Guardianship Vs. Power of Attorney: What’s the Difference?

Power of attorney and guardianship both authorize someone else to act on the behalf of a person who is incapacitated or unable to make decisions about their health, finances and other issues. However, there are significant differences between the two, namely, timing. If you are thinking about creating powers of attorney or need assistance with a guardianship, seeking the counsel of an experienced estate planning lawyer is vital.

Timing is Everything

Although both the power of attorney and guardianship allow an individual to make decisions for another person, it is important to understand the differences. A power of attorney is created and executed before a person becomes incapacitated, while guardianship is may be granted by court order after someone is no longer able to make competent financial and health care decisions.

Why Creating Powers of Attorney is a Good Idea

Powers of attorney are very common legal documents that can make things a lot easier for your loved ones in the event of your incapacitation. Having family wills and trusts lawyers draft specific powers of attorney ahead of time gives you the opportunity to name someone you trust as your representative and advocate. Guardianships involve a more complex and costly process, as the court determines who will be authorized to make decisions for you. It’s important to note that in Pennsylvania, a guardian may be given many powers on behalf of an incapacitated person. Powers of attorney are often much more limited in scope.

The Guardianship Process

For a guardian to be appointed, either a potential guardian or someone who wishes to nominate an individual to be a guardian must file a petition with the appropriate court. That person then becomes the “petitioner” and has to serve the petition on the person for whom they wish to have a guardian appointed. That person is then known as the respondent. The petition that is served on the respondent must include specific language that details how their personal rights may be affected by the guardianship and the reasons why a guardianship is being sought.

In a guardianship proceeding, a judge will hear evidence surrounding the person’s mental and physical capacity. If the court determines that a guardian is necessary, they will appoint one—usually a spouse or adult child. If you’re seeking a guardianship, it is filed in the local probate court. There are many common errors that can hold up the process. A skilled probate attorney can ensure that your petition is completed and filed correctly so the process is not delayed.  Anyone, including the potential ward and their friends and family, is entitled to object to a guardianship.  Although courts typically give preference to family members, if they are unsuitable to serve as guardian, the judge may appoint a public guardian.

Are you ready to start estate planning or need assistance with a guardianship? Our team at Carosella & Associates can help you create a plan that ensures your rights and interests are protected

This blog was originally posted https://carosella.com/guardianship-vs-power-of-attorney-whats-the-difference/

Best Practices for Business Management & Operating Agreements

Starting a new business is exciting, but it is important to make sure proper management & operating agreement is in place before you begin your new enterprise. A corporate business attorney can help you create a comprehensive agreement that outlines each person’s roles, responsibilities, and rights. A solid contract can also provide an exit strategy in the event of a shareholder’s incapacitation, passing, or leaving the business.

Rights & Responsibilities

Business owners typically make a capital contribution to a new start-up, whether it is cash, real estate or other assets. It is critical to include each owner’s contribution and to be specific when defining ownership rights and profit-sharing. Outlining how initial capital will be spent is important as well. Your agreement should also include a contingency plan in case your new business needs additional investment before turning a profit.

Being specific about how the earnings from a business will be distributed is vital. Ambiguous clauses and other uncertainties can cause serious problems once you start turning a profit. If members are drawing a salary at the beginning, make sure amounts are clearly stated and include any provisions for future raises. If the intention is to repay seed capital, your agreement should specify at what point this may happen. It is also imperative to define how future distributions and will be allocated.

The more specific you are about each shareholder’s rights and responsibilities, the better. The agreement should outline how important decisions will be made. Will you use a “majority rule” or consensus approach? Will one person have the final say when it comes to making decisions? Hashing these things out can also help you understand one another’s approach to day-to-day operating s and how the business will be managed. Sometimes business owners simply cannot agree. Having an experienced business contract attorney draft your management & operating agreement can help you resolve conflict more easily and avoid headaches down the road.

Dissolution of the Business

Although no one likes to think about things not working out when starting a new business, health crises, death, disputes, and other issues can arise. Include clauses in your agreement that provide a strategy for buying out a member’s interest or taking on their responsibilities in the event that they can no longer continue. In addition to including these things in your management & operating agreement, it is a good idea to have a business succession planning lawyer help you create a separate business succession plan that addresses these issues and scenarios in more detail.

Keep Your Agreement Current

Change is inevitable. Your business may expand, a founding member might leave, or you may bring new members on. These are just a few of countless potential unforeseen events that can affect the stability of your enterprise and change the way you do business. Reviewing your management & operating agreement with an attorney periodically and making adjustments as you go can ensure everyone’s rights and interests are protected.

