Panel Discussion on Understanding Long Term Care Needs to be held April 20

Gene Richards_8x10@300On Thursday, April 20th Norman E. Richards (Gene), a partner in our Livonia office, will join other elder law experts to present a panel discussion on Understanding Long Term Care Needs.  The seminar will be held at Waltonwood Cherry Hill in Canton and is open to the public.  For more information, please click here.

Norman E. Richards (Gene) focuses his practice on estate planning and elder law.  He assists clients with the development of customized estate plans to address their specific needs, including family owned businesses, senior adults concerned about long term care needs, and special needs trusts for children with special needs.  He may be reached at (734) 261-2400 or nrichards@cmda-law.com.

Autonomous Vehicles: Coming to a Condominium or HOA Near You!

autonomous-vehicle-1200-x-796An autonomous vehicle, also known as a driverless car, self-driving car, or robotic car is a vehicle that senses its environment and operates without human input. On December 9, 2016, Governor Rick Snyder signed 2016 PA 332 into law and amended the Michigan Motor Vehicle Code to make Michigan the first state that allows for autonomous vehicles to be operated on a public street or highway. Michigan Senate Bill 995 amended MCL 257.2b(2) and now defines an automated motor vehicle as follows under Michigan law:

(2) “Automated motor vehicle” means a motor vehicle on which an automated driving system has been installed, either by a manufacturer of automated driving systems or an upfitter that enables the motor vehicle to be operated without any control or monitoring by a human operator. Automated motor vehicle does not include a motor vehicle enabled with 1 or more active safety systems or operator assistance systems, including, but not limited to, a system to provide electronic blind spot assistance, crash avoidance, emergency braking, parking assistance, adaptive cruise control, lane-keeping assistance, lane departure warning, or traffic jam and queuing assistance, unless 1 or more of these technologies alone or in combination with other systems enable the vehicle on which any active safety systems or operator assistance systems are installed to operate without any control or monitoring by an operator.

Similarly, on March 20, 2017, Senator Gary Peters announced that he was working on federal legislation to regulate autonomous vehicles, which are anticipated to become ubiquitous in the not so distant future, as many automakers have announced plans to introduce driverless cars to the market. By way of example, the Audi A8, which will be released later this year, will feature driverless technology. Ford intends to have a driverless car on the market no later than 2021. General Motors anticipates having an autonomous vehicle by 2020 or sooner as well. It is estimated that there will be ten (10) million self-driving automobiles on roadways by 2020 (referring to vehicles with features allowing them to accelerate, brake, and steer with limited or no driver input, categorized as fully or semi-autonomous). Accordingly, condominium and homeowner associations will have to deal with the benefits and detriments associated with autonomous vehicles in the near future and should be proactive about dealing with this technological advancement. The purpose of this article is to discuss the issues that autonomous vehicles may pose for condominium and homeowner associations in the next few years.

Can condominium associations and homeowners associations preclude co-owners from using autonomous vehicles on private roads?

MCL 257.74 of the Michigan Vehicle Code defines a street or highway that is subject to the Michigan Vehicle Code as follows: ” ‘Street or highway’ means the entire width between boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel.” Accordingly, a road that is privately maintained by a condominium association or homeowners association is not required to allow autonomous vehicle traffic. However, community associations that desire to exclude autonomous vehicle traffic on private roads would need to amend the condominium bylaws or declaration of restrictions to prohibit the use of autonomous vehicles, as most governing documents would permit the use of any type of vehicle on private roads. Accordingly, condominium and homeowner associations should review their governing documents to determine whether autonomous vehicles would be allowed on private roads, as the drafters or the documents likely did not contemplate the existence of such technology.

Should condominium associations or homeowners associations preclude co-owners from using autonomous vehicles on private roads?

Proponents of autonomous vehicles claim that they are safer and reduce human error that may cause accidents. Unlike a human driver, an autonomous vehicle would not drink and drive, text and drive or fall asleep at the wheel. Additionally, elderly co-owners that are not physically capable of driving would have increased mobility. Accordingly, there are many potential benefits to autonomous vehicles.

