide on the license applications.

 

Committed attorneys at the SBEMP law firm serve clients from Palm Springs, Palm Desert, Rancho Mirage, Inland Empire, Orange County, San Diego, New Jersey, New York, and nearby locations for a range of legal practice areas.
For more information or to request a consultation please contact the law offices of 
SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) by clicking here. 

SBEMP LLP is a full service law firm with attorney offices in Palm Springs (Palm Desert, Inland Empire, Rancho Mirage), CA; Costa Mesa (Orange County), CA; San Diego, CA; Princeton, NJ; and New York, NY.

DISCLAIMER: This blog post does not constitute legal advice, and no attorney-client relationship is formed by reading it. This blog post may be considered ATTORNEY ADVERTISING in some states. Prior results do not guarantee a similar outcome. Additional facts or future developments may affect subjects contained within this blog post. Before acting or relying upon any information within this newsletter, seek the advice of an attorney

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