わかりやすいアメリカ法（English）：アメリカの弁護士が運営 http://www.mtbook.com/america2/ アメリカの弁護士・山本寿賀が、在米日系企業・在留邦人に法律業務を日本語で提供します。 ja Copyright 2011 Tue, 10 Mar 2009 02:02:16 +0900 http://www.sixapart.com/movabletype/ http://blogs.law.harvard.edu/tech/rss "Is It Time for an Estate Plan Checkup?" 日本語 アメリカ　弁護士　法律事務所　法律 　相続計画の見直しLife doesn't stand still, and after you've crafted an initial estate plan, your circumstances are likely to change-you may acquire more assets, the executor you originally selected may pass away, or you may contract a serious illness. Your children will grow up, or you and your spouse may split up. And the law may change, making some of your estate planning obsolete, or even counterproductive. So it's a good idea to review your estate plan at least once a year to make sure any changes are accounted for. (You can pick a certain day, like your birthday or the Fourth of July or some other date that will jog your memory to do this annually.) To get you started, US Legal News is including a checklist detailing those life events that may impact your estate plan. If you answer "yes" to any of the following questions, it may be time to contact your attorney. - Have you married or divorced? - Have your children married or divorced? - Do your children or any other beneficiaries need protection from creditors? - Have your relatives, other beneficiaries, or executor died, or have your relationships with any of them changed substantially? - Has the mental or physical condition of any of your relatives, other beneficiaries, or executor changed substantially? - Have you had more children or grandchildren, or have your children gone to college or moved out of, or back into, your home? - Have you moved to another state? - Have you bought, sold, or mortgaged a business or real estate? - Have you acquired major assets (car, home, bank account)? - Have you inherited significant property? - Have your business or financial circumstances (estate size, pension, salary, ownership) changed significantly? - Has your state tax law (or have federal tax laws) changed in a way that might affect your tax and estate planning? - Have you changed your ideas about what to do with any of your assets? - Have you decided to do more (or less) charitable giving? - Have you made gifts that should be taken into account, such as reducing bequests that were to occur under your will? When you do update your estate plan, you should also update your will and final instructions with updated addresses and phone numbers of beneficiaries, trustees, executors, and others mentioned in the estate planning documents. This will make settling your estate much easier. Estate planning is an incredibly important part of planning for your and your family's future; but it is just as important to make sure that any estate plans that you already have are accurate and up to date.

（Winter 2009）

]]> http://www.mtbook.com/america2/2009/03/is_it_time_for_an_estate_plan.html http://www.mtbook.com/america2/2009/03/is_it_time_for_an_estate_plan.html 遺言・信託 Tue, 10 Mar 2009 02:02:16 +0900 "Protecting Your Nest Egg" 日本語 アメリカ　弁護士　法律事務所　法律 　蓄えを守るにはDuring these uncertain financial times, many Americans are afraid to open up their 401(k) statements or are unsure of where to put their retirement savings besides under the mattress. Although the law can't guarantee you a great return or help you pick the safest stocks, it can provide some important protections when you change jobs or your employer goes out of business. To help you better understand how the law can protect your retirement funds, US Legal News is offering this primer on laws and agencies that may be useful to you. The Employee Retirement Income Security Act of 1974 (ERISA) establishes many of the mandates and standards for pension plans in private industries. For example, ERISA requires that you be given a yearly summary of all your qualified retirement accounts. This requirement creates accountability for plan investors. Another federal law, the Pension Protection Act of 2006, forces employers to shore up their plans. Under this law, plans that are not fully funded face additional premiums and penalties. In addition, your state may have other laws in place to regulate the pension and retirement plans of employers within the state. Various government agencies enforce these laws and provide other protections for investors such as deposit insurance. Such insurance, offered by the Federal Deposit Insurance Corporation (FDIC), protects the money that you place in qualified banks up to a certain amount. This insurance is automatic and means that if the bank should fail, your money (up to a limit) will be guaranteed by the FDIC. Similar protections are available for deposits with credit unions (through the National Credit Union Administration) and those with brokerage firms (through the Securities Investor Protection Corporation). The guaranteed amount varies depending on the type and location of your investment. Regardless of how well you protect your retirement accounts, a serious change in your employment status may still put your nest egg at risk. However, losing your job doesn't necessarily eliminate your retirement options. There is a good chance your pension is still safe. You must, however, immediately check out the employer's "vesting" policy. Your pension is said to vest when you have the right to all the earned benefits. If your pension has vested, you have a right to the benefits, even if you leave the job for any reason. By law, your pension rights must either vest completely after five years or vest partially after three years of service. Any vested pension benefits are yours, regardless of whether you leave the job. If your employer terminates your pension plan, you still aren't totally at a loss. If your plan is considered "qualified," your interest will vest immediately and you have the right to any contributions made by you or your employer. If the employer doesn't have enough money in its accounts, you still aren't totally on your own. "Defined-benefit plans" (plans that guarantee you a certain amount of money each month upon your retirement) are insured by the Pension Benefit Guaranty Corporation, up to a certain amount. There are a variety of resources available for concerned investors. The Garrett Planning Network offers financial planning advice to consumers on an hourly basis (www.garrettplanningnetwork.com), as does the National Association of Personal Financial Advisors (www.napfa.org). For more information, check out the Pension Benefit Guaranty Corporation (www.pbgc.gov) or the Pension Rights Center (www.pensionrights.org). And of course, if you are worried that someone has committed fraud in overseeing your pension accounts, do not hesitate to contact your lawyer.

