The Future of Forced Arbitration – What Employees and Employers Need to Know

What Employment Law Says About Forced Arbitration

You may have seen the news that in March of this year, President Biden signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, referred to as the EFAA. With the passage of the EFAA, employers are now prohibited from resolving sexual harassment and sexual assault claims with pre-dispute mandatory arbitration agreements, also known as forced arbitration. 

What is Forced Arbitration?

Forced arbitration, sometimes referred to as mandatory arbitration, prohibits an employee from suing their employer if they’re sexually harassed or sexually assaulted at work. If an employee does decide to go forward with a lawsuit, forced arbitration means there will not be a public hearing – instead, the employer hires a private arbitrator to agree on a resolution. Forced arbitration clauses are found in the fine print of many employment contracts

Recent Legislative Changes

As mentioned above, President Biden recently signed into law the EFAA, which brings about these key legislative changes:

  • For cases related to sexual assault or sexual harassment, employers may not enforce pre-dispute arbitration agreements.
  • Employees, however, can voluntarily choose arbitration as a resolution to their sexual harassment or sexual assault claim. 
  • Employers are also prohibited from using collective, class, or joint action waivers in an attempt to prohibit employees from participating in class or collective actions. 

Key Takeaways for Employees

As an employee, if you want to bring a sexual harassment or sexual assault case against you’re employer, under the EFAA you are entitled to a public hearing if that’s the route you want to take. Your employer cannot force you to go directly into arbitration. If you experience sexual harassment or sexual assault while at work, please contact an employment law attorney as soon as possible. 

Key Takeaways for Employers

As an employer, please consult with your labor and employment counsel as soon as possible, and consider that you may need to do the following:

  • Modify existing forced arbitration agreements that are in place with employees.
  • Hold sexual harassment trainings for your staff, as well as retaliation prevention trainings.
  • Ask your counsel to keep you informed of the latest provisions related to the EFAA. 

For more information about what the changes in employment law brought about by the EFAA mean for you, or if you have any other legal questions, please contact our team at SCC Legal today at: https://www.scclegal.com/

Asset Protection Trusts: What Are My Options

Asset Protection Trusts_ What Are My Options-min

You may have heard about an Asset Protection Trust (APT), but you aren’t sure what it is or when it’s the best choice. An APT is a special type of trust that is used to protect your estate from any creditors, lawsuits, or judgments against your estate. For example, it’s common for people to name their children as beneficiaries in their trust, but if one of your children has a worrying amount of credit card debt, and you’re concerned that once they inherit your estate that creditors might come after it, you can create an APT to protect your assets. 

Common Asset Protection Trusts 

Domestic APT: Only available in a select number of US states, a Domestic APT is straightforward to set up with the help of an experienced estate planning attorney. Your assets will be held in a trust that resides within the US legal system. 

Foreign APT: Also known as an Offshore Trust, a Foreign APT is more complex to set up, but generally thought to be more secure and provides greater privacy protection. 

How Can I Move My Assets to an APT 

The majority of people who set up APTs are financially comfortable and have a range of assets, including properties, cash, securities, cars, jewelry, businesses, boats, and aircrafts. Moving your assets to an APT requires a highly-skilled team of people including insurance brokers, financial planners, estate planning attorneys, and more. If you’re considering moving some or all of your assets into an APT, you need an experienced legal team to handle the process. 

SCC Legal Can Help 

At SCC Legal we can offer advice and guidance on whether or not an APT is the right choice for you. It’s important to note that APTs are irrevocable, so it is not a decision to take lightly, and it’s one that requires careful planning and execution. 

For more information about Asset Protection Trusts, or if you have any questions about how they can benefit you and your family, please contact our team at SCC Legal today to learn more. We look forward to hearing from you.

What are Medicaid Trusts and How Can They Help?

What are Medicaid Trusts and How Can They Help_

Medicaid Trusts, also referred to as Irrevocable “Income Only” Trusts, are a special type of trust used to protect personal assets and allow seniors to qualify for long-term care via Medicaid. These trusts cannot be set up quickly, so careful planning and consideration is needed. For example, if you need home care Medicaid, your Medicaid Trust must be set up 2.5 years ahead of the time when your care begins, and five years before any assisted living care is needed. We recommend consulting with an experienced estate planning attorney if you’re interested in setting up a Medicaid Trust. 

What is a Medicaid Trust?

If you have significant assets and don’t want them to impact your Medicaid eligibility, you can set up a Medicaid Trust. Any of your assets placed in this trust are considered completed gifts to the beneficiaries you choose, and the trust can only be revoked under certain circumstances. Each state has its own regulations around revoking a Medicaid Trust, so speak with an estate planning attorney in your state to get the details. 

