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Enter the concept of "Springing."
A POA can spring from a certain event. For example, someone
could give you his power of attorney and say that it comes
into being or springs into being only when he embarks on an
International Air Plane Flight.
Or, more often, he could make it
spring from this event: "If two board-certified physicians
determine that I am incapable of taking care of my affairs and
so state in writing, this POA springs into being."
If you want the POA to be less
than a general power of attorney, you might decide to limit it
and to thus make it a "Limited Power of Attorney." If you were
moving to another city and had found a house you wanted to
buy, you might give someone your limited power of attorney to
buy the house and to sign all relevant papers while you are in
the process of moving your family and household goods.
In addition to breadth, a POA has depth. If a
power of attorney doesn't explicitly state the contrary, it is
extinguished when you become disabled. So, if you want the POA
to "endure" your disability, you can make it a "durable" power
of attorney. Most POA's written in recent times are, indeed,
Durable Powers of Attorney.
Do you need a POA if you have a
Living Revocable Trust (LRT) and have named a Standby
Trustee to take over in case of your disability? Yes. You
still need a POA because you may have ownership of items that
are not in your LRT and, hence, not under the power of the
Standby Trustee.
In addition to a POA, you need a Medical Power
of Attorney (MPOA) that tells what medical procedures you
would want done if you were not of a disposing mind. Many
states have combined the MPOA with a Living Will. Still others
call the documents related to this issue an Advanced Medical
Directive. Consult local legal counsel to see exactly which
documents you need in your state.
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Richard A. Mlynek Joins Coover & Barr, LLC
PRESS RELEASE - September, 2004
Columbia
based law firm, Coover & Barr, LLC is pleased to
announce the addition of Richard A. Mlynek, Esquire, to our
practice. Richard, formerly of Dehay & Elliston, LLP of
Baltimore, joined the firm in September, 2004. Richard began
his legal career as an associate with civil litigation and
maritime law firm of Royston, Rayzor, Vickery & Williams, LLP.
He then became the litigation co-director at the Law Offices
of John Ventura, in Brownsville, Texas, where he initiated and
developed a tort litigation practice and also worked with the
bankruptcy litigation department.
Mr. Mlynek is admitted to practice
before various courts, including both federal and state courts
in multiple states; the Maryland Court of Appeals; the U.S.
District Court for the Southern District of Texas; the U.S.
District Court for the Western District of Texas; all Courts
in the State of Texas; and all Courts in the State of
Connecticut.
Richard graduated from the
University of Connecticut with a B.S. in Finance in 1988 and
received his law degree from St. Mary’s University School of
Law in 1998. Richard worked as a Senior Claims Adjuster with
Amica Mutual Insurance Company prior to pursuing his law
career.
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Members of the Maryland Association of Legal Administrators
form group in Howard County
PRESS RELEASE - October, 2004
Columbia,
Maryland: Legal Management
professionals are a viable and much needed profession in
today’s law firms. This unique group includes professionals
who manage not just office operations, but human resources,
financial management, information technology, and often times
all of the preceding! Today’s Administrators need up to date
knowledge of the legal industry, its latest trends in practice
and future movements. That’s why Jannine Warren, Law Firm
Administrator for Coover & Barr, LLC, of Columbia,
is beginning a support system here in Howard County and
surrounding regions. The purpose of the group is to provide
camaraderie, share challenges and issues, education, resources
and discussion among fellow administrators in suburban, legal
settings. The group will not be strictly limited to firm
administrators and it is not necessary to be a current member
of the National or Maryland Association of Legal
Administrators, (although membership is encouraged and
invaluable) but is open to any professional working in a legal
environment. Monthly, brown bag luncheon meetings will begin
in October 20th at the law offices of Coover & Barr, LLC in Columbia.
To learn
more about legal administration, the unlimited resources
available to legal professionals, the personal and
professional benefits of becoming associated with this group,
please contact Ms. Warren by email at
jwarren@cooverbarr.com, by phone at 410.997.7600, or fax
410.997.7896.
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PRESS RELEASE - November, 2004
HOME SELLER NOT RESPONSIBLE FOR WATER INFILTRATION
Fred L. Coover,
Esquire, founding Member of Columbia based Coover & Barr, LLC,
ATTORNEYS AT
LAW successfully defeats lawsuit filed by Carroll County Home
Buyer alleging Seller’s fraud in Maryland Residential Property
Disclosure Statement.
COURT RULES
SELLER NOT
RESPONSIBLE FOR DAMAGES RESULTING FROM POST-CONTRACT WATER
INFILTRATION.
