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Estate Planning Terminology – Trusts

Aug. 28, 2019

Estate planning can be confusing, especially when special terminology is thrown in the mix. In particular, you might have heard that trust planning can be advantageous in an estate plan or broader tax planning but have no clue as to the difference between a revocable trust and an irrevocable trust, much less a testamentary trust versus an “ILIT,” “CRUT,” or “IDGT.” This article aims to help you sort through trust terminology so you can understand what plan may be best for you.

Revocable Trust. A revocable trust is just that—a trust that can be revoked. Think of a revocable trust as a glorified checking account: You can only establish a revocable trust while you are living. And like a checking account, you can freely move assets into and out of a revocable trust (and your creditors can access those assets to satisfy your debts). In addition, much like a transfer-on-death or pay-on-death designation on a checking account, the terms of the trust will control any assets in the trust at the time of your death.

It can be useful to use a revocable trust in many circumstances. Any assets placed in a revocable trust avoid probate. This can be especially helpful if you own real estate in multiple states. Without placing the land in a revocable trust, a probate will be necessary in each state where there is real estate. Using a revocable trust also helps protect your privacy. Court records of any assets that pass through probate are publicly available. In contrast, a revocable trust is a completely private structure, so any assets that are transferred into or out of the trust are protected from public view. A revocable trust can also be helpful to manage assets if you become disabled or incapacitated. When you are no longer able to manage assets in the trust, someone else named in the trust documents can step in to act as trustee and manage the property in the trust.

Irrevocable Trust. An irrevocable trust, as the name suggests, is one that is irrevocable. That means that any assets you place in the trust are permanently subject to the terms of the trust. An irrevocable trust may be created during your life (a so-called inter vivos trust) or at death by the terms of your will (a “testamentary trust”).

Testamentary Trust. As noted above, a testamentary trust is a type of irrevocable trust. You can use testamentary trust language in your will to automatically create a trust when you die to protect the persons inheriting from you. For example, a testamentary trust can be created to prevent young people from inheriting large sums of money. So rather than your grandchild inheriting a substantial sum at age 18, the assets can be held in a testamentary trust until he or she reaches a more suitable age that you designate—say, age 30. A testamentary trust can also be used to hold assets more permanently so that one of your heirs who is not financially responsible can’t waste their inheritance on frivolous purchases. By using a testamentary trust, the trustee has to approve many or all trust distributions so that the assets are used for appropriate purposes. And for spouses with a high net worth, testamentary trusts can be used to allow your surviving spouse to access your assets while still taking advantage of Minnesota estate tax exemptions.

Inter Vivos Irrevocable Trust. Inter vivos irrevocable trusts can be used in a wide variety of ways to reduce or avoid estate or income taxes. For instance, an irrevocable life insurance trust (“ILIT”) can own a life insurance policy on your life so that the life insurance proceeds are not included in the calculation of estate tax. A charitable remainder unitrust (“CRUT”) makes payments to beneficiaries for a certain period and then passes the remainder interest to charity, allowing you to take a charitable deduction and reduce the amount of your assets subject to estate tax. Other trust types you may encounter include a grantor retained annuity trust (“GRAT”), intentionally defective grantor trust (“IDGT”), and a qualified personal residence trust (“QPRT”). The terms of these and other inter vivos irrevocable trusts are quite intricate, so be sure to consult with your attorney and tax professional about how they can be helpful to you.

If you have questions or think that trust planning may be right for you, contact Blethen Berens at 507-345-1166 to schedule a consultation.

By: Jared Koch

Ben McAninch Elected President of Minnesota Defense Lawyers Association

Aug. 20, 2019

Ben McAninch was elected President of the Minnesota Defense Lawyers Association at its annual meeting in Duluth on August 16. The MDLA is an organization dedicated to serving the needs of lawyers engaging primarily in the defense and trial of civil disputes. He takes over for outgoing President Steve Sitek of the Bassford Remele firm. Ben also served as chair of the Trial Techniques Seminar held from August 15-17 where the attending firm members participated in a service project collecting school supplies for local students. The winning firm, Larson King, received the Service Project Championship Belt. Ben’s term as President will run through August of 2020.

