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A common, and very difficult, question from individuals seeking Social Security Disability benefits is whether they can work while their claim is pending. Any work a claimant engages in will be considered by the Social Security Administration when determining if a claimant is disabled. The standard to be considered is whether a claimant is engaging in “substantial gainful activity”.

The social security guidelines specifically state that “If you are able to engage in substantial gainful activity, we will find you are not disabled.” Substantial is defined as work activity that involves doing significant physical or mental activities. Additionally, work is gainful when it is done for pay or profit even if you are not personally paid for the work so long as it is the kind/type of work that is normally done for pay or profit.

In order for work to be classified as substantial gainful activity, the earnings a claimant receives must exceed a certain amount as established by the Social Security Administration. If the Claimant’s earnings exceed the substantial gainful activity amount set for the particular year, the Social Security Administration cannot find you disabled. Thus, a claimant who earns more in a month than the substantial gainful activity amount is barred from receiving benefits. Currently, the 2013 substantial gainful activity amount $1,040 for individuals with disabilities other than blindness and $1,740 for individuals who are blind.

It is important to keep in mind that even if a claimant’s monthly earnings do not exceed the substantial gainful activity amount, the Social Security Administration will take into consideration any earnings a claimant has made after the alleged onset date of disability.

The social security guidelines specifically state that “the fact that your earnings were not substantial will not necessarily show that you are not able to do substantial gainful activity.” It is unlikely that a claimant’s minimal earnings will not play a major factor in the substantial gainful activity analysis. However, a situation that may arise and cause the Social Security Administration to determine a claimant is performing, or capable of performing, substantial gainful activity is when a claimant’s monthly earnings are approaching the substantial gainful activity amount. This type of scenario lends itself to the argument that a claimant is intentionally under-performing work at a level to prevent their monthly earnings from exceeding the substantial gainful activity amount.

A claimant seeking Social Security Disability benefits should always be mindful of the amount of money they are earning as compared to the Social Security Administration’s substantial gainful activity amount, but a claimant should also keep in mind that the Social Security Administration will consider all earnings and potential work after the alleged onset date of disability to determine the capability to perform substantial gainful activity.
If you have any questions regarding how your work after your alleged onset date of disability will be used by the Social Security Administration, please contact the Finklea Law Firm to discuss this matter with our Social Security Disability Attorney.

~ Joshua A. Bailey (March 2013)

Often, as lawyers, we are requested to prepare wills for individuals when they have been diagnosed with a severe illness or are advanced in age. Although mental capacity to make a will is always an issue, it is particularly concerning in these situations.

Just this past week, I deposed a lawyer who prepared a will for a person whose children have now sued to set aside the will and other lifetime transfers made to the Testator’s sister, who he lived with and who provided for him for years, if not decades. Unbeknownst to the lawyer, the Testator had just recently been diagnosed with dementia. In the same week, I prepared a will for someone who had recently been diagnosed with cancer and was only given a few weeks to live. At the time of the execution of the documents, I had grave concerns regarding her capacity based upon her condition.

South Carolina law provides that “a person who of sound mind and who is not a minor…may make a will.” Although our legislature made that law, interpretation and application is another thing, and therefore, we have had many court decisions weighing in on what it means to have a sound mind. Generally, a testator, the person making the will, must have the ability to know the following:

1. The nature and extent of his or her property;
2. The natural objects of his or her bounty (heirs and nearest relatives); and
3. The fact that he or she is making a will which will result in a disposition of property after death.

Therefore, the general practice in our office as well as the standard in our profession is that we first inquire as to what property the testator owns. Second, we ask him or her to name its family members. Third, we inquire as to how he or she would like to dispose of the property and why. With these questions answered, generally, we can determine whether a person has appropriate mental capacity to execute a will.

The mere fact that the testator disposes of property contrary to what others usually consider fair is not sufficient to declare the will void. A will can even be what others may consider to be an unfair or unjust disposition of property. Basically, the law puts no restrictions on a person’s right to dispose of property in any way in which he or she may choose.

The degree of capacity necessary to execute a will is less than that needed for an actual contract. The Court of Appeals has held that even an insane person may execute a will if the execution is done during a sane interval. One of the most referenced cases in South Carolina is one from 1827. In that case, the testator was disturbed with strange beliefs of witches, devils, and evil spirits, which he believed continually worried him. He wore unusual clothes, slept in a hollow log, and exhibited a other odd and unusual behavior. Despite these idiosyncrasies and abnormalities, the Court found that the testator was able to manage his affairs and the evidence did not rise to the level necessary that the disposition of his property stated in the will, which may be unjust to his family, was not an irrational act.

