| Read Time: < 1 minute | Massingill News

ACL Fest May be at Risk of Violating New Law Aimed to Prevent “Vaccine Passports”

The Austin City Limits Festival announced a requirement that attendees have a negative COVID-19 test or proof of vaccination to attend this year’s event. The requirement stems from similar requirements to attend other popular music festivals, including Chicago’s Lollapalooza. The Chicago Public Health Commissioner shared that two weeks after the festival, only 200 COVID-19 cases had been traced back to the event. Of those cases, no one required hospitalization. The commissioner also noted that 90% of attendees were vaccinated against the virus. Following this model, ACL fest plans to require proof of vaccination or a negative COVID-19 test within 72 hours. This requirement is being implemented despite Texas’s law denying state contracts and operating permits to businesses that require proof of vaccination for service. Joshua Massingill provided commentary on the ACL Fest’s decision and the application of the new Texas law in an interview with CBS Austin. It is important to note that this new Texas law is not implemented by one government agency but, rather, is government-wide. Massingill said that means there is no one agency focused on enforcing the mandate. The ACL Fest doesn’t actually obtain any permits from the government for the event. Instead, it hires vendors who in turn receive proper licenses from the state. This could help the ACL Fest avoid confrontation with the new regulations. Massingill also said that the festival’s option to provide proof of a negative COVID-19 test instead of vaccination might be a loophole to the new statute. He said this was a “novel” approach by businesses to avoid the state’s consequences, so he could not anticipate the government’s response. However, given the ACL Fest’s prominence in Texas, Massingill said he anticipated the state would respond in 24 to 48 hours if it planned to object to the requirements.

Continue Reading

| Read Time: 4 minutes | Articles

Medical Office Compliance Plan: A Primer for Healthcare Business Owners

State and federal laws heavily regulate the healthcare industry in the United States. As a result, if you are involved in any level of providing healthcare services in our country, you must always remain aware that there are complex compliance issues you must adhere to. Here is a look at some of the basic regulatory issues you might encounter and how a healthcare law specialist can assist you in addressing them. Specific Issues and Risks Regarding Regulatory Compliance as a Healthcare Business Owner Complying with general contract and business laws and rules when you are a healthcare business owner is not enough. Medical offices deal with numerous other levels of compliance issues specific to their field. For instance, based on your business, you may find that you have to pay particular attention to rules regarding: Medicare billing for services; Facility licensing and certification; Hospital-physician contracting and alignment, and other non standard contract laws; Provider formation, operations, and acquisitions; Managed care compliance; Medical coding compliance plans and intricacies; Compliance with federal and state laws regulating HMOs and insurance companies; and E-health regulations. The examples listed above are just the tip of the iceberg. The number of compliance plans your healthcare business must put in place are extraordinary and often changing. Violations, even unintended, can lead to serious consequences. For instance, a compliance plan for a medical office, should be sure to address the Stark Law. Under provisions of the Stark Law, a doctor may not refer a Medicare or Medicaid patient to an entity in which the provider or an immediate family member has a financial interest for the provision of designated health services. This is one of several important Federal fraud and abuse laws that apply to healthcare businesses. Your office must have a medical compliance plan with checks and balances in place to ensure compliance with this law. Punishments for violating the Stark Law could include: Prosecution before the Department of Justice, Criminal penalties,  Civil fines, and Loss of your medical and business licences. These punishments can doom a healthcare business owner.  How a Lawyer Can Help Your Office With Medical Compliance Healthcare attorneys are trained, experienced, and focused on helping healthcare business owners create compliance plans and address non compliance accusations. Medical offices must be proactive in seeking legal assistance regarding formation of compliance plans and operating in alignment with those plans. It is also essential that your medical office have attorneys ready to defend you regarding non compliance claims. Proactive Legal Support If you are starting or already own a healthcare business, it is best to engage healthcare lawyers. Among other things, they can evaluate your business and provide services surrounding: Drafting and implementing a full compliance plan; Creating medical office contracts for transactions; Addressing medicare provider enrollment compliance; Preparing and negotiating full preferred provider agreements; Constructing physician compensation arrangements; Implementing mergers of medical groups; Purchasing equipment and lease agreements; Producing written policies, procedures, and standards of conduct documents; and Providing training and education on updated medical compliance. You need a law firm with healthcare expertise to address, review, or create a comprehensive medical compliance plan for your healthcare business. Doing so will aid you in avoiding critical issues in the future. Help During Regulatory Compliance Issues Along with providing early and ongoing support, healthcare lawyers can assist with representation and legal advocacy if you face an audit or legal challenge. These may include addressing issues such as: Disputes over department closure and scope of exclusive contracts; Joint venture litigation; Voluntary disclosure of Stark violations and refunding overpayments; Failure to comply with Medicare coding and billing requirements; Inquiries regarding state licensing laws;  Medicare and Medicaid suspension actions;  Dissolution of corporations and partnerships; Accusations of HIPPA compliance failures; Dispute resolution involving a medical code compliance plan; Shareholder (“buy-sell”) partnership and operating agreement choices; and Handling of provider payment disputes. The above list is not all inclusive. A lawyer who works with healthcare entities can provide timely and responsive legal representation for any issue you might face regarding audits, investigations, and alleged violations.  Whether you are part of a sole practice, medical group, hospital, managed care organization, or other healthcare related businesses, you need a medical compliance plan. Once that is in place, you should have ongoing assistance to ensure continued compliance with the ever changing regulations. If you find yourself in need of representation, you want a firm with excellent reviews you can trust to handle your case. But do not wait until you reach that point. Seek out help now to address your medical office compliance plan needs.  Massingill Attorneys & Counselors at Law: Providing the Massingill Difference Massingill Attorneys & Counselors at Law is an Austin, Texas-based law firm focusing on healthcare business law throughout the state. Clients provide the firm with an ongoing top notch rating, and view us as exceptional legal professionals who are also personable and caring. Along with healthcare law, the firm addresses family estate planning and an array of general business and employment law areas.  When you need trusted, experienced legal counsel, look no further. Massingill Attorneys & Counselors at Law offers a flat fee arrangement and quality representation. Reach out to us today online or at 512-410-0343. We are available via video, phone, or in-person consultation. 

