You are probably familiar with the phrase “living will” as referring to a document setting out the nature of medical care you would like to receive if you become sick or injured to the extent you are unable to provide such direction. When you cannot speak for yourself, health care providers will work to preserve life. This may include administering resuscitation or using respirators, feeding tubes, IVs, pain medication, antibiotics, etc. A health care provider may do this even if you are only being kept alive by the use of medical equipment, perhaps no longer recognizing family or being able to communicate.
You may prefer not to be kept alive under such conditions. The living will document was designed to enable you to give direction to health care providers to discontinue use of medical equipment or other care, including a “do-not-resuscitate” order, when certain conditions are met. In addition, you may appoint an agent to make health care-related decisions for you when you cannot make decisions for yourself (sometimes called a health care power of attorney). Such an agent can, on your behalf if you are incapacitated, make decisions about medical care, consult with physicians about prognosis and diagnosis, and make other decisions about discharge from the hospital or admittance into a long-term care facility.
Over the years, some health care providers have, on occasion, challenged the right of an agent to act on a person’s behalf in directing medical care. Because of the cost, the agent would not fight the provider. Therefore, the person’s health care directive would be ignored. The Utah legislature determined that this should not be so, and it passed laws that require health providers to abide by the directive of a person if that person uses a particular form developed by the legislature. This form, called a “medical directive,” requires health care providers to pay the attorney’s fees and costs of the agent who fights to enforce the medical directive. This is a strong incentive for health care providers to abide by the terms and conditions of the medical directive.
The key part of a medical directive is to set forth your desire that you do not want to prolong life in certain situations where you are being kept alive by medical equipment. The medical directive has several options that allow you to be quite specific about when you want medical treatment to be withheld. However, no matter what is stated in the medical directive, it is only effective when you are unable to express yourself competently. As long as you are able to give direction to health care providers, whatever you want to have done takes control over the medical directive.
This article is not intended to be legal advice. Receipt of this information does not create an attorney-client relationship.
The Farmers Insurance Group of Companies has released its third annual ranking of top 20 “Most Secure U.S. Places to Live.” Based on factors such as crime statistics, unemployment rates, risk of environmental hazarads, terrorism threats, natural disasters and extreme weather conditions, the rankings put St. George, Utah as number one among the top 20 safest communities to live in the small town category.
St. George topped all small cities with populations of 150,000 or fewer in the survey. The city has 110,515 residents who enjoy a mild climate, clean air and low annual precipitation. It also has the lowest crime rates of all the 379 communities surveyed. St. George stands first in employment rate among the 138 small towns in the Farmers study.
Click this link for more from the Sacramento Bee:
Tags: safe city, secure places to live, small city, St. George, Utah
Jones Waldo Holbrook & McDonough has joined forces with Faegre & Benson, a Minneapolis-based firm that has a practice in Shanghai, to provide legal services for a variety of industries doing business in or with China. Early next year, we plan to offer educational programs to help Utah’s business community navigate China matters. We also are developing a program in Shanghai that will highlight Utah companies doing business there.
Through this arrangement, Jones Waldo will offer Utah companies access to legal resources and strategic business advice regarding opportunities in China, a rapidly expanding area of the global economy. We are excited to be at the forefront of companies who see the value of thinking globally and look forward to assisting business owners who are ready to benefit from the opportunities that are waiting.
We’ll be posting items of interest concerning doing business in or with China. Let us know if there is a particular topic you’d like to know more about.
Tags: China, China office, Chinese law firm, doing business in China, Faegre & Benson, Jones Waldo China, Jones Waldo Shanghai, Shanghai, Shanghai office, Utah China business
On October 30, 2009, Judge Robert Faust reviewed the First Trustee’s Report of Timothy B. Anderson, the court-appointed Trustee for the former clients of Matthew T. Graff & Associates and entered an order providing as follows:
- The Trustee is authorized to destroy those client files for which two notification letters have been sent with no response from the file’s owner. Such files may be destroyed 30 days after the second letter is sent.
- Files that appear to have been closed, with no activity for four or more years, may be destroyed by the Trustee.
Files will be destroyed by a commercial shredding operation. We urge you to contact Sheila Berger at 435 628-1627 if you have received a notification letter from the Trustee and have not made arrangements to pick up your file.
