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For South Carolina business and legal updates:

Protect Your Loved Ones from Elder Financial Abuse

It’s a fact of life: as we get older, our powers of discernment diminish and our judgment of others – particularly their trustworthiness – often makes us vulnerable. Sadly, there’s a legal component to outliving our good judgment.

Elder financial abuse takes many forms, and the common denominator is theft. Sometimes a family member is involved. Sometimes it may be a caregiver who is a constant companion or someone met at church who seemingly just wants to help an older person manage his or her affairs. Families may seek legal help in regaining control over a loved one’s personal affairs or recovering squandered funds. Banks and others caught in the middle may seek legal help when they are unsure if granting a request for a joint account or other shared authority over finances is in the best interests of an older person. Lawyers called in on these types of cases often find that it is difficult to recover misappropriated assets, so if you suspect something is awry in an elderly person’s life you should seek legal counsel as soon as possible. 

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Business Visas Help Companies Fill Critical Positions

Immigration is much in the news these days as the presidential candidates discuss border security, terrorism and preserving jobs for U.S. citizens. These public policy issues deserve a thorough vetting of candidates, but they shouldn’t be confused with the legal business visa process that thousands of American businesses depend upon.

Unfortunately, our schools are not producing a sufficient number of graduates in some professional fields, and American businesses have to bring in foreign nationals to fill critical positions. There is a common misconception that these businesses are hiring cheap labor that displaces U.S. citizens, but that’s wildly inaccurate. American businesses are incurring substantial expense to bring in foreign workers with specialized skills, and they would gladly hire U.S. citizens but for the dearth of domestic talent in some professional areas. 

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Avoid These Legal Snares in 2016

We always like to look ahead and advise our business clients about legal issues that may receive more attention throughout the year. Some are pushed to the forefront by public policy and politics – immigration, for example. Other issues, such as data protection and workplace harassment training, always are important, but the beginning of the year is a good time to review whether your business follows best practices.

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Take the Extra Step in Product Warnings to Protect Your Company from Liability

For years, the assumption in South Carolina law has been that a manufacturer doesn’t have to warn about something that is obviously dangerous, such as a power saw. Do you really need to tell users to keep their hands away from spinning blades? The more challenging concept is: how do you effectively warn about a product that is beneficial when used properly, but that may have dangerous or unintended outcomes if used improperly?

A basic principle of product liability warnings is the concept of the “sophisticated user.” A professional carpenter who uses power tools in his job should be aware of the inherent dangers of a powerful, spinning cutting blade. In comparison, a skilled worker may – or may not -- be expected to appreciate the dangerous qualities of flammable or toxic substances that sometimes are integral components of the job site or the task at hand.  

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Loan Servicers Must Continue to Follow Both Federal and State Rules in Foreclosures

Banks have now had two years of experience with the Dodd-Frank Act and the Consumer Financial Protection Bureau (CFPB), the agency that implements the parts of the law that apply to mortgage servicers.

The foreclosure crisis and accompanying recession are in the rearview mirror, but the stringent consumer protection rules attached to the law continue to set tight boundaries for how banks handle loss mitigation. Dodd-Frank was a response to a period when many mortgage servicers were unresponsive to consumers as a result of being overwhelmed by the volume of defaults. As a result, the law severely tightened protections for borrowers, requiring mortgage loan servicers to follow strict procedures and documentation in loss mitigation.

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Creditors’ Rights Trump Ownership Restrictions in LLC Operating Agreements

A recent South Carolina Supreme Court decision affirms the supremacy of creditors’ foreclosure rights, and sounds a cautionary note for LLCs. The state’s high court said that LLCs can’t use an operating agreement to force a creditor to sell a distributional interest it obtained via judicial foreclosure. 

The ruling came in Levy v. Carolinian, LLC, a case involving an LLC that owns an oceanfront hotel. One of the members, who owned about a quarter of the LLC, found himself on the wrong end of a judgment for $2.5 million. Creditors obtained a charging order – essentially a lien – against their debtor’s distributional interest in the LLC. The creditors then foreclosed on its charging lien and purchased the member’s distributional interest at public auction. 

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Your Right to be Free of Your Neighbor’s Water

Almost any change that people make to the natural landscape can alter the flow of surface water, and that often creates problems that grow into legal disputes. It’s an area where property rights, nature and engineering intersect in unpredictable ways.

A new subdivision, parking lot, expansion of a building or even change in the use of rural land can result in water washing out a neighbor’s lawn, flooding homes, attracting mosquitos in standing pools, depositing silt on a golf course, polluting a backyard pond or rendering crop land less profitable. While we typically see these problems emerge in urban developments, disputes can arise anywhere water flows. 

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Precise Communication is the Antidote to Accounting Malpractice Claims

In my experience as both an attorney and a formerly licensed CPA, true accounting malpractice is rare. But, when there are claims, they can be expensive. It’s incumbent on accountants, as well as clients, to take steps to minimize the misunderstandings that can lead to litigation. 

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