On January 5, 2023, the Federal Trade Commission (“FTC”) announced a proposed rule that, if enacted, would amount to a virtual ban on the use of non-compete agreements and leave employers with fewer legal options of protecting their confidential and proprietary information.
Under current law, agreements containing non-compete clauses are governed by state statutes or common law. Most states limit non-compete clauses, requiring that their geographic scope, duration, and restrictions on competitive activity be reasonable. This leaves most non-compete agreements subject to courts’ interpretations about what constitutes a legitimate business interest.
The FTC’s newly proposed rule prohibits employers from imposing non-compete clauses on workers with only one narrow exception. The proposed rule recognizes the traditional state law exception to non-compete agreements or provisions that are entered into in the sale of a business. However, the exception is narrow, and applies only to those who own at least 25% of a company.
The effect of this proposed rule on standard executive and other forms of employment agreements could be significant. For example, the proposed rule would prohibit employers nationwide both from entering into new non-compete provisions and from maintaining its existing non-compete clauses with all workers. This would include not just employees, but also independent contractors, consultants, interns, and volunteers. Thousands, if not millions, of non-compete agreements in existence today would simply cease to have any legal effect under the FTC’s proposal.
Under the current formulation of the rule, this broad definition of “worker” extends to even senior-level executives with access to a company’s most sensitive and valuable information. Employers frequently condition executives’ participation in equity plans and other incentive-based compensation, such as profits interest agreements, short and long-term bonus plans and retention agreements, on an employee’s commitment to enter into and honor restrictive covenants. The scope of the proposed rule also would probably go beyond a traditional employer-employee relationship, extending to partnerships and membership agreements among individuals. As a result, standard noncompetition clauses within LLC and partnership agreements could also be impacted.
The proposed rule as currently drafted would also require that employers take active steps to rescind existing non-competes and inform workers that such clauses are no longer in effect. Specifically, employers would be required to rescind existing non-compete clauses with current and former workers within 180 days of the final rule going into effect. Those employers would also be required to inform their workers in an individualized communication that the non-compete clause is no longer in effect within 45 days of rescinding the non-compete clause.
While the proposed rule does not explicitly prohibit other forms of restrictive covenants, such as non-disclosure agreements or non-solicitation agreements, the rule also recognizes that those clauses can be broadly drafted to have the same effect as a non-compete and can practically serve as de facto non-compete agreements. As such, the rule prohibits the use of any form of agreement that has the effect of prohibiting workers from seeking or accepting new employment.
However, despite all of ominous warnings related to the proposed rule, employers who rely on non-competes should not panic just yet. Most commentators agree that the proposed rule is unlikely to go into effect in its current form, if at all. The FTC will likely vote in April 2024 on the proposed rule. However, this effort by the FTC should serve as a wake-up call to employers who have traditionally relied upon non-competes. Many states have already taken or are considering efforts to limit or ban the use of non-competes, and that trend will continue over the next few years.
What should employers do?
If you use non-competes, reevaluate your current approach and prepare a backup plan for a scenario where non-competes become unlawful and unenforceable. Although it could be many months at a minimum before any broad non-compete ban becomes effective, any FTC rule is highly unlikely to “grandfather” or otherwise exempt pre-existing non-competes. Thus, any non-compete that you enter into now could become invalid. If that happens, you will want other safeguards in place to protect your proprietary information and defend against unfair competition.
Some options to consider to protect your business include:
If you use restrictive covenants, focus on where you really need them. Requiring that all employees sign non-competes may not be a wise approach. An overbroad approach can have adverse effects in certain situations where it really matters. An organization that requires non-competes from broad ranges of employees may draw additional scrutiny, which can threaten its truly important agreements. Also, if you require a non-compete from one employee but then decline to enforce it, that can affect your ability to enforce a restrictive covenant that you truly consider necessary.
If the information contained in this article show anything, it is that employers should be far more surgical with their restrictive covenants.
Many of us have seen a person with a dog on a leash the last time we were at a restaurant or store. Questions from business owners regarding whether they must allow service animals into their businesses are becoming more and more common. While some businesses may be dog friendly, dogs are not allowed inside restaurants unless they are a service animal. Many restaurant owners say it is frustrating that there is no way to identify a service animal as there is no service animal registry or license recognized and business owners are not legally allowed to ask for proof that the animal is a service animal.