Outgoing President Steve Sitek hands over the reigns to incoming President Ben McAninch.

 

Members of the Minnesota Defense Lawyers Association and DRI (Defense Research Institute) appear with the Service Project Championship Belt, awarded to the winning firm, as well as some of the school supplies donated by attendees.

 

What is Estate Planning?

Aug. 05, 2019


Planning for the future can be overwhelming and stressful – particularly when the conversation centers on end-of-life healthcare and the disposition of your assets upon death. These are difficult conversations to have, but they are critical to reducing the stress on loved ones in the event of your passing or incapacitation.

Estate planning refers to the overall process of putting a plan in place to address end-of-life and after-death issues. There are a wide variety of estate planning “tools,” including wills, trusts, health care directives, powers of attorney, major gifts, etc. An estate plan will look different for each individual, because each individual’s situation is unique. The estate planning process is flexible, and this allows you to address each individual part of your estate. Whether you own a business that will continue operating after your death, you have minor children or grandchildren in your care/custody, or own just a few major assets (home, car, and investment accounts), estate planning offers you a chance to think about major end-of-life decisions and the legacy you wish to leave behind.

One common misconception about estate planning is that it’s helpful and necessary only for individuals with a high net worth. The truth is that having your final wishes documented is critical for anyone, regardless of wealth, because almost everyone has at least some personal assets that will require distribution, and everyone has the potential to be in a position where critical medical decisions need to be made. In the absence of this type of planning, loved ones are left with difficult decisions and an often complex court process. This complex and potentially expensive process can add additional, unnecessary stress to your family and friends during an already difficult time.

Another common misconception is that a “will” and “living will” are synonymous. These words, while frequently used interchangeably, are actually two different concepts. It is important to note the distinction so that you can best document your wishes in a legally enforceable manner.

Wills

A will is a formal document outlining how you wish to have your money, property, and personal belongings allocated and distributed after your death, including who you want as your personal representative. In the absence of a will, Minnesota’s intestate succession laws will govern how your assets will be divided. These succession laws have a predetermined hierarchy for distribution of your assets – spouses and children come first, followed by grandchildren, parents, brothers/sisters, or other distant relatives if there are no closer relatives. Minnesota’s intestate succession laws do not permit for the distribution of property to friends or charities. Therefore, if you wish to leave property or other assets to a friend or charitable organization, you must have a will that specifically outlines this desire. If you have minor children or grandchildren in your care and custody, wills can also provide an opportunity to dictate who will care for your children in the event of your death.

Consequences for dying intestate (without a will) often come in the form of increased time, money, and stress for your family and friends. The court is likely to be more involved in the distribution of your estate if you die intestate, and this can in turn increase attorney and court fees. The first thing the court will do is name a personal representative who will oversee the distribution of your assets. Due to the immense responsibility that falls on a personal representative, you likely want to designate someone you trust. You, and not the court, are in the best position to make decisions related to personal representatives, asset allocation, and care/custody of your children. Therefore, it is important to document your intent and wishes in a legally enforceable manner.  

Health Care Directives

A health care directive (or what some refer to as a “living will”) is legally enforceable documentation of an individual’s health care wishes in the event that the individual becomes incapacitated or is otherwise unable to communicate. This document designates the individual(s) who you want to make health care decisions on your behalf and can provide what, if any, end-of-life care you wish to receive. The goal of a health care directive is to eliminate difficult decision making, provide clear documentation of your wishes, and ultimately provide peace of mind and reduce stress for family and friends.

If you do not have a health care directive and a critical health care decision needs to be made, your doctors will look to your closest family members to make decisions for you. This can become complex and stressful if you have multiple children, more than one generation of close family members (e.g. adult children and adult grandchildren), or if your closest family members are unaware of your wishes or unwilling to honor them. Even the closest of families face conflict when deciding on health care matters for a loved one. A decision to pursue or forego end-of-life care is far more difficult to make in the moment of a medical emergency as opposed to in advance. Many people have strong opinions on their health care wishes, but it is critical that these wishes are well-documented to eliminate any confusion or uncertainty.

