Today's Classic Blog Posts discuss the legal rights and responsibilities of both "landlords" and "tenants" when someone lives in someone else's house by invitation (be it a grown child living with his parents, an unmarried couple living in a house in only one person's name, etc.). It was originally posted on July 25, 2013 and titled "When Living With Your Parents Goes Bad - Tenancies at Will and the Law."
Where I felt it needed, I have added a few lines here and there. Additions that were not in the original blog post will be in brackets ([]).
As always, before reading this post please review my disclaimer by following the link above or by clicking on this link. As always, the legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
Our generation - "millennials," those born between 1980 and 2000 - has been referred to on occasion as the "boomerang generation" due to the high number of us who go off to college and grad school only to come home and live with our parents. The unfairness of that derogatory term - after all, it's the economy that our parents' generation created that is causing this - aside, the fact is living with your parents past adulthood actually creates some fairly complicated legal issues.
Once you turn 18, you no longer have an inherent "right" to live in your parents' house. However, if you do not have another place that you live, and your parents' house remains your residence, your parents also do not have an inherent "right" to dump your things on the street, change the locks and have you arrested for trespassing if you come back. This is because the moment you turn 18, if you are still living with your parents, you become a "tenant."
Now, if you are an astute reader of my blog, you've already read my article from May [of 2013] about what set of laws is applicable to what kinds of tenancies. As I stated in that post, any tenancy has a lease, even if you don't know it. In most cases, when living with your parents, the lease is neither oral nor written, but rather implied. In other words - you get to live there as long as your parents don't decide otherwise. It's important to note, however, that this situation does not just come up between parents and children. If you let your sibling, boyfriend or girlfriend, or anyone else actually move in with you, without demanding anything in return, you have an implied lease stating the same thing.
What this all means is that if the relationship or living situation goes bad, the legal issues are complicated, and usually neither side recognizes their own rights or responsibilities. This blog post will attempt to clear up what rights each party has in such a situation, and what responsibilities.
What Is a Tenancy at Will?
Again, going back to my blog post from May, you will notice in the list of leases excluded from the Virginia Residential Landlord and Tenant Act is "occupancy by a tenant who pays no rent." So clearly Virginia law recognizes such a thing, and it is governed by the Common Law. In the Common Law a tenancy where the tenant pays no rent is called a "tenancy at will." Much like "employment at will," a tenancy at will is a tenancy which the landlord may terminate at any time, for any reason.
So, if you live with your parents and don't pay rent, you are a tenant at will. The same is true if you live with your boyfriend or girlfriend at his or her house and also don't pay rent. The same is true with any other situation where one person is living at another's house without paying rent as well. This means that if the relationship goes bad, all that needs to happen is that the "landlord" tells the "tenant" "ok, that's it, you're not allowed to live here anymore." Once that happens, the "lease" is terminated and the tenant must move out.
Now, that sounds very simple, and what I said above is that this is complicated, so you recognize that there must be more to this, right? The complications I refer to above come when you ask the follow-up question - what happens if the "tenant" says no, and refuses to leave? Well, astute readers of my blog will again remember my blog post in which I discuss the dangers of "self-help." As I explain in that blog post, when a lease is terminated, but the tenant remains on the property anyways, a residential landlord does not have the right to simply take matters into his or her own hands and forcibly seize the residence. This rule is just as applicable to a tenancy at will as it is to any other residential tenancy. As a result, just because the tenancy has been terminated does not mean that the "landlord" can change the locks, dump the "tenant's" stuff on the street, call the police, etc. The landlord must get a proper eviction.
How to Evict a Tenant at Will
The eviction of a tenant at will runs about the same way as the eviction of any other tenant - you can just begin the process sooner, because you have no requirement for how long you must wait after giving notice that the tenancy is terminated. You can make the statement to the tenant at will that morning, and file your Unlawful Detainer action that afternoon. Heck, you can be standing in line at the courthouse, fill out the Unlawful Detainer complaint, call your tenant at will, terminate the tenancy, and then hang up and hand in the complaint. That would be a little extreme, but that's your right as a landlord in a tenancy at will.
From there, the case would proceed as any Unlawful Detainer would. Eventually you will have a return day, if the tenant appears to contest, you will have a trial, and if you win, then you can get a Writ of Possession which allows the sheriff's office to forcibly evict. Now, the danger here is that most tenancies at will are situations in which the landlord and tenant are both living in the same house at the same time, and the tenant may continue to be there while the Unlawful Detainer action is going on. If you fear violence or other retaliation from the tenant, it may be worthwhile to set up temporary residence elsewhere until the eviction is complete. [If the person actually has already engaged in any action to make you reasonably fear for your life, you can also get a Protective Order, including an Emergency Protective Order to take effect right away that would force the person out of the house in the meantime. For more on that process, you can read my post about protective orders.]
What If I Start Paying Rent?
Many people, especially adult children living with their parents, think they can get around tenancies at will simply by starting to pay rent. However, an offer to the "landlord" to pay rent is only that - an offer. They are in no way obligated to accept that offer, and if they do not, the tenancy remains a tenancy at will. If, however, they do accept that offer, then the change in your situation depends on the frequency of payments. If you are to pay every month, you have a month to month lease now, and it can still be terminated in the same way as any other month to month lease (30 days' notice). However, you also now have the responsibilities of a paying renter. If you miss a payment, your parents can now give you a 5 day pay-or-quit, and if you miss that, they can not only evict you, but can also sue you for your missed payments.
