Skip to main content
Jeremy Johnson
Avvo
Pro

Jeremy Johnson’s Answers

11 total


  • How do I make sure my adult son will have NO say over me should I become incapacitated by age or medical condition?

    I know I can specifically disinherit him, but he has verbally threatened to put me in a home or institution the moment he gets a chance. He is my only son, but has threatened me for years. I don't ever want him to have any sway over me, because ...

    Jeremy’s Answer

    If you were in Virginia, I would start by having you execute 4 legal documents: 1) Revocable Living Trust - to manage financial decisions, 2) General Durable Power of Attorney - to handle financial issues/custodial issues outside of the trust, 3) Health Care Power of Attorney - to manage medical decisions, and 4) a Living Will - to handle end of life care decisions and directives.

    My general rule of thumb is "he who controls the money, controls the person." Therefore, you take every reasonable step now to remove your son from any and all control of your finances. In doing this, you make it unlikely that he would want to spend his OWN money trying to put you into an institution.

    In addition, I would advise a client in Virginia who is dealing with your concerns to write a letter to "the Court" expressing your concerns about your son and your desire never to allow him to make any kind of decisions for you. This letter should also highlight the legal steps you have taken (creating the 4 previous documents mentioned) to exclude your son from your decision making process. For good measure, you should sign this letter in the presences of an independent Notary Public and 2 independent witnesses. Be certain that your attorney and another person you trust maintains copies of this letter in additions to duplicates of your legal documents. This letter can be presented to the Judge or magistrate hearing any issues surrounding your incapacity, at the time an action is initiated by your son.

    I suggest you acquire qualified legal counsel in your jurisdiction and you establish a LONG TERM relationship with that attorney so that they may act as another protective barrier between you and your son.

    See question 
  • Can I have two seperate home business under the same EIN number?

    I am starting a Event Planning and an E-commerce online business in Houston. I need to get EIN numbers. I am the only employee now and I will probably be for a while.

    Jeremy’s Answer

    It depends. Many companies have multiple lines of business and divisions operating under the same EIN. If you were one of my clients in VA or MA I would want to know how you are organized (Sole Proprietorship, S Corp., C Corp., LLC, Partnership, Business Trust, etc.) and I would want to examine the cross liability exposure of your various lines of business. I would also get your business CPA involved in the conversation.

    I suggest you obtain qualified legal counsel in your jurisdiction to assist you with this matter.

    See question 
  • Can a shareholder of a private corporation get a line of credit against their shares?

    I own 50% of a private corporation and would like to get a line of credit against those shares

    Jeremy’s Answer

    It is possible to use shares in a privately held corporation as security for a line of credit. However, first you must first look at the bylaws and/or the buy/sell agreement of the corporation to see if there is any prohibition against pledging the shares.

    The next obstacle you may have is finding a lender that is willing to accept the shares as security on the line of credit.

    Finally, even if the corporate documents allow you to take this action and you find a lender that is willing to accept this secured interest, you must think about what impact this type of action will have on your relationship with the other shareholders of the corporation. I would suggest that you discuss your intentions with the other shareholders if you intend on maintaining a working business relationship with them.

    It would be wise to consult qualified legal counsel in your jurisdiction to assist you in working through this issue.

    See question 
  • Can the court step in when the administrator of an estate is not performing his duties?

    My brother died without a will in Dec 2007. My other brother was named admin because he lived in the same area. The last of the property was sold in Sept 2009 and I was given part of my share in Oct 2009. The original atty withdrew in Jan 2010 due...

    Jeremy’s Answer

    When a Personal Representative (Executor/rix or Administrator/rix), charged with the administration of a probate estate, breaches his/her fiduciary duty to the underlying beneficiaries and/or its duty to the probate court, that Personal Representative can be removed by the Court upon the petition of any party with standing.

    Although anyone can represent themselves pro se, it is highly advisable in a situation like this to obtain qualified legal counsel to craft and file the petition, and represent your interest at the hearing on the same.

    See question 
  • What supporting documentaiton is required to obtain durable health care power of attorney for an 18 year old with Down Syndrome?

    My daughter with Down Syndrome is turning 19 and we were advised not to obtain guardianship but to obtain durable healthcare power of attorney to do such things as sign surgical consent if needed. What documentqation do we need to verify that she ...

    Jeremy’s Answer

    In Virginia and Massachusetts a Principal must have the appropriate capacity to execute a legal document, such as a Health Care Power of Attorney. Although this standard varies from state to state, I generally use the "contract" standard/test; being, does the Principal have the legal capacity to execute an enforceable contract. If the answer is no, then the Principal most likely does not have the necessary legal capacity to execute a Health Care Power of Attorney.

