Q:       I just realized that I could have claimed a tax credit this year, but I’ve already filed my return. Is there anything I can do?

A:        Yes. You can file an amended return using IRS Form 1040X. If you are eligible to claim a credit, or perhaps a deduction that reduces your tax bill, you should do so.

Q:       What if I’ve made a mathematical error on the tax return I already submitted?

A:        Generally, you do not need to file an amended return to correct mathematical errors because the IRS will automatically make such corrections and send you a printed notice. Also, amended returns should not be filed for forgotten tax forms such as W-2s or schedules; the IRS normally will mail you a notice asking you for any such forms if they are needed.

Q:       What if I’ve forgotten to report income?

A:        If you’ve forgotten to report income, you should file an amended return as soon as possible. The sooner you correct such a mistake, the lower any possible penalties and interest you may owe will be. Reporting the additional income on a 1040X form could save you money in the long run.

Q:       Can I submit a 1040X form electronically?

A:        No. Form 1040X must be filed using the paper form and mailed in. If you are amending more than one tax return, each 1040X form should be mailed in a separate enveloped addressed to the appropriate IRS processing center.

Q:       How much time do I have to file an amended return?

A:        An amended return must be filed within three years from the date of the original return or within two years from the date taxes were paid, whichever is later.

Q:       How long will it take the IRS to process my amended return?

A:        According to the IRS, it generally takes between eight and 12 weeks to process an amended return.

Q:       Where can I find more information?

A:        For more information about amended returns or to print a copy of Form 1040X, go to www.irs.gov and click on the link to Forms and Publications, or visit the IRS YouTube channel: www.youtube.com/watch?v=JUjC0avoZ_I.

The information for this “Law You Can Use” column was provided by the Internal Revenue Service. It was prepared by the Ohio State Bar Association. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

Q:       What is covered under the Fair Labor Standards Act (FLSA)?

A:        Though it regulates other employment issues, the FLSA primarily establishes a federal minimum wage and overtime pay requirements. This article covers the act’s minimum wage provisions.

Q:       Are all employees covered by the FLSA?

A:        The FLSA covers most employees. It applies to any business that grosses at least $500,000 in annual gross volume of sales or business and to any smaller business whose employees are engaged in, or whose duties are directly essential to, interstate commerce. Governmental entities are also subject to the FLSA, although special wage and hour provisions apply.

Q:       Who is exempt from the federal minimum wage requirements?

A:        The federal minimum wage requirements do not apply to:

·                executive, administrative, and professional employees;

·                outside sales employees;

·                certain skilled computer professionals;

·                employees of certain seasonal amusement or recreational establishments;

·                seamen employed on foreign vessels;

·                employees engaged in fishing operations;

·                employees engaged in newspaper delivery;

·                employees of small farms; and

·                casual babysitters and companions to the elderly.

Q:       Do all FLSA-covered employees earn at least the 2012 federal minimum wage of $7.25 per hour?

A:        No. Employees in certain categories may earn less than the federal minimum wage. These include:

·                employees under the age of 20, who may be paid as little as $4.25 per hour for their first 90 consecutive calendar days of employment;

·                “tipped” employees, who may be paid as little as $2.13 per hour, under certain conditions;

·                full-time students, who may be paid as little as $6.16  per hour, under certain conditions;

·                student-learners enrolled in vocational education, who may be paid as little as $5.44 per hour; and

·                individuals whose earning or productive capacities for the work to be performed are impaired by physical or mental disabilities and who may be paid a commensurate wage rate.

Q:       Will the $7.25 federal minimum wage continue to rise in the future?

A:        The federal minimum wage does not increase automatically and a new law must be enacted before the minimum wage can be raised.

Q:       If a state has established a minimum wage, does the federal minimum wage still apply?

A:        Yes. All employees covered by the federal minimum wage must be paid at least that amount.  However, where a state has established a minimum wage that is greater than the federal minimum wage, employers must pay the higher state minimum wage.

Q:       What records must employers keep to comply with the FLSA?

A:        Employers subject to the FLSA must keep, for three years, the payroll information of employees, such as names, addresses, occupations, and hours worked each day and week. They must also maintain the records on which wage computations are based (e.g., time cards) for two years. Employers must allow the Department of Labor access to this information upon request.

Q:       Must employers notify their employees about the federal minimum wage?

