The Government’s Loophole to Take Your Protected Property

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The Government’s Loophole to Take Your Protected Property

Every day, attorneys exploit useful law and policy to help individuals protect their hard-earned assets. Not only are these attorneys saving people’s homes and retirements, they are also providing the public with a rare commodity, peace of mind. However, if you’re the least bit cynical—which attorneys are paid to be—that peace of mind may fade as you wonder how the government could undo what you did to protect your legacy.

The simplest way the government could undo protection is to change the law. That’s right, the government could just say “we no longer want you to be able to protect your property with a trust, deed, etc.” This would have huge consequences and would force lawyers to think outside the box to get around these new prohibitions in order to save people’s property. Inevitably, much of the “getting around” would develop through countless litigations and the loopholes beneficial to individuals would develop along with the case law.

But what if you’ve already had the foresight to plan ahead and put thee now prohibited protections in place. Can the government actually undo what’s already been done? The answer is a lawyer’s favorite phrase: “it depends”.

The thing with property protections is that the deal with property. Regardless of whether that property is personal or real property, the Government is limited in how they can take it. After all, we have this little provision in the Bill of Rights called the Fifth Amendment. The Fifth, among other things, says that the government cannot take your property without just compensation and due process of law. This means that the, typically, government must give you something in return for what they take, and you have the chance to be heard before their allowed to do so. For example, if the government wants to take a strip of your front yard to widen a road, you have the opportunity to argue why they should not be able to take it, but even if you lose, they still have to pay you for it.

Another factor working in the favor of the individual is the generally recognized principle that retroactive laws are unfavored. This means that if the General Assembly of North Carolina adopts a law, law makers are unlikely to allow it to apply retroactively. This is because retroactive application of a new law tends to be patently unfair. For example, let’s say the government raises property taxes, it’s enough of a burden to have to pay a higher amount in the future, but to also be forced to pay that amount for past years would be unconscionable.

The courts are also careful to apply news laws to the past, not only because ex post facto (the latin term) laws are disfavored, but they also raise Constitutional concerns. What this breaks down to is that a retroactive application of a change in the law is very rare.

So, what does this mean for you? The only certainty is that the future with be uncertain. State’s budgets wax and wane and laws change as a result. However, history gives us some reassurance that we have done so far cannot easily be undone. So, what if you want to put protections in place, but you’re scared that the laws may change? It’s like the old saying goes, you make hay while the sun shines.

If you have questions about protecting property, allow the experienced attorneys at McIntyre Elder Law help you today. Call (704) 259-7040.


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Brenton S. Begley

Elder Law Attorney

McIntyre Elder Law

“We help seniors maintain their lifestyle and preserve their legacies.”

Phone: 704-259-7040

Fax: 866-908-1278

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