What is the law regarding service animals?
Under Florida law and the federal Americans with Disabilities Act (ADA), people with disabilities may bring their service animals to all “public accommodations,” such as restaurants, museums, hotels, and stores.
These laws also require those who operate transportation services, like car services and public transit, to allow service animals. Although Florida law and the ADA differ in some ways, public accommodations in Florida must comply with both sets of laws and their patrons are entitled to rely on whichever law provides the most protections.
What is a service animal?
Florida’s service animal law applies to animals that are trained to do work or perform tasks for someone with a physical, mental, psychiatric, sensory, or intellectual disability. The work the animal does must be directly related to the person’s disability.
Neither law covers pets or what some call “emotional support animals,” which is defined as animals that provide a sense of safety, companionship, and comfort to those with psychiatric or emotional disabilities or conditions. Although these animals often have therapeutic benefits, they are not individually trained to perform specific tasks for their handlers. Under the ADA and Florida law, owners of public accommodations are not required to allow emotional support animals, only service animals.
Which Public Accommodations must allow service animals in Florida?
Floridas service animal law covers public transportation, hotels, timeshares, places of amusement, resorts, and any other place to which the public is invited. You may bring your service animal into any of these places. Under the ADA, the definition of public accommodations is very broad. It includes:
What are the rules for service animals?
A business owner may not ask the person to disclose their disability and they may not ask for proof that the service animal is in fact a service animal but legally they may only ask if the animal is required because of a disability and what tasks the animal has been trained to perform.
Business owners are not responsible for the care and supervision of the animal and the care and supervision of the animal is solely the responsibility of the owner of the animal. The business is not required to provide care, food or a special location for the service animal.
Business owners may exclude any animal, including a service animal, from their facility when that animal’s behavior poses a direct threat to the health or safety of others. However, business owners should give the individual with a disability who uses the service animal the option of continuing to enjoy the goods and services on the premises.
Under applicable laws, there is liability for falsely representing animals as a service animal. But there are also potential criminal and civil repercussions for a business owner who discriminates against a disabled individual.
CONCLUSION
Our advice to our clients that are affected by these laws is to post a sign in a conspicuous place at their business stating their service animal policy, A typical policy can be as simple as:
At ______ , a service animal is a dog or miniature horse that is trained to do work or perform tasks for, and to assist, an individual with a disability.
Service animals must be under the control of the owner at all times and should remain on a leash or in a harness. Our employees are not able to take control of service animals.
Depending on the type of business, additional information can be posted such as where the animals are not allowed (e.g. amusement parks are not required to allow service animals on rides). We also caution our clients to train their employees not to ask any questions other than the 2 questions that are allowed. Lastly, unless the service animal is acting erratically, we recommend that our employees exercise caution and allow the service animals into their establishment.
Beginning on January 1, 2024, the United States Corporate Transparency Act (“CTA”) will require “reporting companies” to submit a report to the Financial Crimes Enforcement Network (“FinCEN”) containing personal information about the reporting company’s “beneficial owners.” Reporting companies formed before January 1, 2024, will have until January 1, 2025, to file their initial report with FinCEN. Willful failure to comply with reporting obligations can result in steep financial penalties. Proposed regulations issued on September 27, 2023, extend the period for which reporting companies formed on or after January 1, 2024, and before January 1, 2025, must file their initial report to within 90 days of the company’s formation. Reporting companies formed on or after January 1, 2025, must file an initial report within 30 days of the company’s formation.
As previously stated, only “reporting companies” are subject to the CTA’s reporting requirements. A “reporting company” includes (1) any corporation, LLC, limited partnership or similar entity created by filing a document with any US state, territory or Indian tribe (domestic reporting companies), and (2) any non-US entity that registers to do business with any US state, territory or Indian tribe (foreign reporting companies). Trusts (other than trusts created by a filing, such as statutory or business trusts) are themselves not reporting companies.
On September 30, 2022, the US Department of the Treasury (“Treasury”) issued final regulations detailing what information must be reported to FinCEN. Generally, reporting companies must provide information on the reporting company itself, its “beneficial owners” and its “company applicants”, with the company applicant reporting only relevant for entities formed on or after January 1, 2024.
Reporting Company: Each reporting company must provide the company’s legal name, trade name or “doing business as” name, current address, the company’s jurisdiction of formation or, for a foreign reporting company, the state, territory or tribal jurisdiction where it first registers and the company’s EIN. Foreign reporting companies must provide a foreign tax identification number if they do not have an EIN.