A:        Yes. Any employer whose employees are entitled to the federal minimum wage must post a general notice about the FLSA.

Q:       What if an employer does not comply with the federal minimum wage law?

A:        Employers who fail to comply may be investigated by the Department of Labor (DOL). The DOL may recommend changes in employment practices to bring the employer into compliance and can require the employer to pay back wages due to employees. 

            An employer who fails to comply also may face a lawsuit brought by the DOL or by an employee, which may result in an order to provide back pay or damages and a court injunction prohibiting it from continuing its unlawful practice. An employer who willfully and repeatedly violates the FLSA may be subject to an additional penalty of up to $1,100 per violation and may even be prosecuted criminally and fined up to $10,000. The owners and officers of an employer convicted a second time for a willful FLSA violation may face imprisonment.

Q:       Is there a time limit for an employee to file a lawsuit over an FLSA violation?

A:        Yes. An employee must file within two years of the violation or within three years if the violation was willful.

This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). It was prepared by Cleveland attorneys Keith A. Ashmus, a partner at Frantz Ward LLP, and Jennifer L. Isaacs, an associate at Frantz Ward LLP. Articles appearing in this column are intended to provide broad, general information about the law. For information about a variety of legal topics, visit the OSBA website at www.ohiobar.org. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

Q:                               Q:       My 21-year-old daughter, who lives alone, suffers from the effects of alcohol abuse. She refuses to get treatment, and I fear for her safety. Is there any way to get her into treatment despite her refusal?

A:        Yes. On March 22, 2012, Ohio Senate Bill 117 became effective. This law includes a provision allowing a probate court to order involuntary treatment for a person suffering from alcohol or other drug abuse, as long as certain procedures are followed. A spouse, relative or guardian may initiate this proceeding.

Q:       How would I go about asking the court to order treatment for my daughter?

A:        First, you would file a petition with the probate court and pay any fee that may be charged for filing an affidavit saying you are seeking your daughter’s hospitalization. Your petition must include certain information that must be verified by the court, including a doctor’s statement about your daughter’s need for treatment (unless she has refused to see a doctor about her condition). The law gives the probate court “exclusive jurisdiction” to hear and determine such petitions. This means that only the probate court can consider your petition, order treatment for your daughter, and take other actions allowed by law regarding involuntary treatment for someone suffering from alcohol or other drug abuse.

Q:       What happens once the probate court receives my petition?

A:        After having received your petition and filing fee (if any), the court must examine you under oath about what is included in your petition. After reviewing the allegations in your petition, the court must decide if there is “probable cause” to believe your daughter may reasonably benefit from treatment. If the court finds probable cause, it will conduct a hearing to determine if there is “clear and convincing evidence” that your daughter may reasonably benefit from treatment. The court will also consider the recommendations of a qualified health professional who has examined your daughter and can certify that she meets the criteria for involuntary treatment.

Q:       If the health professional certifies to the court that my daughter should receive involuntary treatment, what happens next?

A:        If the probate court finds “by clear and convincing evidence” that your daughter presents an “imminent threat of danger” to herself, her family or others, and that she would reasonably benefit from treatment, the court may order your daughter to be hospitalized for this treatment.

Q:       Does my daughter have any rights in this matter?

A:        Yes. Your daughter has a right to legal counsel and to have an independent expert evaluation of her physical and mental condition. Also, if your daughter is hospitalized during the proceeding because the court finds that she presents an “imminent threat of danger” to herself, her family, or others, then the court must inform your daughter that she may immediately make a reasonable number of phone calls or use other reasonable means to contact an attorney (or someone who can help her secure legal counsel), a licensed physician or a qualified health professional, or to get medical or psychological help. Your daughter would receive help in making calls if she needs help and asks for it.

Q:       What if my daughter refuses to be examined before the court hearing, or refuses to go to the hospital even after the court has ordered it?

A:        The law authorizes the probate court to issue a summons if your daughter fails to attend an examination scheduled before the hearing. The summons must be directed to your daughter and must command her to appear at a particular time and place. The summons also will say that, if your daughter fails to appear at the examination or the hospital, the court may order the sheriff or any other peace officer to transport her to a hospital from a list the law provides.

Q:       Who decides which hospital will take my daughter?

A:        The law requires each Ohio county’s board of alcohol, drug addiction and mental health services to submit lists of certain specified hospitals to the clerk of each county’s probate court at least once a year.

