Latest Blogs

 
Be the first person to recommend this.
         Unless you’ve spent the last month living under a rock, you’ve almost certainly heard that the United States Supreme Court recently issued a decision allowing states to impose tax on internet transactions. [1]   Wayfair is arguably the most important state tax case to be decided in the past two decades and fundamentally changes the liability for, and collection of, state sales and use taxes.  Specifically, on June 21, 2018, the Supreme Court issued its decision in South Dakota v. Wayfair, Inc. (Supreme Court Docket No. 17–494).  A copy of the Wayfair decision is available here .           In 1992, the U.S. Supreme Court issued its decision ...
0 comments
Be the first person to recommend this.
The Michigan Court of Appeals has issued an opinion regarding the appropriateness of using probate court protective orders to obtain spousal support orders in situations where such orders impact the calculation of a nursing home resident’s Medicaid “patient pay amount.” The outcome is 80% good for planners, and as such is a refreshing break from the series of punishing COA opinions that have been issued in recent years with respect to Medicaid planning cases. The case, In re Estate of Joseph VamSach Jr . , and   In re Estate of Jerome R. Bockes . is published, lengthy and involved.   For the uninitiated, a “patient pay amount” is the portion of a person’s ...
0 comments
Be the first person to recommend this.
If you're charged with retail fraud in Michigan, the prosecutor doesn't trust you. The allegation is you stole something from a store, and the prosecutor will assume you were finally caught after years of stealing from multiple stores.   This may or may not be true, but it really doesn't matter, because there is no way to show this isn't the truth; perception runs wild, because the prosecutor can't imagine stealing in their own life as they've kept a straight arrow lifestyle to go on to prosecute cases for a living. This is a crime of fraud, theft and dishonesty and it puts you in a negative light to the government.   Prosecutors also assume these cases ...
1 comment
1 person recommends this.
Medicaid's right of reimbursement from tort and worker's compensation settlements and awards was limited again recently. In 2006, the U.S. Supreme Court's decision of Arkansas HHS v Ahlborn , 547 US 268, 126 S Ct 1752 (2006), limited Medicaid's lien to just the portion of an award or settlement that represented money paid for past medical expenses. Congress responded bypassing the 2013 Budget Act that included language that would empower state Medicaid agencies to assert liens against entire settlements or awards, regardless of what those monies represent. Congress, however, repeatedly delayed the effective date of this legislation overturning the Ahlborn ...
0 comments
Be the first person to recommend this.
On December 4, 2017, the Michigan Department of Licensing and Regulatory Affairs Bureau of Medical Marihuana Regulation (BMMR) issued its long-awaited rules implementing the 2016 Medical Marihuana Facilities Licensing Act (MMFLA). Rather than permanent rules, however, they were issued as emergency rules, which are allowed under Michigan law. The rules will last for six months, and they may be extended for not more than another six months. The BMMR said it issued the rules under the emergency provisions of the Administrative Procedures Act because of the strong need for some form of rules before December 15, 2017, the date on which applications for licenses ...
0 comments
Be the first person to recommend this.
The Medical Marihuana Facilities Licensing Act (MMFLA) is designed to regulate marijuana dispensaries and clarify the legality of edible products in Michigan. The law also licenses and regulates marijuana growers, processers, testing facilities, and transporters. The MMFLA took effect December 20, 2016. However, it included a 360-day delay in implementation to enable the state to establish the licensing system required by the act. The process was not completed in time to begin processing applications according to the timelines specified. As a result, the Department of Licensing and Regulatory Affairs (LARA) issued emergency rules to implement the MMFLA. ...
0 comments