Of course, even though the law is very clear as to whether or not a person has sufficient capacity to make a will, proving that in Court is quite another matter. In the event the testator or someone in his or her family believes there may be a will contest because of diminished mental capacity or other health issues and competing family interests, the attorney should be made aware by the family members, and the attorney should make special precautions to preserve his notes or a record in case he is called to testify regarding capacity in an action to contest a will. Further, with modern technology, it would be very easy to video the lawyer’s conversation with the testator as well as the will execution process to preserve a record to establish capacity.

Executing a will is only good if it is done properly. The orderly disposition of a testator’s property in accordance with his or her wishes is an important matter, and the above concerns should be considered in the preparation of all wills, particularly those where a person is advanced in age or health is failing. With proper legal advice, these problems and protracted litigation can be avoided.

~ Gary I. Finklea (February 2013)

In an effort to cut costs and maximize profits, many insurance companies look for ways to exclude coverage and not pay a claim. One recent trend that I have detected is insurance companies denying coverage for “hidden drivers”. Based upon this approach, it is imperative that you disclose all drivers and household members when procuring auto insurance coverage.

In the insurance companies’ defense, they should not have to pay for claims for “hidden drivers” who should have been listed on a policy, especially when the failure to disclose that driver was intentional in order to obtain a lower premium. However, some of the situations wherein “hidden drivers” can be excluded for coverage are seemingly unfair and may surprise you. For example, consider a 20-year-old child who returns home from college or from military service during Christmas break and borrows the parents’ car. Consider a live-in boyfriend or girlfriend who regularly borrows your car. Also, consider a 14-year-old who turns 15 during the policy period and obtains a driver’s license. How about a carpool situation where you and your co-worker not only alternate taking each other’s vehicle, but because the trip is so far, one drives on the way to work and the other drives on the way back such that your co-worker drives your vehicle while you are a passenger and vice versa.

All of these situations should cause you to consider whether any of the “hidden driver” exclusions apply to you. Generally, insurance companies require you to disclose all family members within the household and all persons who regularly operate your automobile.

To give you some real life examples of when an insurance company may deny a claim when a vehicle is operated by someone who is not listed as an insured under the policy, consider the following recent accidents:

On May 29, 2012, a 15-year-old who recently received his license was operating his mother’s vehicle. As another vehicle ran a stop sign, the teenager swerved off the roadway to avoid a collision, struck a tree, and damaged his mom’s vehicle. Since the at-fault vehicle was never located, mom attempted to make a John Doe claim for uninsured motorist coverage with her insurance carrier, Everest Insurance, to have her car repaired. Everest denied the claim on the grounds that her son was not a listed driver and the vehicle was regularly supplied for his use. Additionally, there was no coverage for the son to recover for his personal injuries.

On August 6, 2012, a 22-year-old was driving her mom’s vehicle from work when she was rear-ended. Although the at-fault party was insured and his carrier should pay the property damage and personal injury claim, the driver attempted to make a claim for PIP benefits (Personal Injury Protection a/k/a medical payment coverage) with her mom’s carrier, Peak Property and Casualty. The claim was denied since the daughter was not listed on the policy.

Although you may be insured, make sure your policy adequately protects you and those who may operate your motor vehicle. Discuss your situation with your agent and confirm whether coverage should be procured or not procured in writing with your agent. Far too many times, I see less sophisticated agents or more often their unlicensed employees providing erroneous advice regarding coverage. When it comes time to make a claim related to that coverage question, that agent or their employee may deny giving that course of advice.

HAPPY NEW YEAR AND PLEASE CALL THE FINKLEA LAW FIRM IF YOU HAVE AN INSURANCE COVERAGE QUESTION OR DISPUTE OR FOR ANY OTHER LEGAL MATTER!

~ Gary I. Finklea (January 2013)

Now that the Presidential election is behind us, many questions and concerns relating to Deferred Action for Childhood Arrivals (“DACA”) can be laid to rest.

While many people believe that immigration enforcement is at an all-time high, USCIS, under the Obama Administration, has taken steps over the past several years to transform the immigration enforcement system into one that focuses on public safety, border security and the integrity of the immigration system. In other words, the Department of Homeland Security (“DHS”) is focusing on the removal of individuals who pose a danger to national security or a risk to public safety.

For those reasons, certain people who came to the United States as children and meet several key guidelines may request consideration of deferred action for a period of two years, subject to renewal, and would then be eligible for work authorization and a Social Security number.

