GPSolo Magazine - January February 2005
Preparing Clients for Deployment
“Hey, Bob—do you have a few minutes for me this afternoon?”
“Sure, Lynn, what’s up?”
“You know that reserve duty I do once a month up in Wallace?”
“Well, it looks like we’re getting sent overseas.”
“Wow—how’s your husband taking it?”
“He’s in a panic, of course—and my boss is almost as bad. I need to get your advice about how to manage things for the next couple of years while I’m gone. Can you help?”
More and more lawyers are faced with this situation, both for themselves and for their clients. Soldiers getting ready to deploy are under enormous stress, as are their families. The certainty of a two-week annual training deployment has been replaced by the fear of the unknown and the vague, unmentionable “what will I do if . . .” that will not leave the back of a spouse’s mind until the soldier returns. Your biggest service to soldiers and their families can be peace of mind, the assurance that some parts of their lives are under control even while the rest has been turned upside-down.
Personal Legal Health
The first thing that mobilizing reservists should take care of is their personal legal readiness. They should update their will, including a reference to their military service so an executor will know to contact the military to find out about possible benefits to the estate or surviving family members. They can prepare a basic will at no cost through their military legal office. However, individuals with significant assets, complex family arrangements, or complex trust needs will be best served by employing civilian financial or estate planners with the specific needed expertise. In conjunction with their will, soldiers must update their civilian and military insurance designations and keep that paperwork, along with other investment or business paperwork, in a file that their spouse or designated executor knows where to find.
Soldiers must consider carefully whether they will need a general power of attorney or special powers of attorney to help others manage their affairs in their absence. A power of attorney that expires on a date after the soldier is determined to be a POW or MIA is extended until the soldier’s return or his or her death is confirmed, unless the power specifically states otherwise. Again, basic documents can be prepared at no cost by the military legal office, but a soldier with special or complicated needs may be best served by hiring a civilian expert.
Help your clients think through exactly what actions might require a person to act for them. Also remind them to contact financial institutions, loan officers, or realtors to make sure special forms or procedures will not be required for acceptance of a power of attorney; for example, one lending institution notified a soldier in Iraq that, despite the fact that he had given his wife a general power of attorney, they would not give the soldier’s wife access to the soldier’s account without a legal custodianship on file. Some problems are hard to fix from a distance.
One form of power of attorney that is more and more necessary is a guardianship power of attorney, which permits a grandparent or other temporary custodian to take parental-type actions with regard to a child of a soldier. These actions might include authorizing medical care, traveling with the child, signing permission slips, or even enrolling the child in a new school. Such guardianship documents act as a permission slip and do not take away any parental rights or responsibilities from the soldier, who is still required to support the child. However, there may be school districts that will accept nothing less than a legal guardianship document from a court; prior planning between the parent and the school district may avoid any unpleasant surprises of this nature.
Guardianship powers of attorney may lead to complications when divorced parents are subject to a custody order. Many custody orders contain provisions about notification or application to the courts in the event of a move. Even if the child is not moving away, the non-custodial parent may petition to get custody during the deployment, thinking they have a better right to the child than the designated guardian, or even than a stepparent. There is some legal disagreement over whether a court is authorized under the Servicemembers Civil Relief Act to order even a temporary change to the custodial order in the absence of the servicemember parent. If this is an area of potential concern to your client, find out whether you will be authorized to defend any action and whether there is anyone such as a grandparent or stepparent you are authorized to work with in the soldier’s absence.
Many state bar associations have a LAMP (Legal Affairs for Military Personnel) committee that offers a network of state attorneys willing to provide free or reduced-price services to servicemembers and their families. Additionally, many reserve-component JAG attorneys participate in a program permitting them to provide no-cost legal assistance to eligible personnel for retirement points. This legal assistance may include document preparation or in-court representation that active duty legal assistance personnel are not authorized to provide. You can search for these resources online at your state bar website or by calling the nearest reserve-component legal office. Reserve units are usually listed in the “government” pages of the telephone directory.
SCRA and USERRA
The two most important laws regarding deployed soldiers are the Uniformed Services Employment and Reemployment Rights Act (USERRA) (43 U.S.C. s. 4317 et seq.) and the Servicemembers Civil Relief Act (SCRA) (50 U.S.C. App. S 501, et seq). These laws apply to all members of the armed forces in a Title 10 Active Duty status. Because the protections afforded by USERRA will be applicable when servicemembers return from duty, rather than upon their deployment, that law will not be discussed in this article. The SCRA, which contains dozens of protections for servicemembers called to active duty, could be the subject of an entire issue of this magazine, and it will only be touched on briefly here. Both the SCRA and USERRA are the subjects of independent articles elsewhere in this issue of GPSolo (on pages 20 and 52, respectively).