Tags: attorney Matt Graff, destruction of files, Graff, Graff firm, Matthew T. Graff & Associates, trustee
When you enter an agreement with someone in which each of you takes on certain duties of performance, a written contract helps both parties specifically state what they are required to do to fulfill their obligations. This is a great advantage of a written contract and helps reduce ambiguities and uncertainties. However, in Utah and many other jurisdictions, in addition to those clauses or covenants expressly written in a contract, there is an implied covenant between the parties that they will act in good faith toward each other and deal fairly with each other in fulfilling their responsibilities under the contract. This implied covenant has been developed over the years as different cases have been decided by the Utah Supreme Court and Utah Court of Appeals and is known as the covenant of good faith and fair dealing.
This implied covenant of good faith and fair dealing cannot change the actual written terms of any of the clauses of a written contract, and a court cannot use it to negate or ignore a specific written term of agreement between the parties. However, many times a contract will include language which purports to give a decision to one party at its “sole discretion” or with its “complete discretion.” If the contract includes such a clause, sometimes a person may mistakenly believe that he has an unfettered right to make his decision without any regard to how it might impact the other party. In fact, some have chosen to exercise their discretion in order to create the most negative impact on the other party as possible.
Utah appellate courts have held that when a party exercises its “sole discretion,” it must do so according to specific terms and standards set forth in the contract. If there are no such specific criteria or standards as to how to exercise its discretion, the party exercising its “sole discretion” cannot decide to make a decision that harms the other party and keeps it from being able to receive its benefit under the contract. In other words, sole discretion should be viewed as sole “reasonable” discretion.
In a recent Utah Court of Appeals decision, Markham v. Bradley, 2007 UT App 379, 173 P.3d 865, the Court of Appeals determined that the sellers under a standard Real Estate Purchase Contract had breached the implied covenant of good faith and fair dealing when they improperly rejected the buyers’ financial information received as part of their seller financing agreement. In addition, the sellers had decided not to sell to the buyers even though the buyers had obtained other financing and were able to close on time. The court determined that the sellers had breached the implied covenant of good faith and fair dealing by not properly evaluating the financial documents provided by the buyers. Therefore, the sellers’ rejection of the buyers’ financial documents was not done in good faith. The court ruled that the sellers were obligated to complete the sale of the property to the buyers.
For parties entering contracts regarding leases, purchase of property, or other contracts where there are a variety of different duties and obligations for each party to perform, the parties need to remember that a court can evaluate whether the parties are treating each other fairly and, if a party tries to take advantage of the other party in a way that shows an action in bad faith where its discretion is involved, there is a good chance that a court will not look favorably on the party acting in bad faith.
This article is not intended to be legal advice. Receipt of this information does not create an attorney-client relationship.
Tags: ambiguity, contracts, covenant of good faith and fair dealing, fair, fairness
In today’s economy, there are many residential and commercial real estate properties that are in foreclosure. The phrase “in foreclosure” is a general phrase which typically means that a borrower is about to lose his property to the lender through a nonjudicial foreclosure. A nonjudicial foreclosure is a mechanism allowed by Utah statute whereby title to the property used to secure a loan can be transferred to a lender without assistance from a court. A lender can also bring a judicial foreclosure action, which is started like any other lawsuit by suing the borrower and seeking as a remedy in court the sale of the property for the amount of the judgment entered against the borrower. This article will not discuss the differences between the two foreclosure methods, nor will it discuss judicial foreclosures. Rather, the rights and remedies set forth herein will be about a nonjudicial foreclosure. The lender’s perspective is discussed in a separate article.
When a person has borrowed money to purchase property, build a structure, or add on to an existing building, the lender generally requires that the borrower execute not only a promissory note promising to pay back the money, but a trust deed as well, putting the title to the property in trust to be held for the benefit of the lender in case of nonpayment. A qualified trustee is appointed in the trust deed and is responsible to carry out the terms in case of nonpayment by the borrower. In a typical transaction, the trust deed requires the borrower to make its monthly payments, keep taxes current, and perform upkeep and maintenance on the property as might be needed under the circumstances. As long as the borrower is current in all of its payments and obligations, the fact that the trust deed exists is of no particular consequence. It is important to remember that the borrower is the owner of the real property and has all rights and obligations of ownership. By signing the trust deed, the borrower has simply placed some restrictions to its property rights in relation to the transfer of title. The lender does not retain any ownership rights in the property, but is limited to exercising only those rights allowed in the trust deed to the extent permitted by Utah law.
