Common Legal Mistakes Business Owners Make: Part 2

Continuing from Common Legal Mistakes Business Owners Make: Part 1, there are still many common legal mistakes that are being made. Though entrepreneurs may think that their biggest concerns should be marketing their products or spreading the word about their brands, they should be cautious as to what legal mistakes they could be making. Many startups just want to get their businesses up and started as quickly as possible and may forget about important legal issues. Don’t let make mistakes that could be easily avoided if you would consult a lawyer before beginning.

 

Inaccurate Contracts

Businesses have many contracts. One of the most important contracts is with your vendors. If you need to purchase raw materials or outside services, you need to have a well-written contract. Lawyers can help draft your contract and provide you with the information that needs to be included. This also helps inform business owners on behaviors to avoid and what to keep their eye out for in the future. Do not enter into an agreement without a proper legally-binding contract.

 

Failure to create nondisclosure and non-compete agreements

Your company is going to have proprietary information that gives you a competitive advantage. Whether it is your customer list or an idea or formula for a new product or service, you want to make sure it is protected. Anyone who has access to this information must be legally bound to not reveal any projects your company may be working on. This will also protect your company if an employee leaves, they cannot take their clients with them.

 

Copyright, Patents, and Trademarks

Creating a business is a huge step. You built this idea from scratch and you put so much time and money into creating this company. You want to protect your name, products, and your intellectual property from being stolen. Know the specific laws on protecting the different types of intellectual property you could have. Avoid losing your business name or your blueprints for a new product.

 

You have worked hard to get to where you are at. Not having a legal professional helping you in your business endeavors could make your company’s future much harder. Take the initiative and hire a lawyer to help with business proceedings such as contracts, policies, and more.

 

**This article is for informational purposes only and is not intended to be legal advice. In relation to your individual situation, always seek advice specific to your circumstances from a lawyer.

Common Legal Mistakes Business Owners Make: Part 1

Starting up a business is difficult. Even the most successful businesses to date have had bumps in the road. Business owners need to be aware that when creating a new entity in the business world, there is going to be red tape stopping them at almost every turn. Being prepared and having the right resources can make it easier for businesses to create success. Amongst the common mistakes that are made, many of them are legal mistakes.

 

Not Using a Lawyer

Many new businesses face the mistake of waiting too long before bringing in legal representation. They believe that they do not have similar legal obligations that established businesses have. They believe that legal issues will only come when the business scales and they have time before they have to hire a lawyer. This is a huge mistake. You want to hire a lawyer from the very beginning. This can save you massives costs down the road. If you have a lawyer right off the bat, they can help you establish your business correctly from the start.

 

Not Placing Terms and Conditions Policies

When you’re on websites, it is common for a “Terms and Conditions” checkbox to pop up. By checking this box, customers are agreeing to specific uses of your products and services and the obligations that come with being a customer. If you do not have these policies written and published, you have set yourself up for a lawsuit if a customer would choose to proceed with legal action.

 

Lack of Privacy Policy

Your privacy policy is to be public. Your customers and business partners have a right to know what you will be doing with the information they supply to you. If you are sharing your customer list, your customers have a legal right to know what is happening. The privacy policy will lay out the information it does and doesn’t share.

 

Business Tax Laws

Tax laws are complex no matter where your business is located. You should hire a legal professional to answer questions about what taxes your business is subject to, when you must file your tax returns, how often you need to make payments, and more. A lawyer can help keep your records and help file your taxes when it is required.

 

**This article is for informational purposes only and is not intended to be legal advice. In relation to your individual situation, always seek advice specific to your circumstances from a lawyer.

Business Standards in Australia

Companies function differently in all parts of the world. Whether you are just starting out in a career path, looking to move overseas for work, or doing business with a foreign country. Australia has different business standards than other countries.

 

Businesses in Australia typically follow the work schedule of 8:30 am to 4:30 pm or around 38 hours per week. Australians consider punctuality to be of high importance and it reflects poorly if you are tardy. They are clear and concise when it comes to their business communication. When presenting, they will not focus on any unnecessary details. They get to the point and stress the facts without any exaggeration.

 

During meetings, they will arrive early, especially if they are leading the meeting. They will make appointments a few days in advance and have the objectives planned out with an agenda to share during the meeting. Business cards are handed out at the beginning during the introductions. When introducing yourself in a business situation, you can state your full name but your first name will most likely be used during the rest of the meeting.

 

Since the agenda has already been set with focused objectives, you should lead the meeting as stated. This will help others determine your trustworthiness. Meetings may seem casual in a sense but they are taken very seriously.