Beneficial Ownership Information (“BOI”): Reporting companies must identify each of their “beneficial owners.” A “beneficial owner” is any individual who, directly or indirectly, exercises “substantial control” over the reporting company or who “owns” or “controls” at least 25% of the “ownership interests” in a reporting company. Ownership interests include equity, stock, or voting rights, capital or profit interests, convertible instruments, options, and any other instrument, contract, or other mechanism used to establish ownership. The regulations provide guidance for “substantial control” and “owns or controls.” For example, an individual has substantial control if such individual exercises a certain degree of power over a reporting company, like serving as a senior officer (e.g., president, chief executive officer, chief financial officer or general counsel) for the company. This definition is broad and can include anyone who has the authority to appoint or remove certain officers or a majority of directors or who has direction or substantial influence over important matters at the reporting company, such as compensation schemes and incentive programs for senior officers. A reporting company can have multiple beneficial owners and will always have at least one person that is reportable under the “substantial control” prong of the beneficial owner tests.
Company Applicants: Up to two “company applicants” must be identified for reporting companies formed on or after January 1, 2024. The two company applicants include (1) the individual who directly files the document to create or register the reporting company, and (2) the individual who is primarily responsible for directing or controlling such filing, if more than one individual participates in the filing. For example, Individual A, who wants to create a company, prepares the necessary formation documents and directs Individual B to file the documents with the relevant state office. Individuals A and B are both company applicants—Individual B directly filed the documents, and Individual A was primarily responsible for directing or controlling the filing.
For every beneficial owner and company applicant, the report must include the individual’s full legal name, date of birth, current residential address (or business address for a company applicant if in the business of forming entities), and an “identifying number” and “image” from documents like a US passport, US driver’s license, US identification card or, if no US-issued document is available, a foreign passport.
Reporting companies may in certain instances report a “FinCEN identifier” instead of the information for an individual beneficial owner or company applicant. A FinCEN identifier is a unique identifying number that FinCEN will issue to individuals or entities upon request. A FinCEN identifier could facilitate easier reporting for reporting companies and additional privacy/protection for individuals and allow for fewer updated reports to be filed by reporting companies, which are generally required for changes in reporting company information or BOI within 30 days of the change.
EXCEPTIONS TO THE CTA REPORTING REQUIREMENTS
The CTA and the regulations provide 23 exemptions from the reporting company definition. These exemptions generally apply to highly regulated businesses, including:
Banks: Banks, as defined in the regulations, are excluded from the reporting company definition. Some other bank-type entities are also excluded, such as regulated private trust companies.
Large Operating Companies: The regulations generally define large operating companies as companies that (1) have more than 20 full-time employees in the US, (2) have an operating presence at a physical office within the US, and (3) have filed a federal income tax or information return in the US for the previous year demonstrating more than $5,000,000 in gross receipts or sales (excluding gross receipts or sales from sources outside the US). Meeting the 20 full-time employees requirement is tested on a per-entity basis, but the gross receipts or sales reported on the tax return requirement can be measured based on the reported gross receipts or sales of a consolidated group on a consolidated tax return.
Publicly Traded Companies: The regulations exempt issuers of securities registered under Section 12 of the Securities Exchange Act of 1934 and issuers of securities required to file supplementary or periodic information under Section 15(d) of the Securities Exchange Act of 1934.
Tax-Exempt Entities: Tax-exempt entities, as defined in the regulations, generally include organizations described in Internal Revenue Code (“IRC”) Section 501(c) and exempt from tax under IRC section 501(a).
PENALTIES
The CTA applies civil and criminal penalties for willfully (1) failing to report or update a reporting company’s BOI and (2) providing false or fraudulent BOI. Civil penalties include a daily $500 fine for a continuing violation, up to a maximum of $10,000. Criminal penalties include up to two years’ imprisonment. The CTA does not contain any provision for non-willful or negligence penalties.
CONCLUSION
The CTA represents a significant development in the responsibility for collecting and reporting beneficial ownership information. While this new law is intended to provide law enforcement with beneficial ownership information for the purpose of detecting, preventing and punishing terrorism, money laundering and other misconduct accomplished through business entities, it places a significant burden on small businesses. In light of the criminal and civil penalties associated with lack of compliance and the challenges and burdens facing business entities in complying with the CTA, it is in everyone’s interest to provide clarity and precision with respect to the requirements, thereby reducing the burden on reporting companies and applicants as well as increasing compliance and the value of the information reported.
