All posts by smarner

MAKING A WILL IN MAINE DURING THE COVID-19 PANDEMIC

If you are like many people right now, you are isolating yourself in self-quarantine at home. Recent news reports suggest that many of you are using this extra time at home to get your legal affairs in order and are turning more frequently to online tools to draft wills and other estate planning documents. You should be aware many of those options won’t work for Maine residents because of Maine legal requirements.

Under Maine law, an individual of sound mind who is 18 or older or legally emancipated may make a will. Generally, to be valid under Maine law, the will must be: (1) in writing; (2) signed by the person making it; and (3) signed by at least two other people, each of whom signed within a reasonable time after the person signed his or her will or that person’s acknowledgment of that signature or the will. And because it makes it more likely to survive a legal challenge, most wills are notarized.

Getting two individuals to witness a will’s execution, let alone someone to notarize the instrument, can be challenging in times of quarantine. (Legal services have been designated as “essential” and so are permitted to remain open, but regardless many people now, to avoid risks to themselves and others, understandably do not wish to visit a law office or other public place.) As of now, Maine does not allow for remote notarization; the notary public must be in the physical presence of the maker of the will (also known as the “testator”) and the witnesses. Thankfully, the law provides an alternative.

The easiest solution is to make what is called a “holographic” will. That means, simply, that the will is in the handwriting of its maker and signed. It need not be witnessed. When we prepare wills for clients here at Western Maine Law, we include other types of provisions, but for emergency needs many people can start with the statutory will Maine provides at http://legislature.maine.gov/statutes/18-C/title18-Csec2-517.html. As written, the statutory will requires witnesses as discussed above. But, if you simply copy the statutory will in your own handwriting, filling in the blanks as appropriate, and sign it, it should be valid under Maine law, even without witnesses. Once the pandemic passes, we can use your holographic will as a starting point to complete the will-making process.

With respect to other estate planning documents, there are fewer alternatives. Maine has adopted the Uniform Health Care Decisions Act, which empowers people to make Advance Health Care Directives, which incorporate both individual instructions for health care decisions (such as not wishing to have life prolonged if the person is in a persistent vegetative state) and the naming of a power of attorney for health care. Although, as with the statutory will, the form does not include all of the provisions that we recommend, Maine law provides a sample form at https://legislature.maine.gov/legis/statutes/18-C/title18-Csec5-805.html. The statute requires, however, that the power of attorney must be in writing and must be signed by the maker and two witnesses in person and not by electronic means. One can, however, execute a form like this once in a hospital, and in our experience the sample provided by MaineHealth is sufficient for most people’s needs, especially in emergency circumstances.

UPDATE: On April 8, Governor Mills issued an executive order allowing for remote notarization in Maine. The order is available at https://www.maine.gov/governor/mills/sites/maine.gov.governor.mills/files/inline-files/EO37.pdf. That means that things like powers of attorney and advance directives may be executed without the physical presence of witnesses and a notary. This does not alter the legality of holographic wills (wills in the testator’s handwriting).

Attorney Arner Appears on WSKITV 17

Thanks to WSKI 17 Sugarloaf (wskitv.com) for having Attorney Steve Arner on the mountain report this morning. The show is broadcast live in the Sugarloaf area on channel 17, and streamed on youtube. The stream is available at https://www.youtube.com/watch?v=E-QjsM73Po4. Attorney Arner appears between 50:48 and 1:04:50. Other guests included Kate Boehmer speaking about the new Sugarloaf app, and Rising Tide Brewing owners Heather and Nathan talking about the new Mosaic IPA being offered at the Widowmaker.

Attorney Arner Named 2019 Katahdin Counsel by Maine Supreme Judicial Court

Last month, attorney Steve Arner was again recognized by the Supreme Judicial Court and, along with 72 other attorneys throughout the State, named a Katahdin Counsel for 2019 for his commitment to providing pro bono legal services. His provision of legal services and education on a volunteer basis helps meet the legal needs of those who would otherwise not be able to afford legal services. Steve accepts referrals from Legal Services for the Elderly, the Volunteer Lawyers Project, and other nonprofit organizations, among other sources.

Katahdin Counsel logo

NEW MAINE LAW PROHIBITING USE OF PHONES AND OTHER DEVICES WHILE DRIVING GOES INTO EFFECT THURSDAY, 9/19/19

“An Act to Prohibit the Use of Handheld Phones and Devices While Driving,” LD 165, amending 4 MRSA section 20, goes into effect Thursday, September 19, 2019. As discussed below, the law is quite broad, prohibiting ANY use of phones and other devices by certain drivers, whether in “hands-free” mode or not, and bans the use of not only mobile phones for texting and talking and other functions, but most use of other devices such as portable GPS devices and satellite radio receivers.