Continue Reading

| Read Time: 4 minutes | Articles

FAQ: Medical Power of Attorney in Texas

There may come a time when a person loses the ability to communicate his or her health care decisions. Whether the person loses capacity as a result of an accident, disease, or old age, it can be a difficult time for everyone involved. To ease the emotional stress of these types of situations, Texans should consider completing a medical power of attorney.  What Is a Medical Power of Attorney in Texas? A Texas medical power of attorney (POA) is a legal document that authorizes a person (the agent) to make medical decisions on behalf of someone else (the principal) when they are incapable of doing so. A medical POA in Texas is sometimes referred to as an advance directive. How Do You Create a Texas Medical Power of Attorney? To create a medical power of attorney, Texas law requires that you either sign the document in front of two witnesses or have a notary public acknowledge your signature. Your signature is confirmation that you read and understand the information in the disclosure statement, which is a required part of the medical power of attorney. Texas Health and Human Services (HHS) provides a medical power of attorney form for Texas residents that is modeled off of the Texas medical power of attorney statute. Who Can Witness My Medical Power of Attorney in Texas? Any competent adult may witness a medical power of attorney. However, the following persons cannot be one of the witnesses: Your agent; A person related to you by blood or marriage; A person who could inherit a portion of your estate; A person who has a claim against your estate; Your doctor or one of your doctor’s employee’s; or A health care provider or their employee at a health care facility where you’re a patient. Remember, you also have the option to sign your medical power of attorney in front of a notary public.  Who Can Serve as My Agent? Anyone 18 years or older can serve as your agent, except for the following persons: Your doctor or other heath care provider; An employee of your doctor or health care provider, unless that person is your relative; Your residential care provider; or An employee of your residential care provider, unless that person is your relative. If you designate your spouse as your agent and later divorce, your spouse is no longer the agent.  When selecting an agent, choose someone you trust. Healthcare agents must make medical decisions per your instructions and in accordance with your wishes, which includes your religious and moral beliefs. However, if you do not have instructions on how to handle a certain situation, the agent must make the decision based on what the agent thinks you would want. This is quite a significant amount of responsibility.   What Medical Decisions Can My Agent Make for Me? Your agent can make almost any medical decision you could. However, your agent cannot consent to the following: Committing you to a mental health institution; Convulsive treatment or psychotherapy; An abortion; or Withholding care intended to provide comfort.  Keep in mind that you can limit the agent’s decision-making authority within your medical power of attorney. When Does the Texas Medical Power of Attorney Go into Effect? The Texas medical power of attorney goes into effect immediately once you sign the document and deliver it to your agent. However, the agent can make healthcare-related decisions only once your doctor certifies in writing that you are unable to decide for yourself. Up until that point, you have complete control over your own medical decisions. If you are deemed incompetent but later regain competency, then your agent loses the authority to make health care decisions for you.  Can I Revoke My Medical Power of Attorney? Your medical power of attorney lasts until it is revoked (i.e. canceled), you become competent, or upon a set expiration date. If at the specified termination date you are incompetent, the medical power of attorney remains in effect until you become competent or revoke it.  You can revoke it at any time. To revoke a medical power of attorney in Texas, you can do any of the following: Destroy the document; Sign a new medical power of attorney; Sign a written revocation; or Tell your agent or doctor that you intend to revoke your medical power of attorney.  A written or oral revocation takes effect once your doctor is made aware and records the revocation in your medical file. Is My Texas Medical Power of Attorney Valid in Another State? A medical power of attorney executed in Texas is only valid in a different state if that state allows it. Under Texas law, a medical power of attorney that is validly executed in another state has the same effect in Texas.  What Happens If I Don’t Have a Texas Medical Power of Attorney?  If you are unable to make your own health care decisions and you do not have a medical power of attorney, the following persons (listed in priority) will make decisions for you: Your spouse, Your adult children, Your parents, or Your nearest living relative. These people will have the decision-making power to withhold or withdraw life-sustaining treatment. All medical decisions must be based on what your wishes and desires might be.  Contact Massingill Attorneys & Counselors at Law If you need a Texas medical POA, the estate planning attorneys at Massingill Attorneys & Counselors at Law are here to help. We offer flat fee pricing and a personalized approach that will leave you feeling confident in your estate planning decisions. Our 5-Star Google rating speaks to the success we bring to our clients. Contact us today or give us a call at (512) 410-0343 to schedule your consultation.

