ALERT!

Contractors and all those who desire the best for the construction pndustry - please contact your legislator and vigorously oppose HB126 and SB107! More tomorrow.

What will the 2010 Utah legislature do to us this year?

Each year the legislature meets and inevitably, make more things crimes, hence making more of us criminals (even if we don't know it) and messes with the Mechanic's lien laws. It is as inevitable and death and taxes.

I will keep an eye on bills passing the Utah legislature and try to let you know if advance of the impact of any changes that are made to the Mechanic's lien laws and other construction related issues.

Falling on your sword

It is perhaps more important to know what you cannot do, than it is to know what you can do. We all have things we do well and we all have things that we are not so good at. As a lawyer, it seems like there are more things that need to be done than time to get them done, notwithstanding our best intentions. I am reminded of the old but true and oft repeated and paraphrased proverb, "the road to hell is paved with good intentions."

Today was a kick in the gut for me. Today I met with a couple who I like and respect. While I defended things for them, I did not aggressively pursue the case that they needed pursued. I did what was necessary to preserve their case, but not what they wanted, even needed, done. I feel terrible and while there are reasons, reasons or excuses do not matter - the client still needed the case aggressively pursued. To them, I apologize.

I know this will sound a bit trite, but if we (I), particularly as lawyers and the defenders and pursuers of our clients' rights, are going to "talk the talk," we (I) must be willing and able to spend the time, energy, and even money to do it right, to "walk the walk."

Collecting unpaid wages

Question: My son has been employed by the same company for the last three years. The company has fallen on hard times and has not been paying their employees. During the last three months he has not been on time once. They are suppose to pay each week and at the moment they owe him for 6 weeks. He recently found a different job and quit his job. But they still owe him for the 6 weeks plus 3 weeks paid vacation. What is the best course of action for him to take to get the money that is owed him?

Reply: Contact the Wage and Hour division of the Utah Labor Commission. They will walk him through the process and help him collect without charging him. CONTACTING THE DIVISION Mail Address: P.O. Box 146600, Salt Lake City, UT, 84114-6600 Street Address: 160 East 300 South, 3rd Floor, Salt Lake City, UT 84111 801-530-6800

Thanks - a great seminar was had!

Just a short shout out to those that attended the construction Lien Seminar that Darrel Bostwick (darrel@Bostwickprice.com) and I taught this past week for Lorman in Salt Lake. I thought we had a great turnout and were able to discuss the issues and review in detail the past, present and probable future of mechanic's liens in Utah, including the State Construction Registry, UCA 38-1-27, as well as the Residence Lien Restriction and Lien Recovery Fund Act, UCA 38-11-101 et seq.

If anyone has any questions about the intent or design of the State Construction Registry, Darrel is the man. He helped draft it, fight over the changes and the compromises that has resulted in what we all know and love as the SCR.

As I mentioned at the seminar and will again state, the SCR is the best thing that has happened for the industry in the 26 years that I have been a lawyer. It allows everyone and anyone to give notice to the owners and generals that they are providing labor or materials for the project. It makes it easy to give notice, easy to find out who has given notice, and in turn, more likely that those with claims will get paid.

Good luck collecting those ARs!

PROTECTION OF CUSTOMER INFORMATION

In 1999 President Clinton signed into law the Gramm-Leach-Bliley Act. That Act authorized the Federal Trade Commission to regulate the disclosure of nonpublic personal information of customers. The Federal Trade Commission has now promulgated final rules that go into effect on August 1, 2009 for the protection of nonpublic personal information of customers. The FTC announced July 29, 2009 that they would delay enforcement until November 1, 2009. This act applies to any entity that regularly extends, renews or continues credit. Creditors include employers and businesses that provide services and bill later, including many professionals. In short, if you acquire nonpublic personal information from customers you are probably going to have to comply with these regulations. Accepting credit cards as a form of payment does not in and of itself make an entity a creditor.

Under the Commissions new “Red Flags Rules” you must develop a written program that identifies and detects the relevant warning signs (red flags) of identity theft. These may include unusual account activity, fraud alerts on a consumer report or attempted use of suspicious account application documents.

The program must describe appropriate responses that would prevent and mitigate the crime and detail a plan to update the program. The program must be managed by the Board of Directors or senior employees of the company, include appropriate staff training and provide for oversight of any providers of credit information that you use in the business.

Disposal of information contained in consumer reports or information derived from consumer reports is now also regulated by the FTC. Reports that businesses or individuals receive with information relating to employment background, check writing history, insurance claims, residential or tenant history or medical history are consumer reports. The FTC Disposal Rule requires disposal practices that are reasonable and appropriate to prevent the unauthorized access to or the use of information in a consumer report. For example, reasonable measures for disposing of consumer report information could include establishing and complying with policies to burn, pulverize or shred papers containing consumer report information so that the information cannot be read or reconstructed; destroy or erase electronic files or media containing consumer report information so that the information cannot be read or reconstructed; conduct due diligence and hire a document destruction contract to dispose of material specifically identified as consumer report information.

