All Posts By

Robby Hughes

What should I do if my employer demands I sign a non-competition agreement?

By | Uncategorized | No Comments

Georgia is a right-to-work state. That means you may go to work for a new employer at any time and without notice to an existing employer. Likewise, an employer may terminate you at any time and with no reason and with no severance pay.

If you are employed and your employer approaches you about signing a non-competition agreement, you generally have very few options. If you refuse to sign the agreement, the employer can terminate you. This is not discriminatory or illegal. The non-competition agreement can be negotiated with your employer often. These agreements typically keep you from competing against your employer by restricting who you can go to work for or which customers of the current employer you can deal with after you leave your current employment. This is accomplished by one of two methods.

First, the non-competition agreement may say you cannot deal with any people with whom you dealt while employed by your current employer if you begin working for a competitor when leaving your current employment. Sometimes, the agreements attempt to restrict you from calling on people within a geographic radius of your current employer even if you never dealt with those people in your current job. Next, the agreement will attempt to place a time period on you such as one or two years after you leave your job. Finally, the agreement attempts to place a limit on the scope of your conduct after you leave your current employer. By this, I mean you are restricted from doing for the next employer what you do for your current employer. For example, consider that you are an outside sales person for ABC Company. ABC Company may restrict you from going to work with a competitor, AJAX Supply Company as an outside sales person. However, you might go to work as an in-house or an inside sales position or as a manager or some other position not outside sales.

Therefore, the things you should be looking for at a non-competition agreement are the length of time that you cannot compete with your former employer, the things you cannot do if you go to work for a competitor of your current employer and the people with whom you cannot have contact if you go to work with a competitor of your current employer. These three items can be negotiated usually. If you are planning to remain at your current employer, these contracts have little influence over your day-to-day activities. As a matter of fact, your employee may see you as a more loyal employee if you sign one of these agreements. Of course, you have given up valuable rights if you sign such an agreement, and you should try to negotiate for additional compensation or benefits.

 

Why You Should Consider Filing for A Year’s Support

By | Probate and Trusts, Uncategorized | No Comments

You should complete Ga. Probate Form No. 10.

Georgia probate forms are required when filing petitions with the probate court. Use probate form No. 10. You must be specific in requesting the property that you want the court to award you. You may ask for real estate or personal property. The law requires you to value the property you are seeking. You also must serve the petition on all persons who would be affected by the granting of the petition. This includes all creditors of the estate, beneficiaries under the will and all heirs at law. The standard for an award of year’s support, if there is an objection, is that the “award must be reasonably related to the amount needed by the surviving spouse for a period of 12 months after the decedent’s death to maintain the standard of living enjoyed prior to the death. Such award is not intended to compensate the surviving spouse for the death, support the spouse for many years to come, or provide a method for distributing the estate.” Courts view the petitions stringently.

You are limited in the amount you can seek in a petition for year’s support.

“As we have found, a claim for year’s support is not analogous to a tort claim where general damages can be awarded based on the enlightened consciences of impartial jurors. Nor is it a claim for loss of consortium where damages are not capable of exact pecuniary measure and are left to the enlightened conscience of impartial jurors.” Taylor v. Taylor, 288 Ga.App. 334, 337, 654 S.E.2d 146, 149 (2007). The court will grant a petition for year’s support as filed if there are no objections filed to the petition. The success of the filing requires that any person who files an objection be dealt with appropriately. Many times, there will not be any objections filed by creditors. If a creditor files an objection, you should contact that creditor and resolve that creditor’s claim. Your goal is to convince the creditor to withdraw its claim. If an heir or beneficiary files an objection to the petition, you should attempt to resolve the issue with the objector.