At this time, no form has been issued by FinCEN, although FinCEN has said that it will begin accepting reports electronically beginning January 1, 2024 .
As businesses have become more reliant on technology, online payment fraud has become a common problem. Business email compromise (BEC)—also known as email account compromise (EAC)—is one of the most financially damaging online crimes. It exploits the fact that so many of us rely on email to conduct business—both personal and professional. In a BEC scam, criminals send an email message that appears to come from a known source making a legitimate request, like in these examples:
Many versions of these scenarios have happened to real victims. All the messages were fake and in each case, thousands—or even hundreds of thousands—of dollars were sent to criminals instead. Here are some essential steps to safeguard your transactions and sensitive information:
If you and your company follow these precautions, you will be able to minimize the possibility of becoming a victim to an online payment fraud scheme.
As COVID-19 vaccines become widely available, many employers are asking if they can require employees to get vaccinated, and what they can do if workers refuse.
The Equal Employment Opportunity Commission (EEOC) has provided guidance that addresses some workplace vaccination questions. Employers may encourage or possibly require COVID-19 vaccinations but policies must comply with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII) and other workplace laws, according to the EEOC.
For example, employees with religious objections or disabilities may need to be excused from the requirement or the employer must otherwise provide accommodations.
Disability Accommodation
If an employee refuses to get vaccinated, an employer needs to weigh the risks that the objection poses, particularly if an employer is mandating that employees receive a COVID-19 vaccine. Under the ADA, an employer can have a workplace policy that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” If a vaccination requirement screens out a worker with a disability, however, the employer must show that unvaccinated employees would pose a “direct threat” due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”
The EEOC has indicated that employers should evaluate four factors to determine whether a direct threat exists:
◾The duration of the risk.
◾The nature and severity of the potential harm.
◾The likelihood that the potential harm will occur.
◾The imminence of the potential harm.
If an employee who cannot be vaccinated poses a direct threat to the workplace, the employer must consider whether a reasonable accommodation can be made, such as allowing the employee to work remotely or take a leave of absence. According to the EEOC, “managers and supervisors responsible for communicating with employees about compliance with the employer’s vaccination requirement should know how to recognize an accommodation request from an employee with a disability and know to whom the request should be referred for consideration.
Employers and employees should work together to determine whether a reasonable accommodation can be made. In doing so, employers should evaluate:
◾The employee’s job functions.
◾Whether there is an alternative job that the employee could do that would make vaccination less critical.
◾How important it is to the employer’s operations that the employee be vaccinated.
Religious Accommodation
Title VII requires an employer to accommodate an employee’s sincerely held religious belief, practice or observance, unless it would cause an undue hardship on the business. Courts have said that an “undue hardship” is created by an accommodation that has more than a “de minimis,” or very small, cost or burden on the employer.
The definition of religion is broad and protects religious beliefs and practices that may an employer may not be familiar with or understand. Therefore, according to the EEOC, the employer “should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief”. Moreover, “If, however, an employee requests a religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice or observance, the employer would be justified in requesting additional supporting information.”
If an employee is unwilling to get vaccinated because of a disability or sincerely held religious belief, and there is no reasonable accommodation possible, an employer can exclude the employee from physically entering the workplace. However, this does not mean that an individual employee can be automatically terminated. Employers will need to determine if any other rights apply under the EEOC or other federal, state and local authorities.
Conclusion
Recently, some employers are mandating COVID-19 vaccinations before job applicants are hired. This does not address current employees but it is certainly an option for employers.
For current employees, if an employer plans to require its employees to get a COVID-19 vaccine, it should develop a written policy. For employees who refuse to be vaccinated, the employer needs to determine why.
In addition to legally protected reasons, employees may have general objections to receiving a COVID-19 vaccination that do not require a reasonable accommodation. Employers considering mandating vaccines should seriously consider the possible consequences. For example, if a significant number of employees refuse to comply, the employer will be put in the very difficult position of either adhering to the mandate and terminating all of these employees, or deviating from the mandate for certain employees, which can increase the risk of discrimination claims.