If you need help creating a well-crafted management & operating agreement and business succession plan, our team at Carosella & Associates can guide you through the process and ensure all your legal bases are covered.

This blog was originally posted https://carosella.com/best-practices-for-business-management-operating-agreements/

How Spousal Support is Determined in Pennsylvania

Also called spousal support, alimony is an ongoing payment one spouse makes to the other to provide financial support during and/or following a divorce. If the couple can’t work it out between themselves, there are three types of support orders that may be issued by the court. If you’re seeking a divorce, a local divorce attorney can help you understand how it is determined and advise you on the options available to you.

Types of Support & How They are Calculated

Spousal support is an order that is made after parties separate, but before a divorce is final. A judge may even order it before a divorce action is filed.

Alimony pendente lite is a temporary order made after a divorce is filed but before it is finalized. Spousal support and alimony pendente lite cannot be in place at the same time.

Pennsylvania uses a specific formula to calculate spousal support and alimony pendente lite. The spouse who receives support gets 40 percent of the difference between both spouses’ monthly net income. If children are involved, it is 30 percent, as the parent providing spousal support is most likely paying child support as well.

The court also considers the needs of the spouse seeking support and the incomes of both parties. In certain circumstances that involve unusual needs or circumstances, the calculation formula may vary.

Calculating Alimony Post-Divorce

Alimony is a support order that is made at the time or after a final divorce decree is entered.

There are no specific calculations for determining whether alimony is appropriate, the amount, and the duration of payments. Pennsylvania law requires the courts to consider the following factors:

• Both parties’ income and earning capacities
• Both spouses’ sources of income, such as medical insurance, annuities, and other sources
• The age of both spouses
• The physical, mental, and emotional health of the spouses
• Duration of the marriage
• Whether one spouse contributed to the partnership as a homemaker
• Expenses and limited earning capacity due to having custody of a minor child
• Both parties’ existing inheritances and any property they are expected to inherit
• Whether either spouse supported the other’s training, education, or increased income during the marriage
• Both spouses’ education and how long it would take for the spouse requesting for alimony to finish the training or education required to find adequate employment
• The standard of living during the marriage
• Assets and debts of each party
• Separate property each person brought to the marriage
• Each party’s financial needs
• Misconduct that had a financial impact during the marriage
• The tax implications of alimony for both spouses
• Whether the spouse requesting alimony has enough property to meet reasonable needs
• Whether the party requesting alimony is unable to support themselves through reasonable employment.

If you and your spouse owned a business together and decide to dissolve it, business dissolution lawyers or business contract lawyers can advise you on how to best protect your rights and interests.

Duration of Alimony

The duration of alimony depends on specific circumstances. An order may be ongoing with no end date or it may have a specific end date. Courts may review and modify an order if circumstances change. An alimony order will end automatically if the person receiving alimony gets married, is living with a new partner, or if either of the spouses passes away unless the order specifies that it will continue.

Do you need assistance with divorce, alimony, or other family law issues? Our team at Carosella & Associates can help.

This blog was originally posted https://carosella.com/how-spousal-support-is-determined-in-pennsylvania/

The Importance of Estate Planning for Single Parents

Being a single parent is challenging, and estate planning is often pushed aside in the flurry of responsibilities like work, school, chores, and other activities. Most parents want what’s best for their children and part of that is making sure you have an estate plan in place to ensure your child is properly cared for in the event of your passing. An estate planning attorney can advise you on the best course of action to provide for your children and draft vital documents that protect their rights and interests.  Having an estate plan in place can also give you peace of mind, knowing that your children will be well taken care of after you’re gone.

Elements of Estate Planning

There are several crucial elements that should be included in any estate plan. If you’re a single parent who owns a business, it’s also a good idea to talk with an experienced business lawyer about creating a business succession plan as well.

Last Will and Testament. A will gives you the opportunity to name the executor of your estate and its beneficiaries. Most important, it allows you to name a legal guardian or guardians that you trust to take care of your children.  Without a will in place when you die, the court will most likely appoint a guardian and your estate will have to go through probate.

Revocable Living Trust. A living trust allows you to control your assets while you’re able, but if you become incapacitated or pass away, the named trustee will become the administrator of the assets in the trust. Trusts can also keep certain assets from going through probate, which can be a costly and time-consuming process.

Powers of Attorney.  As a single parent, it’s critical to create a power of attorney for finances and the power of attorney for health care. In the event that you become incapacitated, this person can act as your advocate and handle your finances, legal decisions, and health care choices on your behalf if you’re unable to do so.