Continue Reading

| Read Time: 4 minutes | Articles

Dying Without a Will in Texas: What Young Families Need to Know About Texas Intestacy Statutes

In many cases, this is what happens if you die without a will in Texas: complications and conflicts. Even more disturbing is that the state ends up determining what happens to your estate rather than you. When you have no will in Texas, you provide no definitive legal assurance regarding what your wishes are, and you give your loved ones no legal right to carry out even the wishes they are sure of. Dying intestate in Texas can and should be avoided by all adults, including those who are part of young families. Why You Should Have a Will A will is an essential part of an estate plan. When an estate planning lawyer creates your will, they do so after meeting with you and learning about your family and assets. They create a legally binding document—a will—that speaks for you beyond the grave. In this document, you state how your property and assets will be distributed. It can also address issues of care and support for your minor children.  A will can be very specific. In some cases, you may wish to be sure that you exclude a certain person from receiving anything through your estate. For example, say you have an estranged parent you fear will incorrectly argue that you promised them certain items. Your will can clearly state that you are intentionally leaving them out of the will and that you wish to leave them nothing. In other situations, you may have a partner to whom you are not married. Your lawyer will know that Texas intestate succession laws will exclude them from inheriting your property. As a result, they will make sure that your will, which will supersede dying intestate laws, clearly provides for your beloved partner. For a young family with kids, you and the child’s other parent may find that one of the most important parts of your will is providing for the child’s care if either or both of you pass away. What happens if you die without a will in Texas along with your child’s other parent? You leave with no legally clear statement of whom you wish to raise your children. Dying with no will in Texas leaves your estate without important protections you could have provided by creating a will. The court will deem you as dying intestate in Texas. At that point, the state law, not you, determines what happens with your estate. Regardless of age, health, income, etc. you should have a will. What Are Texas Intestate Laws? Texas intestate succession laws provide a road map of what happens to the estate of someone who dies without a will. The Texas Estate Code, which addresses intestate succession law, states that spouses and children, parents, and siblings inherit, in that order. There are breakdowns regarding percentages for each group, based on which parties are alive when you pass away. An Example of Intestate Succession Laws To provide an understanding of what happens if you die without a will in Texas and how the courts use intestate laws, consider this scenario. A young adult with a partner passes away suddenly and unexpectedly. They leave no will, and their partner is not their legal spouse or domestic partner. They have been with their partner for over 5 years. They were extremely close to their youngest of 3 younger siblings. They had not spoken to or had any relationship with their other two siblings in years, after a falling out. Their parents are no longer alive. The partner and sibling with whom they were very close believe in all sincerity that the deceased would have wanted the two of  them to have their personal belongings and possessions. They further agree that the person would have given a sizable amount of their financial estate to a charity close to their heart. However, because the person died with no will in Texas, this does not happen. Texas intestate succession law provides that the siblings would receive equal measures of the estate. The partner and charity would receive nothing. But the two siblings the person was not speaking with would each receive one-third of the estate. Special Consideration for Young Families Without a Will If you are a young family, what happens if you die without a will in Texas is that you do not protect your family or provide clear intentions of your wishes regarding your belongings. Instead, you put those you love in the unfortunate, costly, and time-consuming process of having to wade through court and bow to Texas intestate succession laws. Yes, these laws provide assistance to some family members. However, Texas intestate succession laws are not enough. For instance, while the Texas estate code which contains intestate circumstances addresses children, it does not fully protect them. Young families with wills often also create trusts, guardianships, and other protections for their families. These additional important protections are not fully covered by intestate laws. Your estate attorney can help you adjust your will as you face any of life’s milestones. They can update your will for changes and desires related to:  Marriage, Committing to a long term domestic partner,  The birth or adoption of a child, Providing care for an elderly parent or disabled sibling, Plans regarding home and property ownership, and Leaving gifts for close friends or charities you grow to deeply care about. Without a will, your wishes may not be carried out once you die. This will be the case even if you made those wishes clear in conversations with those you love. So what happens if you die without a will in Texas? Don’t make your family and loved ones find out. Work with a lawyer now and get a will. One of the most important adult decisions a young family can make is to work with a trusted estate planning law firm to avoid the court applying intestate succession laws to their young family. Massingill Attorneys & Counselors at Law: Austin, Texas Estate Planning Attorneys The attorneys at...