Can I Do Chores Around the House and Call it Rent?
Now we get into a trickier area. Virginia law does recognize rent that is "in kind" rather than cash, meaning you can pay your rent by doing things around the house. However, this is very, very difficult to prove. First, what you do must be done consistently - you need to be able to show that you are doing these chores every week, or every month, around the same time. Second, what you do must not be to your benefit - buying your parents groceries might count, but not if you bought any groceries for yourself at the same time; mowing the lawn does not count because you benefit from a mowed lawn as well; cleaning your room does not count, cleaning your parents' room might. There is an exception, though, to the strict rules regarding "in kind" rent. If you offer to your parents to do these things as rent, and they express their acceptance of that offer, then it would be rent even if you do get some benefit from those chores. However, you still need to do these consistently since, as above, failure to do so could result in a 5 day pay or quit, an eviction, and a lawsuit for "unpaid" rent.
Conclusion
Tenancies at will are a very common tenancy, especially today. Adult children living with their parents, a person moving in with his or her boyfriend or girlfriend, a sibling moving in with another sibling - the list of situations goes on. These tenancies, however, create legal rights and responsibilities for both parties that are often missed, and if a "landlord" in such a tenancy seeks to terminate that tenancy, the pitfalls can be many. If you are involved in a tenancy at will, either as a "landlord" or a "tenant" and need legal advice regarding the termination of that tenancy, eviction, or turning the tenancy into a rent-paying tenancy, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up an initial consultation. The consultation is free for up to half an hour!
Showing posts with label Elder Law. Show all posts
Showing posts with label Elder Law. Show all posts
Tuesday, July 15, 2014
Wednesday, February 19, 2014
Living the Not So Good Life - Retirement and Child/Spousal Support
As always, prior to reading this post please review my disclaimer by following the above link or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Update (4/27/18): Please note that some of the information in the blog post below is now outdated due to changes in the law. Please see my 2018 Relevant Changes in the Law post for details.
Introduction
If you go back 100 years or so, when our modern laws about spousal support (then, of course, just known as alimony) and child support were starting to emerge, "retirement" was a vague, largely unheard of concept. Most people were either wealthy, or worked until they died. As a result, there was not much of a need for our support laws to take retirement into account.
Of course, this has not been the case for some time now, and the vast majority of workers expect to retire some day (usually with a dream that involves some combination of travelling and beaches). But what about people who have children later in life, and hit retirement age while still owing child support? Or what about people who are ordered by a court to pay long-term (or even indefinite) spousal support? Support orders are supposed to take into account the life circumstances of the parties, including their incomes, so how does support change when you hit retirement?
In fact, retirement is a complicated issue in support law - but often one that leaves retirees or those desiring to retire greatly disappointed. I hope to address those issues here.
"Material Change"
The first rule to remember is that if you already have a child support or spousal support order, it cannot be modified by a court unless the party seeking the modification proves that there has been a "material change in circumstances" since the last time a support order was entered. A material change is generally seen as some change in circumstances that directly affects the factors that go into determining support (income, expenses, age of children, etc.) which is not simply a minor change (for example, a change in income of $5 per month). However, it is important to note that there is no material change in circumstances, legally speaking, if the only "material change" is one brought about by the "voluntary conduct" of the party seeking the change.
Now, there are two key distinctions to make to that last rule. First, the conduct must be voluntary for that rule to kick in. Something beyond your control (your car gets totaled in an accident that wasn't your fault so now you have the expenses of a new one, you got laid off from work, etc.) is not voluntary, so it still counts as a material change. Second, if you are the party seeking the change, it must be your voluntary conduct that caused the material change. If the other party's voluntary conduct caused a material change (such as switching to a new, higher paying job), you can still file.
So, how does this apply to retirement? Well, it generally means that retirement is not, in and of itself, a sufficient reason to get support changed. Courts presume you would not retire if you have not lined up enough money to pay your bills (including your support bills) in retirement, and as such treat retirement as voluntary conduct - and not a material change in circumstances. If, however, you are forced into retirement (for example, your company has a maximum age, you are given the option of retirement in lieu of termination, you need to retire due to health, etc.), then that can constitute a material change. If you just on your own, however, decide you are of the age where you want to retire, that will not count as a material change, and if that is the only material change you can allege, then you will not be able to modify your support.
Voluntary Underemployment
Now, many people who retire frequently will find other material changes to get their foot in the door for modification. If it's been many years since the last support order, it's very likely your needs will change. In fact, the Division of Child Support Enforcement (note, this is just DCSE, not the courts) considers the passage of 3 years' time to automatically be a material change, and while the courts do not follow the same rule, if it's been at least 3 years, the odds are pretty good you can find something.
If you do get your foot in the door, however, don't think you are walking down easy street. As I have discussed before, when considering your income, you have the burden to show the court that you are not "voluntarily" unemployed or underemployed. If you do not meet that burden, the court will assign to you the income it thinks you should be making. If you retired voluntarily, the odds are the court will assign to you the income you would be making if you were still working.
