Directives to Physicians and Family

by Carrie E. Campbell, J.D.

Among the ways to minimize the burden on your family and friends is the execution of a Directive to Physicians and Family which clearly identifies your wishes regarding medical treatments and artificial life support with regards to both terminal and irreversible conditions.

Once just a short statement, Directives now include definitions and explanations drafted by the state legislature which assist all those involved to understand the choices to be made. For example, an irreversible condition is defined as "a condition, injury, or illness: (1) that may be treated, but is never cured or eliminated; (2) that leaves a person unable to care for or make decisions for the person’s own self; and (3) that, without life-sustaining treatment provided in accordance with the prevailing standard of medical care, is fatal."  In contrast, a terminal condition is defined as "an incurable condition caused by injury, disease, or illness that according to reasonable medical judgment will produce death within six months, even with available life-sustaining treatment provided in accordance with the prevailing standard of medical care." As applied there are many illnesses such as cancer or Alzheimers which may be irreversible in early stages, but only become terminal much later once the disease is advanced. Another helpful term outlined by the Texas Congress is "life-sustaining treatment" which among other things specifically includes "both life sustaining medications and artificial life support such as mechanical breathing machines, kidney dialysis treatment, and artificial hydration and nutrition," but moreover does not include "the administration of pain management medication, the performance of a medical procedure necessary to provide comfort care, or any other medical care provided to alleviate a patient’s pain."

With these definitions as a foundation, you may select your choices for various scenarios, as well as any particular wishes you may have regarding a specific medical treatment. For more information or to have your Directive prepared, you should contact an attorney of your choice. 

If you would like to speak to one of the attorneys at Mounger and Campbell, LLC about this or any other legal topic, you may ask us to contact you or call 512-847-1308.

Children With Special Needs

by Carrie E. Campbell, J.D.

According to the Texas Family Code, a child with special needs is any child that requires "substantial care and personal supervision because of a mental or physical disability," and as such, will not be able to be self supporting. The Family Code contains provisions specifically applicable in cases with children with special needs, including paternity, divorce, or modifications. These provisions allow a judge to order additional child support beyond the legislative guideline amounts and beyond the age of 18. In addition, greater consideration will be given to issues of structure and consistency between homes in determining custody, possession, and visitation. Other important issues for consideration include respective authority between the parents in making educational and medical decisions.

A child with special needs may also be eligible for governmental benefits, depending upon the degree of disability and the family’s financial resources available to the child. Supplemental Security Income (SSI) provides a monthly payment to assist with living and medical expenses. Most often, the Social Security Administration will take several months to make a determination of "disability." However, benefits are immediately made available to financially eligible children who live with (1) HIV infection, (2) total blindness, (3) total deafness, (4) Cerebral Palsy, (5) Down’s Syndrome, (6) Muscular Dystrophy, (7) severe mental retardation, or (8) birth weight below two pounds, ten ounces. Additional services and assistance are available through the Department of Disability and Aging Services (DADS) and the Mental Retardation Authority, even if a child with special needs does not qualify for SSI or Medicaid.

For more information about legal issues affecting children with special needs, you should consult with an attorney of your choice. 

If you would like to speak to one of the attorneys at Mounger and Campbell, LLC about this or any other legal topic, you may ask us to contact you or call 512-847-1308.

Dealing With the IRS

by Don H. Campbell, J.D.

Notice of an audit or demand for payment from the Internal Revenue Service makes many people numb with fear. There are, however, options available with the help of an attorney for dealing with the IRS which may be well worth the effort and expense. The first option is filing bankruptcy. Upon filing, all collection efforts will stop by the IRS and any other creditors. In some instances, personal taxes can be discharged; but in the very least, you are given the time and opportunity to work out a practical payment plan with the IRS.

The second option involves making an "offer in compromise" of a specific amount less than that demanded by the IRS for payment. For the IRS to accept an offer in compromise, there must be (1) doubt as to whether the amount claimed by the IRS is 100% correct, (2) reasonable concern that there are sufficient financial resources available to pay the amount demanded by the IRS, or (3) a showing of extreme financial hardship resulting from illness or other personal circumstances. If you meet one or more of these requirements, a Form 656 must be submitted with various documents justifying why the IRS should accept less money. When successful, the reduction in the taxes, penalties and interest can be significant.

With a qualified professional to assist you, another option may be to file amended returns to correct previous errors and possibly wipe out interest or penalties claimed by the IRS. Even for those individuals who have failed to file tax returns, it is not too late to deal with the IRS in an effective manner, so long as you have competent representation.

Therefore, whatever your tax dilemma, help is available. For more information, you should visit an attorney experienced in working with the IRS. For a referral, contact your local lawyer, the State Bar of Texas or your CPA.

If you would like to speak to one of the attorneys at Mounger and Campbell, LLC about this or any other legal topic, you may ask us to contact you or call 512-847-1308.

Default Judgments

by Carrie E. Campbell, J.D.

Under the Texas Constitution, a person has a right to formal notice when he or she is sued, most often by the personal delivery of such notice by a constable or sheriff. Attached to the front of most Petitions or Motions, is a "Citation." The purpose of the Citation is to inform the Defendant/Respondent that he or she has been sued and the exact time frame he or she has to respond by filing an "Answer." The filing of an Answer to the lawsuit (usually in the form of a "General Denial") lets the court and other parties know that the Defendant/Respondent will be an active participate in the litigation and offering a defense to the allegations.