（Winter 2009）

]]> http://www.mtbook.com/america2/2009/03/protecting_your_nest_egg.html http://www.mtbook.com/america2/2009/03/protecting_your_nest_egg.html 危機管理・保険 Sun, 08 Mar 2009 06:42:50 +0900 "When Your Guests Drink and Drive: Understanding Dram-Shop and Social Host Liability Law" 日本語 アメリカ　弁護士　法律事務所　法律 招待客が飲酒運転するとき：酒場（ドラムショップ）・パーティー主催者責任法Hosting a Super Bowl party for your friends and family can be a stressful time: What will you serve? Where will everyone sit? Is your television big enough? One of the last things you want to worry about is what happens if Uncle Stan drinks too much and then gets behind the wheel of a car. Nevertheless, you should watch Uncle Stan's alcohol consumption not only because of your concern for his safety and that of other drivers, but also because of your possible legal liability should Uncle Stan cause an accident. As a host, be aware of your state's dram-shop or social host liability laws. These laws identify situations in which a third party can be held liable for the actions of an intoxicated person. Such laws are meant to deter social hosts from over-serving drivers, and to find an additional source of money to help cover damages and injuries caused by drunk drivers. For example, under a traditional dram-shop law, if Uncle Stan gets drunk at Bar X and leaves and drives his car into a church van, injuring three van passengers, the passengers may be able to sue Bar X. These laws vary broadly by state. However, they generally fall into two categories: laws that are directed only at commercial sellers of alcohol such as Bar X (usually called dram-shop laws), and laws that allow the injured party to sue private individuals who do not sell alcohol but who do serve it or make it available (usually called social host liability laws). State dramshop laws differ on whether a plaintiff must show that the bartender knew the customer he or she was serving was drunk and on whether the bartender must have known the customer was going to get behind the wheel. Social host liability laws vary even more. Some states don't have any such laws at all, while others have strict ones. In some states, these laws focus on underage drinking and only hold a social host responsible if the accident is caused by an individual under the legal drinking age (and in some states, there is a requirement that you are responsible for determining whether Uncle Stan is at least 21 years old before you serve him). Other states extend social host liability to corporate parties. This could be a critical concern for you if you run a small business. Because these laws vary so much and could easily result in extensive financial liability for you or your business, make sure you fully understand your obligations and responsibilities before hosting that "open bar" party. If you do plan to host a party and serve alcohol, regardless of where you live, there are a few steps you can take in order to avoid legal liability (and, even more importantly, to make sure that your guests get home safely!). Keep taxi information, especially phone numbers, in a public place. Identify one or two designated drivers who will be available at the end of the evening. And eat! Provide plenty of food and nonalcoholic drinks and make them a central part of any get-together.

（Winter 2009）

]]> http://www.mtbook.com/america2/2009/02/when_your_guests_drink_and_dri.html http://www.mtbook.com/america2/2009/02/when_your_guests_drink_and_dri.html その他 危機管理・保険 Sun, 15 Feb 2009 01:17:36 +0900 "Tips to Remember When Selecting a Long-Term Care Insurance Plan" 日本語 アメリカ　弁護士　法律事務所　法律 長期介護保険プラン選択基準
  • Before you choose a specific policy, check out the company. Be sure that the company you choose is likely to be around and solvent for a long time. Pick a company with a financial rating of B+ or better from financial-ratings services such as A.M. Best, Moody’s, Standard & Poor’s, and Weiss..
  • Make sure your policy will pay benefits for all levels of care in a nursing home (including custodial care), as well as care in assisted-living facilities or other residential-care facilities..
  • A good policy will pay benefits for home care and hospice care, including in-home personal care to help with activities of daily living..
  • Consider whether the amount of daily benefits provided by your policy will beadequate in the future. You should consider only policies with an inflation adjuster that increases benefits by a set percentage, compounded each year..
  • Do not assume that more years of coverage is always better. Very few people need nursing home care for five years or more. Four years is sufficient coverage for most. Three years may be acceptable if the cost of more coverage is simply too much for you..
  • Six months is a reasonable exclusion period for preexisting conditions..
  • Better policies allow payment of nursing home or home health benefits without requiring a prior period of hospitalization as a condition of coverage..
  • Most policies impose waiting periods (commonly 20 to 90 days after you begin receiving nursing home care or home care) before payments under the policy begin. First-day coverage will increase your premium. Consider self-insuring for the maximum waiting period, since utilizing the maximum waiting period will result in significant savings on premium payments. If you have to pay during the waiting period, the loss likely will not be catastrophic..
  • Avoid policies that pay only for “medically necessary” care; this standard is often too discretionary. Most good policies will cover care when the individual needs help with two or more activities of daily living (bathing, eating, dressing, toileting, transferring into or out of a bed or chair, or continence) or, alternatively, when the individual suffers a cognitive impairment. Be sure your policy covers Alzheimer’s disease and other forms of dementia. More than half the residents of nursing homes suffer some form of dementia..
  • Buy a policy only from a company that is licensed in your state and has agents physically present in your state. Out-of-state mail-order policies may leave you powerless to remedy problems if anything goes wrong .