However, voluntary unemployment is a one-way street. "Income" is considered to be income from any source, and if, between your pension, withdrawals from a 401(k) and/or IRA, and other forms of non-wage income you actually make more money in retirement than you did working, your higher current income will be used.
Because of how the court views retirement as voluntary conduct, and voluntary unemployment, it is very unlikely that an individual can actually get his or her support obligations cut (or increased, for that matter, if you are the one receiving support) due to retirement. There are, however, two big exceptions to this rule.
Exception 1: Split Pensions
If you work in a job that provides a pension, and some of that work occurred while you were married, chances are your ex-spouse is entitled to some of that pension. Once you retire and start receiving your pension, your ex-spouse will start receiving his or her portion of your pension as well. Once that begins, your ex-spouse will now have more income, which produces both a material change, and a basis to reduce support.
Exception 2: Agreement
It is not uncommon for an agreement which establishes indefinite spousal support to also have a retirement clause. Remember that when spousal support is set by signed agreement, that agreement is binding and not modifiable by a court. As a result, if the agreement says something different than the above regarding retirement (for example, "Retirement after age 62 is automatically considered involuntary"), the terms of the agreement win out.
Planning for Retirement Support
Given the above, it is important then to plan for support payments in retirement. You should presume that when you retire, you will have to continue support at its current levels (except that child support will terminate when the child becomes an adult), and include these costs in your retirement financial planning. Remember also, however, that there comes a point when retirement is no longer voluntary. If you retire at age 60, but start having physical ailments that would prevent you from working at age 65, then that could be a material change in circumstances - your unemployment had gone from voluntary to involuntary because if you were still working you would have had to retire. As such, you will not be stuck forever, but as long as your health remains good, you will still have to pay your support.
This is, in my opinion, another reason why when negotiating spousal support you should be very hesitant about ever agreeing to indefinite support unless there is something like a retirement clause. The chances are, when you have indefinite support, you will be paying long after you retire.
Conclusion
Retirement presents a panoply of challenges in regards to legal support obligations, most of them not very favorable to the retiree. If you are involved in a support situation and are considering retirement, retired, or the other party is retiring, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up an initial consultation to discuss the matter. Our initial consultations are free for up to half an hour!
Update (4/27/18): Please note that some of the information in the blog post below is now outdated due to changes in the law. Please see my 2018 Relevant Changes in the Law post for details.
Introduction
If you go back 100 years or so, when our modern laws about spousal support (then, of course, just known as alimony) and child support were starting to emerge, "retirement" was a vague, largely unheard of concept. Most people were either wealthy, or worked until they died. As a result, there was not much of a need for our support laws to take retirement into account.
Of course, this has not been the case for some time now, and the vast majority of workers expect to retire some day (usually with a dream that involves some combination of travelling and beaches). But what about people who have children later in life, and hit retirement age while still owing child support? Or what about people who are ordered by a court to pay long-term (or even indefinite) spousal support? Support orders are supposed to take into account the life circumstances of the parties, including their incomes, so how does support change when you hit retirement?
In fact, retirement is a complicated issue in support law - but often one that leaves retirees or those desiring to retire greatly disappointed. I hope to address those issues here.
"Material Change"
The first rule to remember is that if you already have a child support or spousal support order, it cannot be modified by a court unless the party seeking the modification proves that there has been a "material change in circumstances" since the last time a support order was entered. A material change is generally seen as some change in circumstances that directly affects the factors that go into determining support (income, expenses, age of children, etc.) which is not simply a minor change (for example, a change in income of $5 per month). However, it is important to note that there is no material change in circumstances, legally speaking, if the only "material change" is one brought about by the "voluntary conduct" of the party seeking the change.
Now, there are two key distinctions to make to that last rule. First, the conduct must be voluntary for that rule to kick in. Something beyond your control (your car gets totaled in an accident that wasn't your fault so now you have the expenses of a new one, you got laid off from work, etc.) is not voluntary, so it still counts as a material change. Second, if you are the party seeking the change, it must be your voluntary conduct that caused the material change. If the other party's voluntary conduct caused a material change (such as switching to a new, higher paying job), you can still file.
So, how does this apply to retirement? Well, it generally means that retirement is not, in and of itself, a sufficient reason to get support changed. Courts presume you would not retire if you have not lined up enough money to pay your bills (including your support bills) in retirement, and as such treat retirement as voluntary conduct - and not a material change in circumstances. If, however, you are forced into retirement (for example, your company has a maximum age, you are given the option of retirement in lieu of termination, you need to retire due to health, etc.), then that can constitute a material change. If you just on your own, however, decide you are of the age where you want to retire, that will not count as a material change, and if that is the only material change you can allege, then you will not be able to modify your support.
Voluntary Underemployment
Now, many people who retire frequently will find other material changes to get their foot in the door for modification. If it's been many years since the last support order, it's very likely your needs will change. In fact, the Division of Child Support Enforcement (note, this is just DCSE, not the courts) considers the passage of 3 years' time to automatically be a material change, and while the courts do not follow the same rule, if it's been at least 3 years, the odds are pretty good you can find something.