The address of the clerk where the Answer is to be filed can be found on the face of the Citation. The deadline to file the Answer will depend on the type of case it is and in which court the case is filed. In most county and district courts, the deadline to file an Answer is 20 calendar days, plus the number of days to the following Monday at 10:00 a.m. (So if the 20th day after delivery of the citation falls on a Friday, the Defendant has until the next Monday after that Friday to file an Answer.) In Justice Court, the deadline is often 10 days, plus the dates to the next Monday. Because there are numerous exceptions to these general rules, it is VERY important to read the Citation carefully to figure out the time you have to act.

If a Defendant/Respondent is required to file an Answer and does not do so by the given deadline, then the person who filed the lawsuit can ask the court to grant him or her a "Default Judgment." If a person fails to file an Answer, then the court will have no way of notifying him or her when such a request is made and when a hearing on that request will be held. Therefore, a person sued who filed no Answer will not be given the opportunity to offer a defense or introduce evidence to deny or mitigate the damages/actions sought. The result is that a Default Judgment typically grants the person who filed the lawsuit exactly what he or she asked for in the Petition/Motion (whether it is money, custody of the kids, or orders to force a particular action.)

Because of the severe consequences for failing to file an Answer timely, any person who is served papers should consult immediately with an attorney of his or her choice.

If you would like to speak to one of the attorneys at Mounger and Campbell, LLC about this or any other legal topic, you may ask us to contact you or call 512-847-1308.

Court Records

By Carrie Campbell, J.D.

The general rule is that Texas court records are open to the public unless any given record has been "sealed." According to the Texas Rules of Civil Procedure, to "seal" a record requires that one of the party’s file a written motion with the court, and thereafter, a public hearing be held. The notice for the hearing must be posted in a public place and state the details of the time and date of the hearing, and specifics of the motion. After a consideration of the evidence presented at the hearing, a judge MAY seal a record IF it has been proven that: (1) "a specific, serious and substantial interest" exists that is more important that the public’s right to know, and (2) there are no other available, workable alternatives. At no time can a court order or judge’s opinion be sealed.

There are some further limitations, however, by the application of the Texas Rules of Civil Procedure’s definition of "court records." For these purposes, a court record is any document filed with the court, except cases arising out of the Family Code or files to which access is "otherwise restricted by law." Most often, restrictions imposed by legislation result from issues of general public health or safety. In addition to filed documents, "court records" also include settlement agreements or discovery that have a likely negative effect on (1) public health or safety, (2) the administration of a public office, or (3) the operation of government.

If a judge signs an Order to seal records, he or she must state in the written Order, which is itself open to the public, the case and the particular reasons why certain information is protected, and the time period for which the records will be sealed. To unseal records prior to the expiration of the time period requires additional litigation to demonstrate that the factors balanced in sealing the records have altered substantially. To learn more about sealing or unsealing court records, consult with an attorney of your choice.

Contracts

by Carrie E. Campbell, J.D.

The best insurance against a costly dispute is a well drafted contract. With the terms and provisions spelled out clearly in advance by the parties, the possibility of a misunderstanding (and litigation) is minimized.

There are primarily two types of contracts recognized under Texas law: (1) express contracts wherein the terms are agreed to either in writing or by handshake, or (2) implied contracts which can be inferred from the conduct of the parties. Whenever possible, contracts should be in writing to avoid unnecessary conflict. Furthermore, the more specific the contract, the better. To get the full benefit of a contract, agreements should identify the parties, clearly state the purpose of the contract, list the obligations of each of the parties, detail the deadlines and important logistics, and bear the signatures of the parties. It is also helpful to add language about what happens if one of the parties (or both) fail to meet his or her obligations.

Some contracts MUST be in writing in order to comply with Texas law. Contracts that are required to be in writing include those which relate to: land, leases, mortgages, guarantees of another person’s debt, agreements that cannot be performed within one year, or the sale of goods worth more than $500.

Competent legal assistance is strongly recommended in the drafting of any contracts to make sure that provisions are in accordance with current law. It is also significant to request legal advice before signing any contract drafted by another party to confirm you understand all your rights and duties under the agreement, especially since there are often severe financial consequences for noncompliance. For more information, contact an attorney of your choice.

Community vs. Separate Property

by Carrie E. Campbell, J.D.

Texas has the legacy and distinction of being a "community property" state. All property acquired or earned during the years of a marriage in Texas are presumed to be equally owned by both spouses. Only upon the ending of a marriage, either by death or divorce, is the property divided. The assumption is that a division of community property will be 50/50, although the court is charged with the duty of splitting the assets in a way that is "just and right, having due regard for the rights of each party and any children of the marriage." The application of this analysis can, but not often, result in something other than an equal split. For this reason, the outcome could differ depending on the judge assigned to the case. It should also be noted that any debts incurred during the course of a marriage are "community debts," and accordingly, the liabilities are shared/divided just as assets are.

"Separate property" refers to assets obtained before the marriage and/or assets acquired by gift or inheritance during a marriage IF those assets are kept separate from all community property and accounts. The means to prove the existence of separate property is frequently demonstrated by proving when title was acquired. The fact that only one name is on the title is not adequate. Furthermore, a claim can be made by a spouse for a reimbursement to the community accounts (before they are divided) for any expenses the community paid towards the mortgage, loan, maintenance, and/or improvements to separate property. For example, if a wife makes a down payment and buys a home one year before a twenty year marriage, and the mortgage during those 20 years is paid out of her wages (which are community property), then the wife is likely to be awarded the home as her separate property, but would owe the husband either cash or an offset against other properties to compensate him for ∏ of all the mortgage payments made during the marriage.

The calculations can quickly become very complicated when assets and debts are being divided, especially when the property and liabilities result during a long marriage. Add to the mathematics all the emotional intensity that accompanies the majority of deaths and divorces, and the need for objective assistance is obvious. The advice, guidance, and representation of an attorney is extremely important to protect your interests.