However, autonomous vehicles are not fool proof. One of the biggest concerns about autonomous vehicles is that ability of the vehicle to make moral choices. If a child kicked a ball into the street, would the vehicle decide to crash the car into a tree or run into the child if it was unable to stop? Moreover, an autonomous vehicle could have a software error or it is possible that the owner of an autonomous vehicle could attempt to modify the operating system in a manner that could cause it to malfunction. In fact, Michigan Senate Bill 998 amended MCL 600.2949b and specifically exempted a manufacturer and subcomponent system producer from civil liability if any of the equipment used in the vehicle for automatic mode had been modified. Accordingly, given that autonomous vehicles are a developing technology, it would be reasonable for a condominium or homeowner association to preclude use of autonomous vehicles until this technology is more fully developed.

For community associations that desire to allow autonomous vehicles, associations should take proper precautionary measures. First, associations should require that owners of autonomous maintain adequate insurance. In Michigan, the minimum required insurance policy only covers $20,000 for injuries or death to an individual, up to $40,000 per accident if multiple parties are injured and up to $10,000 in property damage. Accordingly, given the unknown risks involved with autonomous vehicles, community associations that allow autonomous vehicle traffic may want to amend their bylaws or create rules that requiring higher insurance coverage in the event that damage to person or property occurs on common elements and also require co-owners to provide proof of insurance. Second, while not currently required, the association may also want to mandate regular safety inspections as a condition of autonomous vehicle use. Finally, associations should review their current bylaws to ensure that appropriate indemnification provisions are in place in the event that a co-owner’s autonomous vehicles causes damage to the common elements.

What impact will autonomous vehicles have on parking in community associations?

One of the touted benefits of autonomous vehicles is that it will reduce the need for parking in urban areas, where parking is often a premium. In short, co-owners will no longer need to be within walking distance of a car if the car is capable of parking itself and later picking up the co-owner. It is estimated that the need for parking space should decline more than 5.7 billion square meters as a result of driverless cars by 2035. Experts speculate that individual car ownership will eventually become a thing of the past, and that individuals will purchase a subscription service or buy into a “cardominium” where an autonomous vehicle, that no longer needs to be parked on-site, will arrive and take an individual to their desired destination.

For condominiums that are located in densely populated urban areas, on-site parking spaces are currently sold between co-owners at premium rates. In most cases, on-site parking spaces are limited common elements that are associated with an individual unit. The Michigan Condominium Act, specifically MCL 559.139, allows for limited common element parking spaces to be transferred as follows:

(1) Assignments and reassignments of limited common elements shall be reflected by the original master deed or an amendment to the master deed. A limited common element shall not be assigned or reassigned except in accordance with this act and the condominium documents.

(2) Unless expressly prohibited by the condominium documents, a limited common element may be reassigned upon written application of the co-owners concerned to the principal officer of the association of co-owners or to other persons as the condominium documents may specify. The officer or persons to whom the application is duly made shall promptly prepare and execute an amendment to the master deed reassigning all rights and obligations with respect to the limited common element involved. The amendment shall be delivered to the co-owners of the condominium units concerned upon payment by them of all reasonable costs for the preparation and recording of the amendment to the master deed.

(3) A common element not previously assigned as a limited common element shall be so assigned only in pursuance of the provisions of the condominium documents and of this act. The amendment to the master deed making the assignment shall be prepared and executed by the principal officer of the association of co-owners or by other persons as the condominium documents specify.

While autonomous vehicles will likely decrease the value of on-site limited common element parking spaces, autonomous vehicles may also help solve parking problems for condominium associations that do not have sufficient parking. By way of example, MCL 559.136 allows for common elements to be added to a condominium as follows:

The master deed may provide that undivided interests in land may be added to the condominium project as common elements in which land the co-owners may be tenants in common, joint tenants, or life tenants with other persons. A condominium unit shall not be situated on the lands. The master deed, or any amendment to master deed under which the land is submitted to the condominium project shall include a legal description thereof and shall describe the nature of the co-owners’ estate therein.