 

Though there is a hierarchy in Australian businesses, it does not reflect during meetings. No matter the position or level an employee is at, they will express their opinions on the matter. It is frowned upon to leverage your position to make negotiations. Managers in a company will typically seek advice from employees and share information regarding any decisions that need to be made. The employees and managers share mutual respect from each other to accommodate the needs of the company.

 

Gifts in a business situation are not necessary and sometimes time can be looked upon as bribery. During the closing of a deal or due to negotiations being closed, gifts can be appreciated. Gifts that employees receive from government-funded organizations have some restrictions and cannot be accepted if they have a high-dollar value.

 

**This article is for informational purposes only and is not intended to be legal advice. In relation to your individual situation, always seek advice specific to your circumstances from a lawyer.

Industries Lawyers Have Expertise In

There has been a stigma created for lawyers by the television industry. Many lawyers depicted on television are specialist in criminal law. There is a lack of understanding of the demand in other industries legal professionals can get involved with. Law firms are in high demand for legal roles such as the following.

 

Commercial Property

Commercial property transactions typically require legal assistance. Buying or leasing commercial properties can be one of the biggest decisions that owners have to make for their business. Without proper help, the decision can have a huge negative impact on the success of the business. Commercial property lawyers can assist businesses whether they are buying or selling commercial property, preparing and reviewing leases, and handling disputes as they arise.

 

Conveyancing

Conveyance is a written document transferring real estate property or interests from one party to the next. A notary must be present and the conveyance than must be put into the Recorder of Deeds. Lawyers can provide services for both commercial and residential transactions. During the client and lawyer’s relationship, lawyers can provide pre-contractual advice, explain the legal terms, and inform the client of their rights and responsibilities involved in the contracts.

 

Employment

Representation in employment matters for either the employer’s or employee’s side could occur at any point of a business’s life. For the employer’s viewpoint, whether you are an established business or a start-up, you will need precautions set in place to protect your business. Having employment lawyers draft employment contracts ensure that necessary clauses are included such as sick leave, annual leave, probation, grounds for termination, dress standard, representation of the company, and many more. The other side is at some point while working for the company, employees may need representation. Employment lawyers can help employees protect their rights and assist in unfair situations.

 

Commercial Litigators

The demand in Australia for litigators with experience with commercial contracts is constantly increasing. Clients are looking for lawyers who can negotiate, draft and review agreements, and procurement. Skills involving insolvency and construction has been growing. Many litigation lawyers try to seek out resolutions before the disputes need to be taken to a higher court. Using techniques such as mediation, conciliation, and arbitration are the steps they take to resolve the disputes.

 

**This article is for informational purposes only and is not intended to be legal advice. In relation to your individual situation, always seek advice specific to your circumstances from a lawyer.

 

Guardianship: The Court’s Decision Part 2

Part 1 of Guardianship: The Court’s Decision described the role and the responsibilities of a guardian. With the role being described, you may begin to wonder why a guardian would be appointed. This role is very important and should not be entered into lightly. Though it does come down to the VCAT’s decision, here is what to know about appointing guardianship to a represented person.

 

Reasons to Appoint a Guardian

The resource of a guardian is valuable for health service professionals. It gives them the ability to discharge patients who are older or incapable of decision making. The VCAT with appointing a guardian if the represented person:

  • Has a disability that affects a person’s ability to make a decision
  • Cannot make personal and lifestyle decisions in a reasonable manner
  • Needs a decision made for them and there is not an alternative, less restrictive method that helps in making a decision
  • Needs someone who will act in their best interests

The VCAT will typically choose a relative or close friend of a represented person to be their guardian. The main qualification the VCAT is looking for is that the guardian will act in the best interest of the represented person. The family members of the represented person can express their wishes to the VCAT of who they would like to be the best person appointed as a guardian. If there are no suitable or willing people to take on the role of a guardian, the Public Advocate will be appointed as guardian. This would be a last resort and the Public Advocate would be able to delegate the role to either an Advocate Guardian from the OPA or to a Community Guardian.

 

A guardian role is completely voluntary. If the guardian becomes unable or unwilling to continue as a guardian, they may resign the position. The guardian must inform the VCAT, in writing, that they no longer want the responsibility of a guardian. The VCAT can then hold another hearing to determine if the represented person still needs a guardian and if they need to appoint a new one.

 

**This article is for informational purposes only and is not intended to be legal advice. In relation to your individual situation, always seek advice specific to your circumstances from a lawyer.

Guardianship: The Court’s Decision Part 1

If a person hasn’t acquired a power of attorney for themselves and ends up becoming disabled, they may need someone to safeguard their interests. The Victorian Civil and Administrative Tribunal can appoint a guardian to make the decisions on behalf of the person with disabilities. The decisions made by a guardian are meant to make a positive difference in a person’s life. Guardianship could also be a possibility if there are different views on a decision that cannot be resolved about the person’s best interest. The Guardian is there to step in and help resolve any decisions that need to be made.