Employers may seek to encourage and incentivize employees to get vaccinated, by considering options such as:
◾Develop vaccination education campaigns.
◾Make obtaining the vaccine as easy as possible for employees.
◾Cover any costs that might be associated with getting the vaccine.
◾Provide incentives to employees who get vaccinated.
◾Provide paid time off for employees to get the vaccine and recover from any potential side effects.
The key is to communicate clearly and often with employees and help them understand the reasons for vaccinations.
At some point, most business owners will need professional legal services. Over the last few years, numerous online legal sites have emerged that provide individuals and business owners the option to act as their own lawyer. The sites offer relatively simple, straight-forward and customized questionnaires that take individuals through a series of questions, dropdowns and checkboxes. The individual fills out the questionnaires online, pays a fee, which is usually less than a lawyer would charge, and then you wait for your documents to arrive.
While lower prices are enticing, the decision to use an online legal filing service rather than an attorney in a law firm is an important one, since the consequences of improper, incomplete or inaccurate filings or agreements can be significant.
As stated above, online legal services are usually inexpensive compared to what typical law firms charge. The reason is simple. These online sites are not law firms, which is clearly stated on their disclaimers. These sites state that they are not law firms and they are not acting as your attorney. They go on to mention that their legal document service is not a substitute for the advice of an attorney and that they cannot provide legal advice and can only provide self-help services at your specific direction. Lastly, in their disclaimer they make it clear that they are not permitted to engage in the practice of law and that they are prohibited from providing any kind of advice, explanation, opinion or recommendation to a customer about possible legal rights, remedies, defenses, options, selection of forms or strategies.
The key in using online legal services is to understand what they are offering and what you will be receiving. Most of these online legal services are legitimate operations but when you hire them, you should be aware that you are not entering into a client-attorney relationship. You are also not hiring a remote law firm to advise your business and act as your legal counsel. Rather, these services are legal portals that act as a resource for people who want to prepare their own legal documents. These services provide simple generic agreements and guidance in the form of customer service, more specialty filing templates and a nicer interface. A small business owner who is highly knowledgeable about the law and confident in their ability to file legal documents may find online legal services helpful. The lower cost of services, compared to full-service law firms, and the limited guidance online services provide may well suit the needs of such an entrepreneur.
A law firm, on the other hand, will handle necessary filings for you and will provide individualized business guidance in a legal and strategic sense. Additionally, a law firm can address a particular situation or specific concerns of the parties involved. Furthermore, many legal forms found online are not maintained to address developments in the law. Thus, having a lawyer take a final look is always advisable.
Many commentators have stated that individuals and small business owners can use an online service to handle some of the upfront work and then they should engage a lawyer to handle the preparation of or perform a final review of the relevant documents.
Under Florida law, the dissolution of a corporation can occur for many reasons.
Regardless of the cause for the dissolution, Florida law sets forth the process for winding up the corporation, including the allowable actions by agents, officers and directors subsequent to the dissolution. Specifically, those individuals may not carry on any business except that appropriate to wind up and liquidate the business and its affairs. If a person enters into contracts or conducts other business in the name of a dissolved corporation, other than in connection with the winding up process, that person can be held personally liable for those contracts and business obligations.
When a corporation is administratively dissolved by the state, which happens quite often, “a director, officer, or agent . . . purporting to act on behalf of the corporation is personally liable for the debts, obligations, and liabilities . . . arising from such action and incurred subsequent to the corporation’s administrative dissolution.” Whether a corporation has been dissolved or not can be easily determined by searching the corporation name on the Florida Department of State’s website. That website will provide the status of the corporation and, if dissolved, the date of administrative dissolution. For any corporate activity commenced after that date, the person initiating that corporate activity can be held personally liable for that action if that person had actual knowledge of the dissolution status. The requirement for actual knowledge of dissolution is to protect an employee, for example, from being liable when that person would have no way of knowing that the corporation was recently dissolved. However, it is much more difficult for an officer and/or director to claim he or she had no such knowledge.
A person can be liable for actions taken on behalf of a dissolved corporation if the individual “knew or, because of their position, should have known of the dissolution.” A president, registered agent, and/or director would all be in a position where he or she should have known of the corporation’s dissolution at the time the dissolution occurred.
Under Florida law, a corporation can be reinstated if it remedies the issues and circumstances which led to its dissolution. However, reinstatement does not automatically relieve its officers and directors from any personal liability incurred by operating the business while dissolved.