Continue Reading

| Read Time: 4 minutes | Articles

Thinking About Doing Your Own Will?—LegalZoom vs. Hiring a Lawyer

When planning a will, many people assume that filling out a single document or form is enough to divide their property appropriately upon death. Unfortunately, this often results in unforeseen problems, such as beneficiaries contesting the will. At Massingill Attorneys & Counselors at Law, we are dedicated to helping clients protect their legacy and give their family peace of mind.  Is LegalZoom Good for Wills? A LegalZoom Will Review While it may be tempting to use do-it-yourself solutions like LegalZoom to create a will, it often leads to unintended property distribution. To create an effective will, you need to take all possible life outcomes into consideration, including deaths, births, marriages, divorces, adoptions, and more.  Websites like LegalZoom cannot tailor your will to your specific situation and only provide a generic, one-size-fits-all solution. For example, if you create a will with your wife as a beneficiary, what happens if she dies before you? LegalZoom cannot address these scenarios as thoroughly as an experienced estate planning attorney. Is a LegalZoom Will Valid? A LegalZoom will can be valid, but there are many circumstances that can make a will invalid. Without the assistance of an attorney, you are much more likely to make an error that invalidates the will or cause someone to challenge its validity. For a will to be valid, you can’t just fill out a form and put it in a drawer. It’s important to comply with legal formalities required by the state, such as signing the will and having it appropriately witnessed. LegalZoom won’t complete these steps for you. A LegalZoom will is also more likely to be subject to challenge. For example, imagine there are questions about whether the testator was mentally competent to sign. If an attorney prepared the will, they could attest to the testator’s mental capacity. But if the testator’s daughter just printed out the will and had them sign it, questions about mental capacity or undue influence could plague the probate proceedings.   Important Elements of a Will That LegalZoom May Leave Out Even if your Will seems relatively straightforward, there are a few key parts of your document that LegalZoom won’t cover. Here are some of the essential parts LegalZoom might forget to include in your Will. Alternative Executors and Beneficiaries When filling out a will, the testator must choose an executor to carry out their wishes. In most cases, this is a spouse, child, or other close relative. However, if the primary executor dies or rejects their role, the probate court must appoint an administrator for the will. Each state has its own laws designating who may serve as an administrator if the testator doesn’t have an alternative executor. In addition, if a testator doesn’t name an alternative beneficiary in case the primary beneficiary cannot receive a gift, the probate court will distribute the gift according to state law. Witnesses In some states, a will requires the signature of the testator along with signatures from two or more witnesses. This means that the witnesses must be present when the testator signs their will and include the date and location of the signatures. While this may sound like a minor detail, some states will invalidate a will without this information. Conditional Gifts It isn’t uncommon for testators to leave a gift to a beneficiary with a request for them to meet certain criteria. Conditions allow you to control when your beneficiary receives their gift and how your beneficiary uses it. For example, if you want to leave your child a family heirloom, you can give it to them under the condition that they don’t sell it. This is a great way to ensure that your wishes are fulfilled. However, LegalZoom may not provide an option for you to customize your gifts in this way. Guardianship Nominations A guardianship nomination is often overlooked in a will, especially if the testator expects their spouse to take care of their children. However, this section helps identify a legal guardian for a minor child in case both parents die simultaneously. Why You Should Hire an Estate Planning Lawyer One of the major risks with using a service like LegalZoom is that they aren’t a law firm. This means that they cannot legally review your will for legal accuracy, provide advice for filling out your will, or apply the law to your specific situation. As a result, many people who use their service unknowingly create an invalid or incomplete will.  If you want to create a will that minimizes the risk of legal disputes and carries out your wishes to the letter, hiring an estate planning attorney is your best bet. At Massingill Attorneys & Counselors at Law, our attorneys can help address your individual needs by making a comprehensive estate plan that covers every possible scenario. This includes identifying both primary and alternative beneficiaries, assigning legal guardians to a minor child, preparing detailed medical directives, and more. Need Help Planning for the Future? Estate planning isn’t easy to do alone, especially if you have unique circumstances or don’t know where to start. At Massingill Attorneys & Counselors at Law, we know that your will is an important investment in your legacy. Our goal is to tailor your will to your precise wishes and protect your family from potential legal issues. If you are ready to start the estate planning process or have questions about your existing will, call us at (512) 410-0343 to schedule a consultation. We proudly serve clients living in Cedar Park, Austin, and throughout the state of Texas.

