Preparing for the End

It is difficult to think (let alone talk) about it, but preparing legally for medical choices is crucial. For instance, getting the legal documents completed before your loved one loses their capacity to authorize it will make decisions like end-of-life care and health care preferences far less complex.

• A living will includes any health care preferences your loved one chooses, like whether they want CPR, a feeding tube, dialysis, or other medical interventions.
• Either a health care power of attorneyor health care proxy authorizes someone “to act on an ill person’s behalf when necessary.”

In addition, it’s essential to talk about death, including funeral arrangements, with family, friends, and, most importantly, your loved one. Unfortunately, many people struggle to have these conversations. Everyone responds differently and needs different levels of comfort as things develop with the illness. Some need reassurance, others want to have direct conversations, and even more fear death and need empathy.

Making these decisions ahead of time and having frank conversations will help everyone, including your loved one.

Preparing the Home

While caring for your loved one, you may not be able to prepare their home for afterward adequately. You likely will focus on ensuring the medical supplies, bills, and other expenses involved in their care are taken care of but don’t always notice if their home starts to need attention.

When the time comes, the home will likely need to be sold. But, unlike selling your own home, getting the home ready for sale presents unique challenges.

Making Arrangements

The legalities of selling the home of a deceased family member are different than selling your own home. First, you’ll have to provide documentation, including the estate status and executor. Remember, the estate executor is not necessarily the spouse or next of kin. It is best to choose the person beforehand and someone “who is responsible and in a good mental state to make decisions.” There is also the probate process to consider as you get the home ready to sell.

Cleaning

We don’t realize how much stuff is in a home until we go to clean it out. Those closets you’ve put the blankets away in for years suddenly have noticeable knick-knacks, memories, clothes, and more. It can be a grueling process emotionally. To make it easier, ask for help. A friend may help by throwing out non-sentimental items like expired food, toothbrushes, and other toiletries.

Upkeep

Getting the home ready for market may require repairs and updates like painting, repairing cracked windows, and fixing leaky pipes. Connecting with a qualified real estate agent can advise you on which changes are necessary, such as:

• Updating or removing wallpaper
• Changing the lighting
• Removing all indications of a pet

Dealing with the legal, medical, and estate issues as early as possible allows you and your family to prepare mentally, emotionally, and physically for your loved one’s passing. Whether it’s obtaining a living will or having a friend help you clean out the family home for an estate sale, taking these necessary steps can allow you to grieve without too much extra stress.

Guest post by Lucille Rosetti.

The post Getting Prepared: How to Manage a Loved One’s Terminal Illness appeared first on Nobles Law Firm.

Click here to read the full opinion.

For landlords, it seems that evictions that have been stalled for over a year due to the moratorium can move forward. For those unaware, the eviction moratorium meant that tenants who were behind on rent could not be evicted due to the COVID-19 pandemic. Of course, there were exceptions to the moratorium. Tenants who had not applied for rental assistance or had violated some other part of their leases (criminal activity, unapproved pets, etc.) were not eligible for protection.

At any rate, it appears evictions will continue until the Supreme Court says otherwise.

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Keep in mind that the delay impacts all civil and jury trials except the ones that were underway on Nov. 20 when the per curiam order was issued. Bench trials and other hearings are not covered by the order and courts shall remain open. However, the Supreme Court does encourage all courts to conduct hearings and bench trials by video, by phone or in person so long as criteria for gathering set forth by the Arkansas Department of Health are followed.

Arkansas district and circuit courts, as always, have a lot of discretion in determining whether to use technology to facilitate trials or to hold them in person.

It’s worth mentioning that speedy trial time for criminal cases will be tolled under the order. Of course, all criminal defendants have the right to have their trials heard within a year from their arrest date if they are out on bail and nine months from the arrest date if incarcerated as per Arkansas Rule of Criminal Procedure 28.1. In other words, forget about getting off the hook if the order pushes your trial out past a year if you’re on bail or nine months if you’re in jail.

The state Supreme Court does, however, encourage all courts with incarcerated people to review their dockets and consider holding bond hearings if so warranted. There is no requirement to hold a new bond hearing.

To keep up with the latest pronouncements from the Arkansas Supreme Court regarding the coronavirus, click here to visit the Arkansas Judiciary’s website section set aside for the announcements.

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So, I’m happy to present a Thanksgiving episode starring George Burns and Gracie Allen, one of the greatest comedy duos from the golden years of radio.

Of course, if you are on the hunt for your favorite old time radio programs and don’t want to spend a fortune, head on over to OTRCat.com. They’ve got a huge selection over there, unbelievably low prices (a mere pennies per episode), fast shipping and great customer service. And, yes, you can find enough Burns and Allen episodes to choke a horse. They’ve got some other great programs, too, and entire Christmas collections to enjoy.

Click the below player to listen to the show:

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At long last, we can answer that question with a resounding … maybe.