Also, to impute liability on a certain officer or director for the corporate debt incurred during dissolution, that actual officer or director would have had to be the one who entered into the contract or obligation. Thus, an inactive officer or inactive director cannot be held liable for the corporate contracts made by another officer while the corporation was dissolved.
A contract or obligation entered into under the name of a dissolved corporation happens more often than one may think. For example, an officer may have neglected to file the annual report or the officer may have plans to eventually reinstate the company once he or she has time to cure its defect. Consequently, the officer continues operating the business for months while it is dissolved.
In these situations, the damaged party can bring its claim against the individual officer and/or director by naming that person as a defendant in any ensuing legal action and the remedy can be sought against any individual who is personally liable for the corporate action under these circumstances.
Assuming that the corporation intends to remain active, the best way to avoid administrative dissolution and personal liability for officers, directors or shareholders would be to make sure that the corporation selects a responsible registered agent that will remind the corporation to file its annual report.
In the event that the corporation intends to dissolve and cease its business activities, officers, directors or shareholders can either comply with Florida law as to the proper way to dissolve a company or refrain from conducting any business activities.
When we mention this term to people, the first question that they ask, is what are Advance Directives?
The term advance directives refers to treatment preferences and the designation of a surrogate decision-maker in the event that a person should become unable to make medical decisions on her or his own behalf. Advance directives are a way for you to give consent for certain situations where you might want or not want medical treatment.
They can also be used to appoint someone to make decisions for you if you cannot do so yourself. An advance directive gives you a better chance of having your wishes carried out, even if you can’t talk to the doctors about what you want.
However, advance directives can address more than simply medical decisions. Advance directives are for times you cannot speak for yourself. They can apply to situations in which you may need someone to make legal and/or business decisions on your behalf when you are not able to do so.
Advance directives generally fall into three categories: living will, power of attorney, and healthcare proxy.
Living Will
A living will is a written document that specifies what types of medical treatment are desired should the individual become incapacitated. A living will also allow you to document your wishes concerning medical treatments at the end of life. This document describes how a person wants emergency and/or end-of-life care to be managed.
Power of Attorney
Power of attorney (POA) documents allow a person to give a trusted individual the ability to make decisions on their behalf. A POA can be written to grant an agent the ability to act in very broad terms or to only take specific actions. A power of attorney can be limited or general. If a person becomes incapacitated without drawing up POA documents, their family members may have to go through the long and expensive process of seeking guardianship to be able to manage their affairs.
In addition to the various terms that are possible for a POA, there are two general areas in which powers of attorney are granted: health care and finances.
Healthcare Power of Attorney
This type of POA document gives a designated person the authority to make health care decisions on behalf of the principal. A medical POA essentially gives someone you trust the ability to oversee your medical care and ensure that your advance directives are followed. Without appointing a POA for your healthcare, your family members may not be able to access your medical information or actively participate in decision making. Medical POA is sometimes referred to as a health care proxy.
Financial Power of Attorney
This type of POA document gives a designated person the authority to make legal and/or financial decisions on behalf of the principal. When someone becomes incapacitated, whether permanently or temporarily, bills and other financial matters do not stop. Without a financial POA, bills may go unpaid, which can have serious, lasting consequences, and family members may not be able to access one’s accounts to cover health care costs.
The type and extent of the agent’s powers are entirely customizable. For example, the agent may be authorized to manage all of a principal’s finances and property or they may only be able to oversee certain investments or transactions.
Healthcare Proxy
A healthcare proxy, similar to a medical power of attorney, allows you to appoint a person you trust as your healthcare agent (or surrogate decision maker), who is authorized to make medical decisions on your behalf.
Before a medical power of attorney goes into effect, a person’s physician must conclude that they are unable to make their own medical decisions. In addition:
Even though others may be able to make health care or financial decisions for you without an advance directive, they can give you more control over those decisions and who makes them.
Graduating from high school is an exciting time in your child’s life. If you are anything like I was, you are probably busy with last-minute shopping, packing and worrying about roommates. However, as parents, we need to be aware that this also means that there will be a legal change in his or her status when they turn 18. Your child becomes an adult in the eyes of the law at age 18, even if he or she is still in high school. He or she is now of legal age to make decisions, sign contracts and documents, and determine medical treatments without your approval, or even knowledge. There are still times when you may have to act on your child’s behalf, which is why you need to know the three documents every college student needs.