Continue Reading

| Read Time: 3 minutes | Articles

FAQs About Texas Trademark Registration

In the state of Texas, trademark registration helps business owners protect their name, slogan, or logo from use by another entity. While registering for a Texas trademark is much quicker than a federal trademark application, it requires a lot of the same information. The application can be overwhelming for small business owners, especially if they have no experience with intellectual property protections. Here are some of the most frequently asked questions about Texas trademark registration and how a business law attorney can help with the process. What Are the Requirements for Texas Trademark Registration? In Texas, there are two requirements for trademark registration.  First, the mark must currently be in use. This means that you must be actively using the trademark on sold products or service advertisements in Texas before submitting the application. If you register before you start using the mark, the trademark examiner will deny your application without a refund. Second, the mark must be distinct. This means that the words, symbols, names, logos, and devices must be unique. If the mark consists mainly of common descriptions of a product/service or a surname (e.g., “Delicious Ice Cream,” or “Petersen’s”), it cannot be registered. However, a non-distinctive mark may become eligible for a trademark after five consecutive years of exclusive use if it doesn’t conflict with other trademarks registered in the state. Do I Need to Be a Business to Register a Trademark in Texas? You don’t need to be a business to register a Texas trademark. Anyone may apply for a trademark in Texas as long as they own the mark being registered. However, your business designation determines whether the trademark belongs to an individual or an entity. For example, if you are a sole proprietor, you may register the trademark under your name. In contrast, if you are a limited liability company or corporation, you must register the mark under the business name. How Long Do Texas Trademarks Last? In Texas, the registration of a trademark lasts five years from the date of registration. After the initial five years, you may renew the trademark registration for an additional five years within 180 days before the expiration date. To renew your trademark registration, the mark must still be in use in Texas. How to Register a Trademark in Texas Registering a trademark in Texas is relatively simple if you have only one mark. All that’s required is an application with an example of the mark and a class fee. However, if you have multiple marks, you must pay a class fee for each one. 1. Complete an Application Texas trademark registration requires an application which includes your individual or business name, address, and mark information. The application, Form 901, includes ten sections and can be delivered to the Secretary of State by mail, fax, or in person. To review the application, the trademark examiner needs three pieces of proof, also known as specimens, showing that your mark is currently in use. A specimen includes any tags, labels, packaging, web pages, or ads that include the mark. Sections 5-10 of the application deal with the details of your mark. In section five, you must describe the mark as it appears in your provided samples. You can also claim the colors of your mark as a distinctive feature if desired. The rest of the sections identify the goods and services being sold with the mark and whether the trademark is registered with the United States Patent and Trademark Office. 2. Pay the Class Fee In section seven, the application asks you to classify the types of goods or services being sold with the mark you submit. For example, if your mark appears on two separate categories of products, such as alcoholic beverages and meats, you must pay two class fees. The cost per class for Texas trademark registration is $50. Why Was My Trademark Application Rejected? There are a few reasons why the trademark examiner may reject your application. One of the most common reasons for rejection is submitting a mark that isn’t distinctive. According to Section 16.051 of the Texas Business and Commerce Code, a mark isn’t registerable if it is descriptive, deceptively misdescriptive, primarily a surname, or primarily a geographic feature.  Another reason why your application may be rejected is because certain parts of the mark aren’t registerable. This usually includes general words that may be used to describe a product or service. Need Help Registering a Trademark in Texas? At Massingill Attorneys & Counselors at Law, we are dedicated to helping businesses safeguard their intellectual property. Whether you need your trademark filed with the state of Texas or the US Patent and Trademark Office, we can help. If you want to register a trademark in Texas or have questions about your application, call us today at (512) 410-0343 to schedule a free consultation. 