    Switching gears, it seems odd that you received advice against opening a guardianship in this case. There are various types and levels of guardianships generally available. If you are appointed the "guardian of the estate" then you are a Conservator. This brings with it a great deal of annual financial reporting to the Court. Alternatively, if you are appointed the "guardian of the person" you are not generally charged with the financial management of the Principal (and therefore less invasive annual court reporting); but instead, you are charged with the custodial (and therefore medical) decisions and care of the Principal.

    I suggest you acquire qualified legal counsel in your state to assist you in this matter. Visit the attorney directory listing on www.WealthCounsel.com to find local attorneys near you who may be able to help.

    See question 
  • When an executor is finished distributing the assets of a Living Trust, does he then have to close it officially in a court? Is

    Is there any time that an executor of a living trust has to report to a court like to officially close the distribution or begin distribution. Does he at any time have to report to a court about his actions? Is he completely on his own and can d...

    Jeremy’s Answer

    Generally speaking, people create Revocable Living Trusts ("RLTs") to avoid oversight by the probate court at times of disability and/or death. However, I caution everyone to start their analysis with the trust instrument itself. If, for some bizarre reason, the Grantor of the trust included a requirement for some type of oversight by the court of a trustee's actions in closing the trust estate, the Trustee with be in breach of the requirement of the trust instrument if they failed to have the court bless the closing of the trust estate. Again, start with the trust instrument first. If there is no requirement in the trust instrument for court oversight or approval for settlement of the trust estate (which, by the way, I have never actually seen included in an RLT document), then there should not be any need to report to the court. To be safe, the Trustee should have qualified legal counsel review the trust instrument and determine the Trustee's responsibilities to the court and the beneficiaries.

    See question 
  • If i disclaim property into a disclaimer trust ..can i sell the property out of the trust at a later date for my benefit??

    I disclaimed 40 percent of my husbands estate to the trust 1 million dollars worth of real estate.

    Jeremy’s Answer

    The answer is "it depends." Assuming you disclaimed the assets into the trust as a individual beneficiary (within nine months of the death by a Qualified Disclaimer), the trust is now irrevocable, you are the Trustee and the Beneficiary of the trust, and the trust instrument does not prevent you from selling the assets, then you theoretically should be able to sell the assets within the trust in your capacity as a Trustee and administer those assets pursuant to the terms of the trust for your benefit as the Beneficiary of said trust. Nevertheless, you should speak to a qualified estate planning and tax attorney in your jurisdiction to review the specifics of your case.

    See question 
  • Can an Attorney who prepares a trust for a client also be the successor trustee of that same Trust?

    Can an Attorney who prepares a trust for a client also be the successor trustee of that same Trust because the client insists on this arrangement?

    Jeremy’s Answer

    As a VA attorney, I am unable to speak specifically to CA law. However, in VA, a drafting attorney can be named as a successor trustee in the trust instrument. Although, our State Bar requires such a drafting attorney to make certain disclosures to the client client, such as: 1) the client is not obligated to name the attorney as successor trustee, 2) there are other professional trustee options available (trust company, bank, CPA, another attorney), and 3) a current example of the attorney's typical fee schedule for such service.

    See question 
  • Guardian ad Litem to busy to really investigate...

    What can I do If i believe the Guardian ad Litem did not do her job correctly... I had her for my first order where i never saw her, and spoke once before me and my x actually came to agreement... This time I filed a motion and she was given us ag...

    Jeremy’s Answer

    Generally, if an interested party feels that an appointed GAL is not administering their responsibilities appropriately, that party may wish to consider filing a petition with the circuit court clerk for removal and replacement of the GAL. Speak to local council to create the petition.

    See question 
  • Is it legal to present power of attorney form to someone in a mental hospital?

    Someone I know is in a mental hosptial for acting derlious/schizophrenic during childbirth. The person who is presenting the papers may have drugged the person, and is going for guardianship of the person's child. She may also have tried to pres...

    Jeremy’s Answer

    Generally speaking, a person must have the appropriate mental capacity to execute a document such as a General Durable Power of Attorney. There are different standards for capacity in different states. However, my general rule of thumb is: "does the person have the capacity to enter into a contract." If no, then they should not sign the document. If yes, then they can sign the document. Many states require that General Durable Powers of Attorney be signed in the presence of a Notary and/or two Witnesses as an additional hedge regarding the capacity issue.

    If you feel that an individual in a hospital or other mental health institution is being improperly made to sign any legal documents, it may be advisable to notify the social worker for that institution and/or the administration of that facility.

    See question