Accordingly, if a condominium association that had insufficient parking desired to purchase a vacant lot that was 10 miles away and add the land to the condominium as general common elements, or add limited common element parking spaces on the land, it may be able to do so in order to alleviate a parking problem. Accordingly, autonomous vehicles may revolutionize the manner in which condominium associations think about parking.

Conclusion

The technological advancements in autonomous vehicles will likely create new issues related to liability, insurance and parking for condominium and homeowner associations to consider. As with any new technology, the law is typically slow to evolve and the regulation of autonomous vehicles in community associations will largely be dependent on the governing documents. Given that an ounce of prevention is worth a pound of cure, condominium and homeowner associations should be proactive in amending their governing documents and making decisions about whether to allow autonomous vehicles and what conditions to impose on autonomous vehicle use before problems arise in the next couple of years. Additionally, community associations that have parking issues may want to consider the possibility of acquiring additional land or planning to re-develop unused parking spaces in the future.

Kevin Hirzel is a Partner at Cummings, McClorey, Davis & Acho, P.L.C. and leads the Community Association Practice Group. Mr. Hirzel can be contacted at (734) 261-2400 or khirzel@cmda-law.com. Please view The Michigan Community Association Law Blog at http://micondolaw.com for additional resources on Michigan Community Association Law.

Estate Planning for Older Adults

Gene Richards_8x10@300Advocacy is an important need of older adults as they strive to preserve their independence and protect their interests.  For example, strong advocacy is needed to: protect life savings, deal with incapacity, find quality long-term care (whether at home, in assisted living or a nursing home), and qualify for government benefits to pay for long-term care (such as Medicaid and VA benefits). Elder Law attorneys use specialized legal tools and strategies to augment the “advocacy power” of older adults facing these situations.

Older adults require specialized estate planning. Classic estate planning focuses on avoiding probate, protecting assets from creditors, reducing taxes, and distributing inheritances.   Older adults today, however, have the added concerns of financial security in post-retirement years, preserving independence and dignity, and having enough money to pay for good quality care.  CMDA’s elder law attorneys help older adults balance all these concerns through comprehensive, holistic planning and precisely tailored estate plan documents.

As people age, their estate plan documents may not be aging with them. Young and middle-aged clients typically engage in planning before there is any hint of a chronic illness or threat to mobility or capacity. Many make the mistake of thinking their legal documents will suffice for every situation. The reality is that legal and estate plan documents need to be tailored to the specific needs of the present season of life. A 75 year-old person with grown children may be less concerned about their children’s inheritances than they are about the implications of a diagnosis of Parkinson’s or dementia.  As people age and transition through the different seasons and circumstances of life, they should make sure that their plans are transitioning with them.

How can older adults make sure they have the right plan and estate documents in place?  