A Seller of a home in Carroll County elected to
complete the Maryland Residential Property Disclosure
Statement attached to the Realtor prepared Contract of Sale,
thereby disclosing to the Buyer a single incidence during the
3 ˝ year period that the Seller owned the home, when a
football sized moisture stain appeared on a finished basement
wall following a driving rain.
Prior to the sale of the home in approximately
August of 2002, central Maryland had been plagued by an
extreme drought. Shortly after settlement, the drought
subsided and the basement of the home subsequently flooded.
Attorney Fred Coover remarked:
“The
ground was baked so hard during the drought that it literally
cracked. When it started raining again, water flowed where it
had never gone before-even uphill in some situations. Water
infiltrated basements of homes that never flooded before-we
saw a drastic increase in the number of wet basement cases
after the drought went away”.
In the case successfully defended by Mr.
Coover, the new homeowners sued the Seller alleging that
because they experienced a wet basement soon after settlement,
the Seller must have had water in the basement before the
Contract was signed and defrauded them by not disclosing the
same.
According to Mr. Coover, under Maryland law,
had the Seller made no disclosures whatsoever and simply
signed the Disclaimer Statement attached to the Contract, the
new buyers would not have had legal recourse; but because the
Seller relied on the paperwork provided by a Realtor, signed a
Disclosure Statement and disclosed everything the Seller knew
about the house, the Buyer was legally able to allege that the
water problems were not fully disclosed by the Seller.
“People claim all kind of things in lawsuits-it
is what they can prove in court that counts. Justice was done
in this case-there were no prior water problems [for the
Seller] to disclose”.
Fred Coover
he
Seller’s defense was based on the premise that they had, in
fact, fully disclosed the problems of which they were aware
during their 3 ˝ year occupancy of the home. The issue before
the Court boiled down to the Seller’s credibility.
The Court found the Seller credible and found
that the Seller had no knowledge of prior water problems other
than the incident disclosed in the Contract.
Fortunately, Fred Coover’s Seller clients
prevailed in this case; however Mr. Coover warns:
“It is crucial for both Buyers and Sellers to have an attorney
review their Contract before they sign. Realtors
provide a valuable service to the parties, but those services
are not a replacement for competent legal advice. In this
market, there are virtually no circumstances when it would be
appropriate for a Seller to sign a Disclosure Statement-It’s a
Seller’s market-why take the risk, you are just buying
yourself a lawsuit later.”
“I advise all of my Seller clients-“Do Not
Sign the Disclosure Statement”-only sign the Disclaimer
Statement-that way you are making no representations or
warranties about the house. It’s not about being honest-it’s
about not getting sued for something you didn’t do or didn’t
know about.”
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Maryland's Highest Appellate
Court Holds that Insured Party Entitled To Reimbursement of
Legal Fees and other Defense Costs Paid Before Insurer Assumed
Defense of Claim
In
Sherwood Brands,
Inc. v. Hartford Accident and Indemnity Co., 347 Md. 32,
48, 698 A.2d 1078 (1997), the Maryland Court of Appeals
held that an insured entity was entitled to reimbursement of
reasonable pre-notice litigation expenses.
The Sherwood case
involved a dispute between two allied insurance carriers
(Hartford) and their insured (Sherwood) over whether Hartford
breached its duty to defend Sherwood in an action brought
against Sherwood by a competitor, and if it did breach its
duty, whether Hartford was liable for attorney fees and other
litigation costs incurred before
Sherwood gave Hartford notice of the underlying action and
demanded coverage.
The Sherwood court provides guidance
for an insured entity to determine whether it should petition
its carrier for reimbursement of attorney fees expended prior
to its carrier’s involvement in the case. In the best case
scenario, if the carrier, following a delayed notice, accepts
the defense of the insured, the test for what litigation
expenses the carrier owes is based upon the reasonableness of
the expenses. The only relevant question is whether the
carrier was prejudiced by the delayed notice. If not, the only
consideration will be if was it reasonable for the insured to
have incurred the expenses; or did the expenses materially
exceed what the carrier would probably have incurred in any
event had the notice been given earlier?
If the court determines that the carrier
was prejudiced by delayed notice, the result will usually be
no carrier liability for the legal costs incurred by the
insured. If the carrier declines to defend because, in its
view, the claim is not within the policy coverage and the
court ultimately agrees with that view, there is no obligation
to reimburse the insured for any litigation expenses. If the
court concludes that the claim was potentially within the
policy coverage and that, as a result, the carrier did breach
its duty to defend, the carrier is liable for all damages
incurred by the insured as a result of that breach.
In summary, if you are considering requesting reimbursement
of litigation expenses in a case in which your carrier has
accepted the duty to defend, the Sherwood Brands
case should provide you with the legal support you need to
assert your reimbursement claims as long as your expenses were
reasonable!
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