You can save on the ad valorem taxes on your real estate
If you cannot resolve the objection, there will be a hearing where you will be required to present evidence of the amount that is reasonably related to the amount needed by the surviving spouse for a period of 12 months after the decedent’s death to maintain the standard of living enjoyed prior to the death. The courts have held that the trier of fact must “take into consideration the following: (1) the support available to the person, for whom the property or money is to be set apart, from sources other than year’s support, including but not limited to the principal of any separate estate and the income and
earning capacity of that person; and (2) such other relevant criteria as the court deems equitable and proper. Holland v. Holland, 267 Ga.App. 251, 254, 599 S.E.2d 242, 245 (2004). If you have received insurance proceeds or property by way of a joint tenancy, the value of these transfers is included in the above calculation.

You must settle with all creditors and heirs.
There are several purposes in asking for an award of year’s support. The first reason to file a petition for year’s support is that it allows you to take the assets of the estate before the payment of any of the debts of the estate. This includes general creditors, but excludes the final expenses and expenses of administration and the payment of secured creditors, which come before an award of year’s support. The second reason to file a petition for year’s support is that it allows you to claim the real estate free of any ad valorem taxes in the year of the decedent’s death or the following year, whichever you choose. This can be of significant benefit if the property you wish to transfer is located in a county with high ad valorem taxes. Finally, filing a petition for year’s support allows you, and usually your children to ensure that you take full control of all of the assets of the decedent in lieu of provisions to the contrary in the will.

Renunciations are allowed under Georgia law.
This subverts the will of the testator and therefore, requires complete consent by all persons affected by the petition. If the decedent dies owning real estate as a joint tenant with right of survivorship, the survivor can renounce the property she would have taken by operation of law. You can then file for year’s support to obtain the property without the payment of ad valorem taxes during the year of the transfer. IRC § 25.2518(c)(4)(i), states that the surviving joint tenant may disclaim the one-half survivorship interest in real property held in a joint tenancy with right of survivorship within nine months of the date of the first joint tenant to die. O.C.G.A.§ 53-1-20(b), provides that “any person . . . who succeeds to property by contract or by operation of law may renounce the property in whole or in part as provided in this Code

A Jury Victory for Our Client

By | Uncategorized | No Comments

We are pleased to announce a jury victory for one of our deserving clients. In this matter, our client was involved in a rear-end collision. While he was stopped at a red light, the person behind him failed to stop in time and ran into the back of his car. Our client has suffered from severe back pains after the collision. After four months of conservative treatment, he was released to return to his normal duties. Prior to retaining our firm, our client had been offered $3,000 to resolve this matter. After we were retained, we took the matter to trial and recovered $12,000 for our client. This was another opportunity for our firm to prove to insurance companies they cannot simply trample on the rights of those injured, due to the negligence of the insured. Please call us if you were involved in a collision and the insurance company is not treating you right.

Is it time for guardianship for your mother or father?

By | Estate Planning | No Comments

There comes a time in many of our lives when we believe our parents are unable to care for themselves any longer. If you are in that situation, you should understand what you can do outside of having legal authority over your parents and what you can do if you have a court order. This article will hopefully help you understand that.

The first thing that you should do is ensure that your parents have a durable power of attorney for their financial affairs, as well as an advance healthcare directive for their medical affairs. These documents must be completed and signed by the person appointing another to make decisions. These documents must be signed while that person is legally competent. It is too late after that person lacks capacity to make decisions for themselves. Therefore, while your parents are younger and in good health and spirits, sit down with them and urge them to create these two documents. The person appointed by these two documents, generally speaking, will never need a court order for any purpose. As with all rules, there are exceptions to this generalization. If you have a durable power of attorney for your parents’ financial affairs, most businesses, banks, and institutions will accept this power in lieu of your parents actually participating in whatever business transaction you are conducting. If you have an advanced healthcare directive, medical providers will work with you to assist your parents. Hospitals will accept the advance health care directive and allow the appointed person to begin making medical decisions for their parents. However, here we are talking about how to handle the situation if your parents have failed to generate these documents.

