When Legal Guardianships Make Sense Plus a Few Alternatives to Consider

A legal guardianship is a court-created relationship where a person takes legal responsibility for the needs of a minor child or incapacitated individuals. These people take over the responsibility for making decisions about healthcare, food, housing, and even social interactions. When a guardianship is in place, they have ultimate authority over decision making in the incapacitated person’s life. While there is court oversight of the process, there is a significant loss in freedom that goes along with it.

There is an obvious need for a minor child to have guidance and supervision who obviously cannot raise themselves. If they are married, most people will designate their spouse to look after their children in the event of their death. However, it is wise to name additional persons, for instance, a parent, brother, sister, uncle or other close family member or friend that you would trust to act should your spouse die before you, or any of those named becomes unsuitable to act as guardian.

These wishes can be established in a will and helps in many ways including:

• Providing details about the parent’s wishes regarding disposition of the estate and assets

• Name an Executor of the will

• Avoid potential custody battles by establishing legal responsibilities for the guardian

• Protect the interests of minor children until they reach the age of majority and can make decisions on their own.

However, if a legal guardianship is not put in place the consequences are more severe when then an incapacitated adult has control over his or her own decisions. This could mean disastrous consequences financially and in terms of healthcare. However, putting such legal measures in place does mean the loss of certain fundamental rights. The right to make decisions contrary to the guardian, for example, is lost immediately. While not every personal right is lost in the process, the fact is many of them are.

There are other less invasive alternatives which can be exercised to protect an incapacitated loved one while still allowing them some freedoms. A conservatorship is similar to a guardianship except a conservator has power to exercise control over the incapacitated person’s estate only. An estate is comprised of all the possessions belonging to the person. A conservator will typically be in charge of managing financial decisions for the estate.

Another option is establishing power of attorney. A power of attorney is a legal document that grants certain power and authority to the person who holds it to act on behalf of another person. A power of attorney can be revoked at will, at any time. On the other hand, unlike with court-appointed guardianships and conservatorships, there is no oversight involved with a power of attorney, making them potentially a greater risk for abuse and misuse.

The Logic Behind Implementing Legal Department Indicators

Incorporating legal department indicators on a balanced scorecard is indeed an effective technique that should be used by companies to determine progress and performance of their own legal departments. These indicators function much like the way KPIs or key performance indicators would, in the fact that they are quantifiable in nature already. This makes it much easier for your company’s legal department to check its performance because the measures are already translated into significant figures. All that has to be done would be interpretation and analysis of these figures and you would then have a clean-cut description of just how your legal department is presently doing.

In just about any corporate setting and industry, the legal department is actually that particular division that is responsible for the creation of policies, rules, and regulations that each member of the company or organization has to carry out and observe. Apart from that, the legal department is also in charge of handling any legal matter that the company faces. This includes the event of entering contracts or agreements, creating such contracts, creating proposals, dealing with internal legal disputes, incorporating discipline amongst members of the organization, and so many more. Such roles and responsibilities are very important and should be carried out with utmost care by any company. This is precisely why it is important for a company to monitor the performance and the effectiveness of its legal department – for there is just so much entailed in its tasks and responsibilities.

At present, there is much demand for performance measures and metrics to be more than satisfactory so that these would be effectively used in gauging the performance and value of any company’s legal services. It goes without saying that the success of any company also comes with the effectiveness of its legal department.

There are actually several perspectives to keep in mind here – financial, customer, internal business processes, and learning and growth. All of the perspectives here should have corporate goals and objectives incorporated here, as well as the company’s vision and strategy. This is something that should be practiced by retailers and manufacturers – how much more by legal departments. More importantly, the performance measures and indicators to be used here should be just a few relevant, to give way better interpretation and analysis. It might be tempting – even too tempting – to go with a lot of indicators. But really, it would be better to go with a relevant few.

Contrary to popular belief, the balanced scorecard is not a complicated tool to use at all. In fact, using the tool entails a simple process and it economical as well. You do not really need to be a master at measurement or an expert at evaluation and analysis to use the tool efficiently. Your company does not even have to shell out that much money for the development of the tool itself! The internet is laden with sources and materials that you can use in developing your scorecard. And if you are not too sure which particular legal department indicators to use, you can resort to using the ones used by other legal departments – only as mere guides, of course. The bottom line is, for your scorecard to be effective; you need to use indicators or measures that are relevant to your company.

2009 Resolution – Give Your Site a 10-Point Legal Check-Up

It’s early in the year, and it’s time to fulfill your resolution to give your site a quick legal check-up.

Online businesses are now highly regulated, and there’s substantial liability if you site’s not legally compliant. In addition, your customers are becoming more Internet savvy, and a site that’s not legally compliant is not going to be trusted. So, let’s get started.