Older adults commonly use Medicaid Trusts for assets like property, cars, stock portfolios, jewelry, and other high-value assets so that these assets don’t impact their ability to qualify for home care or assisted living care via Medicaid. Most people name their child or children as beneficiaries and leave the assets sitting in the trust untouched for many years. 

How can they benefit you, and how can you get one?

Home health care, assisted living facilities, and other types of care that people commonly need as they grow old can be very expensive. And even if you’re financially comfortable, there’s no way to predict what your healthcare expenses will be as you age. If you get diagnosed with an illness or have an accident, the costs of treatment, hospitalization, and rehabilitation can easily skyrocket into the tens of thousands. Setting up a Medicaid Trust is one way to help cover future healthcare-related expenses, and an experienced estate planning attorney can discuss your eligibility and options with you. 

For more information about Medicaid Trusts, or if you have any questions about how they can benefit you and your family, please contact our team at SCC Legal today to learn more. We look forward to hearing from you.

What Is a Conservatorship, and How Does It Work?

What is a conservatorship, and how does it work_

You might have heard about conservatorships before, especially in the context of elder law, but perhaps you aren’t sure what they are. A conservatorship is an arrangement reviewed and authorized by the court whereby one person is responsible for the finances, health, and general decisions of someone who is not able to manage their own affairs. If this sounds like it could be a viable and necessary option for your elderly loved one, our team of elder law attorneys at SCC Legal have compiled some more information about how a conservatorship works. 

Definition and examples of a conservatorship

The legal definition of a conservatorship is when a judge appoints a conservator to manage the affairs and oversee the general welfare of a conservatee, who has been deemed unable to care for themselves. Conservatees are often elderly people, people with temporary disabilities, or people with permanent disabilities. 

For example, if an elderly person was diagnosed with Alzheimer’s and was no longer of sound mind, a court would appoint someone – a conservator – to be responsible for the person’s health, finances, and general well-being. 

How does a conservatorship work?

Conservators are given specific responsibilities depending on the individual situation. It’s important to note that  no two conservatorships are the same. General responsibilities of a conservatorship might include:

  • Managing the conservatee’s assets
  • Signing legal documents on behalf of the conservatee 
  • Managing the conservatee’s finances, like investments and paying bills
  • Hiring any health services the conservatee needs, like a home health aide or physical therapist 
  • Maintaining life and health insurance policies for the conservatee 

Conservators are often spouses, adult children, or relatives of the conservatee, but a conservator can also be a close friend the person trusts to manage their health, finances, and overall well-being. 

Types of conservatorships

Temporary conservatorship: Used when someone becomes temporarily incapacitated due to an accident, an injury, or an illness, these arrangements are invoked when the conservatee needs immediate assistance. 

Limited conservatorship: Typically used with adults who have certain developmental disabilities, such as cerebral palsy. A limited conservatorship ensures the conservatee has the support they need, while also retaining some independence. 

General conservatorship: This arrangement, usually invoked in the most serious of cases, is for conservatees who are unable to manage any aspect of their own lives. 

If you’d like more information about conservatorships, or if you have any elder law questions, please contact our team at SCC Legal today. You can also visit our website at: https://www.scclegal.com/

The Must-Haves in Estate Planning

The must-haves in estate planning

You may think that estate planning is something you only need to think about later in life, but it’s actually never too early to create a comprehensive estate plan with a trusted attorney. This protects you, your family, and your assets in the event that something happens to you, and it gives clear instructions on what to do when you’re no longer here. 

In this article, we’ll discuss the important components of a will, as well as some other estate planning basics

Last Will and Testament

Your Last Will and Testament is the foundation of your estate plan, and it gives clear instructions on what to do with your assets after you pass away. This includes your properties, cars, stock portfolio, jewelry, bank accounts, and other valuables. You should also nominate an executor to oversee the distribution of your assets, designate a legal guardian for your child or children, and establish any trusts you want to create, all of which is contained in your Last Will and Testament. 

Trusts

A trust is a legal arrangement in which someone – a trustee who has been nominated – holds assets for the beneficiary, instead of the beneficiary holding the assets in their own name. Trusts are most often used for people with sizable assets or for those with more complicated financial situations, and they’re also beneficial for people who want to attach certain stipulations for the beneficiaries. 

Insurance Protection

Did you know that a life insurance policy often pays a tax-free death benefit to your beneficiaries? These funds often help surviving family members pay for costs associated with the funeral, and for handling any remaining expenses. Ask your estate planning attorney which life insurance policies are best for you and how they can help your family in the event that something happens to you. 