Continue Reading

| Read Time: 3 minutes | Articles

Texas Trademark Registration Overview

A trademark will protect the brand identity of your business or product against envious competitors by preventing them from using your trademark in commerce. For full trademark rights, you need to register your mark, although you can obtain common law trademark rights by using your mark in commerce before anyone else does. Texas offers a process by which you can register your trademark in the state. Federal registration is also available. Trademark Registration Cost The cost of trademark registration can add up if you select an inexperienced lawyer who charges you by the hour. A more experienced lawyer, ironically, will probably cost you less, because the total number of billable hours will be less. In any case, the cost for trademark registration, whether hourly or flat fee. should not exceed a few hundred dollars unless your application involves a special complication (filing in many classes, for example). Government filing fees are $50 per class for Texas registration and $225-$400 per class for federal registration. It is best not to try to save money by conservatively estimating the number of classes you want your trademark to cover. Such an approach might save you money in the short run, but it is likely to cost you a lot later. Texas Trademark Registration Process  If you want to register your trademark in Texas, rather than nationally, you will need to qualify under Texas rules and follow the Texas procedures. Your trademark must meet the following qualifications before the state of Texas will register it: You must be using it in commerce in Texas; It must be distinct from any other trademark registered in Texas; and It must be distinct from any other trademark registered by the USPTO. The process works like this: Fill out a Trademark or Service Mark Application Form and have notary public notarize it; Gather three items of evidence that you are using your trademark in Texas (photos, advertisements, etc.); Submit the notarized application and evidence to the Texas Secretary of State together with applicable fees; Respond to any requests for clarification or additional information from the Texas state government (you will have 90 days to respond to each such request); and After Texas issues your trademark registration, use the ™ symbol to indicate your trademark registration—do not use the ® symbol unless the US Patent and Trademark Office (USPTO) has granted you federal registration. An approved trademark registration in Texas will get you five years’ worth of protection. If you are still using it in commerce at the end of five years, you can seek a five-year renewal. Keep in mind that if you obtain federal registration, you probably won’t need Texas registration.  Federal Trademark Registration If you successfully register your trademark with the USPTO, you will gain nationwide protection of your trademark rights. The USPTO maintains a regional office in Dallas. Federal registration comes with many benefits, including: It serves as evidence of the ownership, validity, and enforceability of your trademark; It can prevent the registration of similar marks; It can prevent an infringer from pleading “innocent infringement”; You can have US Customs and Border Protection prevent the importation of infringing goods; You gain access to the federal courts and to statutory and treble damages; It helps you register your mark in foreign countries; and Your trademark can become “incontestable” after five years. To obtain a federal trademark registration, you will need to complete the following steps: Perform a trademark search to confirm the uniqueness of your trademark; Complete the federal trademark application, preferably for registration on the USPTO’s Principal Register; File your application together with supporting documents and the applicable fee (you can file online); Respond to all correspondence form the USPTO, especially Office Actions; Wait while the USPRO publishes your trademark in its Official Gazette for 30 days— absent a successful opposition, it will register your trademark and issue you a Notice of Allowance; Within six months after the USPTO issues you a Notice of Allowance, submit a Statement of Use to the USPRO; Continue using your mark in commerce; and Extend your trademark registration during your sixth and tenth years after registration by filing certain paperwork with the USPTO. All these steps are more complicated than they may appear and require the assistance of a trademark lawyer to avoid mistakes. Start the Texas Trademark Registration Process Today Trademark registration in Texas is not always necessary. If you are going to do it at all, however, you need to do it correctly. By contrast, federal trademark registration is almost always a good idea. It may seem complex, but Joshua Massingil, Attorney at Law, PLLC, we excel at making things simple. Keep your eye on the big picture and leave the critical details to us! Call us at 512-601-6794 or contact us online to book a consultation.

Continue Reading

| Read Time: 4 minutes | Articles

Why You Should Consider Hiring an Estate Planning Attorney

When a person passes away or becomes incapacitated, there are issues regarding probate, finances, inheritance, and much more. Making sure that you leave your estate situated to carry out your wishes means that you must first hire an estate planning attorney. A Texas estate planning lawyer is able to explain the ins and outs of estate planning, hear your concerns, evaluate your estate as a whole, and then create a solid estate plan. The Role of an Estate Planning Attorney An estate planning lawyer is a lawyer whose practice focuses on probate, wills, trusts, and related issues. They know how to create documents in compliance with the multitude of complex laws that carry out their clients’ wishes. Trust and estate planning attorneys also know how to best protect the assets of their clients. The best Texas estate planning attorneys do not produce one-stop shopping plans; they create plans and documents specific to each individual client. The Need for an Estate Plan The word estate sometimes causes people to believe that an estate plan is meant solely for people with massive amounts of money and extensive real property. That is a fallacy.  Every person needs an estate plan. At the very least, an estate plan will address: Creating a valid last will and testament that distributes your property the way you want, and Powers of attorney appointing someone of your choice to handle your medical and financial issues if you are able to do so. In other situations, a Texas estate planning attorney will address various trusts, complex clauses regarding specific bequests, and more. In all regards, the estate plan will address any tax implications regarding the estate.  When to Hire an Estate Planning Attorney Once a person reaches the age of adulthood, they should hire an estate planning attorney. A friend, partner, or parent cannot carry out your wishes once you are gone unless you document them in a legally binding estate plan. Life can take unanticipated and tragic turns at any age, even young adulthood. The older we get, the more urgent it becomes to work with a Texas estate planning lawyer. Our wealth, relationships, health, assets, and overall finances become more complex over time. In addition, our need to protect what we care about most (children, partners, pets, charitable organizations, etc.) becomes more clear. Regardless of your situation or age, every person should hire an estate planning attorney to address your needs. As your situation in life changes, your estate planning attorneys can adapt the estate plan. How to Choose an Estate Planning Attorney You may initially feel at a bit of a loss in trying to find a Texas estate planning attorney. You may be wondering:  Do I need an estate planning attorney near me? Can I use a general practice attorney? Is it risky to use an estate planning lawyer I have never heard of? In choosing an estate planning lawyer, it is imperative that you have an attorney in your state and ideally in reasonably close proximity to you. This is because an estate plan must comply with your state laws, and attorneys practice law specific to certain states. In addition, having a lawyer that is convenient to meet with is helpful. You also will need a lawyer whose practice focuses on estate planning. Laws relating to wills and estates are not only state-specific, but they also change at times. Lawyers who are experienced and specialize in this area will be aware of all of the nuances of estate planning laws. You don’t need to be concerned with whether you have heard of the lawyer. Look for a lawyer who does estate planning regularly and a firm with strong client reviews. What Questions to Ask an Estate Planning Attorney When you are looking for an estate planning lawyer, you want to make sure you find someone who will listen to you and help you accomplish your goals. You can find out if a lawyer is right for you by asking some of the following questions: How long have you been practicing law? How much of your practice is devoted to estate planning? Do you foresee any special complications with my circumstances? How will you communicate with me? You may also ask them to refer you to previous clients who can tell you more about their experience with the lawyer and what to expect. What Can Your Estate Planning Attorney Help You With? Your estate planning attorney can help you with all aspects of your estate plan, including: Identifying your beneficiaries; Determining how you want your property distributed; Implementing strategies to protect your property from creditors; Special considerations regarding businesses and joint property; Care for a minor child; Living, irrevocable or other trusts, if necessary; Protecting your assets from unnecessary taxes; and Preparing powers of attorney and medical directives. Your attorney should help you create a comprehensive estate plan that carries out your wishes and protects your assets. Online Template vs. Trust and Estate Planning Attorney Sometimes individuals make the mistake of trying to create their own estate plan with the help of online templates or random legal service online ‘shops.’ This is a mistake because templates and online sites: Do not always incorporate accurate and current laws; Often have question and answer forms that cannot catch and address every individual’s circumstance; Often do not provide clear rules for how to execute the documents, leaving them invalid; and Result in other individuals contesting them, because they are not backed by an attorney. Everyday individuals should not be expected to give themselves valid legal advice and create estate planning documents that meet all requirements of the law. You can avoid the errors that templates and online sites bring by hiring a Texas estate planning attorney. Massingill Attorneys & Counselors at Law  At Massingill Attorneys & Counselors at Law, our lawyers are approachable and welcoming. We want our clients to trust that they can leave the critical details of legal advocacy to our legal team. With our clear...

