New Proposed Law Impacts Advance Medical Directives

An advance medical directive is a document that allows you to designate someone to make medical decisions on your behalf in the event that you are unable to make those decisions for yourself. For example, you might be in a coma or suffering from reduced capacity as a result of a car wreck and are on life prolonging treatment. An advance medical directive can allow your loved one to know your wishes ahead of time and inform the doctor as to what treatments you are refusing. Without an advance medical, the doctors may be limited in making decisions regarding your healthcare.

But what happens if you are going through a divorce or a custody battle?

New law addresses what happens to these documents pending custody or divorce cases. These documents were not previously automatically revoked in the event that you were going through a divorce or a custody battle. Lawyers used to see people forgetting to change their medical directives after breaking up with a significant other. This could cause heated battles between family members and your ex regarding how to handle your medical decisions.

In response to these concerns, the new law, when it goes into effect, will cause these advance medical directives to automatically terminate when there has been a custody or divorce case filed. That means you don’t have to wait for the conclusion of those cases in order to know that your family can make medical decisions for you and not be bound by the decisions of your ex.

Unintended consequences and word of caution. There are many different reasons why a couple may decide to get a divorce. Many older couples are divorcing for monetary reasons given changes in the economy. Not everyone who is getting a divorce is necessarily separating. When these couples are going through these financial issues, they may not realize that their estate planning is at risk.

There may also be other reasons that a loving couple may need to go through the custody courts in the event of incapacity. For example, a doctor or school provider may not be willing to allow services to be provided without both parents signing off on the paperwork. There are some situations where a custody petition may need to be filed that could terminate the medical directive.

It is important for every person who has an advance medical directive or estate plan to talk to their lawyer if they are contemplating filing a custody case or a divorce case to make sure their estate planning is protected.

Virginia General Assembly Signals More Oversight of Guardianships

Guardianships and Conservatorships are an important tool for family members that are concerned about their loved ones’ ability to take care of their personal affairs and finances. These proceedings can allow someone to request that a Court permit them to manage their family member’s bank accounts and make important medical decisions if they are unable to make those decisions for themselves. However, there has been increased scrutiny of the Guardianship and Conservatorship process in light of some high profile cases around the United States. As a result, the states are passing new laws to make sure that only people that have their family’s best interest at heart are appointed.

New law increases responsibility and oversight. Last year, the General Assembly had passed amendments to the Guardianship and Conservatorship process that permitted annual court reviews to make sure that the right decisions are being made for the family member. The new law that was proposed simultaneously in the House and the Senate requires now that anyone who wants to file a petition for guardianship or conservatorship must also file a “cover sheet” detailing specific information for the court. The new law also makes it a requirement that the Guardian file an initial report four (4) months after the initial appointment.

What is this new cover sheet and what will be required? Although we do not have all the details on this new cover sheet and the Office of the Executive Secretary can make amendments to it from time to time under the new law, the cover sheet will likely require the person filing the petition to disclose all of the familial and financial information of the family member they want to protect. The logic behind this change is to make sure that everyone is fully informed and has an opportunity to raise concerns or propose alternative caregivers or care plans for the Court. We will know more about what this information will entail after the law is passed.

If you are considering applying for Guardianship or Conservatorship, you need to make sure that you have an attorney that keeps updated on these evolving requirements to make sure you can act quickly to take care of your family.

New Virginia Bill May Stall Landlords Getting Their Property Back

Under Virginia Law, a landlord has the ability to file an “unlawful detainer” with the General District Court after giving certain types of notices to the tenant that they have violated the lease. Once an unlawful detainer has been filed, then the Court has to schedule an initial court date to address the issue. Under existing Virginia law, the judge had the power to grant possession of the property to the landlord and schedule a final hearing on rents and damages. This was a process known as “bifurcation.” This process allowed a landlord to get control of the property back while waiting for the financial side of the case to resolve. The Virginia General Assembly has decided to create a new law that may limit this bifurcation process.

What is this new law that is being proposed? Currently listed in the General Assembly as House Bill 740, the new law is going to limit the ability of the Court to do this "bifurcation” process in cases involving failure to pay rent. In every other type of eviction, the Court will still have the power to bifurcate. This means that under the new law, if a landlord is trying to evict for failure to pay rent then the landlord will have to wait for the final hearing in order to get possession.

What impact will this new law have on tenants? There is a benefit to tenants with the proposed language of the new law. If you are a tenant, it protects your ability to have your day in court and to contest the total rent amount owed. It will slow down the eviction process if you contest how much is owed. If there is any disagreement about the amount owed, the landlord may have to wait longer or be prepared to put on a trial at the first court date.

What impact will this new law have on landlords? This new law is likely going to cause a financial hardship for landlords. Many evictions are based on failure to pay rent. Landlords will either have to have all their witnesses on the first court date and be prepared to put on the full trial or they will have to schedule a final trial while the tenant remains in the property. There are some other laws that may protect landlords such as bonds posted by the tenant, but there are likely to be some issues that come up with the way bonds work right now.