（Fall 2008）

]]> http://www.mtbook.com/america2/2009/02/tips_to_remember_when_selectin.html http://www.mtbook.com/america2/2009/02/tips_to_remember_when_selectin.html ヘルスケア法 Mon, 09 Feb 2009 13:58:17 +0900 "Plan for Your Long-Term Care" 日本語 アメリカ　弁護士　法律事務所　法律 長期介護の準備As you begin to plan for your retirement, you may be shocked at the prices of nursing homes and other supportive housing options. And you may be even more concerned by the fact that government health-care options (such as Medicaid and Medicare) rarely cover the full costs of such care. If so, you may want to look into long-term care insurance now. Long-term care insurance helps pay for extended periods (usually two or more years) of nursing home care, assisted living, inhome care, adult day care, and respite care. It is still a relatively new and evolving insurance product, so the typical features continue to change. Is it right for you? Long-term care insurance is best for those with income and assets to protect. One rule of thumb is to consider long-term-care insurance if you are at least fifty-five years old and your assets exceed $200,000. Of course, the decision is never quite that simple, since you also need to take into account your overall debt load, retirement funding, payment for your children’s education, and so on. What should you look for in a policy? Examine specific provisions carefully before purchasing a policy, since the conditions and limitations on coverage can be extensive and complex. The best policies cover all levels of nursing home care plus care at assisted-living facilities. Assisted-living facilities provide a level of support that is less than that of a nursing home, and may be a better alternative for many people who can no longer live at home. Better long-term care policies will also cover home care, which is broadly defined to include not only skilled home health services, but also nonmedical support services such as homemaker services, home health-aide services, and personal-care services. Newer policies even offer coverage options such as adult day care or respite care for your family. What are the tax implications of long-term care policies? The Health Insurance Portability and Accountability Act of 1996 (HIPAA) clarified the tax treatment of both premiums and benefits so as to make it the same as for major medical coverage. Under HIPAA, benefits from a federally qualified long-term care policy—that is, a policy that meets minimum federal standards—are generally not taxable. For taxpayers who itemize their deductions, premiums for long-term care, as well as consumers’ out-of-pocket costs for long-term care, can be applied toward meeting the 7.5 percent floor for medical expense eductions (that is, medical expenses are deductible only to the extent that they exceed 7.5 percent of your income). The IRS sets limits based upon one’s age, for the total amount of premiums paid for long-term care insurance that can be applied to the 7.5 percent floor, so check with a tax adviser before taking this deduction. How much do policies cost? The cost of long-term care insurance depends on your age at the time of purchase, the extent of coverage, and your health history. Age is clearly the single greatest factor. The policy premium can easily run to $1,500 a year for a fifty-five-year-old, $3,000 for a sixty-five-year-old, and $6,000 or more if purchased at age seventy-five. Once you buy a policy, your individual premium is generally locked in. However, your premiums could change if the company is attempting to raise premiums across the board for all policyholders or if the company is purchased by another company that is attempting to do so. What about preexisting conditions? A medical screening is required for most long-term care insurance policies. Many insurance companies will exclude you for certain preexisting health conditions, require higher premiums, or may have a waiting period before benefits will kick in. Because policies can differ on these issues, review any preexisting clauses carefully and make sure you fully understand them. If you have any questions, make sure they are answered before you sign a contract. How do you evaluate a long-term care policy? In evaluating long-term care policies, compare several policies side by side. Your state’s insurance department should have names of companies offering long-term care insurance. Most states have begun to set minimum standards and consumer protection guidelines for these policies. Guides for evaluating policies may also be available from your state’s insurance department or your state or local office on aging. Long-term care insurance policies are still a relatively new insurance product. As such, there are many types and variations. If you have any questions about your policy, make sure you ask a company representative for clarification. If you are still unclear, do not hesitate to talk to your attorney about such concerns, particularly if they relate to your policy contract.

（Fall 2008）

]]> http://www.mtbook.com/america2/2009/02/plan_for_your_longterm_care.html http://www.mtbook.com/america2/2009/02/plan_for_your_longterm_care.html ヘルスケア法 Sun, 08 Feb 2009 13:14:59 +0900 “Military Families: Protect Your Credit History” 日本語 アメリカ　弁護士　法律事務所　法律 給料日ローン：軍人の家族と信用記録の保護If you or a member of your family is preparing for a military deployment, the last thing you want to deal with is identity theft. According to a Federal Trade Commission survey, in 2005 8.3 million Americans were victims of this crime. On average, these victims spent four hours working to restore their identity and credit, but for over 10 percent, it took at least 55 hours to get things straightened out. Thankfully, an amendment to the Fair Credit Reporting Act is intended to help military families avoid this hassle. Under the Act, "active duty alerts" are available to members of the military who are away from their usual duty station. Your credit report includes information about your address, your bill payment history, and whether you have ever filed for bankruptcy or been arrested or sued. This information is then sold by a nationwide consumer reporting company to businesses that are considering extending you credit. If you have such an active duty alert on your report and a business is attempting to extend credit to someone in your name, the business will see the alert and then must verify the identity of the person seeking credit. This extra step makes it much more difficult to steal the identity of an active duty military member. Be aware that such precautions are not perfect-if you are interested in getting credit while an alert is in place, it can be time consuming as the business will have to confirm your identity, which may be difficult once you are deployed. However, chances are good that this inconvenience will be much less than that associated with trying to repair your credit. If you or a family member is interested in obtaining an active duty alert, simply call the toll-free number of one of the three nationwide consumer reporting companies: You will have to provide identifying information, which can include your name, address, Social Security number, and other personal information. Unless you request that it be removed earlier, such alerts are effective for one year. To learn more about your credit rights, visit ftc.gov/credit. This amendment to the Fair Credit Reporting Act is just one of a number of legislative efforts aimed at helping servicemembers and their families. For example, the federal government passed a law in 2006 that imposed limits on the ability of payday lenders to target military personnel. Servicemembers and their families should take full advantage of any and all benefits such as these that are offered, both before and during deployment. The Web site of the National Military Family Association (www.nmfa.org) provides detailed information on such programs. Like many financial and identity theft protections, these tools only work if you use them. Alerts Also Apply To Reservists! Don't worry if you or a family member is a reservist - active duty alerts still work. So long as you are on active duty and are away from your usual station, you are eligible for active duty alerts, regardless of your status as a reservist.