Common sense would suggest that a “handheld electronic device” is a device held in your hand. Alas, that is not the case. The law defines a “handheld electronic device” as “any handheld electronic device or portable electronic device that is not part of the operating equipment of the motor vehicle, including but not limited to an electronic game, a device for sending or receiving electronic mail, a text messaging device or a computer” (emphasis added). (There is no exception for law enforcement personnel.) It explicitly does not include a device used for communication over a citizens’ band radio service, the multi-use radio service (“MURS,” used for short distance two way communications using small portable hand held radios), a land mobile radio service, or a personal medical device such as an insulin pump or heart monitor. In other words, the law governs not only handheld devices, but nearly all electronic devices that are portable, such as GPS and navigation systems, MP3 players, and satellite radio receivers, whether or not they are mounted on the dash, windshield, or elsewhere.

The law provides heightened penalties for text messaging while driving. The law defines “text messaging” as “reading or manually composing electronic communications, including text messages, instant messages and electronic mail, using a handheld electronic device” but does not include using a “global positioning or navigation system.” As discussed below, that does not mean that the law allows free use of portable GPS or navigation systems; it just means the heightened penalties for text messaging while driving do not apply.

NEW AND YOUNG DRIVERS

The law provides different prohibitions for different categories of drivers. Drivers operating with a learner’s permit, drivers under the age of 18, and drivers who have held a license for less than 270 days may not interact with a portable electronic device in any fashion, whether or not in hands-free mode, unless pulled over to the side of, or off of, the road in a safe location. And under existing law, in addition to penalties described below, drivers operating under a provisional license (the first two years for drivers under the age of 21, and 1 year for persons at least 21 years old) are subject to automatic license suspension for any violation of traffic laws (30 days on first offense, 180 days on second offense, and one year on third and subsequent offenses).

TEXT MESSAGING

No driver may text message while operating a motor vehicle on a public way, including but not limited to when the motor vehicle is temporarily stopped because of traffic, a traffic light or a stop sign. A driver may engage in text messaging only if pulled over to the side of, or off of, the road in a safe location. (The prohibition does not apply to commercial drivers and school bus drivers using devices within the scope of their employment as permitted under Federal Motor Carrier Safety Administration regulations.)

Text messaging in violation of this prohibition is a traffic infraction carrying a fine of not less than $250 for the first offense. Subsequent violations are punished even more severely. Subsequent offenses within a 3-year period are traffic infractions for which a fine of not less than $500 may be adjudged, along with mandatory license suspensions without right to hearing. For a second offense within a 3-year period, the suspension is for a minimum of thirty days; for a third offense, a suspension of at least sixty days is called for; for a fourth and subsequent offenses within the 3-year period, a suspension of no less than ninety days is required.

USE OF TELEPHONES AND ELECTRONIC DEVICES WHILE DRIVING

Drivers may not use, manipulate, talk into, or otherwise interact with a handheld or portable electronic device, including when the vehicle is temporarily stationary because of traffic, a traffic light, or a stop sign, unless: (1) the driver is using the device in order to communicate with law enforcement or emergency services personnel under emergency circumstances, meaning in circumstances in which there is an immediate threat to the health or well-being of any person (this exception is not available to drivers operating with a learner’s permit, but is available to other young and new drivers); or (2) the driver is using the device in hands-free mode (as noted above, this exception is unavailable to drivers under the age of 18, drivers operating with a learner’s permit, or an intermediate license subject to 270-day restrictions). The prohibition does not apply to commercial drivers and school bus drivers in the scope of their employment.

For a driver to use a portable electronic device in a vehicle, he or she must pull to the side of, or off, the road in a safe place.

The only other permissible interaction with portable electronic devices by drivers is the use of a single hand to activate or deactivate a feature or function of the device that is in hands-free mode and mounted or affixed to the vehicle in a location that does not interfere with the view of the road, and then only if the feature or function activated requires only a single swipe, tap or push of the operator’s finger.

Typing in an address into a GPS or navigation system, scrolling through a playlist to select a song, scrolling through contacts to call them, scrolling through stations on Amazon music or Spotify or a (portable) satellite radio receiver? All are illegal under the new law, unless via a device built in to the vehicle.

