Three Considerations for Estate Planning During a Pandemic

Three Considerations for Estate Planning During a Pandemic

The possibility of prolonged sickness or even death from COVID-19 has caused many individuals to feel more urgency to prepare advanced directives and undertake other estate planning.  In addition, the unknown final impact of the economic crisis may raise questions about how things might need to change in current plans that transfer wealth to children, charities or other beneficiaries upon death. With these factors present, there are three options to consider for estate planning.

 

  1. Advanced Directives. While planning for a health care emergency may be easier to complete before a crisis, it is not too late to get your advanced directives in place. Advanced directives are documents that express your wishes and authorize someone else (an agent) to make medical and financial decisions for you in the event you become so ill that you are unable to make your own decisions.  Typically, this involves creating both a Health Care Power of Attorney and a Durable General (Financial) Power of Attorney.  In addition to creating these documents, it is important to speak with your proposed agents about your intentions so that if they do have to make decisions, you know that they will carry out your wishes.  If you already have these documents, review them to ensure they accurately reflect your current wishes and choice of agent(s).  What do your current documents state regarding advanced life support (e.g. ventilators), and are there any changes you would like to make regarding end of life decisions?

 

  1. Make a Will or Trust. As the reality of the pandemic sinks in, people are reaching out to execute Wills or Trusts that they have put off finalizing, or to start estate plans that perhaps should have been put in place long ago. Estate planning is very easy to delay in the best of times, particularly when it involves finalizing some difficult decisions.  Or maybe it is simply a matter of not wanting to face your own mortality.  As the current health crisis reminds us, however, we never know exactly when our estate plans will be needed.  Even if you already have your documents in place, make sure you know where the originals are located, and review them to be sure they still accurately reflect your wishes.  For example, are the named executors in your Will and trustees in your trusts, as well as any successors, still suitable and willing to serve?  Consider whether there have been any major life changes with your beneficiaries or changes in your assets since you completed your plan that would necessitate updating your documents.  Focus on what makes sense to change right now and remember, you can always update your documents in the future.  Finally, make sure that your beneficiary designations on life insurance, retirement accounts and other assets are up to date.

 

  1. Ask Your Attorney for Help. Most legal offices are open, and attorneys are being creative in order to help you complete your estate planning.  We can assist you with getting your estate planning and advanced directives completed. Even if we do not meet in person, we can schedule consultations via telephone or video conference.  Documents are then emailed or mailed to you for your review.  Following your review, it is typical to have another video or phone conference to discuss any revisions or questions, and to discuss the logistics of getting your documents signed.  Wills, trusts and advanced directives all have very specific execution requirements in order to be legal.  Therefore, it is important to work with us to determine which documents in your plan can be signed remotely and which require in person witnessing and notarization.

 

We understand that completing your estate planning during a health crisis can be emotionally taxing; however, now may be the best time to take advantage of addressing your planning while these issues are on your mind.  Our estate planning attorneys are happy to guide you through the process.

 

Five Key Takeaways Following the Wisconsin Supreme Court’s Invalidation of the Safer at Home Order

Five Key Takeaways Following the Wisconsin Supreme Court’s Invalidation of the Safer at Home Order

The Wisconsin Supreme Court, by a 4-3 vote, invalidated Wisconsin’s Safer-at-Home Order, also known as Order #28.  It issued that decision on May 13, 2020. Here are five key takeaways to consider in the wake of that decision:

1.)  As of this writing, Order #28 is no longer enforceable. People in Wisconsin are not required by that Order to stay at home.  Non-essential businesses are not required to remain closed.  There is one exception to the Supreme Court’s decision, however:  The portion of Order #28 that requires closure of public and private K-12 schools remains in effect for the remainder of the 2019-2020 school year.

2.)  The Supreme Court’s decision does not affect any other federal or state legislation concerning the COVID-19 pandemic, such as the so-called Families First legislation, the CARES Act, Wisconsin Act 185, or any similar legislation. Those laws remain in effect.

3.)  Wisconsin businesses must continue to be aware of the Wisconsin Safe Place law. That law requires that an employer, or owner of a place that is open to the public must provide a safe place of employment for both employees and visitors and to undertake that which is reasonably necessary to life, health, safety and general welfare of employees and visitors.  OSHA’s general duty clause also remains in effect.  It holds that each employer shall furnish to each employee a place of employment that is free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.

4.)  People and businesses may continue to use the concepts found within Order #28 to guide their conduct. However, such guidance is voluntary; it is not mandatory.  Businesses should continue to review the CDC or the Wisconsin DHS website for suggested practices in addressing health concerns relating to COVID-19.