If the borrower is late in its payment or defaults on other obligations, the lender has the right to start the foreclosure process by “notice of default” with the county recorder and sending a copy to the borrower. This triggers a 90-day time period wherein, if the borrower can pay all of the arrears current, together with any costs and fees associated with the notice of default, the lender must be reinstate the borrower in the loan and void the notice of default. If within 90 days the borrower cannot bring the arrearage current, the lender has the right to have the trustee sell the property. If the trust deed covers more than one parcel of real property, the borrower can appear at the sale and demand that the parcels be sold separately and in a particular order. The trustee has a duty to follow the instruction of the borrower as to which parcel to sell first to satisfy the debt.
The borrower’s rights do not end when the 90 days has run. Prior to the sale date, the borrower still has the contractual right to pay off the promissory note in full, including and fees and penalties, which the lender must accept. The lender does not have the right to refuse the full payment in order to get a property that may now have a high equity value.
This article is not intended to be legal advice. Receipt of this information does not create an attorney-client relationship.
Tags: borrower, foreclosure, judicial, nonjudicial, remedies
On Tuesday, October 27, 2009, The Governor’s Office of Economic Development (GOED) and the Jones Waldo International Practice Group hosted a luncheon for a delegation of Chinese diplomats and government officials at the Salt Lake Chamber of Commerce. The event was held in conjunction with The American Council of Young Political Leaders (ACYPL) – a Public-Private Partnership with the US Department of State. The group was in Utah in the final stage of an international exchange that began in Washington, D.C., then moved on to Mississippi and finished in Utah. The ACPYL delegates hold elected or appointed office in the Chinese government at the local, provincial and national levels. Tim Anderson, a member of the firm’s International Practice Group and Managing Attorney of the Jones Waldo St. George, Utah office represented the firm at the luncheon.
Tags: ACYPL, Chinese diplomats, GOED, Governor's Office of Economic Development, International Practice, Jones Waldo
Lenders come in all shapes and sizes. When parties want to borrow money to buy and/or develop real property, they can borrow from a variety of financial institutions, or they can see if the seller of the property will “carry the note” – that is, take payments over time. Property sellers become lenders the moment they agree to carry the note. The rights of a lender are governed by the terms of the trust deed (the contract between the borrower and lender regarding using the property as collateral), the promissory note (the contract for how the money is to be repaid), and the Utah statutes on foreclosure. When a borrower fails to make the required payments or otherwise defaults on the trust deed, the lender can enforce its right to take title to the property securing the loan through a process referred to as foreclosure. The borrower’s perspective in this process is described in a separate article.
A nonjudicial foreclosure, which does not require any court filing, is the most common way for a lender to enforce its rights if the borrower defaults on the loan. Another type of foreclosure is called a judicial foreclosure, which means a lawsuit is filed and the lender enforces its rights in court to collect its judgment by having a sale of the property. In many cases, lenders prefer a nonjudicial foreclosure because it is a much quicker way to get title to the property. The lender begins a nonjudicial foreclosure by having the trustee record and serve an appropriate notice of default. If the borrower does not come current with its financial obligation in the 90-day period after the recording of the notice of default, the lender can then set a sale date that is approximately 30 days later. Therefore, in a period of about 120 days, the lender can get the property in its possession to be resold to recoup the money it loaned. This is subject to the borrower’s statutory right of reinstatement (the lender is required by statute to reinstate the loan if the borrower brings the loan current in the first 90 days) and the borrower’s contractual right to pay off the note (the lender is required by contract to accept full payment on the loan if tendered before the sale).
If the foreclosure continues to the sale, the lender can credit bid based on the amount it is owed up to the total amount of principal, interest, fees, and costs associated with the foreclosure, thereby requiring any other person who bids on the property at the sale to pay off the lender in full in order to obtain the property. The lender may also choose to bid less than what is owed so that the successful bidder pays most of what the lender is owed. This strategy will vary from lender to lender, but in either case it can result in the lender receiving the property based on it’s credit bid. Once the sale has been conducted, it is final, and the borrower no longer has the right to occupy the property and must move out. If the borrower does not move out, it will be considered a squatter, or a tenant at will, and will be subject to eviction proceedings.
If the fair market value of the property, at the time of the foreclosure sale, is less than what the lender is owed under the terms of the promissory note, it is referred to as a deficiency. If the lender, in following statutory requirements, wants to collect this deficiency from the borrower, the lender can file a timely lawsuit. The purpose in doing this is to obtain a judgment that can be collected from other assets of the borrower in an attempt to make the lender whole.
This article is not intended to be legal advice. Receipt of this information does not create an attorney-client relationship.
