わかりやすいアメリカ法

Imagine you are driving home from the store when a child darts into the street. You swerve to avoid him, and in the process, run head first into another car. After it’s all said and done, you are sued by the other driver for the costs of her extensive medical care and car repairs. Could she end up getting your house? What about your retirement savings?
Across the country, newspaper headlines are packed with news of multimillion dollar court judgments for plaintiffs. These rulings can provide important relief and support for injured parties. However, they can also bankrupt defendants. Protecting yourself from a large legal judgment may be the last thing on your mind; however, if something goes wrong, you will be thankful for any and all prior planning.
State laws offer varying levels of protection against legal judgments. Therefore, it is important to research your state’s laws. Nevertheless, a few general principals do apply. In all cases, you must be proactive. You cannot move or otherwise act to protect your assets from a legal judgment after you have been sued or had an accident for which you might be liable. Courts look negatively upon such moves. Consequently, whatever actions you do decide to take to protect yourself must be done ahead of time.
So what exactly could a large legal judgment put at risk? Again, this depends on your specific state laws, but there are some general rules. Any 401(k) plans and company pension benefits are likely protected. IRAs are another matter-their vulnerability will depend on where you live and whether the judgment forces you to declare bankruptcy. Life insurance policies are usually safe, as are any proceeds being paid to you from another person’s policy. However, if you take such proceeds in a lump sum, a court judgment may be able reach them.
A major worry for many people facing a large legal judgment is their home. Since your house is often your largest investment, and at the end of the day, it is the place your loved ones call home, it may make sense to start liability planning here. In most states, a primary residence (meaning the place you intend to live most of the time) is protected to some degree from legal judgments. Some states place limits on the amount of value that will be protected, but these caps can vary.
Likely, your best bet to protect your home and other assets is to make sure you have adequate insurance coverage. Liability insurance is the most common insurance used to protect home owners. The liability portion of your homeowners’ insurance is designed to cover unintentional injuries on your property and unintentional damage to other people’s property-in other words, injuries caused by your negligence are covered, but not injuries inflicted on purpose.
If you have significant assets, you may also want to consider taking out an umbrella policy. For an additional fee, an umbrella policy protects you from a big judgment that might quickly eat up your regular coverage. These policies are relatively inexpensive because the insurers are betting ou’ll never need them. The coverage picks up where your home and auto policies leave off, so in order to obtain one, you have to have certain levels of basic home and auto liability insurance. You also have to meet certain eligibility requirements, such as owning no more than a certain number of cars and not having been convicted of driving under the influence in the recent past.
Because no two policies are the same, it is important to carefully study yours and know what will and will not cover. Read the fine print. You may need additional coverage if you have a home-based business or natural or manmade attractions on your property, such as a pond or pool. Regardless of what form of protection you pick, at the bottom line, all that matters is that you and your family are protected!

（Summer 2008）

As retirement approaches, many Americans start to think about their finances and where to invest or move their assets. For some, purchasing a second home is an important part of retirement preparation. With careful planning, this can be a
very valuable and significant option. If you are thinking about buying a second home, the first step is to take inventory of your current and future finances. Be sure to determine the sources of your future income (pensions or government benefits) in order to evaluate how much you can afford.
If you are planning on using the second home as a rental during part of the year, don’t count on that rental income as part of your income. You never know if you are going to have a period without a renter. After undertaking this assessment, you will have a better sense of what you will be able to afford without stretching yourself too thin.
When actually looking at properties, take into consideration the same factors you would when buying your primary residence such as costs, taxes, and location. Ask yourself whether you want a part-time vacation home or a year-round home that you can eventually move into after you retire. If you are looking for the latter, you will want to ensure that the neighborhoods you are looking at don’t shut down during the off-season. The last thing you want is to move into your second home and run out to buy a gallon of milk, only to find out that every store in the area is closed for the season!
Other important considerations when it comes to deciding whether to purchase a second home relate to money and taxes. If the second home is considered a residence-meaning you don’t rent it out or use it for other business uses-any interest on your mortgage is deductible just as it is on your first home. In other words, you can deduct up to $1 million in interest on both homes (meaning you can deduct $1 million total, not $1 million per home). However, if you rent out your second home, the rules change and vary depending on how long your rent it out. Generally, if you have renters for more than 14 days a year, you will have to report any rental payments as income, but you will also be able to claim any mortgage interest and other costs during the rental time as business expenses. Lastly, depending on local laws, you likely can deduct the property taxes on any number of properties you own (regardless of whether you rent them out). Overall, these rules can be very complicated and can change depending simply upon how much time you spend in the second home. Therefore, it is probably worth it to talk to an experienced attorney before you take on a rental property in order to ensure that you don’t run afoul of local or federal tax authorities.
For retirees, non-traditional properties may also be worth considering. These options include condominiums or retirement communities, and these often also include some significant benefits. Some of these communities offer services that take care of certain household chores such as mowing the lawn, snow removal, and painting. Others provide gyms, pools, and golf courses. And in some retirement communities, there may even be meal service or some form of medical care. If you pursue this option, you will likely purchase the real estate and then pay an additional ongoing fee to the community association for its services. However, it is important to note that these benefits have some pitfalls. In many communities, there are restrictions on what you can do with the exterior of your home, with your landscaping, on whether you can rent your home, and, in some extremes, on the guests you can have spend the night.
Second homes can create important sources of income and provide flexibility and excitement to your retirement. If you are a retiree, a second home could be used for investment purposes, or it may just be a way for you to live out the retirement you have always dreamt of. Whatever your reason, remember, you are still making a real estate purchase and need to exercise the appropriate level of care.

