Hogwash Volume 16

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August 2013
Welcome to Hogwash!

Greetings,

Rosi and Gardner If this is the first edition of Hogwash! you've received it's because someone you know thought that you would like to receive it and perhaps pass it on to a friend.

If you enjoy this E-newsletter and know others who you think would like to be on our list or receive a copy by mail, please let us know at info@rosigardner.com

The highest compliment we can receive is a referral from a friend. Although we've been in business together for more than twelve years, have more than 50 years of combined legal experience experience, we are never too busy to help those you refer to us: your family, friends, neighbors, and co-workers.

Important changes in the Power of Attorney Statute

power of attorney

In 2012, the Legislature adopted a change in the Power of Attorney Statute, generally known as Section 5501 of the Estates and Protected Individuals Code (EPIC); Act 386 of 1998. Effective for all Durable Powers of Attorney executed AFTER September 30, 2012, the statute now includes several procedural requirements for the preparation of a valid Power of Attorney and sets forth specific duties, obligations and liabilities of one designated as an "attorney -in-fact." Perhaps more importantly, the statute mandated:

Before exercising authority under a durable power of attorney, an attorney-in-fact shall execute an acknowledgment of the attorney-in-fact's responsibilities that contains all of the substantive statements insubstantially the following form:

Thereafter the statute set out a form encompassing eight (8) separate categories followed by the statement prior to the signature and date:

I may be subject to civil or criminal penalties if I violate my duties to the principal.

The statute does not require that the form be recorded or even attached to the Durable Power of Attorney document, itself. Also, a third party is not required to ask for or see an executed acknowledgment before it responds to instructions from the Attorney-in-fact, nor is it liable to the Principal or any other party if it refuses to recognize a Durable Power of Attorney unless it is also is shown an executed acknowledgment consistent with the statute.

Despite the absence of any requirement to do so, or penalty if such is not done, to be certain that one's estate planning documents are all in order, if they include a Durable Power of Attorney executed after September 30, 2012, as well as an amendment to a prior Durable Power of Attorney, it is recommended that an appropriate Acknowledgment, in the form directed by the statute, be prepared and executed by each person who the Principal has designated as his or her Attorney-in-fact. It is further recommended that a copy of each acknowledgment be attached to each document entitled Durable Power of Attorney to avoid unnecessary delay that might otherwise occur should the Attorney-in-fact be called upon, suddenly, to exercise his or her responsibilities.

DUI and the Supreme Court – What has it said?

dui

In April the U. S. Supreme Court confirmed that the police do not have absolute authority to obtain a blood test from a suspected drunk driver – even one who refused to give a breath test and who otherwise "failed" several on-site sobriety tests.

In the matter of Missouri v. McNeely decided April 17, the police officer had transported the driver to a local hospital and after the driver had refused to submit to a blood test had directed a hospital technician to draw blood. That sample, incidentally, showed that the driver was well over the limit.

The driver challenged the use of the results as a violation of his Fourth Amendment rights because the police officer did not obtain a warrant before directing the drawing of blood:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

At issue was the interpretation and application of the 1966 decision in Schmerber v. California in which, because of the specific facts of that case, the U.S. Supreme Court upheld a warrant-less blood draw from a DUI suspect involved in an auto accident. The Court on April 17 in a five to four split decision affirmed the decision of the Missouri Supreme Court that agreed with the driver and rejected Missouri's contention that:

  • because of the natural dissipation of alcohol in the bloodstream there is an exigency such that a warrant should not be necessary for a blood draw in drunk-driving investigations, and
  • that there should be a per se rule that allows blood to be drawn in all cases where a DUI suspect refuses a breath-test.

Although four Justices agreed that a per se rule was not appropriate and others deviated on the application of the Fourth Amendment to DUI matters, it left for future decisions to provide adequate guidance to law enforcement officers may make the desire for a bright-line rule understandable in the context of DUI arrests.

In Michigan the need for a warrant before drawing blood is generally well accepted. However, the extensive discussion in McNeely by four justices, and concurring and dissenting opinions by the other five extending more than 40 pages, suggests that the issue is not fully and finally decided. The specific facts in a future case may cause a contrary result. So, dear reader, if you are faced with the decision of what to do should you be in a situation not unlike Mr. McNeely, a vigorous defense following the McNeely pattern might be effective – but then again it might not.

At Rosi & Gardner we cannot guaranty an outcome; we can only hold your hand as together we travel, seeking justice "down the road."