The guardianship is a court ordered position where the court has found your parent lacks capacity to make reasonable decisions for themselves. This generally will occur when the person can no longer feed, clothe, bathe, take medications and otherwise generally care for themselves. There is no absolute standard for guardianship. It is left to the discretion of the judge after hearing testimony from interested people, including the person over whom the guardianship is proposed. You should consider seeking a guardianship for your parent whenever they begin making irrational decisions or when the medical providers tell you they can no longer accept your directions for your parent. With the new HIPPA laws, doctors and hospitals are prohibited from sharing a person’s medical records with anyone. Unfortunately, this covers the situation of children taking care of their elder parents. You will probably notice your parents need for a guardianship first as it relates to their financial affairs. They will begin either giving their money away (or hoarding their assets) through irrational decisions. Each is a common characteristic of a person who is losing their capacity to manage their affairs. Guardianship hearings in the probate are very emotional hearings. Rarely does the person over whom the guardianship is proposed want the guardianship imposed on them.

One condition for which a guardianship will not be granted is when a person quits taking his medication. In some instances, people have been diagnosed with mental illnesses and prescribed medications to control that illness. So long as that person takes the medication, they are generally, fine, but when the person stops taking this medication, they become irrational or uncontrollable. The court, generally speaking, cannot impose a guardianship over that person because while on medication, they are perfectly safe to be alone and are capable of caring for themselves. Furthermore a guardianship does not give the guardian the power to make the ailing person take medications. There are no laws on the books that can be used to force a person to take drugs they do not wish to take. Therefore, you cannot use a guardianship as a means to enforce some type of medicine therapy. The court is taking the individual’s rights away as it relates to that person’s ability to make decisions about money, living arrangements, doctors, and generally any other normal day-to-day decisions that most of us take for granted. Because of the seriousness of this order, many safeguards are in place to ensure that the person who’s rights are going to be affected has representation at the trial as well as, in many cases, another person appointed to generally investigate the condition of the person. These trials might take an hour or many days depending upon the issues to be decided and the evidence to be heard. Guardianships generally are quite expensive.

Included with the general topic of guardianship is also a conservatorship. Conservatorship are simply guardianships over a person’s property whereas a guardianship is control over the person himself. The two positions are usually asked for in the same decision and evidence as to both positions are heard in the same trial. The standard used to determine whether a guardian is needed or whether a conservator is needed is slightly different and therefore there are instances where one may be granted a conservatorship but not a guardianship, or the other way around. In most cases, both positions are either granted or denied. Any adult relative can file for guardianship with the preference being the spouse of the ailing individual and if there is no spouse, then adult children of that parent. If none of the children are willing to seek guardianship over their parents, then, any other interested person may apply and in some case, even the State will apply to take control over the parents. This is the last resort and hopefully not one that anyone is subjected to.

If you have need help with the guardianship or conservatorship, feel free to call our office to speak to one of our attorneys. One condition for which a guardianship will not be granted, is over a person who is supposed to be taking medication that affects their mental status. In some instances, people have been diagnosed with mental illnesses and prescribed medications to control that illness. So long as that person takes the medication, they are generally, fine, but when the person stops taking this medication, they would become irrational or uncontrollable. The court, generally speaking, cannot impose a guardianship over that person because while on medication, they are perfectly safe to be alone and are capable of caring for themselves. Furthermore a guardianship does not give the guardian the power to make the ailing person take medications. There are no laws on the books that can be used to force a person to take drugs they do not wish to take. Therefore, you cannot use a guardianship as a means to enforce some type of medicine therapy.

IS THE STATE HOLDING PROPERTY THAT BELONGS TO YOU?

By | Uncategorized | No Comments

Have you checked to see if your state has property belonging to you? If not, do so at least annually. The State of Georgia, and all states, have an unclaimed property department. Unclaimed property is given to the state for holding when a company or person has property that belongs to another, but cannot locate that person to give her the property.

This often occurs when you own stock in a company, or have a deposit at a bank, and merely forget about it. You move on in life, move to a new address, and the person holding your property can no longer find you. That company is under no obligation to spend its funds searching for you. When this occurs, companies can give your property to the state with the identifying information it has about you.