5.)  It is possible that local health authorities may issue rules or orders that affect people or businesses following the invalidation of Order #28. In addition, Governor Tony Evers and the Wisconsin Legislature may collaborate on new rules or legislation to replace Order #28.

Stay apprised of new legal developments in the weeks and months ahead.  Seek legal counsel as necessary.  In the meantime, the attorneys at Anderson O’Brien will continue to monitor the legal developments with you.

 

U.S. Department of Labor and IRS Extend COBRA Deadlines

U.S. Department of Labor and IRS Extend COBRA Deadlines

Amid the COVID-19 pandemic, Wisconsinites, along with the rest of the nation, have endured sudden and severe job loss.  As of May 14, 2020, the University of Wisconsin Center for Research on the Wisconsin Economy estimated the Wisconsin unemployment rate to be 21.9%.  In addition to the significant financial losses that attend such massive changes in employment status, job loss often results in the loss of health coverage.  Recent data indicates that roughly 57% of Wisconsin’s non-elderly population (i.e., non-Medicare) obtain their health insurance through an employer.

As many are familiar, one of the health insurance options available to those who lose their employment and employer provided health insurance is to apply for COBRA, which allows an employee and his or her dependents to maintain coverage at their own expense by paying the full cost of the premium.  Of course, there are certain deadlines that apply to seeking COBRA coverage.  Normally, a person has 60 days from the date of receipt of the COBRA notice to elect COBRA (election period), and then 45 days after the date of COBRA election to make the initial premium payment (premium payment period).

However, with the sudden and massive job losses due to the COVID-19 pandemic, on May 4, 2020, the U.S. Department of Labor and the IRS extended these standard COBRA deadlines.  Under the new rule, many COBRA deadlines are extended beyond the “Outbreak Period,” which is defined as March 1, 2020, to 60 days after the end of the National Emergency declaration.  The relief specifically directs all group health plans subject to ERISA or the IRS Code to disregard the period from March 1, 2020, through 60 days after the announced end of the national emergency when determining certain periods and dates, including the election period for COBRA continuation coverage and the date for making COBRA initial premium payments.

These changes are a welcome acknowledgment by these entities that the huge societal upheaval caused by the pandemic has made meeting standard deadlines increasingly difficult.  Feel free to contact one of our employment attorneys with any questions or concerns.  Be well and stay safe.

 

Is Your Business Protected from Business Interruption During the COVID-19 Pandemic?

Is Your Business Protected from Business Interruption During the COVID-19 Pandemic?

With the COVID-19 pandemic occurring, many states, including Wisconsin, have ordered all nonessential businesses, including restaurants and bars, to close their doors.  Unfortunately, there will be a substantial amount of revenue lost by these businesses for as long as their businesses are required to remain closed.  A significant question is whether these businesses will have any recourse under any of their business insurance policies to recoup lost revenue based upon the coronavirus and/or whether there is coverage triggered by government-mandated closures.  The answers to these questions require a detailed analysis of each individual insurance policy, as well as the circumstances surrounding the losses of each business.

Coverage for business interruption is typically an endorsement to the insured’s property insurance policy and designed to protect the insured for losses of business income it sustains as a result of the direct loss, damage, or destruction to insured property by a covered peril.  A typical clause in an insurance policy reads as follows (although there are variations to this depending on the insurance company):

“We will pay for the actual loss of business income you sustain due to the necessary suspension of your operations during the period of restoration.  The suspension must be caused by the direct physical loss, damage, or destruction to property.  The loss or damage must be caused by or result from a covered cause of loss.”

Usually, in order to recover under this policy provision, a business owner will need to demonstrate that (1) the business sustained physical damage to the insured property; (2) this damage was caused by a peril covered under the policy; (3) which resulted in quantifiable losses because of the business interruption, and (4) that these losses occurred during the time period needed to restore property that was damaged.

There are presently many lawsuits pending throughout this country in which businesses are attempting to enforce business interruption coverage under business insurance policies and to seek a determination by the courts of whether the coronavirus can be deemed to cause physical damage by infecting surfaces in the business, similar to gaseous fumes which have been found in some cases to constitute a physical loss.

In addition to determining whether the coronavirus may be deemed to be a physical loss under the business interruption policy, each insurance policy must be analyzed to determine whether any language provides coverage for business interruption due to civil authority – such as mandated closures by local, state, or the federal governments.