The three documents your child needs to sign are:
1. Power of Attorney
2. Health Care Proxy or Surrogate
3. HIPPA Authorization
Why does your child need these documents?
You never know what the future holds. An issue may come up that requires a signature, and your child may not be able to handle the matter. Even worse, a medical situation could arise, and you may not have any rights without legal authorization. The risk is real. Accidents are the leading cause of death for young adults, and a quarter-million Americans between 18 and 25 are hospitalized with nonlethal injuries each year. However, it doesn’t take something nearly this dramatic for parents to need to act on a child’s behalf. The son of a friend of mine was studying abroad and had a scooter accident. Although the injuries were not life-threatening, the young man was under sedation and was unable to provide authorization for the hospital to speak to the parents for the first day. The only information that the hospital was willing to provide to the parents was that their son was “stable”. Having these documents in place would have provided information to the parents.
The first of the three documents is the Power Of Attorney. A power of attorney is a document that permits the child to designate a parent or parents to make legal decisions on his or her behalf, such as:
Dealing with financial institutions, signing leases or loan documents, arranging for renter’s or car insurance, speaking to a landlord, consulting with an educational institution or a health care provider.
In the medical context, a power of attorney is a legal document that names you as the parent a “medical agent” for your college student. What this means is that if your child becomes medically incapacitated in some way, you have the ability to make informed medical decisions on their behalf. This document can name you as the sole point of contact and decision-maker as you decide the best course of action with the doctors. The reality is that if you don’t have a healthcare or medical power of attorney in place, the doctors will be the ones who make the decisions about care.
What is a Health Care Proxy and why do we need that?
The second of the three documents is the health care proxy. Also called a medical or health care advance directive, this form permits the parents to make medical decisions for the child. You may think that this is not necessary because you are the legal next of kin. However, without proper authorization to do so, you may not be able to make a decision on your child’s behalf.
If your child is admitted to a hospital and unable to make his or her medical decisions, the power of attorney for medical decisions will allow you to discuss the situation with medical personnel and make urgent decisions regarding care.
What is a HIPAA form?
Have you ever tried to get an update about a loved one in the hospital over the phone when there’s a medical issue? If so, you know it can be difficult, if not impossible, to get the info you need if you’re not authorized. That’s because of the Health Insurance Portability and Accountability Act of 1996 (HIPAA).
That is why you need a HIPPA form. This document lets a patient (your college student) designate certain family members, friends and others that they want to be apprised of their medical info during treatment.
The HIPPA form becomes extremely important if your child is living away at school and is involved in an accident, because you’re not getting any information over the phone even though you’re their parent.
What is the HIPAA Form and how is it different from the Health Care Proxy?
While the HIPAA form allows for the sharing of medical information, it does not provide parents with the ability to make decisions on the child’s behalf. That is why you need the medical proxy form.
Don’t worry if your student is already on campus and you haven’t filled these out yet. Just put it on your to-do list and get it done as soon as you can.
Keep in mind that all of these forms should be updated each year, and that you’ll need one form in your state of residence and a separate one in your child’s state of residence if they’re attending an out-of-state school.
Crisis management has been defined as the process by which an organization deals with a disruptive and unexpected event that threatens to harm the company or its stakeholders. Before a crisis happens, business owners should think about how the situation will impact employees, customers and the company’s value. A crisis can happen at any time, which is why advanced planning is critical. Although there are several steps that a company can take, here are some critical steps to consider:
a. Definition of a crisis – whether in the broader sense of the term or by narrowing in and defining certain specific crisis scenarios
b. The crisis management levels that all incidents should be categorized into
c. Internal escalation protocol(s)
d. Specific impacts that you want your team to consider when determining the level of an incidentIdentify a spokesperson. By selecting one person, the company can ensure that it speaks with one voice and it delivers a clear and consistent message. The spokesperson must be trained and must be prepared to answer questions and participate in interviews.
The point of developing a crisis management plan is to think through any difficult decisions and map out, to the best of your ability, the necessary tasks, communications and information that will help make managing a crisis easier and more efficient. As a company develops its crisis management plan, it should seek advice from experts that includes your leadership team, employees, communication experts, and lawyers. Each of these individuals can add value that may prove critical should a crisis hit your company.