If you do get your foot in the door, however, don't think you are walking down easy street. As I have discussed before, when considering your income, you have the burden to show the court that you are not "voluntarily" unemployed or underemployed. If you do not meet that burden, the court will assign to you the income it thinks you should be making. If you retired voluntarily, the odds are the court will assign to you the income you would be making if you were still working.
However, voluntary unemployment is a one-way street. "Income" is considered to be income from any source, and if, between your pension, withdrawals from a 401(k) and/or IRA, and other forms of non-wage income you actually make more money in retirement than you did working, your higher current income will be used.
Because of how the court views retirement as voluntary conduct, and voluntary unemployment, it is very unlikely that an individual can actually get his or her support obligations cut (or increased, for that matter, if you are the one receiving support) due to retirement. There are, however, two big exceptions to this rule.
Exception 1: Split Pensions
If you work in a job that provides a pension, and some of that work occurred while you were married, chances are your ex-spouse is entitled to some of that pension. Once you retire and start receiving your pension, your ex-spouse will start receiving his or her portion of your pension as well. Once that begins, your ex-spouse will now have more income, which produces both a material change, and a basis to reduce support.
Exception 2: Agreement
It is not uncommon for an agreement which establishes indefinite spousal support to also have a retirement clause. Remember that when spousal support is set by signed agreement, that agreement is binding and not modifiable by a court. As a result, if the agreement says something different than the above regarding retirement (for example, "Retirement after age 62 is automatically considered involuntary"), the terms of the agreement win out.
Planning for Retirement Support
Given the above, it is important then to plan for support payments in retirement. You should presume that when you retire, you will have to continue support at its current levels (except that child support will terminate when the child becomes an adult), and include these costs in your retirement financial planning. Remember also, however, that there comes a point when retirement is no longer voluntary. If you retire at age 60, but start having physical ailments that would prevent you from working at age 65, then that could be a material change in circumstances - your unemployment had gone from voluntary to involuntary because if you were still working you would have had to retire. As such, you will not be stuck forever, but as long as your health remains good, you will still have to pay your support.
This is, in my opinion, another reason why when negotiating spousal support you should be very hesitant about ever agreeing to indefinite support unless there is something like a retirement clause. The chances are, when you have indefinite support, you will be paying long after you retire.
Conclusion
Retirement presents a panoply of challenges in regards to legal support obligations, most of them not very favorable to the retiree. If you are involved in a support situation and are considering retirement, retired, or the other party is retiring, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up an initial consultation to discuss the matter. Our initial consultations are free for up to half an hour!
Thursday, December 19, 2013
"If You Cannot Afford an Attorney..." - Court Appointed vs. Pro Bono Attorneys
As always, before reading this post please review my disclaimer by clicking on the link above or by clicking on this link. As always, all legal principles discussed in this post apply only to the Commonwealth of Virginia.
Note: This post was inspired by a question e-mailed to me in response to my post about what to do when you've been sued.
Introduction
It always takes me by a bit of surprise when I encounter people who do not understand in what situations someone who is poor can get a court-appointed free attorney, and in what situations they cannot. Within the legal profession, the distinctions are fairly clear. It is not until we start digging into the weeds of why potential clients or litigants think, incorrectly, that they can receive a court-appointed attorney that those of us within the profession start to understand.
The fact is there are two completely different kinds of "free" attorneys. The first kind is court-appointed attorneys - these are attorneys the court picks to represent you, and the court pays the attorneys for their service (although usually well below the attorneys' regular billing rate). The second kind is a pro bono attorney who volunteers to represent you (rather than being required to do so by the court), and (with very limited exceptions) is not paid by anyone for their work representing their pro bono client. A court appointed attorney is provided to you in situations where you meet certain income qualifications and you are in a legal situation where you have a right to be provided an attorney. A pro bono attorney can (depending on the requirements of his employer, not the court) represent you regardless of your income, and can represent you in any kind of case where you have a right to have an attorney. Usually the confusion amongst potential clients and litigants come from learning someone else has a pro bono attorney, and not understanding the distinction between the two.
Right to Be Provided an Attorney vs. Right to Have an Attorney
So, given that distinction, you might wonder in what situations you have a right to be provided an attorney, and when do you have a right to have an attorney? Well, let me explain what I mean first. The right to be provided an attorney is the right to, if certain criteria are met, have a court pick an attorney and require that attorney to represent you for no charge to you (this may sound harsh on the attorney, but in reality the attorneys are chosen from a list that attorneys voluntarily join or from the local public defender's office). The right to have an attorney is simply the right to be represented by any attorney, whether free or hired by you.
So, first of all note that the former is a subset of the latter. In other words, every situation in which you have a right to be provided an attorney, you also have a right to have an attorney, so even if you cannot afford one you can pick your own attorney if you get a family member to pay them or you find someone willing to represent you pro bono. The reverse is not true, however - there are many situations in which you have the right to have an attorney, but to not have the right to be provided an attorney.
While there are exceptions, you virtually always have the right to have an attorney. In any legal predicament you are in, you can consult an attorney if you wish. You also always have the right to have an attorney if you are in front of a court. If you are in front of an administrative agency, however, you sometimes have the right to have an attorney represent you there, and sometimes don't - it depends on the administrative agency.
