Jaspers, Moriarty & Wetherille, P.A.
Seasoned Legal Judgment For The South Metro Area

July 2014 Archives

New Application for 501(c)(3) Status

It is getting easier to apply to become a 501(c)(3) charity. The IRS has released a new simplified form for charities having less than $250,000 in assets and having gross annual reciepts of less than $50,000. This is a change from the standard 26 page which will still be utilized by larger charitable organizations.

Our attorneys can help you prepare the old or new forms, as well as set up the appropriate nonprofit corporation to handle the charity’s affairs. Call 952-445-2817 for more information.

Minimum Wage Increase

As a result of recent legislation, Minnesota’s minimum wage rates will rise according to the following chart:

  • Large employers (gross volume of sales made or business done of $500,000 or more per year) must pay at least $8 an hour
  • Small employers (gross volume of sales made or business done of less than $500,000 per year) must pay at least $6.50 an hour
  • Training wage rate is $6.50 an hour (90-day training rate paid to employees who are younger than 20 years of age)
  • Youth wage rate is at least $6.50 an hour (paid to employees younger than 18 years of age

These rates will rise each August 1 until the general minimum wage $9.50/hr. For many years Minnesota had a minimum wage of $6.15/hr. which was lower than the federal minimum wage of $7.25/hr. As of August 1, low wage workers can expect a raise of $0.75 if they were being paid the federal minimum wage. The law also changed the definition of “large employer” to be businesses with annual gross revenues of $500,000, which is lower than the prior threshold of $625,000. As a result, more businesses will be required to pay the higher wage rates. For more information see http://www.dli.mn.gov/LS/minwage.asp

These changes have  brought about a lot of discussion on the merits of minimum wage increases. They have also highlighted that Minnesota is one of eight states that prohibits so called “tip credits” where a tipped employee, like a waitress, can be paid the tipped employee minimum wage ($2.13) so long as their overall pay (wage + tips) is equal to or greater than the general minimum wage. Many states allow the employer to pay that $2.13/ hr. and apply the tip credit on the remaining $5.12 bringing the employee’s wage to at least $7.25, the federal minimum wage. A thorough examination of state laws on this subject can be found at http://www.dol.gov/whd/state/tipped.htm

Power of Attorney

As of January 1, 2014, there is a new Statutory Short Form Power of Attorney in Minnesota. The new form only affects documents signed after January 1, 2014, so if you have a power of attorney executed before that date, your document is still valid. However moving forward, all newly created Powers of Attorney must use the updated format. This change was made by the Minnesota Legislature in an effort to continue to provide consumer protection to the principal (the person who creates the Power of Attorney). As with the former Short Form Power of Attorney, the principal does not lose the right to control property or money matters; however, your attorney-in-fact can also act for you without your consent. For that reason, it is important to choose someone you trust to act on your behalf. The Legislature has added important notice provisions to the form in hopes that the notices will educate both the principal and the attorney(s)-in-act on the level of power conveyed with executing this document.

In particular, three changes were made to the new form:

1) The first paragraph of the form informs the parties that before executing the document, the parties must read the “Important Notice to Principal,” and the “Important Notice to Attorney(s)-In-Fact.” The Important Notice to Principal on pages four and five of the document is an explanation of the purpose of the document, the powers given to the attorney-in-fact, the duties of the attorney-in-fact, and how the document is terminated. One significant addition to the new form included under the powers section, informs the principal that the Power of Attorney does not give the attorney-in-fact the power to make health care decisions. A separate Health Care Directive that complies with Minnesota Statutes, Chapter 145C is necessary in addition to a Power of Attorney. Additionally, the Notice requires the principal to initial the Notice provision before executing the document. The Notice to the attorney(s)-in-fact outlines the duties and obligations when exercising the authority granted by the Power of Attorney.

2) The First section of the form includes a list of all of the powers of the attorney-in-fact. The Form lists out the potential powers, power (A) through (M), and then the last power listed, part (N), includes all of the powers listed in (A) through (M) above and all other matters, other than health care decisions under a health care directive that complies with Minnesota Statutes, chapter 145C. This addition provides further notice that the Power of Attorney does not give your attorney-in-fact the power to make health care decisions.

3) The Third section of the form now includes a more specific “self-dealing” gift provision. This provision allows the principal to decide whether the attorney(s)-in-fact may make gifts to the attorney(s)-in-fact, or anyone the attorney(s)-in-fact are legally obligated to support. Additionally, there is a second option allowing the principal to limit the gifting power to only the attorney(s)-in-fact specifically named in that section. Minnesota Statutes, section 523.24, subdivision 8, clause (2), limits the annual gift(s) made by attorney(s)-in-fact, or to anyone the attorney(s)-in-fact are legally obligated to support, to an amount, in the aggregate, that does not exceed the federal annual gift tax exclusion amount in the year of the gift, which is currently $14,000.

The newest amendments are meant to provide clarity for both the principal and the attorney(s)-in-fact. The lawyers at Jaspers, Moriarty & Wetherille, P.A. are happy to advise you specifically regarding these changes moving forward.

Can the Police Search My Cell Phone?