The SCRA used to be known as the Soldiers’ and Sailors’ Civil Relief Act (SSCRA); in its most recent amendments (December 2003) it also protects National Guardsmen called to state active duty for a national emergency. Some of the more widely used protections include interest rate reduction and the right to stay civil proceedings. It also contains provisions pertaining to medical and professional liability insurance, eviction and repossession protections, and termination of real property and automobile leases.
Interest rate reductions. If a servicemember’s ability to pay pre-service debts is adversely affected by his military service (i.e., he now makes less money), he is entitled to a reduction to 6 percent interest on those debts. The interest is to be forgiven, not deferred. To get the reduction, he needs to notify the creditor in writing and provide a copy of his active duty orders. The burden is on the creditor to prove that the ability to pay is not adversely affected, not the other way around. One useful finding of the district court in the most famous case involving this provision of the SCRA, Cathey v. First Republic Bank, was that an SSCRA suit is a suit in contract, not in tort, so the statute of limitations applicable to contracts applied.
Civil stay. If a servicemember (plaintiff or defendant) is unable to participate in a civil court proceeding owing to her military duties, the court is required to provide at least a 90-day stay if she requests one. Longer stays may be granted at the discretion of the judge. This provision was expanded under the SCRA to include “administrative proceedings,” which will impact issues such as child support modification hearings, which were previously exempted from the stay protections. If a soldier or her attorney does not appear at a hearing, before entry of a default judgment the other party is obligated to file an affidavit stating whether or not the individual is in the military. If so, the court is required to appoint an attorney to protect her interests. The court is also empowered to protect the individual’s SCRA rights, as they deem necessary. Presumably, that appointed attorney’s primary responsibility would be to request the stay, not to process the case.
In some cases, a soldier may be on active duty but not overseas in a combat zone. Especially if the soldier is not far from home, courts may be reluctant to grant a stay. You should have the soldier contact his commander, who can draw up a letter to the court stating why the soldier cannot be released and when he expects the soldier will be available for a rescheduled hearing. Judges are far more receptive to a rescheduling request than an indefinite delay. Remember the SCRA requires judges to grant at least a 90-day stay upon application by an unavailable servicemember.
Rental property protections. The SCRA prohibits evictions of servicemembers or their dependents from their residence where monthly rent does not exceed $2,400, without authorization from a court. The court is required to stay the eviction action for 90 days upon application by the servicemember unless the court finds the servicemember’s ability to pay has not been adversely affected, or it may “make such other order as may be just.” Self-help eviction is punishable by fine, imprisonment up to one year, or both. Additionally, the “military clause” allowing soldiers to terminate their lease upon receipt of active duty, PCS, or deployment orders (of more than 180 days) has now been made a part of the federal law and does not require a separate written provision in the lease.
Automobiles. Owing to a history in the military of problems with high-mobility and restrictive automobile leases, the SCRA now includes a provision permitting termination of these leases if the servicemember is called to active duty for at least 180 days. Active duty members can terminate leases if they are transferred overseas or if they deploy for at least 180 days. Furthermore, self-help repossessions of automobiles or other installment contract purchases are punishable by fine or imprisonment similarly to the eviction protections.
Insurance. The SCRA provides for suspension and subsequent reinstatement of health care professional and legal professional liability insurance when an individual is called to active duty. The individual must request the suspension and the reinstatement in writing.
The SCRA also entitles an individual to immediate reinstatement of privately purchased (not employer-offered) medical insurance that was in effect the day before the individual went on active duty and was terminated on the last day of active duty. Be aware this provision does not exactly mirror the time periods during which TRICARE (the military medical care system) applies. The individual or those covered by her insurance may not be excluded or subjected to a waiting period before reinstatement for conditions arising before or during the active duty. Employer-offered health plans are subject to similar requirements under USERRA.
This overview of the most widely used provisions of the SCRA is not exclusive. The SCRA also includes provisions pertaining to income tax, residency, reopening judgments, and life insurance, among other subjects. Any time a mobilized soldier has legal issues, take a quick look at the SCRA to determine if any of its provisions may apply.
Keeping in Touch with Your Client
Current mobilizations generally last up to two years, sometimes even more. Every servicemember is assigned a military e-mail address, although in some locations e-mail access is sporadic. Soldiers’ ability to use telephones may be severely limited, and time they spend calling you may be time they cannot spend calling their families. Fax machines may be available in more populated areas, most likely in a headquarters-type area. “Snail mail” to an APO box is reliable, although it may take several weeks in either direction. Express services such as Federal Express or DHL will probably not be available. Your best bet is to keep in contact with a designated friend or family member who can advise you the best way to contact the soldier at any particular time. Certain emergencies may justify the use of a Red Cross message. If you have a contact number for a “rear detachment” of the soldier’s unit, they should be able to deliver messages relatively efficiently as well.
Robin Hall is a Major in the Army’s Active Guard-Reserve Program and a 1992 graduate of the University of Michigan Law School. She can be reached at firstname.lastname@example.org.