Financial Power of Attorney

Financial Power of Attorney (POA) is a legal agreement that designates someone else to make legal and financial decisions on your behalf. They can do things like pay your bills, move money around between your accounts, and make investments in several different situations. For example, if you become incapacitated due to illness, injury, or an accident and are no longer able to make finanical decisions for yourself, you want someone you trust paying your bills and making other financial decisions for you. 

For more information about creating your estate plan, or if you have any other questions regarding trusts, please contact our team at SCC Legal today or visit our website at: https://www.scclegal.com/

Guardianship vs Conservatorship

Conservatorship vs guardianship_ your questions answered

If you’re trying to decide between a guardianship and a conservatorship, it’s important to know the facts. Both of these legal terms require context, for example the state in which the person lives, and the correct answer will depend upon the specifics of your situation. This is why we recommend speaking with an experienced attorney before making any quick and final decisions. 

Difference between conservatorship and guardianship

A conservatorship gives someone the authority to control another person’s financial decisions. Conservatorships are often used with adults who have developmental disabilities that result in them being unable to care for themselves, and make decisions for themselves, however they can be used in other situations also. Perhaps, the most notable conservatorship receiving a lot of airtime is that of Britney Spears, as she is not developmentally disabled or unable to take care of herself. Luckily, and with the help of an experienced attorney, she was able to end the conservatorship that was put in place over ten years ago by her biological father. It’s also important to note that there are two types of conservatorships, of the person and of the estate, and both come with different responsibilities. 

A guardianship is when someone is selected to be a legal guardian for a child or children when their parents pass away. During the estate planning process parents are encouraged to designate a legal guardian, because if they don’t, the court will decide who cares for their children. 

Limited conservatorship

A limited conservatorship is when a conservator is appointed by the court to be responsible for caring for the conservatee, including making important decisions on their behalf. The two most common types of limited conservatorship are:

  • Limited conservatorship of the estate: making financial decisions for the conservatee
  • Limited conservatorship of the person: making decisions about the personal needs of the conservatee 

Each state has its own rules when it comes to conservatorships, so please consult with a trusted estate planning attorney who can clearly explain what the rules and regulations are in your state. 

Legal guardianship and temporary guardianship

Legal guardianship most often refers to parents deciding who will take care of their child or children in the event that something happens to them. Selecting a legal guardian is a big decision and one that you should make carefully, because being named as a legal guardian for a child is a big responsibility. Temporary guardianship is used when parents need someone to temporarily care for their children, for example if they need to travel elsewhere for work or for a family emergency. 

For more information about conservatorships or guardianships, or if you need assistance determining which one is best for your situation, please contact our team at SCC Legal today or visit our website at: https://www.scclegal.com/

What is The Probate Process in New Jersey?

Do you know how the New Jersey probate process works? Probate is the name for the process when someone’s will is proved in a court of law. During probate, a judge must accept the will as a valid legal document, as well as the true testament of the person who has passed away. 

In this article, we’ll discuss what the probate process includes in the state of New Jersey, and if you have any additional questions, please don’t hesitate to contact our estate planning attorneys in Fairfield, NJ

The six basic steps of the probate process

  • Validating the will. Before anything can happen with the deceased’s estate, the court must rule that the will is a valid legal document and that it represents the true wishes of the deceased. You’ve probably heard about wills being contested in court, and this is why it’s important to work with an experienced estate planning attorney. It will decrease the likelihood that any contentions should hold up the process. 
  • Appointing an executor. Most people appoint an executor for their will before they pass away, but if for some reason they haven’t, the decision is often left to the court. The executor is the person who ensures the estate is distributed exactly as the deceased intended it to be. 
  • Taking inventory of the estate. All assets must be accounted for, including bank accounts, properties, cars, businesses, and any other extraneous assets included within the will. 
  • Paying the claims against the estate. If someone makes a claim against the estate of someone who has passed away, it means they believe they’re owed something that wasn’t explicitly stated in the will. These claims must be addressed and paid if they’re found to be valid. 
  • Paying all estate taxes. Taxes incurred will depend on the size of the estate, and an experienced estate planning attorney can let you know what to expect in regards to your unique situation. 
  • Distributing any remaining assets. Once the above steps have been successfully completed, it’s time to distribute the remaining assets in the estate. 

As we mentioned above,  if you have any questions about estate planning or the ins and outs of the New Jersey probate process, please contact our team at SCC Legal today at: https://www.scclegal.com/

Skipping a Generation: How to Pass Assets to Your Grandchildren Directly

Skipping a Generation

If you’re interested in setting up your estate plan in a way that passes your assets directly to your grandchildren, we recommend working with an estate planning attorney to create a generation-skipping trust. We often assume that people will pass their assets to their children, but there are various reasons and benefits to passing assets directly to their grandchildren instead. 