In Arkansas, legislators are often asked to submit legal questions to the Attorney General’s office and we in Saline County are lucky to have a state senator that will do just that. Ark. State Senator Kim Hammer (R-33rd District) was kind enough to submit two questions to Arkansas Attorney General Leslie Rutledge at my request:

1. should probation offices, prosecuting attorneys, probation offices and circuit courts — all state entities — take steps to revoke probation for individuals who test positive for marijuana in spite of the fact that they have medical marijuana cards issued by Arkansas pursuant to Amendment 98?
2. Furthermore, are probation officers and other state officials under any obligation to report probationers who test positive for medical marijuana to federal authorities?

Click here to read Rutledge’s response to those questions.

In short, the problem that probationers with medical marijuana cards have is that they must refrain from violating federal law. The possession of marijuana is a federal crime, so a probationer with a medical marijuana card may not be able to benefit from it without risking violating his or her probation. Medical marijuana may be legal in Arkansas, but that doesn’t matter one whit when it comes to federal law.

According to Rutledge, probation offices, prosecuting attorneys and circuit judges have a lot of discretion when it comes to medical marijuana — they determine whether a probationer should be punished for using medical marijuana. Moreover, none of those officials are required to a probationer who uses medical marijuana to federal authorities.

I did have that issue come up in a case last year here in Saline County. Judge Gary Arnold ruled that my client — a convicted felon — was not allowed to violate his probation by using medical marijuana and violating federal law. Arnold did mention something intriguing in his ruling — plea bargains are negotiated and, as such, it is possible to address the medical marijuana issue at that point with the prosecuting attorney assigned to the case.

That ruling is very much in line with the guidance subsequently provided by Rutledge. The possession of marijuana still violates federal law, but there is an avenue for probationers to use medical marijuana. However, anyone with a valid Arkansas medical marijuana card who is hoping to enter a plea bargain needs to know up front whether they’ll be able to use medical marijuana or not.

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The Case Dismissed series — though short — was a fine example of a show that was both informative and entertaining. The legal concepts in the series are more than a bit outdated, but the episodes are still fun to listen to and were quite accurate at the time (1954). The Chicago Bar Association sponsored the series, by the way.

Keep in mind that there aren’t a whole lot of episodes of Case Dismissed out there. However, we can thank the fine folks over at Old Time Radio Researchers Group for preserving and making available the 13 episodes we do have. That group is dedicated to the preservation of OTR programs and does a fine job of keeping those old shows around for current and future generations to enjoy.

By the way, if you are on the hunt for your favorite old time radio programs and don’t want to spend a fortune, head on over to OTRCat.com. They’ve got a huge selection over there, unbelievably low prices (a mere pennies per episode), fast shipping and great customer service. And, yes, you can find the Case Dismissed series over there as well as a lot of other stuff.

Click the below player to listen to the show:

The post Legal OTR: Case Dismissed — ‘Liability for Minors’ appeared first on Nobles Law Firm.

Specifically, what happens if a lease expires while the national moratorium is in place? Before answering that question, I should point out that the entire text of the moratorium — issued by Centers for Disease Control and Prevention (CDC) and published at 85 Fed. Reg. 55,292 — can be found here. The moratorium effectively prohibits some evictions until after Dec. 31, 2020, due to COVID-19.

And, the eviction moratorium is completely silent when it comes to what happens if leases expire prior to the aforementioned expiration date. That being the case, a contract is a contract and, as such, the lease will expire regardless of the moratorium.

So, what does that mean for tenants? Most landlords will be happy to allow tenants to stay where they are after a lease expires provided that the are current on their rent and are generally good tenants. Any renters worried about an expiring lease should visit with their landlords and see if they can renew the lease or simply stay on a month-to-month basis so long as they keep paying rent.

Those tenants that are behind on rent, however, may have reason to worry. Just because there is a moratorium does not mean a landlord is obliged to renew or extend a lease.

It’s worth mentioning that the eviction moratorium generally only applies when people are behind in rent (please see my previous post for an examination of which tenants are eligible for the moratorium). Regardless of the moratorium, a landlord can still evict a tenant for:

1) Engaging in criminal activity while on the premises;

(2) threatening the health or safety of other residents;

(3) damaging or posing an immediate and significant risk of damage to property;

(4) violating any applicable building code, health ordinance, or similar regulation relating to health and safety; or

(5) violating any other contractual obligation, other than the timely payment of rent or similar housing-related payment (including non-payment or late payment of fees, penalties, or interest).

The point of all this is that the notion that the moratorium limits all evictions is simply false. While violating the eviction moratorium is a violation of federal law, it is not nearly as prohibitive as some people think.

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The answer to that question is there is a federal eviction moratorium, but it still possible to file suit against tenants and remove them for a number of reasons.

First off, it is a good idea to take a look at the federal moratorium issued by the Centers for Disease Control and Prevention (CDC) at 85 Fed. Reg. 55,292. You can read the entire public law here or a summary of it here.

