Monthly Archives: September 2011

Massachusetts Court Forces Innocent Motorists to Pay Court Costs

I was doing my normal internet sweep this morning when I came across this troubling story.  The Massachusetts Supreme Court recently ruled that a motorist who successfully defended himself in court on a traffic ticket is still responsible for fees he or she paid to contest that ticket.  In this case, the innocent motorist was charged $70 in fees to contest a ticket he, by decision of the court, should have never received.  Essentially, the driver could have paid $30 more (the citation was otherwise $100) and not had to go through the challenge process.

Obviously, parties should be responsible for court costs where a wrong was committed; however, I struggle to see the logic in imposing costs where a person should not have (technically) been in court in the first place!   The actual court decision notes that the Massachusetts courts handle hundreds of thousands of traffic citations each year and that the filing fees serve a legitimate purpose of dissuading frivolous challenges to those citations.  I wholeheartedly agree with that purpose; however, it seems to me that the motorist in this case should have had the costs refunded after he WON and the citation was thrown out.  This policy seems to create a pretty powerful disincentive to fighting traffic (or any other) tickets.

Now, I don’t practice in traffic law, but I do have friends who know a whole lot more about this area than I do.  They have advised me that Wisconsin courts do not force the same court costs on successful ticket challengers as those who are less successful (less successful meaning every outcome from the citation upheld entirely to being reduced to a lesser offense).  Indeed, Wis. Stat. § 345.47 (“Judgment of forfeitures, costs, fees and surcharges”) states, in part,

If the defendant is found guilty, the court may enter judgment against the defendant for a monetary amount not to exceed the maximum forfeiture provided for the violation, plus costs, fees, and surcharges imposed under ch. 814, and, in addition, may suspend or revoke his or her operating privilege under s. 343.30.

This means that a party who is found not guilty will not be responsible for the same costs at issue in the Massachusetts case.  Obviously, if the party is found guilty, or if the judge simply reduces the ticket to a lesser offense, they will likely be responsible for court costs, fees and surcharges (in addition to any monetary and/or other penalty the offense provides).

Just some food for thought as you make your morning commute.

P.S. Thanks to Claudia Lombardo of Holevoet Law Office, LLC for her traffic law expertise!.

Health Care Powers of Attorney

Recently, after running with some friends and while enjoying our customary cool-down beer (a must for summer running – after you rehydrate with water or a sports drink of course) a friend asked me about health care powers of attorney and whether he should get one.  Obviously, this individual had not read my August 31, 2011 post.  After explaining to him the benefits of executing a health care power of attorney and how it differs from a living will (discussed below), I asked the group how many had executed one.  Only a few raised their hands.  Sadly, this did not surprise me.

A Health Care Power of Attorney (“HCPOA”) is a document which allows an individual (the “Principal”) to appoint another individual (a “Health Care Agent” or “Agent”) to make health care decisions on the Principal’s behalf in the event the Principal is unable to do so.  A HCPOA is different from a Living Will because of the appointment of an Agent, whereas a Living Will actually sets forth an individual’s health care wishes.  Anyone over the age of 18 and “of sound mind” may execute a HCPOA.  An Agent may be anyone except a Principal’s health care provider or an employee of a health care facility at which the Principal is residing, unless that Agent is related to the Principal.   A HCPOA is not effective immediately, but only upon a finding of incapacity by two physicians.

Generally, an Agent is granted the authority to make any decision that a Principal could make for themselves.  There are few limitations to this authority, some created by statute and others drafted into the HCPOA.  Given the broad decision-making powers, it is vitally important that the Principal and Agent thoroughly discuss the Principal’s desires for treatment (more on this in a future blog post).  So long as the Agent acts in good faith and consistent with the desires of the Principal, the Agent is allowed to consult with the Principal’s doctors and make health care decisions for the Principal’s benefit.

Once executed, I provide a Principal with several copies of their HCPOA and advise them to keep a copy with their other estate planning documents.  By law, a photocopy of an HCPOA is just as effective as the original signed copy.  The additional copies should be provided to the Agent, the secondary Agent (if named) and the Principal’s primary physician.

A HCPOA may be revoked at any time through any of the methods listed in Wis. Stat. § 155.40, including by obliterating it – one of my favorite actually legal words.  If not revoked, a HCPOA is effective for the entire life of the Principal (there is no expiration date), however, HCPOAs should be reviewed from time to time and revised upon the occurrence of major life events (marriage, divorce, death of an agent, etc.).

If you would like to discuss the benefits of a HCPOA, feel free to contact one of our estate planning attorneys at (608) 837-7386 (we won’t even make you run with us first).

Disclaimer:  Please note that reading and/or commenting on this blog post does not create an attorney-client relationship with Eustice, Laffey, Sebranek & Auby, S.C. absent an express agreement between the firm and the client.  Contacting Eustice, Laffey, Sebranek & Auby, S.C. or any of its attorneys or employees via this website or via email does not create an attorney-client relationship.

We would be pleased to communicate with you by email. However, please note that if you communicate with us-through this website, via email, or otherwise-in connection with a matter for which we do not already represent you, your communication may not be treated as privileged or confidential and may be disclosed to other persons..

Everybody likes a deal…

I, like everyone else, enjoy getting a deal.  Along these lines, given the current state of the real estate market, deal-seeking prospective buyers may be tempted to offer a seller an extremely low-ball offer.  However, as this Madison.com Property Trax article indicates, providing such an offer may actually backfire and prevent a buyer from acquiring the property.

The two main reasons cited are that a seller either (1) cannot (likely for financial reasons relating to the amount due on their mortgage), or (2) doesn’t need to accept such an offer.   In fact, a prospective buyer submitting a low-ball offer also risks offending a seller who, assuming they are in the second category, may not believe that the prospective buyer is serious about the transaction and then refuse to negotiate with the buyer at all.  Obviously, if we are dealing with a residential property, this can mean missing out on a buyer’s dream home.

As stated in the article, the important considerations when submitting a low-ball offer are justifying your number.  For a low-ball offer to be taken seriously, a seller must feel comfortable that the buyer is serious and has a basis for his or her number.  This is where having an experienced real estate attorney on your side is truly valuable.

Attorneys at Eustice, Laffey, Sebranek & Auby, S.C. have over 75 years of combined experience and are on the cutting edge of commercial and residential real estate law.  To contact one of our residential real estate attorneys, please call our office at (608) 837-7386, or send our law firm an email to schedule an initial consultation.

Disclaimer:  Please note that reading and/or commenting on this blog post does not create an attorney-client relationship with Eustice, Laffey, Sebranek & Auby, S.C. absent an express agreement between the firm and the client.  Contacting Eustice, Laffey, Sebranek & Auby, S.C. or any of its attorneys or employees via this website or via email does not create an attorney-client relationship.

We would be pleased to communicate with you by email. However, please note that if you communicate with us-through this website, via email, or otherwise-in connection with a matter for which we do not already represent you, your communication may not be treated as privileged or confidential and may be disclosed to other persons..