Advance Directive. An advance directive allows you to select someone who is responsible for making end-of-life decisions if you are incapacitated.

Beneficiary Designations. It’s important to keep in mind that minor children should not be directly named as beneficiaries of any bank accounts, retirement accounts, life insurance policies, and other assets because they cannot make legal decisions. There are different ways to handle these issues, so talk with your attorneys to find solutions that best fit your needs.

Choose Wisely

It’s important to choose someone you know you can rely on as the executor of your will, guardian for your children, trustee, and power of attorney. These can all be the same person or different people you trust. A skilled wills and trusts attorney can provide valuable perspective and help you make practical decisions that will best benefit you and your family.

Do you need help with your estate plan? Our experienced team at Carosella & Associates can help you create a plan that protects your children’s interests and financial future.

This blog was originally posted https://carosella.com/the-importance-of-estate-planning-for-single-parents/

How to Protect Yourself from False Child Abuse Accusations

Issues surrounding divorce and child custody can be contentious. Unfortunately, false accusations of child abuse are one tactic that a co-parent may use to gain full custody of their children. These types of allegations can destroy your reputation and your family and lead to serious emotional upheaval for everyone involved. If you’re facing false claims of child abuse it is critical to seek the counsel of good divorce lawyers in PA to ensure your rights and interests are protected.

Why Would Someone Make False Child Abuse Accusations?

Ex-spouses or co-parents often bring accusations of child abuse because they are desperate. They may accuse their co-parent of abuse, neglect or failure to follow custody orders because they are angry and believe that these types of allegations will give them an advantage in a custody case. Sadly, some people are very good at putting on an act and have no problem lying about such important issues. One positive thing to keep in mind is that if accusations are false, the truth is on your side. This is where the experience and skill of a good family law or defense attorney comes in. A skilled lawyer will understand how to aggressively protect your rights and counter-charges of child abuse with solid evidence while keeping the best interests of your children in mind.

The Importance of Documentation and Evidence

To defend yourself against false child abuse allegations, it is essential to provide evidence showing that you are a good parent. Courts err on the side of caution when it comes to protecting the well-being of children, which may mean that if you don’t have evidence you could lose custody of your children or be subject to supervised visitation. Even if you feel angry because the situation is unjust, focusing on the facts instead of feelings will help your case in the long run.

Even if you had an amicable divorce, it is a good idea to document your participation as outlined in your custody agreement or parenting plan. For example, if you are supposed to pick your child up on certain days at certain times, stick to the agreement show and show up on time. If your co-parent comes up with allegations that you chronically failed to pick your child up at school or daycare, documentation from the school can prove otherwise. In cases where you’ve been accused of actual abuse, valuable evidence may include a clean criminal record and character witnesses such as family, friends, your child’s caregivers, and coworkers.

Use Common Sense When You Spend Time with Your Children

To avoid false accusations of child abuse, don’t act inappropriately around your children. Physical, emotional and sexual abuses are never acceptable. Keeping your cool can be tough sometimes, but if you find yourself in challenging situations with your kids, ask for help from a professional or someone you trust. Don’t badmouth your co-parent—any experienced attorney will advise you that maintaining a positive relationship with your children means that you’re putting their interests above your own, which can bode well for you in court.

Do you need assistance with fighting child abuse allegations? Our law firm in West Chester id dedicated to protecting your rights and helping you find the justice you deserve.

This blog was originally posted https://carosella.com/how-to-protect-yourself-from-false-child-abuse-accusations/

How a Lawyer can Help if You Have Been Charged with Marijuana Possession

Marijuana has been legalized for medical use in Pennsylvania, but it is still illegal to grow or possess it if you do not have a medical marijuana card issued by the Commonwealth. Although many jurisdictions in Pennsylvania have decriminalized the possession of small amounts of marijuana, it is still classified as an illegal Schedule I drug by the federal government. If you’ve been arrested for possession of marijuana, you can still face prison time, hefty fines, and a permanent mark on your record. Seeking the counsel of a local criminal defense lawyer who understands the complexities of federal, state and local law can ensure that your rights are protected and lead to a more positive outcome for your case.

Types of Marijuana-Related Offenses in Pennsylvania

Marijuana Possession

The penalties for marijuana possession vary, depending on the amount you are found to have. If you have an amount less than 30 grams, you could face misdemeanor charges, 30 days in jail and a fine of up to $500. Possessing more than 30 grams of marijuana is a felony that carries up to five years in jail and a $15,000 fine. Multiple convictions may result in doubled penalties. Even if you think being charged with possession is not a big deal, having a Chester County felony lawyer by your side is critical to help you understand your rights and mount a proper defense.