（Fall 2008）

]]> http://www.mtbook.com/america2/2009/01/military_families_protect_your.html http://www.mtbook.com/america2/2009/01/military_families_protect_your.html 危機管理・保険 Sun, 18 Jan 2009 12:54:09 +0900 “Payday Loans: Quick Approval to Long-Term Debt?” 日本語 アメリカ　弁護士　法律事務所　法律 給料日ローン：簡単な承認から長期債務へ？In these tough financial times, having an extra bit of cash can add some important breathing room. Payday loans (sometimes called check loans, cash advances, or quick cash) can be attractive to individuals facing financial troubles. Although these quick loans may help some consumers, for others, they only create even more headaches. And it is the experience of those frustrated customers that has caused the federal government and a handful of states to take a critical look at this growing area of lending. A relatively new loan type, payday loans offer consumers a quick influx of cash. In the last decade, payday loans have flourished because people facing a financial bind find them to be a convenient alternative to bouncing checks, paying late fees on credit cards, and even having their utilities shut off. To apply for such loans, consumers usually have to show only a pay stub or some other proof of regular income (such as Social Security); no credit checks are involved. Then the consumer gives the lender a pre-dated personal check for the amount of the loan plus a fee (usually around $100) and receives the loan money. At the end of the loan term, which is usually two weeks, there are three possibilities: 1) the lender cashes the check and receives the full loan amount plus the fee, 2) the lender tries to cash the heck but the consumer doesn't have enough money to cover it, resulting in a bounced check that will cause the borrower to be hit with fees from both the bank and the lender, or 3) the consumer refinances the loan and pays additional fees. It is this third option that gets most consumers in trouble. Referred to in the industry as "rolling over" the loan, this process allows consumers to extend the loan into future months until they hopefully will have the ability to pay off the entire loan amount all at once. However, each time a loan is rolled over, the consumer must re-pay all fees associated with the loan, which can sometimes end up being double the original amount lent. It is these sky-rocketing cumulative fees, along with the fact that many of these loans involve annual percentage rates of more than 400 percent that has been the source of much of the worry over payday loans. In some cases, these harsh loan terms have resulted in legislation aimed at creating consumer safeguards. A few states, including New York, have enacted laws effectively banning payday lending altogether. Arkansas has recently moved to shut down payday lending within the state, relying on a unique clause in its state constitution that bans lenders from charging an annual interest rate higher than 17 percent. Congress passed a federal law in 2006 that imposed limits on the ability of such lenders to reach out to military personnel. However, this trend is by no means national, and in many states, payday loan stores outnumber fast food chains. If you or a loved one are considering a short-term loan of any type, it is important to put as much thought and research into this as you would a large mortgage or other long term loan. In order to avoid falling victim to any type of lending practice, payday or not, try to work with a lender you trust (or find one your family/friends trust). And remember, if it seems to good too be true, it probably is. What to do if you or someone you know has an unfair payday loan?
  • If you have multiple high-interest loans, consider working with a trusted lender to assess whether consolidating them makes sense for you.
  • File a complaint with your state attorney general's office, state consumer protection agency, or banking department.
  • Contact your state and federal legislators-urge them to take action to ensure fair lending in your state.
  • Talk to your lawyer about possible recourse.

（Summer 2008）

]]> http://www.mtbook.com/america2/2009/01/payday_loans_quick_approval_to.html http://www.mtbook.com/america2/2009/01/payday_loans_quick_approval_to.html 債務・破産 Mon, 05 Jan 2009 20:07:41 +0900 “Supreme Court Update: The Second Amendment” 日本語 アメリカ　弁護士　法律事務所　法律 Supreme Court Update: The Second AmendmentIn the much publicized "gun control case," District of Columbia v. Heller, the modern Supreme Court took the first stab at defining the Second Amendment in over 60 years. Heller involved a challenge to gun-control regulations in the District of Columbia that were some of the toughest in the country: essentially banning all private handguns and requiring that firearms be kept locked in an inoperable condition. The question presented to the Supreme Court was whether these regulations violated the Second Amendment. In its 5-4 decision, the Court held that the D.C. regulations were unconstitutional under an "individual" reading of the Second Amendment. This means that the Second Amendment right to bear arms now protects the right of individuals -"the people"-to keep firearms for their own self-defense or other private use. The Court majority rejected the argument that the Second Amendment was only meant to protect the right of the states to form and arm an official state-run militia. So what does this mean for the everyday American? Immediately-not a great deal. Because of the way Justice Scalia wrote the decision, the Court left open the possibility that certain gun regulations will still not be barred by the Second Amendment: for example, laws governing the disarming of convicted felons, creating "gun-free zones," and banning short-barreled shotguns. It will take some time for cases about these specifics to make their way through the various court systems before we really understand the impact of Heller.