Of course, the big question this leaves is, when do you have a right to be provided an attorney? Well, the right to be provided an attorney traces its roots to the seminal Supreme Court case of Gideon v. Wainwright, which ruled that the 5th and 6th amendment rights to counsel and due process are meaningless if someone who cannot afford such an attorney is thus denied such an attorney. Despite its wide notoriety, however, Gideon v. Wainwright left unanswered many questions about exactly what kinds of cases warrant court-appointed attorneys, and it took years of litigation afterwards to establish the current rules.
The rule in Virginia in force today is that you have the right to a court-appointed attorney if you meet certain income requirements, and an adverse ruling might send you to jail. In other words, you must be involved in a criminal case, charged with a class 2 misdemeanor or more severe (less severe misdemeanors are fine-only penalties), and if charged with a class 2 or class 1 misdemeanor, the prosecutor must not have waived his right to pursue a jail sentence. You also can get a court-appointed attorney if you meet the income requirements and you are the subject of a civil contempt proceeding (for failure to obey a court order, for example). That's really it - unless you are in those situations, you do not get a court-appointed attorney.
Guardians ad Litem
There is a category of attorneys appointed by the court that I have not mentioned yet - guardians ad litem. I largely left them out because they are not "free" per se - a party or parties to the case will have to pay them - and because their appointment has nothing to do with the income of the parties to the case. They are worth mentioning briefly, however. A guardian ad litem is an attorney who has undergone extensive training and is appointed by a court to represent a person the court believes may not be able (either physically or mentally) to represent him or herself. It is the guardian ad litem's job to ascertain her "client's" best interests, and represent those, regardless of what the subject of the guardian's representation actually tells the guardian he wants. While this list is by no means exhaustive, guardians ad litem are generally appointed to represent children in custody cases, adult subjects of guardianship and conservatorship petitions, prison inmates who are defendants in a lawsuit, and other persons who are party to a lawsuit that the court believes are mentally and/or physically unable to represent their own interests in the case. Note, however, that the last category is very hard to get a guardian ad litem appointed for. I once observed a hearing where a person was asking for a guardian appointment, and she explained why she needed one so well that the judge concluded she was able to represent her own interests and denied the request!
How to Get a Pro Bono Attorney
So, if you realize now that you are not in a situation that qualifies for a court-appointed attorney, you might be wondering how you can get one of those pro bono attorneys. The answer, unfortunately, is not simple - and can often take a good bit of searching. Most areas have a local legal aid organization. If they cannot on their own find you a pro bono attorney, they will usually at least be able to tell you where to look. Beyond that, it can be a crap shoot. If you have a large law firm near you, they may have a pro bono program, and it may be worth contacting them. I do wish I had more thorough advice on this, but the fact is that oftentimes finding a pro bono attorney is more a matter of being in the right place at the right time than anything else - especially if you have a case in which your local legal aid organization cannot help you.
Conclusion
There are many situations in which you have the right to have an attorney but, even if you are very poor, do not have the right to have an attorney provided to you. If you are not facing potential jail time, you do not have the right to have the court appoint an attorney for you. If you are in a legal situation where you cannot afford an attorney, but you do not have the right to have one provided, contact your local legal aid organization and see if you can find a way to get a pro bono attorney.
Note: This post was inspired by a question e-mailed to me in response to my post about what to do when you've been sued.
Introduction
It always takes me by a bit of surprise when I encounter people who do not understand in what situations someone who is poor can get a court-appointed free attorney, and in what situations they cannot. Within the legal profession, the distinctions are fairly clear. It is not until we start digging into the weeds of why potential clients or litigants think, incorrectly, that they can receive a court-appointed attorney that those of us within the profession start to understand.
The fact is there are two completely different kinds of "free" attorneys. The first kind is court-appointed attorneys - these are attorneys the court picks to represent you, and the court pays the attorneys for their service (although usually well below the attorneys' regular billing rate). The second kind is a pro bono attorney who volunteers to represent you (rather than being required to do so by the court), and (with very limited exceptions) is not paid by anyone for their work representing their pro bono client. A court appointed attorney is provided to you in situations where you meet certain income qualifications and you are in a legal situation where you have a right to be provided an attorney. A pro bono attorney can (depending on the requirements of his employer, not the court) represent you regardless of your income, and can represent you in any kind of case where you have a right to have an attorney. Usually the confusion amongst potential clients and litigants come from learning someone else has a pro bono attorney, and not understanding the distinction between the two.
Right to Be Provided an Attorney vs. Right to Have an Attorney
So, given that distinction, you might wonder in what situations you have a right to be provided an attorney, and when do you have a right to have an attorney? Well, let me explain what I mean first. The right to be provided an attorney is the right to, if certain criteria are met, have a court pick an attorney and require that attorney to represent you for no charge to you (this may sound harsh on the attorney, but in reality the attorneys are chosen from a list that attorneys voluntarily join or from the local public defender's office). The right to have an attorney is simply the right to be represented by any attorney, whether free or hired by you.
So, first of all note that the former is a subset of the latter. In other words, every situation in which you have a right to be provided an attorney, you also have a right to have an attorney, so even if you cannot afford one you can pick your own attorney if you get a family member to pay them or you find someone willing to represent you pro bono. The reverse is not true, however - there are many situations in which you have the right to have an attorney, but to not have the right to be provided an attorney.