Possession with Intent to Distribute

This offense includes the cultivation, transportation, and selling of marijuana. If you are caught selling, delivering or distributing marijuana within 1,000 feet of a school or within 250 feet of a playground, you could face two to four years in prison. Giving or selling marijuana to a minor is a felony and may result in double penalties. It’s also important to keep in mind that growing marijuana is a felony, even if it is just for personal use.

Possession of Paraphernalia

You can even be charged with a crime if you are in possession of paraphernalia like a pipe or bong. Generally, it is a misdemeanor punishable by a maximum of 6-12 months of incarceration and a fine of up to $2,500. Delivering paraphernalia to a minor is a second-degree misdemeanor, and can come with penalties of up to two years in jail and a $5,000 fine.

DUI

The penalties for driving under the influence of marijuana can be severe. Marijuana DUI cases can be tricky, as cannabis metabolites can be found in the system weeks after use.

Why You Need an Attorney

If you have been charged with a marijuana offense, it is important to seek legal representation immediately. A criminal defense attorney may be able to help you avoid time behind bars by negotiating a conditional release, which lets you opt for probation rather than trial. If you do go to trial, the prosecution is required to prove the charges beyond a reasonable doubt. If there is a lack of sufficient evidence, the improper procedure was followed by an arresting officer, or there is no proof that you were in possession of marijuana, your attorney will use these facts to your advantage to achieve a not guilty verdict or to have charges dismissed.

If you are a first time offender, your defense attorney may negotiate with prosecutors to have you enter a drug diversion program. Upon successful completion, charges will be dismissed and will avoid having a conviction on your criminal record.

Do you need help fighting marijuana charges? Our experienced team of criminal defense attorneys can help.

This blog was originally posted https://carosella.com/how-a-lawyer-can-help-if-you-have-been-charged-with-marijuana-possession/

What Happens When You Violate a Restraining Order

Known as a Protection from Abuse (PFA) order in Pennsylvania, a restraining order is designed to protect victims of domestic violence. A PFA restricts an alleged abuser from having contact with the person who filed the order. Whether you believe that a PFA that has been filed against you is valid or not, it is critical to comply with all stipulations outlined in the order. Violating a PFA can result in additional penalties, loss of child visitation rights, and even jail time. If you’ve been charged with domestic violence or are subject to a PFA, it is vital to seek the counsel of an experienced criminal defense attorney right away to ensure your rights are protected.

What Happens when Someone Files a PFA Against You?

In Pennsylvania, a PFA prohibits you from having any contact with an alleged victim, including contact via phone, text and email. It may even specify a minimum number of feet you must stay away from them. If you live together, this means you will not be allowed to return to your home. Depending on the specific circumstances, a PFA can also give your partner or spouse temporary custody of your children, which may seriously restrict your visitation rights and keep you from seeing them altogether. These are just a few potential scenarios. Situations can become even more complex, especially when two spouses own a business and work together. If you’re concerned about protecting your business interests, your business attorney can help you understand your rights under the law.

Penalties for Violating a Protective Order

If you are found guilty of violating a PFA, penalties may be:

• Up to six months in jail and a fine of $300 to $1,000
• Up to six months probation and a fine of $300 to $1,000

Penalties depend on the circumstances of the violation. If you violate a PFA, the victim may request that the court extend the Protection from Abuse order. You may also be held in contempt of court for violating a PFA. Being held in contempt of court means you forfeit your right to a jury trial, although you have the right to legal counsel. If an alleged victim files a petition for civil contempt and you are found to have violated a condition of the PFA or another court-approved agreement, you can be jailed for up to six months.

PFAs and Pending Cases

If you are facing other criminal or civil charges, violating a PFA can hurt those cases, too. For example, if you are facing charges for stalking and show up at an alleged victim’s home or workplace, a prosecutor can use this violation to demonstrate that you have no intentions of stopping the harassment. Not only that, if a violation of a PFA occurs during a divorce or child custody case, it can seriously damage your standing when it comes to matters of child custody or quick resolution of your divorce case.

Steps to Take if You Have Been Charged with Violating a PFA

Whether you are facing a PFA for the first time or have been charged with violating an order, it is always a good idea to consult a Chester County criminal lawyer who can help you understand your rights and act as your advocate.

Have you been a victim of domestic violence or need assistance with fighting a PFA? Our West Chester criminal lawyers can help.

This blog was originally posted https://carosella.com/what-happens-when-you-violate-a-restraining-order/