Deferred action is not automatic…it is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion. Most importantly, deferred action does not provide an individual with lawful status or a way to obtain a green card, permanent residency, or citizenship.

You may request consideration under DACA if you:

Were under the age of 31 as of June 15, 2012;
Came to the United States before reaching your 16th birthday;
Have continuously resided in the United States since June 15, 2007, up to the present time;
Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

This process is open to those who have never been in removal proceedings as well as those in removal proceedings, with a final order, or with a voluntary departure order (as long as they are not in immigration detention).
So what’s the down side? Many DACA applicants are concerned that their application will be denied and ultimately result in deportation. Rest assured…the DHS under President Obama has stated that it will not place denied DACA applicants into removal proceedings unless the denial is based on criminal activity or fraud.

If you believe that you meet the above criteria for DACA consideration, please contact Finklea Law Firm to discuss your particular circumstances and decide whether applying for DACA is right for you.

~ Brooke Chapman Evans, December 2012

Heirs property issues serve as a daunting challenge to not only family harmony but important property rights as well. Generally, heirs property is a term used to describe land that is jointly owned by descendants of a deceased person.

A recurring family story told by many perspective clients should shed some lights on this matter. Grandpa dies and leaves the entire 4-acre family farm to Grandma. A year later, Grandma dies without a will, and the property is passed to her heirs. Grandma and Grandpa have 8 living adult children, so each child takes a 1/8 interest in the family farm, and Grandma’s estate is closed by the probate court. This property is now what is considered ‘heirs property’.

While the preceding example seems innocent, a few important questions remained unanswered:

Who pays the property taxes on the family farm in our example?
Who is allowed to live on the family farm?
Who is responsible for maintaining the family farm?

These types of questions magnify the problems associated with heirs property, and unfortunately, these problems multiply as the heirs die and pass their interest to their children and other heirs. A family farm once so capably owned by Grandma and Grandpa is now owned by a growing group of children, grandchildren, and other heirs.

Many clients are unable to overcome the challenges posed by heirs property. Families are unable to agree on the responsibilities on the payment of taxes, so the property is lost at tax sale. Current owners are unwilling to improve or maintain the property due to their fractional interest in the property, so the property becomes dilapidated. Potential investors, tenants, timber companies, or interested buyers are discouraged by the multiplying owners and generally view the property as an avoidable headache.

The most effective way to prevent many of the problems of heirs property is through detailed estate planning. If the problems are in a more advanced stage, a court proceeding may be an effective tool to resolve the issues. Many pieces of heirs property can be appraised and equitably divided through the use of trained real estate professionals. Another possible option is to sell the property and split the proceeds among the owners.

Please do not hesitate to contact the Finklea Law Firm to discuss your options in greater detail. We work hard to provide our clients with the best service possible.

~ Charlie J. Blake, Jr. (November 2012)

Everyone in the Pee Dee knows that rain this year has been plentiful. As Forrest Gump said, “We been through every kind of rain there is. Little bitty stingin’ rain… and big ol’ fat rain. Rain that flew in sideways. And sometimes rain even seemed to come straight up from underneath. Shoot, it even rained at night!” Okay, maybe I exaggerate a bit; and most things that the rain brings us are good. A few though, like flooding and runoff, aren’t so easy to deal with. Working with many of the real estate issues that are presented in our practice I often see landowners struggling with these issues.

As an example, let’s say Landowner A owns property adjoining Landowner B. Landowner A, experiencing a standing water issue during heavy rains, builds up his property with dirt to help water drain off. The water, having to go somewhere, will obviously run downhill to Landowner B’s now lower property. Can Landowner B collect from Landowner A for flooding his land and lowering the property’s value? Not likely. Under our state law, surface water, such as the runoff in our example, is treated as a “common enemy.” The term “common enemy” dates back to English Common Law and means that the water is everyone’s problem, to be dealt with as best they can. The rule (as you would expect) is subject to exceptions. Most importantly, a landowner is usually prohibited from gathering water up, such as in a pipe or culvert, and “casting” it on an adjoining property. The common enemy rule is also subject to another theory of law, known as the law of nuisance. The law of nuisance – among many other things – usually prohibits an individual from blocking up or changing the flow of a natural water course, like an existing stream, river, or canal. If this is done, the courts may step in when asked to impose penalties or to make the offending landowner put the land back to its original condition.

The common law is sometimes only part of the puzzle. County ordinances, state laws, and DHEC regulations may put further restrictions on how landowners may deal with surface water. If you have a specific question about a problem with your property, please do not hesitate to contact me. Until then, just enjoy the good things the rain brings!

~ J. Greg Hendrick