While there are exceptions, you virtually always have the right to have an attorney. In any legal predicament you are in, you can consult an attorney if you wish. You also always have the right to have an attorney if you are in front of a court. If you are in front of an administrative agency, however, you sometimes have the right to have an attorney represent you there, and sometimes don't - it depends on the administrative agency.
Of course, the big question this leaves is, when do you have a right to be provided an attorney? Well, the right to be provided an attorney traces its roots to the seminal Supreme Court case of Gideon v. Wainwright, which ruled that the 5th and 6th amendment rights to counsel and due process are meaningless if someone who cannot afford such an attorney is thus denied such an attorney. Despite its wide notoriety, however, Gideon v. Wainwright left unanswered many questions about exactly what kinds of cases warrant court-appointed attorneys, and it took years of litigation afterwards to establish the current rules.
The rule in Virginia in force today is that you have the right to a court-appointed attorney if you meet certain income requirements, and an adverse ruling might send you to jail. In other words, you must be involved in a criminal case, charged with a class 2 misdemeanor or more severe (less severe misdemeanors are fine-only penalties), and if charged with a class 2 or class 1 misdemeanor, the prosecutor must not have waived his right to pursue a jail sentence. You also can get a court-appointed attorney if you meet the income requirements and you are the subject of a civil contempt proceeding (for failure to obey a court order, for example). That's really it - unless you are in those situations, you do not get a court-appointed attorney.
Guardians ad Litem
There is a category of attorneys appointed by the court that I have not mentioned yet - guardians ad litem. I largely left them out because they are not "free" per se - a party or parties to the case will have to pay them - and because their appointment has nothing to do with the income of the parties to the case. They are worth mentioning briefly, however. A guardian ad litem is an attorney who has undergone extensive training and is appointed by a court to represent a person the court believes may not be able (either physically or mentally) to represent him or herself. It is the guardian ad litem's job to ascertain her "client's" best interests, and represent those, regardless of what the subject of the guardian's representation actually tells the guardian he wants. While this list is by no means exhaustive, guardians ad litem are generally appointed to represent children in custody cases, adult subjects of guardianship and conservatorship petitions, prison inmates who are defendants in a lawsuit, and other persons who are party to a lawsuit that the court believes are mentally and/or physically unable to represent their own interests in the case. Note, however, that the last category is very hard to get a guardian ad litem appointed for. I once observed a hearing where a person was asking for a guardian appointment, and she explained why she needed one so well that the judge concluded she was able to represent her own interests and denied the request!
How to Get a Pro Bono Attorney
So, if you realize now that you are not in a situation that qualifies for a court-appointed attorney, you might be wondering how you can get one of those pro bono attorneys. The answer, unfortunately, is not simple - and can often take a good bit of searching. Most areas have a local legal aid organization. If they cannot on their own find you a pro bono attorney, they will usually at least be able to tell you where to look. Beyond that, it can be a crap shoot. If you have a large law firm near you, they may have a pro bono program, and it may be worth contacting them. I do wish I had more thorough advice on this, but the fact is that oftentimes finding a pro bono attorney is more a matter of being in the right place at the right time than anything else - especially if you have a case in which your local legal aid organization cannot help you.
Conclusion
There are many situations in which you have the right to have an attorney but, even if you are very poor, do not have the right to have an attorney provided to you. If you are not facing potential jail time, you do not have the right to have the court appoint an attorney for you. If you are in a legal situation where you cannot afford an attorney, but you do not have the right to have one provided, contact your local legal aid organization and see if you can find a way to get a pro bono attorney.
Thursday, May 23, 2013
What to Do When Dad's Sending His Money to a Nigerian Prince - Guardianship/Conservatorship Basics
As always, prior to reading this blog post, please review my disclaimer by following the link above or by clicking on this link. As always, the legal aspects of the post are relevant only to the Commonwealth of Virginia.
Introduction
It's the point in time that just about every child dreads. That point when mom or dad (or both) gets too old, is hit with a smattering of dementia, and suddenly starts making ridiculous decisions. Maybe they've stopped paying their bills (usually because they've forgotten about them), or they won't go to the doctor because "they're all quacks." Maybe they've been caught in an international scam, and are spending all their money convinced that "this is the last check before my payday."
Regardless of what your parents are doing, this is a very hard time for any child. You want to help them, and you don't want to hurt their feelings, but you just don't know what to do. You've tried talking to them, but that hasn't helped. You've tried offering to step in and help, but they've refused. You're at the end of your rope, you don't know what to do, but you do know that you can't let them go on like this.
The answer is a guardianship and/or conservatorship. This is a legal process by which you can take some of these decisions away from your parents and give them to someone who will act in their best interests (possibly even you). And by the way, guardianships and conservatorships aren't just for elderly parents. Your adult child is repeatedly attempting suicide but refusing to seek help? Your brother or sister suffers from mental retardation and cannot remember to pay their bills? Your elderly neighbor is being taken advantage of by his children? The fact is, in Virginia anyone can file for a guardianship or conservatorship on behalf of anyone else - just make sure you're doing it for the right reasons, and that you have some actual evidence that such a thing is necessary.