Violations are treated as traffic infractions for which fines of not less than $50 for a first offense and not less than $250 for second and subsequent offenses may be adjudged.

NEW LAW GOVERNING CHILD SAFETY SEATS AND SEAT BELTS GOES INTO EFFECT 9/19/19

LD 1269, amending 29-A MRSA section 1861, provides new rules governing the use of child safety seats and seat belts, and goes into effect Thursday, September 19, 2019, along with the more widely-discussed update to Maine law governing the use of handheld and electronic portable devices while driving. This law applies to motor vehicles that are required to be equipped with seat belts (so not, for example, to school or commercial buses).

The law sets up several tiers of requirements. First, any child less than two years old must be properly secured in a rear-facing child restraint system (a device, generally referred to as a car seat, designed for use in a motor vehicle to restrain, seat and position children who weigh 80 pounds or less that meets the requirements of Federal Motor Vehicle Safety Standard 213; this does not include a traditional lap or lap/shoulder safety belt).

Second, any child two years or older and weighing less than 55 pounds must be properly secured in a child restraint system in accordance with the device and vehicle manufacturers’ instructions.

Third, any child less than 8 years of age, weighing less than 80 pounds, and less than 57 inches in height, must be properly secured in a belt positioning seat (a child restraint system, generally referred to as a booster seat, that positions a child on a motor vehicle seat to improve the fit of a seat belt on the child).

Fourth, the driver must ensure that all passengers less than 18 years of age (and not subject to the booster seat requirement above), be properly secured in a seat belt.

Fifth, the driver must ensure that any child less than 12 years of age and weighing less than 100 pounds must also be properly secured in the rear seat, if possible.

Sixth, all operators, and passengers 18 years of age or older are required to be properly secured by a seat belt. The adult passenger is responsible for complying with this requirement (as noted above, the driver is responsible for ensuring those under 18 are properly secured). Among other exceptions, this requirement does not apply if all of the seat belts are already in use by others, nor does it apply to an operator or passenger who has a medical condition that warrants an exemption as documented by a certificate from a physician.

Violation of any of these requirements is a traffic infraction, for which a fine of $70 for the first offense, $160 for the second offense, and $310 for the third and subsequent offenses must be imposed, and may not be suspended by the court.

Attorney Arner to Give Presentation with Chief Lopez on Thursday, May 2, at the Carrabassett Valley Public Library

Attorney Steve Arner and Carrabassett Valley Police Chief Mark Lopez will be giving a joint presentation Thursday at 430PM at the Carrabassett Public Library on interacting with the police and the status of marijuana enforcement. Arner will be providing some practical tips on interactions with the police and a brief primer on the Constitutional protections that govern police searches and seizures, and confessions. Chief Lopez will be providing an update on marijuana laws.

Carrabassett Valley Public Library

Attorney Arner in the News

Attorney Steve Arner was recently in the news for his representation of a defendant in a criminal matter which had previously made the national press. Arner’s client was initially charged with criminal threatening with a dangerous weapon, a Class C felony punishable by up to five years in prison and up to a $5,000 fine. Arner was able to get the charges reduced to two Class D misdemeanors, and upon demonstrating the futility of one of the two remaining charges to the prosecutor and judge, was able to secure a favorable plea agreement for his client. Formerly faced with up to five years in prison, the client is now facing a deferred disposition with an ultimate payment of a $250 fine for disorderly conduct, the lowest level of misdemeanor. Lewiston Sun Journal

Forming a Business in Maine? Attorney Steve Arner to Give Presentation at CV Public Library on 5/2 at 4:30PM

Steve Arner of Western Maine Law LLC will be delivering a presentation on forming a business entity at the Carrabassett Valley Public Library on Wednesday, May 2, 2018 at 4:30pm as part of the Lawyers in Libraries program. He will explain the reasons business-owners may wish to form limited liability companies (LLCs) or corporations rather than operate as sole proprietorships, and will explain the key differences between the different forms of business entities, with respect to liability and asset protection, taxation, costs of operation, and operation. Steve will walk participants through the steps and costs of creating a new business entity, including reserving a name, appointing an agent, making the necessary initial and annual filings with the Maine Secretary of State, preparing bylaws or an operating agreement, electing an appropriate tax treatment, obtaining an Employee Identification Number (EIN), conducting and documenting meetings, and complying with record-keeping and annual report requirements. As with his previous presentation on advance health-care directives, Steve will show you how these tasks can be accomplished without a lawyer.