Being attorneys who have lived through a cocktail party or two, we often get questions about what an individual’s rights are in certain situations. Frequently we have been asked what the police may search if you are arrested. This is a weekly blog, not a legal treatise, so we won’t go through the entire analysis but just talk about the recent U.S. Supreme Court decision in Riley v. California. Riley provided some guidelines for what the police may do with your cell phone if you are arrested. Because a smart phone can hold an immense amount of personal information and almost everyone carries some type of cell phone, the Supreme Court acknowledged that a cell phone is not like a wallet, address book, or purse, therefore privacy interests in a cell phone are different. So how does the Riley decision affect you?

 I have been arrested. Can the police search my cell phone?In a typical arrest, the police may search the arrestee’s person by performing a pat-down. This is usually done to search for drugs, weapons, or other pieces of evidence a person may be carrying. The police can also seize or take the arrestee’s cell phone and hold on to it. However, because of the Supreme Court’s decision in Riley, the police must obtain a search warrant before accessing the information stored on the cell phone.

 What if the police ask if they can search my cell phone without a warrant? Do I have to consent?No. You do not have to give consent for the police to search your cell phone if they ask. Until the police obtain a warrant, they cannot search your phone unless you give them permission. If you give them permission they don’t need a warrant.

 What if I don’t have a security or pass code on my phone? Can the police then search it without a warrant if I have been arrested?The Supreme Court’s decision in Riley has made it clear that it doesn’t matter whether or not you have a security or pass code on your cell phone. The police may not search it after an arrest without obtaining a search warrant, unless you give consent.

 Are there exceptions to this rule?As with all legal rules, there are exceptions and the police may access the information stored on the cell phone at the time of the arrest without a warrant in certain situations. The police may access the information if the police believe that the information on the phone is in danger of being destroyed by someone acting remotely. The police may also access the information if there is a person in immediate danger and the police need the information on the phone to prevent harm to that person. However, the police will have to prove at a later court hearing that their actions were necessary. As always, if you give consent for the police to search your cell phone, then they do not need a warrant and the police will not have to justify their actions at a court hearing.

 But can’t a phone be remotely wiped pretty easily? Couldn’t the police just use this as an excuse for searching an arrestee’s cell phone without a warrant?The Supreme Court recognized that this could be an issue. The Riley decision requires that the police show individualized circumstances and facts to establish probable cause that evidence was going to be destroyed before they can use one of the exceptions to the rule. The police can also take steps to block remote deletion by storing the cell phone in a bag that blocks wireless signals and/or by removing the battery or SIM card. These requirements are in place so that the police cannot bypass the warrant requirement.

 If the police get a warrant for my cell phone, what can they search?If the police obtain a warrant for your cell phone, they can search almost anything on your phone, but are constrained by the limits of the warrant. If the warrant doesn’t give permission to search a phone book, then the police cannot legally look in there.

 What if I take steps to secure my phone with a pass or security code and encrypt personal information?The police can ask you for your security codes and decryption keys. If you provide this information to them willingly, then you will have given consent to access the information and this information could be admissible in court.

 What if I don’t want to give the police my security or pass code or my decryption code? Don’t I have the right to not incriminate myself under the 5th Amendment? The Supreme Court did not address this question in the Riley decision. This is the new frontier of individual rights and it is still unknown how the Court’s decision in Riley will affect an individual’s 5th Amendment rights, so stay tuned.

 Does this decision affect what police may do with my cell phone if they search my home with a warrant? The Riley decision applies only to searches of a cell phone found on a person after an arrest. Cell phones that are seized at a person’s residence or office as part of a search warrant can be searched immediately (there will likely be a case giving more information about this situation soon).

If you are ever in a situation where you are unsure of what your rights are, give our office a call and one of our attorneys can explain your rights.

How do I find a lawyer?

For many people, lawyers are different from other professionals like dentists, doctors and accountants, because people don’t often plan on needing a lawyer. I am often asked how to find a lawyer, and often ask my clients how they found me. Because of the internet, more and more people search for lawyers online; choosing one whose website has information that matches the client’s need. In addition to standard Google or Yahoo searches, there are very good professional referral sites like www.findlaw.com that can help you find a lawyer that fits your need.

Perhaps most interesting, however, is that the vast majority of clients that come to JMW do so on a referral from a friend or family member. At JMW, we take pride in knowing that our clients come back to see us, and refer their friends and loved ones to us. Even in today’s age of technology, referrals are a huge source of business for many lawyers.The reasons behind this trend are likely many and difficult to define. While anyone with some minimal computer skills can design a comprehensive website or online presence, a referral does something that no other source can: it tells you about someone else’s real life experience.

We encourage potential clients to make a few phone calls before hiring a lawyer. Call friends, parents, relatives, or co-workers to ask if they know of any good lawyers. If all else fails, cold-call two or three lawyers to see if you can get a feel for them. Most lawyers offer consults for free, or a very reasonable fee. In a consult, you can get to know the lawyer and have a better idea if there is a good fit between you and the lawyer. The most important factor in hiring a lawyer is that you hire someone you feel like you can trust; give us a call at (952) 445-2817 to see if we can earn yours.

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