  • Plan as early as possible. Too often, older adults wait until a crisis hits before asking an attorney for help. Usually the crisis triggers with symptoms of dementia, onset of a chronic illness or admission to a hospital/rehab unit. At that point, some planning opportunities may no longer be available. Thorough pre-planning can preserve options and reduce complications when a crisis hits a family. An attorney should be contacted as soon as there is a hint of a health problem with long-term implications.
  • Update existing estate plan documents. As a rule of thumb, estate plans should be reviewed at least every five years to account for changes in life, assets, and laws.  Older documents may not include important powers needed by older adults for creative problem solving such as allowing transfers of assets between spouses, authority over retirement plans, and the ability to take steps to qualify for Medicaid, VA, and other government benefits.  If important powers are missing, responsible family members may not have authority to make significant decisions or be able to take advantage of legal strategies that could save assets.
  • Carefully select caregivers and money managers. A plan is only as good as the persons authorized to execute it. Older adults should carefully select the persons who will act on their behalf, especially when facing the increased likelihood of incapacity. A spouse or the oldest child is not always the best choice. It is important to carefully distinguish between persons who will make good health care decisions and those who will make sound financial decisions. If necessary, two or more persons can serve at the same time. Accountability can be built into documents to reduce the risk of inappropriate decisions and attempt to prevent family squabbles.
  • Position for government benefits, if available. Long-term care is extremely expensive, with nursing homes costs averaging between $85,000 and $100,000 per year. Long-term care costs are usually not covered by Medicare or health insurance, and many older adults do not have the personal resources to privately pay for the care they will need.  Public assistance may be available through Medicaid and the VA to help pay for care, but these programs have strict financial and legal requirements. CMDA elder law attorneys routinely guide clients through the confusing legal maze and help them steer clear of mistakes that can jeopardize eligibility for benefits. With advance planning and the help of knowledgeable attorneys, many older adults can position themselves to qualify for the maximum government benefits available to supplement their personal funds, and protect spouses or disabled children from impoverishment.
  • Avoid costly mistakes. When faced with a health crisis and the threat of costly care, older adults and their families often make knee-jerk decisions that hurt them financially. Examples of potentially costly mistakes include: giving money/property away; adding children’s names to accounts or deeds; selling assets; buying inappropriate financial products; and acting without legal advice. These and other mistakes can result in unnecessary loss of assets and ineligibility for Medicaid and VA benefits.
  • Recognize special planning situations. Some situations require navigating multiple solutions and the attendant, complex legal issues.  An older adult facing any one, or combination of, the following scenarios will benefit greatly from the knowledge and guidance of the elder law team at CMDA:   1.  Married couples where only one spouse needs skilled or nursing home care. 2.  Older adults with fading mental capacity. 3.  Older adults without surviving or dependable family members to oversee their care or manage their assets. 4. Older adults with real estate or business interest with limited cash available to pay for assisted living or nursing home care.
  • Build a team of professionals.  The best plans are built from the combined knowledge of an experienced team.  The team may include select family members, attorneys, physicians, care coordinators, and financial advisors. When surrounded by a team, an older adult can face the future with assurance that their needs will be met and decisions will be made in their best interest.

Today’s world presents many threats to the well-being and financial security of older adults.  In order to overcome these challenges it is essential to have up-to-date estate plan documents that are tailored to specific, present needs. The elder law attorneys at CMDA skillfully and compassionately provide older adults and their families with the right plan for the right time.

Norman E. Richards (Gene) is a partner in our Livonia office where he focuses his practice on elder law and estate planning. Drawing on 20 years of experience, his mission is to help clients safely navigate life’s transitions through the skillful, practical, and compassionate application of comprehensive elder law and estate planning services.

As an elder law attorney, Gene guides senior clients in planning for their future care needs. This includes maximizing financial resources to pay for the cost of long-term care. As an estate planning attorney, Gene develops customized legal documents for each client’s unique needs, such as wills, trusts, and power of attorneys; disability and special needs trusts; estate plans for blended families; and business succession plans. 

He may be reached at (734) 261-2400 or nrichards@cmda-law.com.

Grant Obtains Dismissals on behalf of Judge and Prosecutor

Greg Grant 2013colorGreg Grant, an attorney in our Traverse City office, recently obtained dismissals on behalf of a Northern Michigan judge and prosecutor in two separate civil rights cases. In both cases, the courts awarded his clients all of their attorney fees and costs. Mr. Grant aggressively defends judges, attorneys, and municipalities as a regular part of his practice.

Greg Grant focuses his practice on municipal law, employment and labor law, insurance defense, and litigation.  He has extensive litigation experience in the areas of employment and labor law, police liability, first amendment law, due process, Open Meetings Act and Freedom of Information Act, and has earned dismissals in each of these areas.  Additionally, he frequently provides educational and training seminars on municipal topics to clients. 