By Bruce W. Shand, guest writer
Bruce's practice focuses on estate planning and tax related issues. He can be contacted at bwshand@earthlink.net.

Suing for What is Owed After Foreclosure

Q: We provided equipment and services for a hotel. The hotel was foreclosed on by the private money lenders that were lending the money. The hotel owed us $5000. The hotel is now refusing to pay the bill saying it is not their problem even though they are using the same equipment that the money is owed on? How is the best way of going about collecting our money? If the private money lenders foreclose on the borrower don't they assume all liabilities etc. from the property?

A: Usually when the lenders foreclose, the foreclosure wipes out any debt attributed to the property from the prior owners. Do you have a signed contract? Do you have any personal guarantees? I suspect your remedy is to pursue your claims against those that hired you - probably best in small claims court as that is quickest and the limit is $10,000. Good luck!

CHANGES TO THE LIVING WILL STATUTE

There have also been changes to the laws of the state of Utah. On January 1, 2008 Utah changed the living will statute. The previous statute provided for the appointment of a healthcare agent through a Special Power of Attorney to carry out your final wishes regarding end of life decisions. The statute then required the execution of a second document which actually spelled out your final wishes with regard to end of life decisions. The statute presented several practical problems, the chief of which was that emergency medical providers refused to recognize the document.

Under the new act, emergency medical providers have agreed that they will recognize the new living will form. Although living wills that were executed prior to January 1, 2008 are still valid, it is highly recommended that you update it to conform to the new statute. This will provide you a living will that will be honored by EMT’s and ER doctors in emergency situations.



By Bruce W. Shand, guest writer
Bruce's practices focuses on estate planning and tax related issues. He can be contacted at bwshand@earthlink.net.

HIPPA Regulations and their impact on your estate

Health Insurance Portability and Privacy Act (HIPPA) final regulations were instituted in 2006. According to these regulations every person over the age of 18 is entitled to a right to privacy of their health records. Medical providers cannot speak to anyone about a patient’s condition unless they have been given authority to do so. To avoid unnecessary confusion when you become ill, it is highly recommend that you sign HIPPA waivers now, allowing as many or as few people as you wish to speak to doctors, nurses or hospital staff regarding your health condition.


By Bruce W. Shand, guest writer
Bruce's practices focuses on estate planning and tax related issues. He can be contacted at bwshand@earthlink.net.

CHANGES TO FEDERAL ESTATE TAX REFORM.

The 2001 Estate Tax reform has been implemented and currently allows persons to shield approximately $3,500,000 from estate tax and gift tax. If the 2001 Estate Tax reform were allowed to go forward, in 2010 the estate tax would be abolished. Congress must confirm the abolishing of estate tax this year. If Congress fails to act this year, in 2011 the estate tax will come back with the Unified Credit sheltering an estate of only $1,000,000. The Obama administration supports keeping the estate tax with a $3,500,000 Unified Credit and a 45% tax rate. The New York Times has indicated that repeal of the Estate Tax would eliminate approximately $100 billion in tax revenue. Given the size of the deficit, the elimination of estate tax may not happen. Even though the exact form of the estate tax is still quite murky I believe that a wait and see approach could be a mistake. A review will allow you to use tax-planning tools that Congress may soon curtail or eliminate.

By Bruce W. Shand, guest writer
Bruce's practices focuses on estate planning and tax related issues. He can be contacted at bwshand@earthlink.net.

Review your Estate Plan - Revisions to Medicaid Rules

New Medicaid rule revisions have made it very difficult to protect assets for future generations. Medicaid generally covers persons 65 and older, disabled persons and blind persons whose income and available resources do not exceed certain amounts. The Utah available resource amount is $2,000.00.

Under the old rules, states were allowed to include assets transferred by the applicant within 36 months of the application for Medicaid. The new Medicaid rules allow the states to include transfers made by the applicant within 60 months preceding the date of the Medicaid application.

Additionally, under the old Medicaid rules if the state found that the applicant’s assets exceed the minimum, it could impose a penalty period where the applicant would not be eligible for Medicaid and would be required to spend their own assets to pay for their medical services. This period was applied before the applicant could file for Medicaid. This would allow the applicant to make a gift to future generations while retaining sufficient assets to pay for their medical care until Medicaid would take over without a gap in coverage.

Under the new rules, this penalty period is applied after the application to Medicaid has been made. This may result in a gap in coverage where the applicant has no resources to pay for the services and they are also ineligible for Medicaid. This means that the new rules effect gifts made before the Medicaid application. Notwithstanding this change, there remain other methods to protect assets for future generations. They do require extremely careful planning.

By Bruce W. Shand, guest writer
Bruce's practices focuses on estate planning and tax related issues. He can be contacted at bwshand@earthlink.net.