Guardianship vs. Conservatorship vs. Both
Before taking action, however, you need to decide what you want to pursue. Do you want a guardianship, do you want a conservatorship, or do you want both? If granted, a guardianship gives you control over the person, while a conservatorship gives you control over the person's assets. As a result, if you have a guardianship but not a conservatorship, you can force your ward to see a doctor, but you can't force him or her to pay their bills. Similarly, if you have a conservatorship but not a guardianship, you can pay the bills for them, but you cannot make them do anything.
So, why would you want one versus the other, and not always want both? Well, pursuing both is pretty much double the legal paperwork, and if one is not really necessary, it will save you time and money not to pursue both, and for the person you are helping, there is psychological value to retaining some autonomy over his or her life. So, if the potential ward is still fine with handling his or her money, but won't take care of him or herself, then a guardianship alone might be worthwhile. If the potential ward cannot handle their money, but can certainly make good decisions for him or herself, then just a conservatorship may be the way to go. If you can't trust the person with either, however, then both is probably the right path for you.
The Process
As you might imagine, you cannot just show up one day and declare yourself the guardian and/or conservator of a person. You must go through the court. This requires filing a petition for guardianship and/or conservatorship. Once that is done, the court will order the appointment of a "Guardian ad Litem." The Guardian ad Litem is an attorney who will act on the potential ward's behalf, but will make his or her own determination, after meeting with the individual and anyone with potential information as to what "acting on their behalf" actually entails. In other words, a Guardian ad Litem may very well support the petition, even if the potential ward personally opposes it. As a result, the potential ward may also hire his or her own attorney to represent him or her in the proceedings.
If the guardianship or conservatorship is uncontested (as in, the Guardian ad Litem agrees with it, and the potential ward either also agrees or does not mount a defense), the process is fairly simple. After the Guardian ad Litem's supportive report is issued, a guardian and/or conservator will be appointed with a set of powers as delineated in the Virginia Code.
If it is contested (the Guardian ad Litem opposes it, or the ward opposes it and mounts an opposition), a trial will be held, and it can be either a bench trial, or a jury trial. At that point, you must prove by "clear and convincing" evidence (so, more convincing than just 50% + 1, but less than "beyond a reasonable doubt") that the person cannot make the relevant decisions for him or herself.
In either case, if the guardianship and/or conservatorship is granted, the next step is to appoint the guardian and/or conservator. Of course, this can be litigated as well. If you are related to the person, and can show that you would not be likely to engage in "self-dealing" (as in, treating your conservatorship as an advance on your inheritance and spending it on yourself, or putting your own interests above your ward's while acting in your official capacity), you may very well be appointed. If no relative is appointed, however, a law firm will often be appointed. It is best to avoid this if at all possible, since law firms are very expensive when serving in this capacity.
This Process Sounds Terrible! How Can I Protect My Children From It?
A contested guardianship and/or conservatorship process can be absolutely terrible on families. Even an uncontested one can be very expensive. If you want to protect your children from ever having to do this to you, there is a solution.
You can draft either a "durable" or a "springing, durable" general power of attorney. In this document, you can lay out all the powers you are giving your child (or spouse, or both, or whomever you wish to give it to), and you can cover all of the guardianship and conservatorship clauses. If it is not "springing," this power goes into effect immediately, and the person you appoint can act on it even while you are not incapacitated. This is worth doing if you a) really trust the person you are appointing, and b) don't feel like dealing with some of the things you list anymore, even if you are capable. If it is "springing," this means it only goes into effect once you are incapacitated, and you can set the terms for how you are deemed to be "incapacitated" (two doctors agreeing on this, for example).
Certainly, this can still ultimately cause litigation and heartache. In the end, however, it is resolved much more simply, and usually more cheaply, than a guardianship/conservatorship battle - and usually without all the hurt feelings to boot. However, usually these powers of attorney do prevent litigation altogether, since usually the potential appointee will not seek to use the power until you actually are incapacitated, and at that point there's a good chance you won't fight back. In that case, this is definitely a much cheaper and easier option than even an uncontested guardianship/conservatorship petition.
Conclusion
If you are concerned that someone you know is no longer able to take care of him or herself, or handle his or her finances, a guardianship and/or conservatorship may be the way to go. If you don't want anyone to ever have to deal with that, however, drafting a power of attorney now is your best solution. If you are considering pursuing a guardianship or conservatorship, defending against a frivolous appointment of a guardian or conservator, or drafting a power of attorney, feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com. I do not handle these matters, but other attorneys in the firm I work for do, and your initial consultation is free for up to half an hour.
Introduction
It's the point in time that just about every child dreads. That point when mom or dad (or both) gets too old, is hit with a smattering of dementia, and suddenly starts making ridiculous decisions. Maybe they've stopped paying their bills (usually because they've forgotten about them), or they won't go to the doctor because "they're all quacks." Maybe they've been caught in an international scam, and are spending all their money convinced that "this is the last check before my payday."
Regardless of what your parents are doing, this is a very hard time for any child. You want to help them, and you don't want to hurt their feelings, but you just don't know what to do. You've tried talking to them, but that hasn't helped. You've tried offering to step in and help, but they've refused. You're at the end of your rope, you don't know what to do, but you do know that you can't let them go on like this.