We Can't Explain It

You may have heard about the right to remain silent and the case of Miranda v Arizona. And if you've ever watched a cop show, you've heard the Miranda warning that's now part of our legal system.

But what if you just "remain silent" when a police officer begins to ask you questions?

Amazingly, that silence can be held against you.

In a case out of Texas, Salinas v Texas, Mr. Salinas answered a couple of police questions about a murder. However, when asked about shell casings that fit his shotgun he said nothing and acted nervous . He was then arrested. The Supreme Court in a five to four decision said that because he had not claimed his right to remain silent, the prosecutors could use his silence against him to convince the jury that he was guilty of murder. He is now serving a twenty year sentence. In short, to be afforded the right to remain silent you must SAY that you are claiming that right.

Does that make sense? Whether it does or doesn't – that's the law. At Rosi & Gardner often we cannot explain the law. We can only tell you what it is.

Lee De Forest… Who was he?

vacuum tube

Lee De Forest isn't exactly a household name – but he probably should be. Without De Forest's inventions our life would be significantly different.

In his autobiography, De Forest named himself the Father of Radio. Fascinated by radio, he was as a pioneer in that field as well as movies and television. One of his early inventions was the Audion, a vacuum tube that takes rather weak electrical signals and amplifies them. The Audion is credited with helping usher in the electronic age. It was only one of De Forest's many creations. Others included the radio knife for surgery and the photoelectric cell. He had a total of 180 patents to his credit.

De Forest lived a controversial life that included contentious lawsuits, accusations of fraud and four marriages. He was one of three men profiled in Ken Burns' PBS Documentary Empire of the Air – The Men Who Made Radio.

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Fall Hat Month


fall hat

Sad as we are to see summer go, it's time to get ready for fall. The team at Rosi & Gardner are celebrating Fall Hat Day all through September. The Rosi & Gardner team have put away the straw hats of summer and are pictured here in some of their favorite felt and fabric hats. From left to right: Karen, Gary, Jessica and Philip.

Issue: 16
In This Issue
Important changes in the Power of Attorney Statute
DUI and the Supreme Court – What has it said?
We Can't Explain It
Lee De Forest… Who was he?
Fall Hat Month
Diving In!
Hogwash! Fun
National Aviation Day
Celebrate the 120th Anniversary of the Black Co
Send Your Poetry to Hogwash! and Celebrate Poet's Day
Karen's At Home Cookin'

Diving In!

Kingfisher

To see this beautiful diving bird requires some travel.

The kingfisher alcedo atthis is widely found throughout Eurasia and North Africa.

It migrates to warmer climates from areas where the rivers freeze in winter. Kingfishers are rarely found in the United States or Europe with the exception of this brilliant little member of the species.

There are an estimated 90 species of kingfishers around the world.

Hogwash! Fun

Here are few more pithy thoughts that we thought we should share with our Hogwash! audience.

Some days you are the bug, some days you are the windshield.

Duct tape is like the Force. It has a light side a dark side, and it holds the universe together.

Experience is something you don't get until just after you need it.

National Aviation Day

Appropriately this holiday is celebrated on or near the birthday of Orville Wright. Wright was born August 19, 1871 in Dayton Ohio. The day was designated in 1939 by Presidential Proclamation by President Franklin D. Roosevelt.

Typically the holiday is celebrated on the weekend nearest Wright's birthday. This year the Great Lakes Naval Museum is planning a special celebration on Friday, August 16 at 3 p.m. and Saturday, August 17 at 1 p.m. There kids will be able to learn about the science of flight and how to make the perfect paper airplane.

Model plane enthusiasts also celebrate the anniversary of flight with Model Aviation Days that are celebrated by Academy of Model Aeronautics Clubs around the country.

Celebrate the 120th Anniversary of the Black Cow

August 19 is the date so let's celebrate. Whether you order it as a Black Cow or as a root beer float, this creamy and delicious soda treat is dates back to August 19, 1893. On that day Frank Wisner, owner of Cripple Creek Brewing Company in Cripple Creek, Colorado served the first Black Cow drink and a tradition began.

Legend has it that Wisner was inspired by the site of the snow-capped Cow Mountain and originally named the drink Black Cow Mountain. It quickly became a favorite with the younger set as well as adults.

