SSJH News & Updates

Our updates and posts are offered for general information and educational purposes only and may be considered advertising. Although we intend to use updates and posts to provide current, useful information, they are not offered as legal advice and do not constitute legal advice or opinion. You should not act or rely upon this information without seeking the advice of an attorney.

Recording Conversations in Anticipation of Divorce

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Photo of Russell Getchell at Sherman Sherman Johnnie and HoytContested child custody cases are typically very emotionally charged. There are often heated conversations between the parties and, at times, these conversations may be recorded. While the memorialization of an abusive conversation is relevant and useful in a custody case, the recordings can also come across as an unnecessary violation of privacy.

However, this does not prevent certain conversations from being recorded. Therefore, it is important to know (1) when it is legal to record a conversation, and (2) that you should always conduct yourself as though every word you say may someday be broadcasted throughout the courtroom.

In general, in-person conversations cannot be recorded unless you inform all participants that they are being recorded. This means that it is illegal to hide a tape recorder in your pocket while you talk to your spouse, unless you inform them you are recording the conversation. The exception to this rule is that conversations which occur inside your home may be legally recorded, notwithstanding that not all participants have been informed or consented. Aside from this exception, recording a conversation in-person without the other person’s consent is illegal.

Telephone conversations can be legally recorded so long as at least one of the participants has consented to being recorded. This means your spouse can record a conversation between you and a friend, so long as the friend consents. However, this does not apply to a phone conversation where one of the participants is in your home. Say, for example, you pick up your home phone intending to make a call, and find out that your spouse is already engaged in a conversation with a third party. This conversation could be legally recorded without getting consent from either of the parties.

Legally recorded conversations are typically admissible in court. Heated conversations always sound worse in court. Therefore, if for no other reason (which there are plenty) conduct yourself appropriately.

The Oregon laws on recording conversations contain further complexities, and you should consult a lawyer prior to recording any conversations.

Russell Getchell

With a background in teaching middle school students, Russell knows how to craft creative solutions for parties with conflicting viewpoints. Russell practices in the areas of domestic relations, litigation, banking and lending, real estate and land use, and general business.

Posted in Articles by SSJH Attorneys, Divorce | Tagged , , , , , , , , |

Oregon State Bar’s Board of Governors: The Ending of a Term

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After 4 years of service, Gina Johnnie’s term on the Oregon State Bar’s Board of Governors came to an end on December 31, 2011.  The Board of Governors is the Board of Directors for the Oregon State Bar, and Ms. Johnnie obtained that position through an election process.  The Board of Governors is tasked with directing the Bar’s power for the advancement of the science of jurisprudence and the improvement of the administration of justice.  Essentially, it was a lot of hard work.  However, it is necessary work and work that betters our community as a whole.  Ms. Johnnie was honored to represent Region 6 and is now looking for other commitments that are as fulfilling and rewarding as serving as a member of the Bar’s Board of Governors.

To learn more about the Oregon State Bar’s Board of Governors, please visit http://www.osbar.org/leadership/bog

Posted in SSJH Firm News | Tagged , , , , , |

Even the Cobbler’s Son Needs Shoes

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Too often business owners are too busy running the business to pay attention to the documents which govern the business and could decide its future in the event of sudden unanticipated change. Taking a few moments to review a company’s governing documents may seem like a distraction from the business at hand, however, doing so could be the difference between a business which survives and thrives, and one which fails.

It is reality in today’s world that we are all busy. As a result, most businesses focus on satisfying their customers, identifying changes in the market so they can stay ahead, and making sure there is profit at the end of the day. As a result, too often business owners spend too little time reviewing and analyzing the structure of their business.

Just as the markets in which businesses function quickly change, businesses change themselves. Accordingly, the Operating Agreement for limited liability companies, or By-Laws for corporations, can quickly become outdated. Updating these documents, however, often gets pushed to the back burner or forgotten all together.

Failure to update business organizational documents as regularly as businesses plans, can lead to devastating consequences.

The provisions of an entity’s governing documents which apply upon the death or incapacity of a member are often designed for a company that no longer exists. Accordingly, they may impose impractical or devastating obligations on the business, or leave a deceased or incapacitated member of the business with far less than anyone ever expected.

Similarly, a change in marital status of a business owner or partner can have a drastic impact on the business if the business’ organizational documents do not properly address the possibility. Too often business owners do not take the time to be sure their organizational documents for their business reflect its current condition. A failure to do so can result in unanticipated financial burdens, significant litigation costs, or the admission of a new partner the owners do not anticipate.

A brief annual review of your organizational documents to be sure the provisions still fit the business’ goals, intentions and condition can avoid this result. The discipline to stop and be sure you are paying as much attention to the structure of your own business, as you are to your business’ performance, can be the difference between a business that survives and one that does not. Those businesses which make sure that the cobbler’s son has shoes, are in the best position to survive and thrive through sudden unanticipated change.