Continue Reading

| Read Time: 4 minutes | Articles

Business Defamation—Everything You Need to Know

A business’s reputation can lead to either great success or complete failure. Now, when a disparaging comment can be made instantly online and dispersed to thousands, your business may suffer significant harm with the click of a button. When someone makes a false claim about your business, you want to do as much as you can to protect your reputation. This article provides information on the types of claims you can bring, Texas defamation laws, and how to avoid business defamation.  What Is Business Defamation? Defamation is when someone makes a false statement about a person or entity and causes damage to their reputation. These statements can be either written (known as libel) or spoken (known as slander). If a person spreads false information about your business that causes harm, there are two possible claims you can file: defamation and business disparagement. The differentiating factor between the two claims is who suffers the harm. A defamation claim alleges harm to an individual’s reputation. For example, the individual could be the business owner. Business disparagement claims, on the other hand, allege harm to a business’s economic interest. As the Texas Supreme Court summarizes, “The two torts differ in that defamation actions chiefly serve to protect the personal reputation of an injured party, while a business disparagement claim protects economic interests.” It is possible to file both types of claims to protect your personal reputation and recover economic losses to your business. At Massingill Attorneys & Counselors at Law, we can help determine which type of claim makes the most sense for your business. Texas Defamation Laws To be successful in a lawsuit for defamation or business disparagement, the plaintiff must prove all elements of the claim.  Elements of a Defamation Claim  To prove defamation in Texas, the plaintiff needs to show evidence of three elements.  Defendant published a false statement The false statement can be either written or spoken. Keep in mind that a negative comment about your business is not the same as a false statement. Statement was defamatory toward the plaintiff A statement is defamatory when it harms the reputation of a person or entity. Defendant acted with required degree of fault Depending on who the plaintiff is, the defendant must have made the statement with a certain level of fault. For private individuals, which is likely how a business owner will be classified, the degree of fault is negligence. When the plaintiff is a public official or public figure, the defendant must have acted with actual malice. There is a one-year statute of limitations to file a lawsuit for defamation in Texas. If your business suffers economic harm more than a year after the false statement is made, you may be able to file a business disparagement claim. Elements of a Business Disparagement Claim  If your business suffered economic losses because of a false statement, you may consider filing a business disparagement lawsuit. This type of claim requires a plaintiff to prove the defendant did the following: Published false or disparaging information about the business, Acted with malice, Lacked privilege to make the statement, and  Caused special damages to the business.  Let’s explore each of these elements in detail.  Publication of false/disparaging statement First, the statement must be published, meaning the disparaging words could either be spoken or written to someone. False comments made in a private conversation likely will not count.  If a person makes a true statement that harms your business, you will also not have a valid claim. The comment must be false.  Malice Malice is the intent of the defendant. The person or entity making the comment must have known it was false, or not cared whether or not it was false, and made the statement anyway.  Lack of privilege If the defendant had a legal privilege to make the false statement, then the business disparagement claim will fail. Examples of privilege include statements made under oath during a judicial proceeding or statements made by members of state or federal legislatures during debates.  Special damages The plaintiff must show that the business suffered special damages as a direct result of the disparaging statement. This means that you must be able to prove economic loss to your business. The defendant’s actions must have stopped others from doing business with you. There is a two-year statute of limitations to file a business disparagement lawsuit in Texas. How to Avoid Business Defamation A hurdle for businesses is tackling online defamation. From Yelp to Google reviews, the opportunity to spread false information is huge.  As a preemptive measure, you may include an anti-disparagement provision in your contracts with customers or clients. However, this would only apply to parties to the contract. Some businesses hire a reputation management service. These companies go after those publishing defamatory information and threaten legal action. They also have the ability to publish enough positive information about your business, using search engine optimization (SEO) tools, to bury the false statements.   If the damage has been done, your only option may be to file a lawsuit for defamation or business disparagement. Remember, not everyone is going to like you. You won’t always be able to prevent someone from making a negative comment or review about your business.  Contact a Business Defamation Lawyer Today Defamation against a business can have long-lasting personal and economic impacts. If you or your business has suffered harm from a false statement, contact Massingill Attorneys & Counselors at Law.  Texas defamation law can be tricky, but we take pride in simplifying the complex so you feel confident in our representation. With over 100 five-star Google ratings, we continue to deliver quality work to our clients. For a free consultation, call our office directly at 512-601-6794 or contact us online.  