（Summer 2008）　Copyright © 2008 Hisaka Yamamoto (Photo: © Lvnel | Dreamstime.com)

Almost all of us have had the experience while shopping of making a purchase, leaving the store, and having the alarm go off. You know you didn’t steal anything, and more often than not, the salesperson calls you back and removes a theft-deterrent device that was inadvertently left on your purchase. But what if it isn’t as simple as this? What if store personnel detain you for shoplifting? Can they legally hold you against your will?
Retail theft results in huge losses for businesses. This so-called shrinkage is a major worry for businesses that can see a substantial portion of their profits walk out the door with thieves. It is understandable that many stores put a great deal of time and effort into installing shoplifting deterrents, training staff to be vigilant, and in some cases, hiring staff specifically trained in loss prevention. However, even the best training can’t prevent all mistakes.
Innocent people often engage in behaviors that store security may be looking for: repeatedly returning to the same spot in the store, taking multiple items into a fitting room, and not talking to salespeople, just to name a few. Because what are often innocuous acts can sometimes look like shoplifting signals, there is a chance that as an innocent shopper, you may end up as an accused criminal. But, if you remain calm, after a short delay, you usually can be on your way.
In most states, merchants are allowed to reasonably detain a suspected shoplifter for questioning and a limited investigation. Usually, in order for a detention to be reasonable, the merchant must have a realistic belief that you attempted to shoplift. This often requires that store employees believe they saw you take some property and that they kept you in their continuous sight until you tried to leave the store without paying.
Once management has decided to detain a suspected shoplifter on the abovementioned grounds, the law generally permits store employees to do so, but only for a “reasonable” period of time. What counts as “reasonable” will vary but is likely limited to the time needed to identify the suspect and call local law enforcement. Most state laws allow merchants to ask suspects for identification and to return any unpaid merchandise. In some areas, employees may even pat down suspects if there is reason to believe that they may have a weapon. In a nutshell, if you have done something to raise the reasonable suspicions of store employees, they probably can detain you.
If you are wrongly detained, try your best to remain calm and reasonable. Chances are that the store employees are worried about their safety; therefore it makes sense for you to take care not to do anything to make them think you are a threat, which might, in turn, put your own hysical safety at risk. You can try to the best of your ability to explain your behavior (“I thought I put the shoes in the correct box.”) However, realize that the employees may not give much weight to your explanations; chances are good they have heard it before. While you are being detained, the store employees should be willing to accommodate any reasonable requests, such as for water, prescription medication, or use of the bathroom. If local law enforcement is called and you are detained by the police, you should immediately state your desire to speak to an ttorney. Be polite, but wait until your attorney arrives before engaging in any lengthy discussions with the police.
Store security might say that you are expected to pay for the property they allege you took, which is common practice, and in many places, legal. This is known as civil recovery and allows the store to directly ask you to pay what they think you owe without any court or law enforcement involvement. While you are detained, you should protest politely any supposed fines. After the event, you should write a letter to the company’s head of loss prevention, explaining
why you don’t believe you should have to pay. Although no court involvement is initially required, these notices and allegations should be taken seriously. Leaving something such as this unattended could result in major fines and headaches. If you believe your rights were violated during the detention or if the store continues to pursue you for payment, you should talk to your attorney about your options and possible remedies.