-Mark Hoyt

Mark represents businesses and individuals in all aspects of complex civil litigation, land development, and construction. In his commercial litigation practice, he leverages his extensive experience in litigation, mediation, and arbitration to identify the vehicle which will most efficiently and effectively achieve his clients’ goals. He emphasizes construction defect, commercial and business dissolution litigation while maintaining a boutique practice recovering compensation for the victims of elder and sex abuse.

Posted in Articles by SSJH Attorneys, Business, Uncategorized | Tagged , , , , , , , , , , |

Can You Protect Your Assets Before You Qualify For Medicaid?

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As the population ages, long term health care planning becomes more important.  By long term health care, we mean any health care that extends over a long period of time. This can be assisted living, in home health care, care in a nursing home, or group home care.

Not only does long term care mean a loss of personal freedom, but it can create a significant financial burden.  Funding of long term care has become more challenging for seniors and their families, as life expectancies have increased and qualifying for government programs has become more restrictive and complex.

Today, there is no bottom line amount of assets that a family needs to pay for long term care for a family member.  Some members of the health care profession estimate that a family would need assets of $1.0 million with cost averaging up to $100,000.00 per year.  Most families will have to resort to some form of government long term care assistance.

One of the most well-known programs for long term care assistance is Medicaid.  Medicaid is a federal program that is administered by the state.  Medicaid eligibility depends on your age, residency, amount of your assets and your income.  Each state may have different requirements and financial limits.  Eligibility standards and regulations for Oregon are contained in ORS §§ 411.400 et. seq. and OAR 410-12-0000 et. seq.  The Oregon eligibility manual is available online at http://apps.state.or.us/ct1/EligManual

Oregon provides for certain exemptions for assets to exclude from calculating assets for Medicaid eligibility.  In addition, some property is not included, such as unsalable property.  Income includes income from all sources, such as social security benefits, pension benefits, interest income and investment income.

If you are not in need of immediate long term care, there are planning options to implement to help you qualify for Medicaid when the need arises.  As part of preplanning, a person can spend down certain assets, such as exempt assets, personal service, nursing home care and medical expenses.  However, spending down assets can cause a period of ineligibility for benefits.  The period of ineligibility for transfers is for transfers made within 60 months of when an individual is otherwise eligible for Medicaid.  The penalty is calculated based on a specific formula.

The key to long term care planning is to plan in advance and consider not only eligibility requirements, but tax issues and estate planning concerns.  Remember that if you give money to your children, it belongs to them.  Your children could lose the money through bankruptcy, divorce or lawsuits.

Consultation with an attorney who specializes in long term care planning is essential because of the complexity of the eligibility requirements, the constant change in the law and regulations, and the devastating effect that failure to plan and comply with the regulations can have on a family for generations.

If you are going to consult with an attorney, the sooner the better.  To discuss this complex area of planning, please contact Russ Pike, one of our estate planning attorneys.

 -Russ Pike

Russ maintains a broad practice and serves clients in the areas of complex estates and business succession planning, insurance coverage, and civil litigation.  He is a frequent speaker and presenter on issues related to complex estate and insurance matters.

Posted in Articles by SSJH Attorneys, Elder Law, Uncategorized | Tagged , , , , , , , |

Expanded (Retroactive) Powers for Health Care Representatives

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Currently, the Health Care Representative you nominated in your Advanced Directive only has the power to consent to your physical health care, and does not have the power to admit or retain you in a health care facility for mental health treatment. However, effective January 1, 2012, your Health Care Representative will have the power to consent to mental health care for you. This is true even if you signed your Advance Directive long before January 1, 2012, as the legislation is retroactive.

For many, this change in legislation will have little to no impact. If you trust your Health Care Representative to make physical health care decisions for you, you are also likely to trust your Health Care Representative to make mental health care decisions for you in the event you are unable to do so yourself. On the other hand, if the fact that your Health Care Representative will have the ability to consent to mental health care for you beginning on January 1, 2012 causes concern, you should speak with your attorney about the possibility of nominating a Health Care Representative you are more comfortable with.

The expanded power to consent to mental health care may allow Health Care Representatives to quickly obtain necessary mental health care for the individuals who nominated them. In the past, it has often been necessary for the family or friends of an individual in need of mental health care to go through the public, costly and time consuming process of having a guardian appointed by the court before mental health care could be obtained for the individual. The ability of a Health Care Representative to make mental health care decisions may be a less restrictive alternative in some cases that would have previously required a court appointed guardian in order to make the same decisions.

-Michelle Morrow

Michelle maintains a broad practice serving clients in the areas of elder law, real estate and land use, litigation, and estate planning.

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