Tags: credit bid, foreclosure, nonjudicial foreclosure, remedies
Recently the Federal Trade Commission (FTC) released its final version of the updated Guides Concerning the Use of Endorsements and Testimonials in Advertising. The updated Guides become effective on December 1, 2009.
The Guides set forth the general principles that the FTC uses to evaluate endorsements and testimonials. In any action to enforce the requirements of the law as explained by the Guides, the FTC has the burden of proving that a particular use of an endorsement or testimonial is deceptive. The Guides are designed to assist business comply with the law.
The Guides consist of definitions, statements of the FTC’s understanding of the standards applicable under Section 5 of the FTC Act, and examples that help illustrate these standards.
According to the FTC, even factually correct statements can be determined to be deceptive and misleading. If a company can’t make a statement, then neither can an endorser. There is no protection afforded by having someone other than the business make a statement. The FTC indicates that if you can’t back up a statement, then you should not make it. A consumer endorser claiming that your product cured them of some affliction is not sufficient substantiation to make such a claim. According to the FTC, if you market a weight-loss product then you must possess and rely upon adequate substantiation, including competent and reliable scientific evidence that proves the product is effective for the purpose of weight-loss.
If you showcase someone that has had extraordinary success with your product a simple “Result Not Typical” will no longer be sufficient according to the FTC. The FTC indicates that if a company has given money or free products or any other incentive to a blogger with the expectation that the blogger will or possibly will review the product, then that must be disclosed by the blogger in the review by a statement, such as, “ABC Company gave me this product to try.” In many cases, both the endorser and the company may be liable for violations of the law in this area.
It would be wise for companies to make clear to their distributors what is and what is not allowed when it comes to claims about their products, services or the opportunity. Companies should also consider the impact of blogging and other “new media.” If a distributor is going to write about your products, services, or opportunity on a blog or other “new media,” such as Facebook or Twitter, then it is likely that the FTC would consider their connection to the company material and require a discloser of that connection.
Results Not Typical
Under the old Guides companies could use testimonials that were not generally representative of what consumers could expect from the advertised product so long as the marketers clearly and conspicuously disclosed either what the generally expected performance would be in the depicted circumstances (as an example the average result is 2 pounds lost per week as compared to the atypical 10 pounds per week), or the limited applicability of the depicted results to what consumers can generally expect to receive (results not typical or similar).
Companies used the “results not typical” language to inform consumers about how rare the featured results were. The new Guides reflect the FTC belief that “disclaimers of typicality” are not sufficient in most circumstances. Therefore any depiction of extraordinary results must be accompanied with a notice of what the consumer can general expect to obtain.
Conclusion
If your company is or has been using the “results not typical” language or relying on a similar format, you should review these activities in light of the revised Guides and make any adjustment before the December 1, 2009 effective date. You should seek competent legal counsel to ensure you are compliant. If you desire assistance from Jones Waldo, please contact us and we will be glad to determine if we can advise you on the matter. We wish you the best in your business pursuits.
Tags: endorsement, Federal Trade Commission, FTC, results not typical, testimonial
Tim Anderson and Marianne Sorensen, together with their spouses and 130+ members of the Salt Lake Chamber of Commerce, recently visited the People’s Republic of China.
From a post by Lane Beattie, President of the Salt Lake Chamber:
The people were welcoming and friendly to our group. We were there long enough to get a real sense of the culture and the attitude of the Chinese people toward the West and their position as a growing economic force.
Goldman Sachs projects that China will overtake the U.S. as the world’s largest economy by 2027, and be nearly twice as large by 2050.
Of course, Utah and China share a political link, as well. Most notably, our former governor, Jon Huntsman, is now our nation’s ambassador to China. Recently, for example, Utah and certain provinces in China, including Hainan and Liaoning, have been working together to improve diplomatic and business relationships. The Utah-Taihu Institute of Environmental Research, founded in 2009, functions as a platform to accelerate U.S.-China technology exchange and facilitate business development on both sides. The group brings together government officials, academics, and businesses from Utah and Wuxi to work as partners to build a healthier global environment and promote bilateral economic growth. With funding from local Chinese governments, technologies from the University of Utah, Brigham Young University and Utah State University are being licensed by the institute to help with water and soil remediation in the Wuxi area.
If you have the opportunity to travel to mainland China, don’t pass it up. It will provide you with a new perspective and deeper understanding of the country and its people, as well as the potential for business growth involving opportunities in China.
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