Tuesday, June 28, 2016

The "Sound Mind"

By: Garrett Olexa

Defining Mental Capacity and How it Impacts Your Ability to Conduct Business, Manage Your Estate, and Even Vote.

According to recent statistics, the U.S. population aged 65 and older is projected to nearly double over the next three decades. This year, baby boomers are between the ages of 52 and 70 and, as this large segment of the population ages, there has been an increase in the number of people suffering from dementia, Alzheimer’s, and other memory diseases. According to the Alzheimer’s Association, more than 5 million Americans are currently living with the disease, and 1 in 3 seniors dies with Alzheimer’s or another form of dementia. This raises questions regarding the ability of those challenged with cognitive deficiencies and disabilities to enter into contracts, sign releases, transfer deeds to land, create valid Wills and binding powers of attorney, or even to vote.

Depending on the person’s condition, he or she may be considered mentally competent for some purposes, but incompetent for others. The factors for what constitute sufficient mental capacity to ensure validity and enforceability varies depending on the circumstance and type of document being executed.  For instance, in Arizona, with respect to the issue of competency to execute and be bound by a contractual document, such as a liability release, the standard is whether, under all circumstances, a person’s mental abilities have been so affected as to render him or her incapable of understanding the nature and consequences of his or her acts. Was he or she unable to understand the character of the transaction in question?  The ability to validly transfer a deed employs a similar standard. The determination of competency of the person transferring the property depends upon whether he or she could understand and appreciate the nature of conveyance executed. 

When it comes to creating a valid Will or Trust, testamentary capacity is an essential element. Specifically, the person signing the Will or Trust must understand the nature of his or her act and the nature or character of his or her property. In Arizona, a person is incapacitated and cannot create a valid Will or Trust if he is “. . . impaired by reason of mental illness, mental deficiency, mental disorder, physical illness or disability, chronic use of drugs, chronic intoxication or other cause, except minority, to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person.”

The Arizona courts have applied a slightly different test when it comes to the creation of a power of attorney. A power of attorney is a document that allows one person (the “principal”) to give the power for making decisions and performing certain actions to another person (the “attorney-in-fact”) on the principal’s behalf. A power of attorney may provide the attorney-in-fact the authority to enter into financial transactions, sell real estate, handle business transactions, and even make health care decisions. The test to determine the competency of an individual to execute power of attorney is whether the person is capable of understanding, in a reasonable manner, the nature and effect of his act.  In order to challenge the validity of a power of attorney, it must be shown that mental incompetency existed at the time the document was signed; therefore, the power of attorney is not necessarily invalid if someone becomes incompetent after signing the document. 

Mental capacity can also determine a person’s ability to vote. In Arizona, a person placed under limited guardianship will automatically have his or her right to vote revoked and will have to petition the court to request that it be reinstated by providing clear and convincing evidence regarding capacity. In other words, the petitioner will need to prove he or she has retained a sufficient understanding in order to retain the right to vote.

Of course, a person’s mental capacity can be compromised not only by advanced age, but unexpectedly as a result of trauma or disease. Thus, delaying to prepare critical estate planning documents for which validity turns, in part, on the signer’s mental competency can prove costly–financially and to an individual’s quality of life.


Garrett Olexa is a Member with the law firm of Jennings, Strouss & Salmon, PLC and works in its estate planning practice group. He can be contacted at golexa@jsslaw.com or 623.878.2222.


Friday, June 24, 2016

Alan P. Christenson Featured in FSR Magazine

Jennings, Strouss & Salmon attorney, Alan P. Christenson, is featured in FSR Magazine's column, The Kitchen Sink (online).

Read the full article: Tips for Negotiating an Exclusive Use Provision

Thursday, June 23, 2016

John J. Egbert Featured in AZ Central's Ask the Experts


Jennings, Strouss & Salmon attorney, John J. Egbert, is featured in AZ Central's Ask the Experts column.

Read the full article: Job Hunt Wise During Long Suspension

Wednesday, June 1, 2016

Doubling Down on Employee Salaries: The U.S. Department of Labor More Than Doubles the Mandatory Minimum Salary Requirement for Most Exempt Employees

By: Chris Mason

Beginning December 1, 2016, the minimum salaries for most exempt jobs will more than double to $47,476 from the existing $23,660 required. On May 18, the U.S. Department of Labor ("DOL") dealt its long-anticipated regulatory amendments for "white collar" overtime exemptions under the Fair Labor Standards Act ("FLSA"), which included increases to the mandatory base salary requirement.

The challenge for employers and employees alike will be the determination whether certain jobs will continue as exempt positions, or whether they will be converted to non-exempt positions entitled to overtime pay.  Some jobs may end entirely.  While other options remain, and a variety of jobs will remain unaffected, early estimates anticipate that approximately 5 million workers will be directly affected, for good or for bad, by the recent changes.