Each policy’s specific language and endorsements must be individually analyzed.   These provisions must also be evaluated in light of any exclusions in the policy and within the specific context of each business owner’s circumstances. Business owners financially impacted by this unprecedented pandemic should timely consult with an experienced attorney to determine whether or not there may be a valid claim under their insurance policy to pursue significant losses of revenue.  The attorneys at Anderson O’Brien are here to assist you with an insurance coverage analysis or other legal issues that may arise out of any business losses you sustain during these difficult times.

 

County Claims on Residence for Delinquent Property Taxes

County Claims on Residence for Delinquent Property Taxes

If you own real estate in Wisconsin, you are familiar with the annual property tax bills that arrive in the mail each December.  You are also aware that you are required to pay your tax installments to the County Treasurer by January 31st and/or July 31st of each year.  When a landowner does not pay property taxes for that year, the local County Treasurer will issue the landowner a tax certificate for the delinquent taxes.

Generally, the landowner has a two-year period to pay delinquent taxes and redeem their property from the County.  After those two years have passed and a landowner has failed to pay taxes to redeem the property, the County may obtain the property by 1) recording a tax deed with the Register of Deeds, 2) foreclosing the tax certificate, or 3) foreclosing the tax liens against the property.  During each of these processes, the landowner has another chance to reclaim the property.  Under the first process, the owner may reclaim the property any time before the County Treasurer records the tax deed.  Under the second process, the owner may reclaim the property before the property is sold at a foreclosure sale.  Under the third process, the owner may reclaim the property within eight weeks after the County Treasurer publishes notice of the foreclosure of the tax liens in the newspaper.

If the owner misses any of these opportunities to reclaim the property, the County will acquire title to the property through one of the three above-described processes.  Once the County acquires the property, the County may sell the property to a willing buyer.  At this point, the owner’s very last option to reclaim their property is to purchase it back from the County.

But is that really the last chance?  If the County acquires the property by recording a tax deed, the owner has an additional three years from the date of recording to commence an action to reclaim the property.  The original owner would need to be successful in obtaining a judgment against the County, which can involve a long and costly litigation process.

So, what does this all mean for buyers who purchase unredeemed property from the county?  Buyers should be aware of the risk that the original owner has three years to commence an action to recover the possession of the property, even after the buyer purchases the property from the County.  Although the likelihood that an original owner would go through the time and expense of commencing a civil action is very low, buyers must be aware of the three-year risk and should consider the risk as they decide to purchase the property.

 

Wisconsin Employers Take Note:  EEOC Updates COVID-19 Guidance; Addresses Mental Illness Made Worse by the Pandemic

Wisconsin Employers Take Note: EEOC Updates COVID-19 Guidance; Addresses Mental Illness Made Worse by the Pandemic

The Equal Employment Opportunity Commission (EEOC) has updated its guidance, as of April 17, 2020, to assist employers in responding to the COVID-19 pandemic in the workplace.  See www.EEOC.gov

Ordinarily, an employer is prohibited by the Americans with Disabilities Act (ADA) from asking an employee who calls in sick about the specific symptoms he is experiencing. During the COVID-19 pandemic, however, the EEOC states that employers may ask employees who call in sick if they are experiencing symptoms of the novel coronavirus. Employers must maintain all information about an employee’s illness as a confidential medical record.

In addition, the EEOC expressly recommends that employers refer to the Centers for Disease Control and Prevention (CDC) and state or local public health authorities about steps employers should take regarding COVID-19. Employers are advised to stay abreast of the most current information on maintaining workplace safety.

EEOC Addresses Mental Illness Made Worse by the Pandemic

The EEOC’s guidance includes consideration of an employee’s pre-existing mental illness or disorder that has been made worse by the COVID-19 pandemic. The issue is whether an employee with a pre-existing condition may now be entitled to a reasonable accommodation under the ADA. In response, the EEOC advises that although many people feel significant stress due to the COVID-19 pandemic, employees with pre-existing mental health conditions, such as anxiety disorder, obsessive compulsive disorder, or post-traumatic stress disorder, may have more difficulty handling the disruption to daily life that has accompanied the COVID-19 pandemic.

As a result, an employer should address the mental illness as it would any other accommodation request under the ADA. Specifically, the employer may ask questions to determine whether the condition is indeed a disability and discusses with the employee how the requested accommodation would assist him and enable him to keep working. The employer and the employee may also explore alternative accommodations that may effectively meet his needs. Medical documentation may be requested by the employer, if needed.

The bottom line for employers is to remember that although an employer may gather additional health-based information from its employees during a pandemic, the basic principles of non-discrimination and reasonable accommodation in the workplace continue to be mandatory principles under the law. For further information concerning specific situations, contact your Anderson O’Brien attorney.

 

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