Regionally the drink varies. Some purists maintain that a Black Cow uses only root beer and vanilla ice cream and that any variation – like using chocolate ice cream – must have another name. When chocolate ice cream is used the drink becomes a Chocolate Cow or a Brown Cow. In other areas of the country Black Cow and Brown Cow refer to floats made with cola.

Whatever you call it and however you mix it, we call it delicious!

Send Your Poetry to Hogwash! and Celebrate Poet's Day

In a month filled with celebrations, Poet's Day on August 21 provides a perfect time to sit back, reflect, maybe even dust off an old English literature text and read a bit or – better yet – put pen to paper and create.

For all the aspiring poets among our Hogwash! readership we'd like to encourage you to send us your work for possible inclusion in a future issue of Hogwash!

Poetry is a special talent and this is a great reason to share yours with the world. Our editorial team will review the poems that are submitted and we'll publish a selection in a future issue.

Click here to email your poem now!

Karen's At Home Cookin'

Vegetable stir fry

Great end of Summer Recipes

In this issue we find Gary in the kitchen doing some canning while Karen is busy using the bounty of fresh produce we have in Northern Michigan at this time of year.

Here's a recipe using any and all leftovers you may have on hand. Use your imagination and the freshest veggies from a local farm. This dish has no exact science to it – it's all about cooking with spontaneity and whatever turns you on. Have fun!

End of the Summer Shebang Stir Fry

Marinade:

Juice of a lime or two or three

2-3 tbsp soy sauce

1 tsp fish sauce

2 tbsp Fustini's lime infused olive oil and coconut balsamic (or just regular olive or sunflower oil)

2-3 tbsp curry powder

2-3 crushed garlic cloves

Mix the marinade and add slices of red pepper, green pepper, onions, garlic, carrots and zucchini (or whatever you've got). Thinly slice beef, pork or shrimp (leftovers or fresh) and toss in the marinade. Let it sit at room temperature for at least ½ hour.

Cook in a wok or large frying pan on medium high heat for 8-10 minutes (make sure the pan is preheated with a little oil). Turn the heat on very low and add a touch of cream or coconut milk, cook a few minutes until the broth is a golden color. I like to add cashews at this point. Serve it on top of rice that's been steamed with a mixture of water, coconut milk and chicken broth. Sprinkle on fresh parsley, basil or cilantro.

Sunflower Broccoli Soup

Ingredients:

broccoli (enough for about 2 cups chopped) ½ stick butter

onion 1/3 cup flour

sunflower seeds 2 cups milk

1 cup shredded sharp cheese Salt pepper

4 slices cooked bacon

Steam broccoli and one onion in a little water. In a soup pan, melt ½ stick butter. Add 1/3 cup flour, salt and pepper. Stir quickly and constantly until the mixture turns smooth and shiny. Slowly add milk, stirring constantly until it starts to thicken. Add the steamed broccoli and onion and two tablespoons of roasted sunflower seeds. Cook it slowly for a few minutes until it thickens. Puree in batches. Return to low heat, add cheese and a little cream, and continue cooking on low until the cheese melts.

For the garnish (this is what makes this soup so good!) Heat your cast iron pan with one tablespoon of olive oil. Chop bacon into small pieces and add to pan. Add 1/3 cup sunflower seeds. Cook on medium heat until the bacon starts to crisp. Top this on your soup and serve with buttered sour dough toast.

Side Dishes: Watermelon drizzled with black currant sauce and chopped mint, curried cashews and raw carrot and celery sticks

Dessert: Vanilla ice cream with chopped candied ginger, chopped almonds and drizzled with melted dark chocolate. Top with a sprinkle or two of cinnamon.

Shiraz Pears & Plums

Ingredients:

Stanley Plums (halved & pitted)

Bosc Pears (peeled, cored and cut into chunks)

Shiraz wine (cheap is good!)

Honey

Optional: Cinnamon (stick), cloves (whole), allspice (whole), nutmeg (grated).

Process:

Sterilize jars, and heat the canning liquid (approximately ½-1 cup of wine, about the same amount of honey, and enough water to make 8-10 cups of liquid).

Into each quart jar, add a few of the optional spices (if desired), pour about a cup of the hot canning liquid, and layer in pears and plums. Top off with canning liquid, leaving ½ inch of head space. Return to the canning vessel, return to boiling, and process for 25 minutes.

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Rosi & Gardner, P.C.
735 S. Garfield Avenue
Suite 202
Traverse City, Michigan 49686
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Philip R. Rosi

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Gary Allen Gardner
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