Latest EPIC Q & A

Be the first person to recommend this.
Can a settlor’s incapacity cause a revocable trust to become irrevocable? Question: What effect will MCL 700.7604 have if a trust becomes irrevocable based on a determination that the settlor lacks capacity? In this case, brother A argues that his mother was coerced into changing the terms of a joint trust after his father died. The trust allows surviving settlor to amend, and mother did amend, reducing disgruntled brother A’s share at a time when she clearly did have capacity. Later, after mother was declared incapacitated, brother B took over as successor trustee. He gave the notice required under MCL 700.7814 and added in language that would trigger ...
0 comments
Be the first person to recommend this.
If charged with a felony DUI in Michigan, your case will begin at the district court level with a preliminary examination. This would be a third offense or more, or a case, which caused serious bodily injury or death. If charged with a felony, you are entitled to this hearing within 21 days of your arraignment, but can waive this timeframe if you wish to invest more time in conducting discovery, or working a proactive plan in order to open up some options for resolution. A preliminary examination is put in place to “test” the evidence before the case can go to the circuit court level. The “test” is probable cause; is it probable based on the evidence ...
0 comments
2 people recommend this.
On June 27, 2016, the new version of MCL 700.1104, 700.2801 et seq., and 700.3206 et seq. is effective. These statutes were amended by 2016 PA 57 to allow a legally competent individual to name and appoint a funeral representative to make decisions about what happens to that individual’s remains after he or she dies. This includes both disposition and final resting place. The designated funeral representative has the “right and power to make decisions about funeral arrangements and the handling, disposition, or disinterment of a decedent’s body, including, but not limited to, decisions about cremation, and the right to possess cremated remains of the decedent.” ...
0 comments
1 person recommends this.
It is not often that Congress works together, let alone with an overwhelming consensus. But Congress did just that in passing the Defend Trade Secrets Act of 2016 (the “DTSA”). The Senate passed the new Act by a vote of 87-0, and the House of Representative followed by passing it by an overwhelming vote of 410-2. President Obama signed the bill into law on May 11, 2016. Although nearly every state has already enacted versions of the Uniform Trade Secrets Act, what was before purely a matter of state law is now a federal issue. The DTSA will apply only to those acts of misappropriation that occur on or after the date that the Act was signed into law. ...
0 comments
Be the first person to recommend this.
​ Ketchum v DHHS was just released by the Michigan Court of Appeals. This case arises in the context of a series of cases that have been decided by the COA since Michigan first adopted an “estate recovery” law in 2007. Each case has addressed the proper interpretation of that statute. In each case the position of the Department of Community Health has been upheld. The same is true in Ketchum . Whereas prior cases focused on the issue of proper notice to impose an estate recovery claim, Ketchum is the first case to address the so-called “home of modest value” exemption; which purports to exempt an amount from estate recovery, which amount is equal ...
0 comments
Be the first person to recommend this.
The United States Supreme Court struck down as unconstitutional laws - like Michigan's - defining marriage as between one man and one woman. With same sex marriage legalized throughout the United States in Obergefell v Hodges, ___ US ___; 135 S Ct 2584; 192 L Ed 2d 609 (2015) , this November 19, 2015 decision is Michigan's first chance to realize that same sex marriages present some of the same legal issues as traditional marriages. In 2007, Jennifer and Leanne entered into a same sex marriage in Canada. Since the two women were US citizens residing in Michigan, being legally married in Canada was more symbolic than anything. Yet, the process did for that ...
0 comments

Latest EPIC Q & A

Be the first person to recommend this.
  Is there a noncourt procedure available to make a material modification to a trust? (REF. sections .7111, .7412, .7820a, MCL 556.115a) QUESTION The trust became irrevocable before April 1, 2010. The trust contains a spendthrift clause. It does not contain any trust protector provisions. It is silent as to its material purposes. It does not grant the trustee the power to modify. The trust allows discretionary distributions to be made to the beneficiary for the beneficiary’s health, education, and support. After the death of the trust’s settlor, the beneficiary is given partial rights of withdrawal at various ages. Due to the beneficiary’s ...
0 comments