The answer is a guardianship and/or conservatorship. This is a legal process by which you can take some of these decisions away from your parents and give them to someone who will act in their best interests (possibly even you). And by the way, guardianships and conservatorships aren't just for elderly parents. Your adult child is repeatedly attempting suicide but refusing to seek help? Your brother or sister suffers from mental retardation and cannot remember to pay their bills? Your elderly neighbor is being taken advantage of by his children? The fact is, in Virginia anyone can file for a guardianship or conservatorship on behalf of anyone else - just make sure you're doing it for the right reasons, and that you have some actual evidence that such a thing is necessary.
Guardianship vs. Conservatorship vs. Both
Before taking action, however, you need to decide what you want to pursue. Do you want a guardianship, do you want a conservatorship, or do you want both? If granted, a guardianship gives you control over the person, while a conservatorship gives you control over the person's assets. As a result, if you have a guardianship but not a conservatorship, you can force your ward to see a doctor, but you can't force him or her to pay their bills. Similarly, if you have a conservatorship but not a guardianship, you can pay the bills for them, but you cannot make them do anything.
So, why would you want one versus the other, and not always want both? Well, pursuing both is pretty much double the legal paperwork, and if one is not really necessary, it will save you time and money not to pursue both, and for the person you are helping, there is psychological value to retaining some autonomy over his or her life. So, if the potential ward is still fine with handling his or her money, but won't take care of him or herself, then a guardianship alone might be worthwhile. If the potential ward cannot handle their money, but can certainly make good decisions for him or herself, then just a conservatorship may be the way to go. If you can't trust the person with either, however, then both is probably the right path for you.
The Process
As you might imagine, you cannot just show up one day and declare yourself the guardian and/or conservator of a person. You must go through the court. This requires filing a petition for guardianship and/or conservatorship. Once that is done, the court will order the appointment of a "Guardian ad Litem." The Guardian ad Litem is an attorney who will act on the potential ward's behalf, but will make his or her own determination, after meeting with the individual and anyone with potential information as to what "acting on their behalf" actually entails. In other words, a Guardian ad Litem may very well support the petition, even if the potential ward personally opposes it. As a result, the potential ward may also hire his or her own attorney to represent him or her in the proceedings.
If the guardianship or conservatorship is uncontested (as in, the Guardian ad Litem agrees with it, and the potential ward either also agrees or does not mount a defense), the process is fairly simple. After the Guardian ad Litem's supportive report is issued, a guardian and/or conservator will be appointed with a set of powers as delineated in the Virginia Code.
If it is contested (the Guardian ad Litem opposes it, or the ward opposes it and mounts an opposition), a trial will be held, and it can be either a bench trial, or a jury trial. At that point, you must prove by "clear and convincing" evidence (so, more convincing than just 50% + 1, but less than "beyond a reasonable doubt") that the person cannot make the relevant decisions for him or herself.
In either case, if the guardianship and/or conservatorship is granted, the next step is to appoint the guardian and/or conservator. Of course, this can be litigated as well. If you are related to the person, and can show that you would not be likely to engage in "self-dealing" (as in, treating your conservatorship as an advance on your inheritance and spending it on yourself, or putting your own interests above your ward's while acting in your official capacity), you may very well be appointed. If no relative is appointed, however, a law firm will often be appointed. It is best to avoid this if at all possible, since law firms are very expensive when serving in this capacity.
This Process Sounds Terrible! How Can I Protect My Children From It?
A contested guardianship and/or conservatorship process can be absolutely terrible on families. Even an uncontested one can be very expensive. If you want to protect your children from ever having to do this to you, there is a solution.
You can draft either a "durable" or a "springing, durable" general power of attorney. In this document, you can lay out all the powers you are giving your child (or spouse, or both, or whomever you wish to give it to), and you can cover all of the guardianship and conservatorship clauses. If it is not "springing," this power goes into effect immediately, and the person you appoint can act on it even while you are not incapacitated. This is worth doing if you a) really trust the person you are appointing, and b) don't feel like dealing with some of the things you list anymore, even if you are capable. If it is "springing," this means it only goes into effect once you are incapacitated, and you can set the terms for how you are deemed to be "incapacitated" (two doctors agreeing on this, for example).
Certainly, this can still ultimately cause litigation and heartache. In the end, however, it is resolved much more simply, and usually more cheaply, than a guardianship/conservatorship battle - and usually without all the hurt feelings to boot. However, usually these powers of attorney do prevent litigation altogether, since usually the potential appointee will not seek to use the power until you actually are incapacitated, and at that point there's a good chance you won't fight back. In that case, this is definitely a much cheaper and easier option than even an uncontested guardianship/conservatorship petition.
Conclusion
If you are concerned that someone you know is no longer able to take care of him or herself, or handle his or her finances, a guardianship and/or conservatorship may be the way to go. If you don't want anyone to ever have to deal with that, however, drafting a power of attorney now is your best solution. If you are considering pursuing a guardianship or conservatorship, defending against a frivolous appointment of a guardian or conservator, or drafting a power of attorney, feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com. I do not handle these matters, but other attorneys in the firm I work for do, and your initial consultation is free for up to half an hour.
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