（2008年春）　Copyright © 2008 Hisaka Yamamoto (Photo: © Vadimone | Dreamstime.com)

Traveling overseas is an exciting adventure: seeing new places, speaking a different language, learning about a culture. However, having a run-in with the law is one kind of excitement you don’t need. Even if you have done nothing wrong, the possibility of being arrested or detained in a foreign country is a risk you need to take very seriously. By understanding what you should do before you leave, knowing your rights, and keeping in mind the limits on what U.S. officials can do for you, you will be more likely to quickly resolve any problems you might encounter and return home safely.
There are a number of important steps to take before you travel abroad. First, check the U.S. Department of State’s travel warnings and alerts (www.travel.state.gov/travel/warnings.html ). These notifications alert travelers to possible threats, political unrest, or violence in specific areas of the world. You should also consider registering with the Department of State. Registering can be done online for free (https://travelregistration.state.gov/ibrs) and ensures that if there is an emergency, either back home or at your destination, American officials can easily contact you. Lastly, before you go, leave copies of your travel documents and passport with a family member or friend. That way, if something does happen, someone back home will have your identification information.
Then, when you are traveling, remember that you are subject to the laws of the country you are in, which may be different from those back home. Ignorance of the law is never an excuse. If you are arrested abroad, try to remain calm. Once you are taken into custody, you should immediately ask to speak to a consular officer at the nearest U.S. Embassy or Consulate. Many countries have agreements with the United States to ensure that you have this right (and the citizens of those countries have the reciprocal right in America). If your request is turned down, you should keep asking, politely, but continually.
American Embassy and Consulate officials are valuable allies for citizens arrested abroad; however, it is important to note that they can’t provide a “get out of jail” card. Still, although American officials usually cannot represent you in court, they can provide you with a list of qualified attorneys, contact your family, and help get you money from your family back home. American officials will also monitor your health and safety and will protest any abuse or maltreatment. So remember: Your best protection when traveling abroad is to do the necessary research ahead of time, understand the rules of the host country-and keep your wits about you!
Tips For Parents-What To Do When Your Child is Abroad
With the summer moving into full effect, many teens and college students are getting ready to spend the summer traveling abroad, or packing and preparing for an upcoming semester abroad. For the kids, these opportunities are exciting times filled with learning and fun. For parents, these can be times of stress and worry. You can help your child prepare for any international travel by ensuring that your son or daughter understands how to respond to interactions with foreign law enforcement. The following list outlines some important topics and tips:

• Get the Information: Make sure you have all of the information about your child’s trip, ncluding flight information, hotel accommodations, any planned side-trips, and the names of all ravel companions. Have your child makes copies of all necessary travel and identification ocuments (passports, tickets, credit cards, etc) and leave a copy of them with you. Your child hould also bring extra copies of any travel documents in case something is lost.
• Help Your Child Get Informed: Work with your child to research the destination country. Has the Department of State recently issued any travel alerts? It will be helpful for your child to learn at least a couple of key phrases in the destination country’s language including: “Help!” “I need a hospital” and “Please call the American Embassy.”
• Talk About Safety: Without being overly alarmist, have an open and frank discussion with your child about the dangers of traveling abroad. Be sure to mention the old adage “there is safety in numbers” and outline the dangers of alcohol and other intoxicants. Some countries may have relaxed laws on alcohol and drugs as compared to the United States; others have much harsher laws. Even if your child is unlikely to engage in such activities, you should still consider having an honest discussion about the dangers.

In the end, remember, this is a once in a life time experience for your child: let him or her go and experience the world and have faith that you have prepared your child as well as you can.

（Summer 2008）

If you have a loved one in the armed services, you probably know the worries associated with military life. It is a life with many uncertainties: where is the next duty station; when is the next deployment; when is the next phone call home? However, you can help with the preparation for an upcoming deployment by taking on some legal and financial responsibilities. This can alleviate some of your loved one’s worries and provide for a level of certainty that some matters back home are under control.
Without careful planning, a family member, other than a spouse, has little authority to act on behalf of a deployed loved one. In some cases, family members may not even be aware of the need to act. Before deployment, military personnel and their families should talk about important issues that will need to be addressed during deployment. These include taxes, real estate or rental properties (including investment and vacation properties), automobile payments and insurance, life and property insurance, credit cards, and any recent installment purchases (common for large purchases such as televisions and washers). Additionally, it is essential to talk about any upcoming or current litigation, including both civil and criminal proceedings. A simple traffic ticket can become a big headache if left unattended. By simply talking about these issues, you can ensure that everyone is on the same page.
Power of Attorney
A power of attorney is one of the best ways to make sure that you can take care of these and other law-related issues for a deployed loved one. A power of attorney is a written document in which servicemembers (the principal) grant certain authority to someone they trust (the agent or “attorney in fact”) to act on their behalf. A power of attorney may be very specific, authorizing a person to sell a car, for example. Or it can be very broad, allowing the agent to do almost anything on the principal’s behalf. Military personnel can use a power of attorney to give a family member or friend the ability to access bank accounts, make rent or mortgage payments, make car payments, and pay utilities and other bills.
It is important to note that a power of attorney isn’t a guaranteed solution for every situation. Some agencies may require additional documentation. For example, the Social Security Administration often requires you to fill out their specialized paperwork in order to be able to receive payments on behalf of another person. Many states will require you to use their specific forms if you wish to file someone else’s taxes. Regardless, a power of attorney is a good starting point and, at the very least, will document your deployed loved one’s intentions. Armed services support organizations can help you identify your options and assist you in the drafting of a power of attorney agreement.
Most powers of attorney are effective only as long as the principal (your loved one) has what the law calls “capacity.” The idea is that agents cannot do something that principals would not be able to do for themselves. So, if your loved one becomes incapacitated, your authority under a regular power of attorney is nullified. You can, however, draft a special power of attorney so that the agent’s power and authority extends through any incapacitation. Usually called a durable power of attorney, a document such as this clearly states the agent’s intent that the power continue after disability or incapacity. If such a situation is a realistic possibility, it is important to work with an attorney to draft any documents correctly and unambiguously.
The SCRA
The Servicemembers Civil Relief Act (SCRA) provides important protections for active duty servicemembers and is a key aspect to any military family’s deployment preparations. Under the SCRA, certain civilian obligations can be postponed or suspended during deployment. These include some credit card debt, mortgage payments, pending trials, some taxes, and residential leases. The SCRA protections apply to all servicemembers, Reservists, and members of the National Guard only while they are on active duty. Be aware that the SCRA is not a fail-safe and doesn’t eliminate all obligations, but it can help alleviate some worry.
Regardless of the plan you and your loved one decide on, it is important to talk through all of the obligations and responsibilities that will need attending to during deployment. Additionally, military members and their families should take full advantage of the services and support offered by the appropriate branch of the armed services. These legal, financial, and social services can provide invaluable help and support, both in preparing for deployment and during deployment.
Prior to any deployment, military personnel and their loved ones should make sure they have a plan for