Q:       Will information about my daughter’s involuntary treatment be kept confidential?
A:        Yes. Ohio laws regarding patient confidentiality, as well civil rights and liberties, apply to a person who is ordered to undergo treatment for alcohol and other drug abuse.  

Q:       Who is responsible for my daughter’s treatment costs?
A:        When you file a petition with the probate court, you must also file a statement guaranteeing payment of the costs of any required examinations of your daughter and the costs of any treatment ordered by the court.  

This “Law You Can Use” column was prepared by the Ohio State Bar Association. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

 

Q:                               Q:       What is a financial power of attorney?

A:        A financial power of attorney (POA) is a legal document is a legal document an individual (the “principal”) can use to appoint someone (the “agent”) to act on his or behalf regarding personal, financial and business matters. Typically, a POA is used when an individual can no longer handle his or her own affairs. As the principal, you can name one agent, or two or more co-agents. Each of them can act alone, unless your POA specifically states they must act together, by majority, or in some other way. If you name a single agent, it is wise to name at least one successor agent. Also, you should choose an agent carefully, and grant only those powers that your agent may need to use.

Q:       What if I become mentally incapacitated and haven’t signed a POA?

A:        In such a case, the probate court may appoint a guardian for you. It is more cost effective and efficient to use a POA to avoid this, although the standard POA document does not have the safeguards that exist under a court-supervised guardianship. Unless you name co-agents in your POA, no one oversees your agent’s conduct if you lose capacity.

Q:       How has Ohio’s POA law changed?

A:        Ohio’s version of the Uniform Power of Attorney Act (UPOAA) became effective March 22, 2012. It changed the law governing POAs to help prevent financial elder abuse, and to uncover abuse and provide remedies when it does occur. The law now also includes a statutory form with language that lists actions an agent may not take and includes a section called “Important Information for Agent,” describing in plain English the agent’s duties and responsibilities.

Q:       If I signed a POA before March 22, 2012, is it still valid?

A:        Yes. However, you may want to ask an attorney to review it in light of current law, and consider using the 2012 statutory form.

Q:       What powers would I be giving my agent in a POA document?

A:        You would decide the scope of your agent’s authority, but principals typically want their agents to handle day-to-day affairs. Ohio’s 2012 statutory form provides a list of the classes of powers a principal is likely to grant an agent, including the power to handle matters related to: real property; tangible personal property; stocks and bonds; commodities and options; banks and other financial institutions; operation of an entity or business; insurance and annuities; estates, trusts and other beneficial interests; claims and litigation; personal and family maintenance; benefits from governmental programs or civil or military service. On the statutory form, you can grant any or all of these powers by writing your initials next to the class(es) of powers.

Q:       Are there things my agent cannot do?

A:        Yes. Unless the powers are specifically granted, an agent cannot: 1) create a trust for you or make changes to an existing trust; 1) give away your property; 3) create or change rights of survivorship; 4) change your beneficiary designations; or 5) let others act in place of the agent you have named. These are the types of powers that are most likely to be abused. Although you can grant one or more of these powers listed in the section of the statutory form titled “Special Instructions,” the form was not designed for this purpose.

Q:       Are there individuals who can challenge an agent’s actions?

A:        Yes. Ohio law now recognizes a number of individuals who may file a motion asking the probate court to review the agent’s actions. However, if you, as principal, ask the court to dismiss such a motion, then the court must dismiss it unless the court finds that you are incapacitated.

Q:       Can I change my financial power of attorney?
A:        Yes. You can always change or revoke (cancel) your POA, but it is best to sign a written revocation of the POA and provide a copy to all banks and other financial institutions where you have accounts. Simply destroying the original document is not enough.

Q:       Can my agent act for me if I become incapacitated?

A:        Yes. Ohio law now makes all POAs “durable,” meaning that the agent can act even if you, as principal, should become incapacitated, unless your document says otherwise.

Q:       When do my agent’s powers end?

A:        Your agent’s authority ends when the POA states that it will end, or when you revoke your POA. Many POA documents do not specify when the agent’s authority ends. If your document does not include a specific end date, then your agent’s authority will end only when you revoke the POA or when you die. An agent can never act after knowing the principal has died.

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by attorney Richard E. Davis of Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A. in Canton. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.