Bittner’s Bite

Be the first person to recommend this.
So we have a new published opinion on a probate court case – something unusual these days. In re Conservatorship of Shirley Bittner was published September 8, 2015. Click here to read the case . In Bittner, the probate court imposed a conservatorship over the vulnerable adult, and did so over what the Court of Appeals calls her “strenuous objections.” The subject of the petition was Shirley Bittner. The petition was brought by her daughter Suzanne. Shirley was a 74 year-old widow. Suzanne had been granted power of attorney over Shirley by Shirley, and had been made co-trustee of Shirley’s trust; that is until Shirley concluded that Suzanne had ...
0 comments
1 person recommends this.
Since the economic collapse a few years ago, there have been many significant changes in the business landscape. As tenant defaults have increased, landlords are frequently requiring personal guarantees of commercial leases. However, personal guarantees can be negotiated to provide terms reasonably acceptable to both landlords and tenants. Generally, the individual who signs a commercial lease on behalf of a tenant does so in their capacity as an officer of that company. If the tenant goes out of business and the lease was not personally guaranteed, the landlord's only recourse is to file a claim against the failed company. The officer who signed the lease ...
0 comments
1 person recommends this.
On June 26, 2015, the Supreme Court decided in a 5-4 decision that same-sex couples nationwide have a constitutional right to marry. The full case opinion ( Obergefell v. Hodges) is available here , however, the majority opinion was best summed up by Justice Kennedy as follows: The right to marry is a fundamental right inherent in the liberty of the person. Couples of the same sex may not be deprived of that right and that liberty. These words wipe out Michigan’s 2004 law that limited marriage to heterosexual couples, as well as other gay marriage restrictions in force in a dozen other states. This also means all 50 states must recognize same-sex ...
0 comments
Be the first person to recommend this.
Those of you as old as I am have lived through one revolution: the communications revolution. We went from wall phones to smart phones in a generation. From no computers to computers everywhere and in everything we use. We can all recognize the incredible implications of this event. Now we are in the midst of a second revolution: the gender revolution. This is not just, or even primarily, about gay marriage. The gay marriage phenomenon was telling. It demonstrated how quickly public opinion changed to completely recast a social institution that has been around since the start of civilization. President Obama’s famous week of reflection during ...
0 comments

Latest EPIC Q & A

Be the first person to recommend this.
Can a beneficiary attack the trust’s validity while serving as successor trustee? (REF. SECTIONS 7801) Answer MCL 700.7801 requires a trustee to administer the trust in good faith, expeditiously, in accordance with its terms and purposes, for the benefit of the trust beneficiaries and in accordance with the Michigan Trust Code. It is generally accepted that a corollary of these obligations is a duty on the part of a trustee to defend the terms of the trust. See Restatement (Third) of Trusts §76 comment d and cited authorities. It is fundamentally inconsistent with this obligation for a person to accept the office of trustee ...
0 comments
1 person recommends this.
A number of years ago a friend, who had moved to Florida, and I were discussing his estate plan and he told me how his Florida attorney had used a ladybird deed as a component in his planning. Being unfamiliar with the term, I did some research to determine what exactly is a ladybird deed. I found, as we know now that the more formal term for a ladybird deed was an enhanced life estate deed. For purposes of the article an enhanced life estate deed or ladybird deed is loosely described as a conveyance of real property, reserving a life estate and the power to sell, mortgage, etc. In Michigan there is Standard 9.3 of the Michigan Title Standards (6th ed), which ...
0 comments
2 people recommend this.
A wage garnishment is a court order that assists plaintiffs with the collection of judgments. Such an order requires an entity to withhold money (i.e., wages) owed to a judgment debtor and divert it to a judgment creditor in order to satisfy the judgment debt. An order for a wage garnishment is startlingly complex to administer and very risky for employers. For instance, if an employer does not timely answer a Michigan garnishment within 14 days, or fails to do any other act required by the court, it is subject to a judgment against it for the full amount of the employee’s debt. Today, Michigan Governor Rick Snyder signed into law two House bills that will ...
0 comments