• Making necessary payments, including
• Rent
• Mortgage payments
• Insurance, including automobile, life, and property
• Car payments
• Utility bills
• Filing federal and state income taxes.
• Receiving any government benefits, such as Social Security.
• Handling any credit card debt and payments.
• Overseeing any legal proceedings.
• Drafting a power of attorney or, if needed, a durable power of attorney.

（Spring 2008）

Photo：C-17 Globemaster　© Igmarx | Dreamstime.com

After the events of 9/11, Hurricane Katrina, and the Southern California wildfires of 2007, federal, state and local governments have spent a great deal of time and money on disaster preparation. However, in order to truly ensure that your family and loved ones are ready, you should take some steps yourself.
The first step to be disaster-ready is to simply talk with your family and develop a plan. This plan should include a meeting place for all family members to congregate in the event of an emergency or evacuation. You may want to consider selecting two places, one close to your home and another out-of-state should it be too dangerous to stay near home. You should also designate an out-of-state contact person who family members can check-in with. During an emergency, it may be easier to call someone long distance than to try to reach local numbers. You should make sure that each family member has a copy of the plan, as well as contact names and phone numbers.
You should also prepare emergency kits in order to ensure that if something were to happen, your family has essential necessities. When putting together your kit, focus first on the basics: fresh water, food, clean air, and warmth. The following checklist can help:

• water – you should plan to have one gallon of water, per person, per day, for at least three days;
• food – consider stocking three days worth of non-perishable food;
• flashlights;
• extra batteries;
• first aid kit;
• a whistle – to signal for help;
• dust masks;
• moist towelettes, garbage bags, and plastic ties – can be used for personal
  sanitation;
• basic tools including a hammer, a wrench, and pliers;
• a can opener; and
• local maps.

You may also want to consider including:

• prescription medication;
• pet food and water for pet;
• important documents;
• money;
• sleeping bags and blankets;
• a change of clothes; and
• books games, activities for children.

Remember – during an emergency, ATMs and computers may not work. You will want to makes sure you have copies of important family documents and extra money. When putting together an emergency kit, consider including copies of insurance policies, identification, and bank account statements. You should also pack some cash, travelers’ checks, and change. All paper should be kept in a waterproof, portable container.
If you are one of the millions of American pet owners, chances are you have worried about what would happen to your furry friend during an emergency. While planning for your family’s emergency care, take a minute to consider your pet. Remember, typically what is best for you is what is best for your pet. In other words, if you think you will need to evacuate, consider ahead of time how your pet will evacuate. You should maintain copies of all your pet’s identification
documents, recent vet records, and a recent photo of you and your pet together. When creating your emergency plan, remember that public shelters don’t always accept animals. You may want to consider developing a buddy system with a neighbor or friend. This would ensure that in case you are unable to return home, someone else would know to check in on your pet and make sure it is safe and attended to.
Once you have planned and prepared, make sure you stay informed and updated as to possible threats and dangers. This can be as simple as checking the local news and weather daily. The federal government has created resources to help you prepare and to stay informed, including www.ready.gov and 1-800-BE-READY. These resources also provide local information regarding both preparation and possible threats. By being aware and prepared, you can serve as the first, and most important, resource for your family during a disaster.

（Winter 2007）