The White Collar Exemptions

Despite common misperception, an employee is not exempt from overtime pay simply because he or she receives a salary.  Employees must meet very specific exemptions to qualify.  Most of those exempt from overtime pay under the FLSA fall within one of several exemptions referred to as the “white collar” exemptions.  To qualify for one of these exemptions, an employee must meet the specific job duty requirements for the professional, administrative, or executive categories and, in addition, they must be paid a minimum annual salary of $23,660.   This minimum annual salary for these exemptions will bump to $47,476, or $913 per week.

A similar exemption, which also will be affected by the upcoming changes, applies to highly-compensated employees.  The duty responsibilities are relaxed for highly-compensated employees to qualify for exempt status, so long as their annual salaries are set no lower than $100,000.  This amount will increase to $134,004 effective December 1.

One of the upcoming additional changes will slightly improve an employer’s ability to satisfy these minimum pay requirements.  Employers may apply non-discretionary bonuses and incentive pay (such as commissions) towards up to ten percent of the salary requirement.  These additional forms of compensation were previously inapplicable to the minimum salary requirement.  For highly-compensated employees, all non-discretionary compensation can be used to satisfy the $134,004 requirement above a minimum of $47,476 in salary.

The Continued Payout

The new increases have an even greater impact than may appear at first blush.  For instance, with the amendments, the DOL has shuffled the deck with a new system that provides for automatic increases in the base salary requirement every three years.  The increase will be based on wage data from the bureau of labor statistics, which is expected to warrant an increase in the minimum salary to over $50,000 by 2020.

Employers evaluating whether to increase the minimum salaries for exempt employees will likely also evaluate its overall salary scale.  Employees who have progressed to higher salaries may also expect an increase as their less-senior cohorts face mandatory increases effective December 1.  While this is not mandated by regulation, employers should be prepared for it.

This, and similar considerations, represents perhaps the greatest gamble with the new regulatory requirements.  The dramatic salary increase may prove too costly for many currently-exempt positions, which may either be too costly alone or may not fit in existing salary scales.  Employers will need to evaluate whether to increase salaries, or transition currently-exempt employees to non-exempt status.  Some positions may face consolidation, and others may be eliminated.  For those who lose their salary status, they may face a change in pay that is tantamount to a pay rate reduction, and may face stricter scrutiny by their employer when seeking overtime work.

Splitting the Odds

Either way, whether employers increase salary for lower-paid exempt employees or transition them to hourly positions with overtime entitlement, employers must make changes.  If they opt to increase employee salaries to continue a white-collar exemption, they must ensure that the affected exempt employees are paid the minimum $47,476 required, unless the employees qualify for exempt status under a variety of other exemptions.  This too should be evaluated.  For employers increasing salary, now also is a good time for them to evaluate exempt employee duties.  As previously mentioned, not all salaried employees are exempt from overtime.  They must meet certain duty requirements to qualify for white collar exemptions.  These duty requirements create a significant challenge for employers on a regular basis, and now is a good time to evaluate which employees qualify.

Conversely, employees who are transitioned to hourly positions should be prepared to properly track and account for their work hours.  Many have developed practices consistent with receiving a salary, and may work flexible schedules.  This may change as employers impose time clock or time sheet tracking systems on these employees. 

Finally, employers should not focus exclusively on these changes to federal law, as state law may impose stricter requirements.  While an employee may qualify as exempt under federal requirements, the employee may still be entitled to overtime pay under applicable state law.

Stepping Away from the Table

While the changes may seem daunting, all is not lost.  Other exemptions and alternative pay structures may provide employers and employees with some relief and should be evaluated.  Furthermore, the duty requirements that were previously in place for the white collar exemptions remain the same under the new rules, minimizing the disruption.  Regardless of their chosen alternative, employers must plan and prepare for the change, rather than face investigation, fines, and possible lawsuits for failed or incomplete implementation. 

Footer:  When the Fair Labor Standards Act was passed in 1938, the original minimum wage was a mere $.25 per hour, and overtime only applied after the first 44 hours in a workweek.

Chris Mason is a labor and employment law attorney at Jennings, Strouss & Salmon, P.L.C. He counsels employers and management on all aspects of labor and employment law, including traditional labor matters, such as collective bargaining and union organizing; restrictive covenants; employment discrimination; sexual harassment; whistleblowing; retaliation; wrongful termination; personal policies; reductions in force; trade secrets; restrictive covenants; duty of loyalty; drug and alcohol testing; and other state and federal laws, rules, and regulations. He is also an experienced litigator, representing clients in Arizona, federal, and appellate courts, as well as before administrative agencies, including the National Labor Relations Board, the Department of Labor, the Equal Employment Opportunity Commission, the Arizona Civil Rights Division, and the Department of Economic Security.