（Fall 2008）

]]> http://www.mtbook.com/america2/2009/01/supreme_court_update_the_secon.html http://www.mtbook.com/america2/2009/01/supreme_court_update_the_secon.html 危機管理・保険 裁判・仲裁・調停 Sun, 04 Jan 2009 21:04:05 +0900 “Protecting Your Assets From Lawsuits-Be Proactive” 日本語 アメリカ　弁護士　法律事務所　法律　 健康保険及び雇用に関する遺伝子情報に基づく差別禁止法Imagine you are driving home from the store when a child darts into the street. You swerve to avoid him, and in the process, run head first into another car. After it's all said and done, you are sued by the other driver for the costs of her extensive medical care and car repairs. Could she end up getting your house? What about your retirement savings? Across the country, newspaper headlines are packed with news of multimillion dollar court judgments for plaintiffs. These rulings can provide important relief and support for injured parties. However, they can also bankrupt defendants. Protecting yourself from a large legal judgment may be the last thing on your mind; however, if something goes wrong, you will be thankful for any and all prior planning. State laws offer varying levels of protection against legal judgments. Therefore, it is important to research your state's laws. Nevertheless, a few general principals do apply. In all cases, you must be proactive. You cannot move or otherwise act to protect your assets from a legal judgment after you have been sued or had an accident for which you might be liable. Courts look negatively upon such moves. Consequently, whatever actions you do decide to take to protect yourself must be done ahead of time. So what exactly could a large legal judgment put at risk? Again, this depends on your specific state laws, but there are some general rules. Any 401(k) plans and company pension benefits are likely protected. IRAs are another matter-their vulnerability will depend on where you live and whether the judgment forces you to declare bankruptcy. Life insurance policies are usually safe, as are any proceeds being paid to you from another person's policy. However, if you take such proceeds in a lump sum, a court judgment may be able reach them. A major worry for many people facing a large legal judgment is their home. Since your house is often your largest investment, and at the end of the day, it is the place your loved ones call home, it may make sense to start liability planning here. In most states, a primary residence (meaning the place you intend to live most of the time) is protected to some degree from legal judgments. Some states place limits on the amount of value that will be protected, but these caps can vary. Likely, your best bet to protect your home and other assets is to make sure you have adequate insurance coverage. Liability insurance is the most common insurance used to protect home owners. The liability portion of your homeowners' insurance is designed to cover unintentional injuries on your property and unintentional damage to other people's property-in other words, injuries caused by your negligence are covered, but not injuries inflicted on purpose. If you have significant assets, you may also want to consider taking out an umbrella policy. For an additional fee, an umbrella policy protects you from a big judgment that might quickly eat up your regular coverage. These policies are relatively inexpensive because the insurers are betting ou'll never need them. The coverage picks up where your home and auto policies leave off, so in order to obtain one, you have to have certain levels of basic home and auto liability insurance. You also have to meet certain eligibility requirements, such as owning no more than a certain number of cars and not having been convicted of driving under the influence in the recent past. Because no two policies are the same, it is important to carefully study yours and know what will and will not cover. Read the fine print. You may need additional coverage if you have a home-based business or natural or manmade attractions on your property, such as a pond or pool. Regardless of what form of protection you pick, at the bottom line, all that matters is that you and your family are protected!

（Summer 2008）

]]> http://www.mtbook.com/america2/2008/10/protecting_your_assets_from_la.html http://www.mtbook.com/america2/2008/10/protecting_your_assets_from_la.html その他 危機管理・保険 裁判・仲裁・調停 Mon, 13 Oct 2008 11:41:48 +0900 "Buying a Second Home During Retirement" 日本語 アメリカ　弁護士　法律事務所　法律 SecondHouse.jpgAs retirement approaches, many Americans start to think about their finances and where to invest or move their assets. For some, purchasing a second home is an important part of retirement preparation. With careful planning, this can be a very valuable and significant option. If you are thinking about buying a second home, the first step is to take inventory of your current and future finances. Be sure to determine the sources of your future income (pensions or government benefits) in order to evaluate how much you can afford. If you are planning on using the second home as a rental during part of the year, don't count on that rental income as part of your income. You never know if you are going to have a period without a renter. After undertaking this assessment, you will have a better sense of what you will be able to afford without stretching yourself too thin. When actually looking at properties, take into consideration the same factors you would when buying your primary residence such as costs, taxes, and location. Ask yourself whether you want a part-time vacation home or a year-round home that you can eventually move into after you retire. If you are looking for the latter, you will want to ensure that the neighborhoods you are looking at don't shut down during the off-season. The last thing you want is to move into your second home and run out to buy a gallon of milk, only to find out that every store in the area is closed for the season! Other important considerations when it comes to deciding whether to purchase a second home relate to money and taxes. If the second home is considered a residence-meaning you don't rent it out or use it for other business uses-any interest on your mortgage is deductible just as it is on your first home. In other words, you can deduct up to $1 million in interest on both homes (meaning you can deduct $1 million total, not $1 million per home). However, if you rent out your second home, the rules change and vary depending on how long your rent it out. Generally, if you have renters for more than 14 days a year, you will have to report any rental payments as income, but you will also be able to claim any mortgage interest and other costs during the rental time as business expenses. Lastly, depending on local laws, you likely can deduct the property taxes on any number of properties you own (regardless of whether you rent them out). Overall, these rules can be very complicated and can change depending simply upon how much time you spend in the second home. Therefore, it is probably worth it to talk to an experienced attorney before you take on a rental property in order to ensure that you don't run afoul of local or federal tax authorities. For retirees, non-traditional properties may also be worth considering. These options include condominiums or retirement communities, and these often also include some significant benefits. Some of these communities offer services that take care of certain household chores such as mowing the lawn, snow removal, and painting. Others provide gyms, pools, and golf courses. And in some retirement communities, there may even be meal service or some form of medical care. If you pursue this option, you will likely purchase the real estate and then pay an additional ongoing fee to the community association for its services. However, it is important to note that these benefits have some pitfalls. In many communities, there are restrictions on what you can do with the exterior of your home, with your landscaping, on whether you can rent your home, and, in some extremes, on the guests you can have spend the night. Second homes can create important sources of income and provide flexibility and excitement to your retirement. If you are a retiree, a second home could be used for investment purposes, or it may just be a way for you to live out the retirement you have always dreamt of. Whatever your reason, remember, you are still making a real estate purchase and need to exercise the appropriate level of care.

（Summer 2008）　Copyright © 2008 Hisaka Yamamoto (Photo: © Lvnel | Dreamstime.com)