 

Roles and Responsibilities

The power of the guardian depends on the Victorian Civil and Administrative Tribunal. They can either name a limited order or a plenary order. A limited order will specify the type of personal and lifestyle decisions. This can include:

  • Accommodations such as the type of housing, where it is located, or who the person will be living with
  • Employment
  • Access to services
  • Restrictions on particular people having contact with the represented person

A plenary order has the ability to make personal and lifestyle decisions as well. It also includes being responsible for making medical decisions on the person’s behalf. Neither of these guardianship types can make financial decisions for the person with a decision-making disability. As a guardian, you have responsibilities such as:

  • Acting as an advocate
  • Acting in the best interests
  • Making decisions that are least restrictive of the person you are representing
  • Taking into account the person’s wishes and make whichever wishes possible and make them into decisions
  • Encouraging the person to stay active in their community
  • Encouraging the person to make as many decisions as possible and act for themselves
  • Protecting the person from abuse, exploitation, or neglect.

The VCAT holds guardians accountable for the decisions they make on behalf of the person with a decision-making disability. The guardian can go to the VCAT or the Office of the Public Advocate for any support or advice during their time as a guardian. The VCAT also has the ability to re-assess an order. If a guardian is not doing their role and taking on their responsibilities, the VCAT can revoke their previous order.

 

The VCAT can appoint two or more people as joint guardian. If this is the case, both or all guardians must agree when making decisions on the represented persons’ behalf. If they can’t agree, the decision will not be considered valid. Part 2 of Guardianship: The Court’s Decision will describe the reasons why someone needs to be appointed a guardian.

 

**This article is for informational purposes only and is not intended to be legal advice. In relation to your individual situation, always seek advice specific to your circumstances from a lawyer.

More Tips About Buying a Business

In my last article, I gave three tips about buying a business. Though research, buying assets, and hiring a professional are very important tips, there are more. Sales and payroll taxes, prepaid expenses, and letter of intent are some more aspects to focus on when buying a business.

 

Sales and Payroll Taxes

Asking about sales taxes and payroll taxes before buying a business can save you troubles in the future. Even if you buy a business’s assets, the state tax authority may have the ability to hold you liable if the previous owner owed sales, use, payroll, or any other business taxes. If the previous owner has other employees, you should ask if they were using a payroll service. This will give you the ability to confirm they are currently in employment tax payments. Once you get the current records, have the state tax authority issue a clearance letter proving the previous owner is up-to-date with the sales taxes by the closing date of the deal. This may extend the buying process but it will safeguard you down the road if anything happens with previous tax statements.

 

Prepaid Expenses

Expenses that the business has paid for upfront, might not be added to the purchase price. The previous owner may want to be reimbursed for the portion of the year that you will be running the business and benefiting from those prepaid expenses. These expenses can be added on at the time of closing the agreement. Ask for a seller for a list of closing adjustments which include the previous owner’s prepaid expenses. This will give you the opportunity to budget correctly and won’t be surprised at the closing of the deal. You can be prepared with all the information and it could mean you no longer want to purchase the business.

 

Letter of Intent

The letter of intent is an agreement between the buyer and the seller of the business. This agreement will lay out the important terms and conditions of the sale of the business. It typically includes the purchase price, how the business will be paid for, when the business deal will be paid for, the assets that are included with the business, the seller’s non compete agreement, and much more. Though the letter of intent is not legally binding, it is worth the time to discover any issues before lawyers begin drafting legal contracts that will make the sale a binding agreement. A letter of intent is meant to negotiate any terms and condition before legal documents are drafted and have to be redrafted. This can save the costs of legal fees.

 

**This article is for informational purposes only and is not intended to be legal advice. In relation to your individual situation, always seek advice specific to your circumstances from a lawyer.

 

Advance Care Directives

Though planning for the future is exciting when talking about where you are going to travel next, where you will be at in your career, or how big your family will be by that point. You have to plan ahead, should there come a time when you are unable to make decisions. There could come a time when you experience an injury or an illness that alters the ability to be able to make your own decisions. If you complete an advance care directive, you have the ability to specify what medical treatment decisions you want to be made on your behalf. You can give instructions about future medical treatment that you consent or refuse, as well as, the values and preferences for your medical treatment decision maker to consider when it is their time to make decisions for you.

 

Instructional Directives

Instructional directives are statements of your medical treatment decisions for future procedures and care. By signing an instructional directive, you are either giving consent or refusal medical treatment. Health practitioners need your consent before they can perform any medical procedure or treatment for you. The practitioner, if you are do not have decision-making capacity, will find out whether or not you have an advance care directive and follow the relevant instructional directive you had given. You shouldn’t complete an instructional directive if you do not know the medical treatment that you want to do or not want to do in the future. The practitioner will have to follow your instructions given in the directive.