He may be reached at (231) 922-1888 or ggrant@cmda-law.com.

Sixth Circuit Reinforces the Importance of Protecting the Identities of Confidential Informants

Matt CrossIn Nelson v. City of Madison Heights, et al., while conducting a narcotics investigation at a motel police walked by the room of Shelly Hilliard (“Hilliard”) and spotted a bag of marijuana through the window. After obtaining her consent to enter the room, police found the bag of marijuana. In order to avoid arrest, Hilliard offered to call her drug dealer and order drugs from him. Hilliard signed a confidential informant form in which the sheriff’s department promised to use all reasonable means to protect her identity.

Police intercepted the drug dealer on his way to the motel. While questioning the passenger in the drug dealer’s vehicle, police revealed Hilliard as the source of their information. The passenger conveyed this information to the drug dealer. The police warned Hilliard the drug dealer knew she had set them up and he appeared angry about it. Soon thereafter, the drug dealer and an accomplice abducted and murdered Hilliard.

Hilliard’s mother (“Nelson”) filed a section 1983 claim against the police departments for which Hilliard served as a confidential informant. The defendant officer that revealed Hilliard’s identity moved for summary judgment based on qualified immunity and the district court denied the motion.

On appeal, the Sixth Circuit noted that government officials performing discretionary functions are afforded qualified immunity as long as their conduct does not violate clearly established constitutional rights. Hilliard’s interest in preserving her life is one such right.

Although the state has no duty to protect citizens from private acts of violence, it cannot cause or increase the risk of harm to citizens through its own affirmative acts without due process. Nelson claimed defendants were responsible for her daughter’s death under the “state created danger” theory. In order to establish liability under this theory, Nelson had to show:

(1)    An affirmative act by defendants that created or increased the risk Hilliard would be exposed to an act of violence by a third party;
(2)    Defendants’ action placed Hilliard in a special danger, as distinguished from a risk that affects the public at large; and
(3)    Defendants knew or should have known its actions specifically endangered Hilliard.

The defendant officer argued that he did not create or increase Hilliard’s risk of violence because she volunteered to be a confidential informant, citing Summar v. Bennett, 157 F.3d 1054, 1056 (6th Cir. 1998). In Summar, the informant was made aware that he would eventually have to testify and reveal his identity. An officer provided the prosecutor with the confidential informant’s name so it could be included in a pleading. The defendant became aware of the pleading and had the informant murdered.

The Sixth Circuit found the facts in Nelson distinguishable from Summar because the officer in Nelson never told Hilliard she would have to testify and reveal her identity. Further, the officer directly disclosed Hilliard’s identity to the person from whom he was supposed to protect Hilliard.

The defendant officer also argued Nelson could not prove he was deliberately indifferent to the risk of disclosing Hilliard’s identity because his decision to do so was a “split second decision that did not involve reflection.” However, the Court held that this was a question of fact for the jury and viewing the evidence in the light most favorable to Nelson a reasonable jury could find the officer acted with deliberate indifference and violated Hilliard’s constitutional rights under the state created danger theory.

TAKEAWAY:

Confidential informants are an invaluable investigative tool and it is important for law enforcement personnel to be aware of the risks involved in using confidential informants. Law enforcement personnel should do all in their power to ensure the safety of confidential informants. The Court in Nelson highlighted the importance of making sure informants are fully informed of the extent to which they are expected to cooperate. In Nelson, the Court made much of the fact that the officer did not tell Hilliard she would need to testify and reveal her identity. As a result, the officer’s decision to reveal her identity increased her risk of harm. Tell informants they may be required to testify and reveal their identity even if their testimony is not ultimately necessary. Failure to do so may result in civil liability for the injury or death of an informant.

Matt Cross is an attorney in our Traverse City office where he focuses his practice on business law, insurance defense, law enforcement defense and litigation, and municipal law. He may be reached at (231) 922-1888 or mcross@cmda-law.com.