Use This Checklist If You Already Have The Basic Site Documents In Place

1. Copyright Notice. Check Your Copyright Notice. Your copyright notice consists of the following elements: the word “copyright” or copyright symbol (c in a circle) followed by the year of first publication followed by the name of the copyright owner. It’s also a good idea to add “All rights reserved worldwide”. Example: Copyright 1996-09 Digital Contracts, Inc. All rights reserved worldwide. Note that if you update your site from time to time, you should add a date range reflecting the fact that the site has been updated each year within the date range. If you haven’t updated yet for 2009, do it now.

2. Blogs, etc. Have you recently added a blog or any other functionality that permits visitors to post text or digital files to your site? Or, do you plan to do so as part of your marketing plans for 2009? If so, you need to have a DMCA notice in your Terms of Use and you also need to file a DMCA Registration form with the U.S. Copyright Office. These steps will create a “safe harbor” from strict liability for copyright infringement if a site visitor posts infringing material to your site.

3. Personal Information. Do you collect personal information from site visitors? If so, review your Privacy Policy to make sure that you identify all of the categories of personal information you collect and the way in which you share this personal information. If you’ve changed these policies since you posted your Privacy Policy, amend it now… without delay.

4. Data Security. Check your data security measures. If you collect personal information, you are required to implement “reasonable and appropriate” data security measures. These measures are essentially moving targets since data security technology evolves at a relatively rapid pace. What may have been “reasonable and appropriate” a couple of years ago may not pass muster today. Update your security procedures, if necessary.

5. Future Sale of Your Business? If your online business is starting to be successful and generate positive revenue, have you ever considered that you might want to sell it for a profit in the future? If so, be sure that your Privacy Policy specifies that personal information collected may be transferred and shared in the event of a sale. If you don’t do this prior to collecting personal information, you won’t be able to pass it on to your purchaser. The Federal Trade Commission (FTC) stipulated in recent settlements that personal information collected prior to posting this notice in your Privacy Policy will not be transferable in the event of a sale. And this personal information (your opt-in lists and customer lists) are the real value of your online business.

6. Service Providers. Do you use service providers to provide hosting, site maintenance, SEO services, or other site functions where they have access to your server? If you don’t collect personal information, your answer to this question is immaterial, but if you do (and only an email address will suffice), you need to enter into privacy and security agreements with your service providers. The FTC stipulated in a couple of recent settlements that you would be liable if you don’t.

7. Registration Agreement. Does your site require site visitors to register for certain benefits such as a membership or subscription rights? If so, you need an electronic agreement (a so-called “click-wrapped” agreement where the user clicks on “I ACCPET”). Your agreement should be presented conspicuously in the registration process and it should require an affirmative act (clicking on “I ACCEPT”) to complete the registration. You also need to be sure that all of your warranty disclaimers and limitations of liability pass muster.

8. Collect Birth Dates? Do you collect the date of birth as part of your registration process? If so, and if this date indicates that children under 13 are registering, you will be liable for substantial damages under the Children’s Online Privacy Protection Act (COPPA) if you do not comply with COPPA’s stringent requirements. You should either modify your information collection practices or comply with COPPA, or both.

9. Creditor Under FACTA? Do your registered users make periodic payments payable as monthly or quarterly installments, or do you extend credit so that payment is made after receipt of the product or service? If so, you fall within the statutory requirements of the Fair and Accurate Credit Transactions Act of 2003 (FACTA). FACTA requires that you adopt a “Red Flag” Identity Theft Policy before May 1, 2009, or face substantial liability.

10. Sales Intermediaries? Do you use affiliates or resellers? If so, a recent New York case illustrates that you may be liable for their actions if they violate certain laws acting on your behalf. For example, are your affiliates engaged in illegal spamming activities? If they are offering their own end user license agreements, do they properly disclose certain activities such as the use of pop up ads? You should check your affiliate and reseller agreements and modify them, if required.

Use This Checklist If You Don’t Have Your Site Documents In Place

You may be just starting your online business, or you may have procrastinated a little with your website legal compliance. If you fall into this group, you should get started without delay.

I’ve developed a procedure that will help you determine the correct mix of legal compliance documents for your site. Part of it is set out below.

First, if your site does not collect personal information, you should consider these documents:

* a Legal page for your intellectual property notices; and

* Terms of Use.

* And if you allow site visitors to post text or digital files to your site (for example via a blog, forum, or chat room), you’ll need a DMCA Registration Form (see No. 2 above).

Second, if your site collects personal information, but does not require registration to open an account or to use or purchase a product or service, you should consider these additional documents:

* Privacy Policy.

* And if you have service providers that have possession of your server or have access rights to it, you’ll need a privacy-security agreement for these service providers (see No. 6 above).

Third, if your site requires registration to open an account or to use or purchase a product or service, you should consider in addition to the foregoing documents, a customer agreement such as:

* a software as a service (SaaS) agreement; and/or

* a Software License Agreement (for software downloads).

* And if you are regulated by FACTA (see No. 9 above), you’ll need a Red Flag Identity Theft Policy — before the May 1, 2009 deadline.


The checklists provided above are not exhaustive. However, they should point you in the right direction as you give your site a new year’s legal compliance check-up. A simple check-up — and remedial action if necessary — is one of the best investments you can make in your online business.