 

Values Directive

A values directive will state the values and preferences of medical treatment. People have different views on whether or not a quality of life is more important than a person just being alive. People can value a caretaker while others would prefer to take care of themselves. There aren’t any right or wrong answers, what matters is that you make the choices that will best suit you later in life. It also helps to explain them to your loved ones so they have a better understanding of why you are making your decisions.

 

When completing the advance care directives form, you will sign it in front of two witnesses, one who must be a medical practitioner. You must be evaluated as in the proper capacity and sign the form voluntarily. Your directives will end if you complete a new form, cancel the appointment of the directive, the VCAT cancels your appointment, or you pass away. If you do not have a directive, your practitioner will ask your medical treatment decision maker. The decision maker will make your decisions on your behalf.

 

**This article is for informational purposes only and is not intended to be legal advice. In relation to your individual situation, always seek advice specific to your circumstances from a lawyer.

 

Are You an Eligible Power of Attorney?

Enduring powers of attorneys have the ability to make decisions about matters in which they were appointed. Whether it is financial or personal, a power of attorney is meant to make the best choice for their principal at all times. Stepping into the role of a power of attorney begins when the principal no longer has the capacity to make their own decisions. But what makes you eligible to be a power of attorney?

 

To become a power of attorney, the person must:

  • Be the age of 18 years or older
  • Not be insolvent: a power of attorney cannot pay its debts when they become due. An example would be someone who is undischarged bankrupt.
  • Not be a caretaker, health provider, or an accommodation provider for the principal

If a power of attorney will be taking care of financial matters, there will be more requirements in addition to the ones listed above. The person cannot be convicted or found guilty of an offense which involved dishonesty. They can still be eligible if found guilty or convicted. In those circumstances, they have disclosed the conviction to the principal and the disclosure is recorded in the enduring power of attorney.

 

A power of attorney can be revoked by signing the appropriate revocation form. The principal must still have the capacity at the time to do so. If anyone believes that the enduring power of attorney is not acting in the best interest of the principal, they can apply to the Victorian Civil and Administrative Tribunal (VCAT). After an investigation, the VCAT may revoke the attorney’s power if it finds that they are in fact not acting in the best interest for the principal.

 

About Glenn Duker:

Glenn Duker has a vast experience as a litigation lawyer. He has served as a consultant to many clients in different areas of the law. His areas of expertise include business and commercial law, employment law, will and testament, probate, and trademark legal matters. Glenn writes about legal issues that arise in many clients lives. Check out GlennDukerLitigationLawyer.com.au for more information!

**This article is for informational purposes only and is not intended to be legal advice. In relation to your individual situation, always seek advice specific to your circumstances from a lawyer.

 

Keeping Information Within Your Company

No matter what type of business you are involved in, there is information that must be protected. You wouldn’t want competitors obtaining your client list or schematics of a new product. The business could not gain a competitive edge if all of its information was released. Information can be protected by legal remedies that prevent from misappropriation and unauthorized disclosure of the company’s information. If your business secures a trade secret protection it can benefit the company in the long run. Trade secrets can be difficult to keep confidential over a long period of time and when many people in your company know about it. There are many different methods that can be taken to protect your companies trade secrets but it also depends on the situation.

 

Contractual Protections

If members that are outside of your company have access to your trade secret information, you want to include a condition about confidentiality protections in your business with them. You can customize a non-disclosure agreement that includes some of the following:

  • Acknowledgment that the information given is considered a trade secret,
  • Agree not to share the information with anyone who is unauthorized,
  • The individual could not attempt to reverse engineer the information,
  • And any other protections that may be deemed necessary.

 

Employee Policies

Employees that have access to the company’s trade secrets should be subject to policies that regard the disclosure and security of information. Employees should be clear on protecting the confidential information that is produced within the company. Having employees know what information is considered to be along the lines of confidential is also a very important implementation. Even if the employee does not have access to the information, they are still expected to abide by these rules.

 

Control Over Information

The company should implement controls over the trade secrets to decrease the risk of the information getting released to employees and others who do not have a need-to-know requirement. Keycards and keycode access can help restrict certain areas of the building that are marked as secure locations for documents or materials that are specified as trade secrets. Since technology is always improving, your company most likely has electronic files of your trade secrets. To ensure safety, make sure your company’s data is secured and that only certain individuals have access to the information or codes.

 

**This article is for informational purposes only and is not intended to be legal advice. In relation to your individual situation, always seek advice specific to your circumstances from a lawyer.