Either way, if you are a landlord or a tenant, you need to be familiar with these evolving laws to understand what your legal rights are in any given situation. If you have a rent dispute, make sure to talk with a lawyer as soon as possible.

Virginia Spring Burning Laws: Frederick County and Beyond

Rural homeownership can be difficult. You do not always have the same services available as you would inside the city limits. For the most part, you have to fend for yourself when it comes to things like trash pickup and waste disposal. It can be difficult to know what the laws are in your county as well because different places have different laws for outdoor burning and waste disposal. If you are not careful, you can get in to trouble. The law also changes frequently, so you need to make sure you know what you can and cannot do.

Does Virginia have a spring burning law? The answer is absolutely yes. Virginia makes it unlawful for any owner or lessee of land to set fire to, or to procure another to set fire to, any woods, brush, logs, leaves, grass, debris, or other inflammable material upon such land unless he previously has taken all reasonable care and precaution, by having cut and piled the same or carefully cleared around the same, to prevent the spread of such fire to lands other than those owned or leased by him. It shall also be unlawful for any employee of any such owner or lessee of land to set fire to or to procure another to set fire to any woods, brush, logs, leaves, grass, debris, or other inflammable material, upon such land unless he has taken similar precautions to prevent the spread of such fire to any other land.

These laws get even more strict starting on February 15th and going through April 30th of each year. The Virginia Department of Forestry requires that any burns to the hours of 4:00PM and midnight if such burns are within 300 feet of any woodland, brushland, or field containing dry grass or other inflammable material.

For Frederick County specific information please click here.

What happens if I violate the spring burning law? If you violate the above law you are committing a crime. It is a class 3 misdemeanor in Virginia to violate the spring burning laws. You can also be on the hook for any damage caused as a result of violating the burning laws and can be placing your neighbors in danger. All it takes is one stray spark for your Neighbor Dan to lose his chickens. Although that infraction may not come with a jail time, subsequent offenses may rise that to a more serious offense. Other mistakes can turn the charge into arson if you are not careful.

What should I do if I want to burn my trash? You should check your local laws and make sure you talk to your local fire marshal. They will have good advice based upon weather conditions on how best to protect yourself, your property, and your neighbors and not end up in jail. Other types of burns may even require permits. You can also consider talking to a lawyer to get some good advice on when you can and cannot burn.

New Proposed Law Limits What Landlords Can Charge Tenants in Virginia

The Virginia General Assembly is responsible for most changes in Virginia law. Every year, new laws or amended laws are proposed which can impact any number of areas ranging from tenants rights to filing requirements for landlords. New laws are proposed frequently that can have major impacts on the bottom line for both landlords and tenants. A good landlord should stay updated on these changes to make sure their lease agreement are fully compliant with Virginia law.

Senator Ebbin and Delegate Krizek Propose Limits on Fees. On February 9, 2024, new amendments were proposed to the Virginia Residential Landlord/Tenant Act that limits the types of fees and costs of business a landlord can pass on to their tenant in the lease agreement. The new amendments have proposed two new limitations on fee shifting to tenants that every landlord should be aware of to make sure their lease agreement is compliant:

1) Restrictions on payments for maintenance and repair. The new law proposes that landlords cannot build into the lease agreement an automatic provision that requires a tenant to pay for any maintenance or repair unless the damage was a result of the tenant’s actions. For example, some landlords were previously requiring tenants to repair rain gutters and other fixtures even if the tenant was not the one responsible for them breaking. Now, the only way a landlord can require a tenant to pay for routine repairs is if the tenant damaged the property.

This would have the impact of preventing landlords from shifting the costs of repairs. There are any number of reasons why a landlord or a tenant may want to shift the costs of maintenance and repair on to the tenant and reasons why a tenant may want to agree to the provision if it results in a lower base rent. For example, maybe the prospective tenant is a contractor and is handy with building repairs. Maybe the landlord wants to reduce their rent in exchange for them being responsible for paying for maintenance and repair materials and have the tenant make the repairs themselves to save money. In consideration, the tenant may want to have a reduced rent.

However, the General Assembly has decided this kind of contractual relationship is not acceptable.

2) Restrictions on fees associated with periodic payments. The second restriction being proposed is that a landlord may no longer add fees to the lease agreement associated with periodic rent payments. For example, if a landlord and a tenant wanted to agree on transferring money by a third-party payment processor every week, the landlord would be solely responsible for the transaction costs associated with this. A landlord would not be able to ask for reimbursement from the tenant for the opportunity to use third-party payment processors on a periodic basis. Any business person can tell you that these kinds of periodic payment processors have additional built in costs.

If you are a landlord or a tenant, make sure you stay fully aware of all the new laws that may pass. Although these modifications have not passed yet, they may have implications down the road and you should be prepared to modify your existing lease agreements to compensate.