Continue Reading

| Read Time: 3 minutes | Articles

What Makes a Will Valid in Texas?

All adults should have a will. Your Texas last will and testament allows you, rather than the state, to determine what should happen to your assets if you pass away. But if you do not follow Texas will requirements, the document will not be valid.   What Are the Texas Will Requirements? To be binding and enforceable your will must meet Texas will requirements. For instance, Texas statutory law and case law required that to make a valid will in Texas: You have legal capacity, You have testamentary capacity, and You have testamentary intent. Let’s look at each of these requirements in terms of what they mean for Texas will requirements. Legal Capacity Legal capacity means that the court recognizes you as an adult at the time you made your will. This occurs in one of three ways. You have the legal capacity to make a will if you: Are at least 18 years old,  Have been legally married (even if not 18), or Are a member of the US military. So long as you meet at least one of the criteria above, you are assumed to have the legal capacity to create a will under Texas will laws. Testamentary Capacity Texas will requirements state that you must be of sound mind when you make your will. This is different from legal capacity in that it is not addressing whether you are a legal adult but instead whether you have the mental ability to understand what it means to create your Texas last will and testament. The courts want to be sure that when you created a will, you understood things such as: What a will is and its impact; What your personal property is; Who your relatives are, and how they will be impacted by your will or lack thereof; and Who you want to give your assets to. Capacity is meant to protect those who may not understand Texas wills from having others take advantage of them to control their estate.  Testamentary Intent At the time you sign your will, are you intending fully and truly to make a legally binding document of a Texas last will and testament? If yes, you have met Texas will requirements regarding testamentary intent. However, if you are making the will as a joke, for instance, then the courts of Texas will find a lack of testamentary intent. Other Legal Requirements Capacity and intent are vital aspects of Texas will requirements. There are, however, additional Texas laws to be aware of. For instance, a will must be in writing. There are options for handwritten and typewritten wills. In addition, there are rules relating to signatures and witnesses. Courts will scrutinize every aspect of a will before declaring it valid. Using a Texas Will Template: Beware If you use a Texas will template, you are at great risk of failing to meet Texas will requirements. Individuals often end up with templates that are not up to date legally or executed properly. If this happens to you when you pass away, your loved ones will be left with a last will and testament Texas courts will not honor.  Attorneys Specializing in Wills in Texas To create a document that meets all Texas requirements, work with a law firm with expertise in estate planning.  A Texas attorney who concentrates their practice on wills, trust, and estates can ensure that: You have a good analysis of your estate, upon which to create your will; You have a legal professional to answer all your questions during the process; You have a relationship with that attorney, who can later update your will as needed; and, most importantly, You have a Texas last will and testament that fully meets all Texas will requirements. Creating a valid will in Texas is a complex process for someone who does not specialize in this area. Those who create a last will and testament must execute all Texas will laws to a T. Remove the stress and uncertainty of this process by working with a law firm that continually receives rave reviews. Then, you can focus on making sure your wishes are known, while they make sure you end up with a legally valid Texas last will and testament.  Massingill Attorneys & Counselors at Law: We Make It Simple Massingill Attorneys & Counselors at Law specializes in meeting the legal needs of Texas residents. Because of our flat fees, collaborative nature, and trusted legal excellence, we continually maintain a 5-star rating by clients. Call us today at 512-410-0343 or book an appointment online. We offer video, phone, and in-person consultations and make it easy for you.

Continue Reading