]]> http://www.mtbook.com/america2/2008/09/buying_a_second_home_during_re.html http://www.mtbook.com/america2/2008/09/buying_a_second_home_during_re.html その他 Fri, 19 Sep 2008 14:35:55 +0900 “The Innocent Shoplifter” 日本語 アメリカ　弁護士　法律事務所　法律 万引きの冤罪Almost all of us have had the experience while shopping of making a purchase, leaving the store, and having the alarm go off. You know you didn’t steal anything, and more often than not, the salesperson calls you back and removes a theft-deterrent device that was inadvertently left on your purchase. But what if it isn’t as simple as this? What if store personnel detain you for shoplifting? Can they legally hold you against your will? Retail theft results in huge losses for businesses. This so-called shrinkage is a major worry for businesses that can see a substantial portion of their profits walk out the door with thieves. It is understandable that many stores put a great deal of time and effort into installing shoplifting deterrents, training staff to be vigilant, and in some cases, hiring staff specifically trained in loss prevention. However, even the best training can’t prevent all mistakes. Innocent people often engage in behaviors that store security may be looking for: repeatedly returning to the same spot in the store, taking multiple items into a fitting room, and not talking to salespeople, just to name a few. Because what are often innocuous acts can sometimes look like shoplifting signals, there is a chance that as an innocent shopper, you may end up as an accused criminal. But, if you remain calm, after a short delay, you usually can be on your way. In most states, merchants are allowed to reasonably detain a suspected shoplifter for questioning and a limited investigation. Usually, in order for a detention to be reasonable, the merchant must have a realistic belief that you attempted to shoplift. This often requires that store employees believe they saw you take some property and that they kept you in their continuous sight until you tried to leave the store without paying. Once management has decided to detain a suspected shoplifter on the abovementioned grounds, the law generally permits store employees to do so, but only for a “reasonable” period of time. What counts as “reasonable” will vary but is likely limited to the time needed to identify the suspect and call local law enforcement. Most state laws allow merchants to ask suspects for identification and to return any unpaid merchandise. In some areas, employees may even pat down suspects if there is reason to believe that they may have a weapon. In a nutshell, if you have done something to raise the reasonable suspicions of store employees, they probably can detain you. If you are wrongly detained, try your best to remain calm and reasonable. Chances are that the store employees are worried about their safety; therefore it makes sense for you to take care not to do anything to make them think you are a threat, which might, in turn, put your own hysical safety at risk. You can try to the best of your ability to explain your behavior (“I thought I put the shoes in the correct box.”) However, realize that the employees may not give much weight to your explanations; chances are good they have heard it before. While you are being detained, the store employees should be willing to accommodate any reasonable requests, such as for water, prescription medication, or use of the bathroom. If local law enforcement is called and you are detained by the police, you should immediately state your desire to speak to an ttorney. Be polite, but wait until your attorney arrives before engaging in any lengthy discussions with the police. Store security might say that you are expected to pay for the property they allege you took, which is common practice, and in many places, legal. This is known as civil recovery and allows the store to directly ask you to pay what they think you owe without any court or law enforcement involvement. While you are detained, you should protest politely any supposed fines. After the event, you should write a letter to the company’s head of loss prevention, explaining why you don’t believe you should have to pay. Although no court involvement is initially required, these notices and allegations should be taken seriously. Leaving something such as this unattended could result in major fines and headaches. If you believe your rights were violated during the detention or if the store continues to pursue you for payment, you should talk to your attorney about your options and possible remedies.

（2008年春）　Copyright © 2008 Hisaka Yamamoto (Photo: © Vadimone | Dreamstime.com)

]]> http://www.mtbook.com/america2/2008/09/the_innocent_shoplifternew.html http://www.mtbook.com/america2/2008/09/the_innocent_shoplifternew.html その他 危機管理・保険 Sat, 06 Sep 2008 18:51:52 +0900 “Sunsets, Beaches, and Visas: Retiring Abroad” 日本語 アメリカ　弁護士　法律事務所　法律 Sunsets, Beaches, and Visas: Retiring AbroadThese days, more Americans are thinking about retiring outside the United States. There can be some definite advantages to retiring abroad, but if you are evaluating such an option, be sure to consider the following issues. First, ask yourself why you want to retire in another country. Some people go for the weather; others for certain public policies (such as same-sex marriage). Others retire abroad for financial reasons. Some countries have advantageous tax laws or a lower cost of living. After determining the “why,” you can properly assess whether you should be a seasonal or permanent resident. This decision will likely affect your immigration status, your ability to buy property in some countries, and your health care. Once you have established where you are going and for how long, you need to determine the necessary documentation and immigration steps. Some countries recognize retirees as a separate immigration category, meaning that you can simply apply for status as a retiree, but this is by no means consistent worldwide. For example, Mexico has a special immigration status for retirees, but the United States does not. To find out how to apply for the necessary documents and visas, contact the destination country’s embassy or consulate here in the United States. Regardless of the requirements of the destination country, you will want to make sure that you have a valid U.S. passport that will allow you to travel back to the United States and to other countries, should the need arise. The next issue to research is whether any restrictions are placed on foreigners in your destination country. Some countries restrict the amount of land that foreigners may own, or require them to obtain special permits. Others have very liberal policies towards foreign landowners. Regardless of official policies, if you plan to buy or rent property in another country, you should do so only after detailed research and professional legal advice. Obtaining clear title is not always as straightforward in other countries as it is in the United States. Whenever possible, consider purchasing title insurance. Before actually leaving the United States, compile a packet of your important documents and information to be left with a loved one. This should include copies of your passport and other identification, a recent passport-eligible photo, your original birth certificate, and contact information for the U.S. Embassy in your destination country. This ensures that if you lose something or if something should happen to you, important information will remain easily accessible. Another issue to consider is how you will pay for medical expenses. Even if your destination country offers public health care, you may not be eligible to receive these services, especially when you first arrive. You may need to purchase insurance above and beyond what you currently have. Additionally, you should find out from your family doctor whether you need to get any vaccinations before traveling to your new home. If you are a pet owner, find out if there are any restrictions on bringing domestic animals into your destination country. Some countries require updated vaccinations, and others may require your pet to be quarantined for a period of time when you first arrive. You should contact the country’s embassy in the United States well before you plan to leave so you can make appropriate arrangements. Living abroad is a valuable option for many soon-to-be-retired Americans but should be discussed thoroughly with an attorney as part of one’s retirement legal “checkup.” Before retiring abroad or even traveling abroad for extended periods of time, you should make sure you have thought about the following important issues: 　○Why are you considering a certain country? Tax purposes? Social policies? This may impact your immigration status and the length of your stay in the destination country.　　 　○What documents and immigration status do you need? Can you file for a special status as a retiree? 　○Do you have a valid U.S. passport? 　○Can you purchase land in your destination country? Are there any restrictions or special issues you should be aware of? 　○Does someone back home have the necessary paperwork? Make sure to leave copies of important documents with a family member or friend back home. 　○How will you pay for medical care if you get sick? Does your U.S. insurance cover you in your destination country? 　○If you own pets, can they come with you? Do they need special vaccinations? Will there be restrictions on them when you arrive? These are important topics to discuss with your attorney when planning for retirement. If you have any questions about specifics in your destination country, contact its embassy in the United States.