The State of Georgia holds unclaimed property for 5 years. If, after 5 years, you have not claimed the property, it then belongs to the state (escheats to the state). To find out whether you have any property being held by Georgia or any state where you once lived, go to https://www.unclaimed.org/ . This website is The National Association of Unclaimed Property Administration. Once on the website, you can choose from the 50 states to contact that state directly. You then search using your name in each state where you maintained an address in the past five years. Because many people share your name, you will then be requested to enter additional identifying information so the system can determine whether this property belongs to you or another person with your same name. Once you have confirmed with the state you are the owner of this property, the state will turn the property over to you.

Everyone should check the unclaimed property website annually for any state in which you have lived within the past five years.

Another Victory in Georgia Probate Court

By | Uncategorized | No Comments

We are pleased to announce another successful outcome in a Georgia Probate Court for a very deserving client. Here, we believed our client was included in his grandmother’s Will after his father had passed away. Our client’s aunts and uncles believed that the grandmother deliberately omitted him from her Will. Despite our vigorous efforts to convince the opposing counsel that the Will included our client, we had to file numerous pleadings with the Probate Court asking that the Court interpret the Will. After months of legal wrangling, we secured a complete victory for our client. The Probate Court found that the grandmother included our client in her Will, and that he is entitled to his father’s share of the estate.

Once again, we have been able to defend the rights of one who otherwise would have been taken advantage of by his relatives. If you believe that you are being mistreated or taken advantage of in an estate dispute, please contact the lawyers at Robert W. Hughes & Associates and we will be happy to review your situation and give you an assessment. You may be entitled to more than you think.

 

Vote NO to the Constitutional Amendment No. 1 this year

By | Uncategorized | No Comments

If you are for keeping your local school board in charge of local schools, vote no to the Constitutional Amendment No. 1 this year.

The Georgia Legislature determined that many of our schools throughout the state are failing. Shocking that they have awakened to this decade’s old problem! The Legislature’s solution for those failing schools is to terminate county authority for the schools and let the State run the schools.  This is a sad excuse not to approve charter schools which have proven to succeed where the previous school failed.  This is akin to the federal government deciding it knows better than our state on how to handle education.  Since the federal government became involved in our local education, schools have become more like daycare centers than the true learning centers they should be.  The local administrators have been handcuffed by the federal government in how to teach and how to discipline.  The State of Georgia is attempting to do the same here.  Local citizens recognize if one of their schools is failing and can take action by voting in new board members, demanding the firing of school superintendents, etc.

Whenever the State takes over a local school, the local citizens are relinquishing control to the State of Georgia over how the local school is run, what it teaches and how it disciplines its students. VOTE NO to Constitutional Amendment 1 on this year’s ballot.

Vote NO to Amendment THREE This November

By | Case News, Civil Litigation, Probate and Trusts, Uncategorized | No Comments

VOTE NO TO Constitutional Amendment THREE

The Georgia General Assembly, apparently upset that one of its members had been removed as a judge by the Judicial Qualifications Commission (JQC), has decided that the JQC is corrupt and does not properly discipline the judges in this State. The Legislature’s solution for the problem they described is to allow the legislature to choose the members of the JQC. This allows politics to become the primary driving force behind the JQC.

As it is established, the JQC is a model that many other states have copied. It has successfully removed many judges through the years. It has punished many more for conduct it found improper. The current JQC comprises seven members, two sitting judges, selected by the Georgia Supreme Court, three lawyers who have been working for at least 10 years and who are elected by the State Bar of Georgia Board of Governors, and two citizens, neither of whom shall be members of the bar and who are appointed by the Governor.

Lawyers expect judges to maintain the integrity of the bench. It is the cornerstone of all justice.  I expect it when I appear in Court.  All other attorneys expect the same. All trial lawyers expect that judges will comply with all rules of behavior. It is the only way we have an orderly judiciary and judicial system.  It guarantees that people appearing in court receive a just and proper hearing. All lawyers ask that the scales be balanced as their clients appear in court: nothing more and nothing less.

The JQC must remain free of political influence. Only if politics stays out of the business of disciplining judges will judges remain free to deliver decisions based only on the laws of the State of Georgia. I urge you to vote no to Amendment 3 on the November ballot.