While most people create generation-skipping trusts for their biological grandchildren, technically anyone (except a spouse or an ex-spouse) who is at least 37 ½ years younger than you can be designated as the beneficiary. These types of trusts can be complicated to set up, so we recommend consulting with an experienced estate planning attorney who can help.

Why do people use generation-skipping trusts?

  • Minimize estate taxes. In order to avoid incurring federal estate taxes and certain state taxes twice – once when the assets are passed to their children and again when the children pass the assets to their children – some people opt to transfer their assets directly to their grandchildren. 
  • Your children can still earn an income from money generated by the trust. When you set up a generation-skipping trust, your children won’t be able to touch any of the assets included in the trust. However, they are able to earn an income from it. 
  • You can take advantage of the Generation-Skipping Transfer tax. Consult with your estate planning attorney about the current exemption amount, and they can help you structure a transfer of assets in a way that falls under the amount. 

Estate planning is something that’s easy to put off until it’s too late. However, in order to best protect your assets and your family, we strongly recommend creating an estate plan to ensure your wishes are carried out when you are no longer here. Don’t wait until you have an accident or an illness to think about your family’s future. Creating an airtight plan will also help to avoid nasty estate litigation between family members.  

If you’d like more information about how to set up a generation-skipping trust, please contact our team of estate planning attorneys at: https://www.scclegal.com/

How Can I Protect My Inherited Property?

How Can I Protect My Inherited Property_

One of the most common assets people leave to their children as an inheritance is property. Whether it’s the family home, a summer beach house, or multiple personal properties, there’s no question that these properties are very valuable and need to be protected. No one gets married with the intention of getting divorced, but unfortunately, we see many divorce cases during which ownership of inherited property is contested. Here’s what you need to know about protecting your property.

Protecting inherited real estate 

  • Create and sign a prenuptial agreement that states any inherited properties, or properties that will be inherited upon a parent’s death, belong solely to one party and should not be considered marital assets or marital homes. 
  • Don’t use your inherited property as your marital home. While on paper the property may be entirely yours, once you begin using it as a family home, things can become tricky to handle legally. This is because the courts may consider your inherited property to be your matrimonial home, and your spouse or ex-spouse may have some claim to it, especially if you live there as a family for a long period of time. 
  • Save all documentation proving that the property is intended for you alone to inherit.
  • Put your inherited property in a trust, naming either you or your children as the beneficiary. 
  • A postnuptial agreement is also an option if both parties are amenable to it. 

Guidance from an experienced NJ real estate lawyer

If you want to safeguard your inherited property, we recommend contacting an experienced real estate attorney who can discuss your options and help you file the appropriate paperwork. Each inheritance case is unique, and so is each marriage and divorce, so you need a lawyer who understands your particular circumstances and all the legal stipulations you may encounter. 

For more information about how a real estate lawyer can help you protect your inheritance, or if you have any questions, please contact our NJ real estate attorneys at SCC Legal today. We look forward to hearing from you.

Why You Should Include an LLC in Your Estate Plan

When you hear the phrase Limited Liability Companies (LLC) you probably think of small business owners, but did you know that LLCs can be a useful tool in your estate plan? If you’re someone who has a large estate – perhaps you own multiple homes or properties, or have other valuable assets including financial accounts – an LLC can be helpful if you want to transfer any of your assets to your children without incurring gift and estate taxes. 

How a Family LLC works in an Estate Plan

An estate planning attorney can help you and your children create an LLC together. As a parent you’ll be designated as a managing member of the LLC, while your children will be designated as non-managing members. As a managing member you’ll have control over any assets transferred into the LLC, while your kids, as non-members, will have certain restrictions about what they can and cannot do. 

Once the LLC is established, you can transfer cash, your home, any real estate holdings, any businesses you own, and other assets into it. All assets transferred into your LLC are protected from creditors, and LLCs give you more control over managing your family money, properties, and other assets. Once transferred into an LLC, these assets are also protected from incurring certain taxes, such as gift and estate taxes.

Why you need an experienced estate planning attorney

We always recommend working with an experienced estate planning attorney when setting up your estate. There is a lot of paperwork to do and processes that must be followed, and an experienced New Jersey estate planning attorney will help you navigate the process. If you want to create an LLC to be included in your estate plan, you’re required to abide by additional rules and regulations, and you will benefit greatly from the guidance of an experienced lawyer. 

For more information about New Jersey estate planning, or if you have any questions about including an LLC in your estate plan, please contact our team at SCC Legal today. We look forward to hearing from you.

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