（Spring 2008）　Copyright © 2008 Hisaka Yamamoto (Photo: © Barsik | Dreamstime.com)

]]> http://www.mtbook.com/america2/2008/08/sunsets_beaches_and_visas_reti.html http://www.mtbook.com/america2/2008/08/sunsets_beaches_and_visas_reti.html その他 Sat, 23 Aug 2008 16:20:17 +0900 “Are Foreclosed Properties Always a Good Deal?” 日本語 アメリカ　弁護士　法律事務所　法律 ForeclosedHouse.jpgHome foreclosures are a hot topic these days. But what many of the reports on the increasing number of foreclosures seem to neglect to mention is what happens to properties after foreclosure. Since foreclosed properties are often sold at reduced prices buying a foreclosed property may be worth considering. However, there are some pitfalls to be aware of before you sign on the dotted line. A foreclosed property is one that is owned by the lending institution or government agency that backed a now-defaulted loan. For one reason or another, the owner failed to make payments on the loan and the lender foreclosed on the loan and took possession of the property. The lender now has the title to the property and can sell it to someone else. Mortgages on all types of properties, including single-family homes and condominiums, can be foreclosed. Finding foreclosed property may be easier than you think. Some institutions advertise their foreclosed properties; others deal strictly through real estate agents. Real estate agents usually have a current list of the foreclosed homes in their area. There are also Web sites that can help you find foreclosed properties on your own. These include www.1stforeclosure.com and www.foreclosurefreesearch.com, as well as government Web sites, such as www.hud.gov/homes/homesforsale.cfm. The Federal Housing Administration usually sells its foreclosed properties through an auction announced in newspaper classifieds. On the day of the auction, potential buyers submit bids accompanied by a certified check for a percentage of the bid price. However, before you put in an offer, make sure you have done your homework and, if possible, consulted with an experienced attorney or real estate agent. You should put as much, if not more, consideration into the purchase of a foreclosed property as you would for a traditional real estate purchase. Buying a foreclosed property can be risky if you are not familiar with the procedures involved. Safeguards that are present in a traditional sale, such as the presence of a lender and a title insurance company (both of whom will share your interest in making sure the title is clear and the value sufficient), may not be involved in a foreclosure sale. The condition of the foreclosed property can be an additional drawback. Sometimes the first owner who was unable to keep up on payments was also unable to maintain the home properly. Nevertheless, a foreclosed piece of real estate just may be the right purchase for you, assuming you are aware of the pitfalls and are fully prepared to meet them.

（Spring 2008）　Photo: © Pondshots | Dreamstime.com]]> http://www.mtbook.com/america2/2008/08/are_foreclosed_properties_alwa.html http://www.mtbook.com/america2/2008/08/are_foreclosed_properties_alwa.html 契約・売買 Sat, 02 Aug 2008 13:28:31 +0900 "You and Foreign Law Enforcement" 日本語 アメリカ　弁護士　法律事務所　法律 CollegeStudentTravel.jpgTraveling overseas is an exciting adventure: seeing new places, speaking a different language, learning about a culture. However, having a run-in with the law is one kind of excitement you don't need. Even if you have done nothing wrong, the possibility of being arrested or detained in a foreign country is a risk you need to take very seriously. By understanding what you should do before you leave, knowing your rights, and keeping in mind the limits on what U.S. officials can do for you, you will be more likely to quickly resolve any problems you might encounter and return home safely. There are a number of important steps to take before you travel abroad. First, check the U.S. Department of State's travel warnings and alerts (www.travel.state.gov/travel/warnings.html ). These notifications alert travelers to possible threats, political unrest, or violence in specific areas of the world. You should also consider registering with the Department of State. Registering can be done online for free (https://travelregistration.state.gov/ibrs) and ensures that if there is an emergency, either back home or at your destination, American officials can easily contact you. Lastly, before you go, leave copies of your travel documents and passport with a family member or friend. That way, if something does happen, someone back home will have your identification information. Then, when you are traveling, remember that you are subject to the laws of the country you are in, which may be different from those back home. Ignorance of the law is never an excuse. If you are arrested abroad, try to remain calm. Once you are taken into custody, you should immediately ask to speak to a consular officer at the nearest U.S. Embassy or Consulate. Many countries have agreements with the United States to ensure that you have this right (and the citizens of those countries have the reciprocal right in America). If your request is turned down, you should keep asking, politely, but continually. American Embassy and Consulate officials are valuable allies for citizens arrested abroad; however, it is important to note that they can't provide a "get out of jail" card. Still, although American officials usually cannot represent you in court, they can provide you with a list of qualified attorneys, contact your family, and help get you money from your family back home. American officials will also monitor your health and safety and will protest any abuse or maltreatment. So remember: Your best protection when traveling abroad is to do the necessary research ahead of time, understand the rules of the host country-and keep your wits about you! Tips For Parents-What To Do When Your Child is Abroad With the summer moving into full effect, many teens and college students are getting ready to spend the summer traveling abroad, or packing and preparing for an upcoming semester abroad. For the kids, these opportunities are exciting times filled with learning and fun. For parents, these can be times of stress and worry. You can help your child prepare for any international travel by ensuring that your son or daughter understands how to respond to interactions with foreign law enforcement. The following list outlines some important topics and tips:

  • Get the Information: Make sure you have all of the information about your child's trip, ncluding flight information, hotel accommodations, any planned side-trips, and the names of all ravel companions. Have your child makes copies of all necessary travel and identification ocuments (passports, tickets, credit cards, etc) and leave a copy of them with you. Your child hould also bring extra copies of any travel documents in case something is lost.
  • Help Your Child Get Informed: Work with your child to research the destination country. Has the Department of State recently issued any travel alerts? It will be helpful for your child to learn at least a couple of key phrases in the destination country's language including: "Help!" "I need a hospital" and "Please call the American Embassy."
  • Talk About Safety: Without being overly alarmist, have an open and frank discussion with your child about the dangers of traveling abroad. Be sure to mention the old adage "there is safety in numbers" and outline the dangers of alcohol and other intoxicants. Some countries may have relaxed laws on alcohol and drugs as compared to the United States; others have much harsher laws. Even if your child is unlikely to engage in such activities, you should still consider having an honest discussion about the dangers.
In the end, remember, this is a once in a life time experience for your child: let him or her go and experience the world and have faith that you have prepared your child as well as you can.

（Summer 2008）

]]> http://www.mtbook.com/america2/2008/07/you_and_foreign_law_enforcemen.html http://www.mtbook.com/america2/2008/07/you_and_foreign_law_enforcemen.html 危機管理・保険 Mon, 14 Jul 2008 17:14:44 +0900 "Preparing for Deployment" 日本語 アメリカ　弁護士　法律事務所　法律　派兵の準備If you have a loved one in the armed services, you probably know the worries associated with military life. It is a life with many uncertainties: where is the next duty station; when is the next deployment; when is the next phone call home? However, you can help with the preparation for an upcoming deployment by taking on some legal and financial responsibilities. This can alleviate some of your loved one’s worries and provide for a level of certainty that some matters back home are under control. Without careful planning, a family member, other than a spouse, has little authority to act on behalf of a deployed loved one. In some cases, family members may not even be aware of the need to act. Before deployment, military personnel and their families should talk about important issues that will need to be addressed during deployment. These include taxes, real estate or rental properties (including investment and vacation properties), automobile payments and insurance, life and property insurance, credit cards, and any recent installment purchases (common for large purchases such as televisions and washers). Additionally, it is essential to talk about any upcoming or current litigation, including both civil and criminal proceedings. A simple traffic ticket can become a big headache if left unattended. By simply talking about these issues, you can ensure that everyone is on the same page. Power of Attorney A power of attorney is one of the best ways to make sure that you can take care of these and other law-related issues for a deployed loved one. A power of attorney is a written document in which servicemembers (the principal) grant certain authority to someone they trust (the agent or “attorney in fact”) to act on their behalf. A power of attorney may be very specific, authorizing a person to sell a car, for example. Or it can be very broad, allowing the agent to do almost anything on the principal’s behalf. Military personnel can use a power of attorney to give a family member or friend the ability to access bank accounts, make rent or mortgage payments, make car payments, and pay utilities and other bills. It is important to note that a power of attorney isn’t a guaranteed solution for every situation. Some agencies may require additional documentation. For example, the Social Security Administration often requires you to fill out their specialized paperwork in order to be able to receive payments on behalf of another person. Many states will require you to use their specific forms if you wish to file someone else’s taxes. Regardless, a power of attorney is a good starting point and, at the very least, will document your deployed loved one’s intentions. Armed services support organizations can help you identify your options and assist you in the drafting of a power of attorney agreement. Most powers of attorney are effective only as long as the principal (your loved one) has what the law calls “capacity.” The idea is that agents cannot do something that principals would not be able to do for themselves. So, if your loved one becomes incapacitated, your authority under a regular power of attorney is nullified. You can, however, draft a special power of attorney so that the agent’s power and authority extends through any incapacitation. Usually called a durable power of attorney, a document such as this clearly states the agent’s intent that the power continue after disability or incapacity. If such a situation is a realistic possibility, it is important to work with an attorney to draft any documents correctly and unambiguously. The SCRA The Servicemembers Civil Relief Act (SCRA) provides important protections for active duty servicemembers and is a key aspect to any military family’s deployment preparations. Under the SCRA, certain civilian obligations can be postponed or suspended during deployment. These include some credit card debt, mortgage payments, pending trials, some taxes, and residential leases. The SCRA protections apply to all servicemembers, Reservists, and members of the National Guard only while they are on active duty. Be aware that the SCRA is not a fail-safe and doesn’t eliminate all obligations, but it can help alleviate some worry. Regardless of the plan you and your loved one decide on, it is important to talk through all of the obligations and responsibilities that will need attending to during deployment. Additionally, military members and their families should take full advantage of the services and support offered by the appropriate branch of the armed services. These legal, financial, and social services can provide invaluable help and support, both in preparing for deployment and during deployment. Prior to any deployment, military personnel and their loved ones should make sure they have a plan for
  • Making necessary payments, including
  • Rent
  • Mortgage payments
  • Insurance, including automobile, life, and property
  • Car payments
  • Utility bills
  • Filing federal and state income taxes.
  • Receiving any government benefits, such as Social Security.
  • Handling any credit card debt and payments.
  • Overseeing any legal proceedings.
  • Drafting a power of attorney or, if needed, a durable power of attorney.

（Spring 2008）

Photo：C-17 Globemaster　© Igmarx | Dreamstime.com]]> http://www.mtbook.com/america2/2008/06/preparing_for_deployment.html http://www.mtbook.com/america2/2008/06/preparing_for_deployment.html 危機管理・保険 Mon, 30 Jun 2008 13:23:21 +0900