The moratorium applies only to be who are eligible for relief under it. To be eligible, a person must be able to demonstrate that:

• • The individual has used best efforts to obtain all available government assistance for rent or housing;
  • The individual either (i) expects to earn no more than $99,000 in annual income for the 2020 calendar year (or no more than $198,000 if filing a joint tax return), (ii) was not required to report any income in 2019 to the U.S. Internal Revenue Service, or (iii) received an Economic Impact Payment (i.e., stimulus check) pursuant to Section 2201 of the CARES Act;
  • The individual is unable to pay the full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, a lay‑off or extraordinary out-of-pocket medical expenses;
  • The individual is using best efforts to make timely partial payments that are as close to the full payment as the individual’s circumstances may permit, taking into account other nondiscretionary expenses; and
  • Eviction would likely render the individual homeless—or force the individual to move into and live in close quarters in a new congregate or shared living setting—because the individual has no other available housing options.

In order to claim eligibility, each adult on a lease is advised to fill out a declaration stating the above conditions are true and then submit that to their landlord. A copy of the form can be found here.

So, there are a few things to keep in mind. First of all, the moratorium expires on Dec. 31, 2020, meaning that all past due rent is due after the expiration or an eviction may move forward. More importantly, a tenant is required to make best efforts to make partial payments that are as close to the full rental payment as possible — a lot of tenants are not eligible because they fail to meet this requirement of the moratorium. The notion that someone can simply not pay rent and rely on the moratorium to save them from an eviction is largely false.

Moreover, bear in mind that the moratorium says nothing about protecting people who violate their leases in other ways. A tenant could be current on rent, but could still be evicted if they do something else that goes against the lease — causing physical damage to the property, engaging in illegal activities, filling the property with dogs, etc.

So, it is often possible to evict a tenant in spite of the moratorium. There are, however, some things to keep in mind. First of all, we don’t know if the moratorium will be extended past Dec. 31. It could be that the Donald Trump administration will extend it, and it could be that Joe Biden (assuming he is sworn in as president on Jan. 20) will extend the moratorium or come up with something even more restrictive. Like everything else related to COVID-19, figuring out what comes next often boils down to guesswork.

So, what should landlords do when trying to decide whether to evict a tenant? It’s not a bad idea to pick up a phone and ask an attorney — consultations are free at my office and we have successfully evicted a number of tenants in spite of the moratorium.

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The answer to that question is not as simple as it might seem. According to the good folks at Arkansas Community Correction (ACC) — the statewide organization responsible for supervising probationers — the problem with medical marijuana is that possession of the drug is a violation of federal law. One of the standard conditions of probation is that the probationer must follow all federal laws, meaning that even a valid medical marijuana card issued by Arkansas won’t automatically trump that particular condition.

The solution? According to the ACC, the individual circuit courts in the state have the authority to determine whether the standard condition should be modified so that medical marijuana can be used by a person on probation. In other words, whether a person can use medical marijuana while on probation should be decided on a case-by-case basis.

Keep in mind that this is all developing law as the legal system will have to deal with some unique questions related to medical marijuana.

The Nobles Law Firm — on behalf of a client — filed a petition this week asking that a probationer be allowed to use medical marijuana as that treatment has been prescribed by his doctor and he does possess a valid card issued by the state. Will that petition be granted? Stay tuned!

Update — the Court did deny the aforementioned petition and Arkansas Attorney General Leslie Rutledge has given her opinion on whether probationers can use medical marijuana. Click here for more details.

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In Arkansas, the eviction process is very straightforward. The landlord serves the tenant a three-day notice to quit which states, essentially, to get out or risk being sued. If the tenant refuses to leave, the landlord typically hires an attorney to start an eviction proceeding. The tenant is served with a complaint and a notice that the court will issue a writ of possession within five days unless the tenant files an answer.

Usually, the tenant fails to file an answer and the landlord can ask the court to issue a writ of possession. That writ of possession, once served, gives the tenant 24 hours to pack up and leave or risk being escorted from the property by the local sheriff’s office.

That entire process can take as little as two weeks but can take as long as three weeks or a month if the tenant is good at dodging process servers. If the landlord wants a judgment against the tenant for past due rent and damages, you’re looking at 30 days from service until that can be obtained.

Of course, there are times when that process is delayed considerably – if the tenant files and answer and sets the issue for a hearing, then it could take months. While the law says the tenant should keep paying rent during the pendency of the action, they rarely do and that can be frustrating for landlords – they’ve got holdover tenants that are essentially living for free until the court tells them to leave.

The point of all this is that most evictions – probably at least nine out of every 10 – go smoothly and the holdover tenant is removed quickly. Once the tenant is gone, the landlord can look at renting the dwelling to someone else and get back to having property that is generating income.

There are times, however, when the eviction process takes longer because the tenant fights it. Landlords should, then, be optimistic that the eviction process will go quickly but should be prepared to wait if the tenant resists.

Landlords should also make sure they understand how much a total eviction could cost. If the attorney quotes a fee, what all does that include? Does the fee go up considerably if the matter has to be fought in court? If so, then how much could it ultimately cost?

Understanding on the front end how much an eviction could cost and how long it could take will save a lot of frustration down the road.

This column — part of the Practical Lawyer series — was authored by Ethan C. Nobles and originally appeared in the April 18, 2016, edition of the Daily Record in Little Rock.

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