 Power of Attorney

Another estate planning tool commonly discussed is a power of attorney. A power of attorney is written permission for someone else to care for your property or money matters for you. The person giving the power is called the “principal” and the person taking care of things for the principal is called the “attorney-in-fact.”  The power of attorney document is usually used when the principal is incapacitated or otherwise unable to make his/her own financial decisions. An attorney-in-fact does not need to be a licensed attorney, but it should be someone you have a great deal of trust in. If you name a power of attorney, you are still free to act for yourself, but the attorney-in-fact can also act for you. A power of attorney can be limited in time or scope with appropriate documentation, and a competent person can revoke a power of attorney in writing at any time.

Taking Action

Estate planning can seem overwhelming, and it may be a complex process depending on your individual circumstances. Sitting down with an attorney can provide you with the opportunity to evaluate which of the many estate planning tools best fits your needs and desires.

By: Silas Danielson & Macy Anderson

                                                         

What is the Difference Between Guardianship & Conservatorship?

Aug. 02, 2019

The words “guardianship” and “conservatorship” can often arise in conversations surrounding elder care, minor children, or individuals with disabilities. These words, while sometimes used interchangeably, are two different concepts under Minnesota law and serve two distinct purposes. Generally speaking, guardians are responsible for personal-needs decisions of an incapacitated individual (referred to under the law as a ‘ward’), while conservators are responsible for the financial decisions of an incapacitated individual (referred to under the law as a ‘protected person’). Guardianships and conservatorships can be limited in scope (emergency, public vs. private, general vs. limited), however specific requirements must be proven to a court before these restrictions or limitations can occur. Guardianship and conservatorship are helpful legal avenues for protecting and safeguarding an incapacitated individual and their estate, but they are also complex court processes to navigate and are not to be used simply when family or friends are frustrated with an individual or don’t like the individual’s decision(s).

Under Minnesota law, a guardianship is created when the court finds that an individual is incapacitated. A guardian is appointed to make the personal decisions for the incapacitated individual. Incapacity (in the context of guardianships) means that an individual is impaired to the extent that they cannot communicate or make responsible personal decisions and is unable to meet personal needs for medical care, nutrition, clothing, safety, shelter, etc. Powers and duties of a guardian can include custody and establishment of residence, provision of care, consent to medical treatment, and annual reporting of well-being, among others.

Conservatorships, on the other hand, are appropriate when a court finds evidence that an individual is incapacitated in certain areas and that the person’s property will be dissipated or wasted without appointment of a conservator. Conservatorships are specifically tailored towards financial decision-making, protection, and supervision. Powers and duties of a conservator can include the payment of reasonable expense for care, maintenance, and education, management of assets and debts, maintenance of an inventory list, and payment of tax, real estate, or insurance expenses or fees.

Once you’ve consulted with an attorney and decided that a guardianship or conservatorship is the most appropriate option for you or your loved one, the petition and appointment process must begin. A petition is filed with your county court to appoint an individual or agency as guardian and/or conservator. In both guardianship and conservatorship cases, the court must find four elements:

  • The person is incapacitated,
  • The person needs the supervision and protection of a guardian or conservator,
  • There is no appropriate, less-restrictive alternative available, and
  • The person chosen to act as guardian or conservator is in the best interest of the proposed ward or protected person.

After a petition has been filed, the court will conduct a hearing where it will review evidence and try to decide if the elements stated above have been met. If the court finds all elements have been met and a guardianship or conservatorship is the most appropriate and least restrictive option, it will appoint a guardian or conservator. After the appointment is made, the guardian or conservator takes on their specific rights and obligations, and is thereafter required to provide annual reporting to the court.

Guardianship and conservatorship can be a tricky maze to navigate, but with the assistance of an attorney you can evaluate all options and settle on a solution that best protects the personal and financial needs of you or a loved one. If you have questions on guardianship or conservatorship, reach out to the experienced attorneys at Blethen Berens who deal with guardianship, conservatorship, and other estate planning tools (Michael H. BoyleChristopher M. Roe, Kimberly Literovich and many others). See our Estate Planning practice area for a list of all attorneys who specialize in guardianship, conservatorship and estate planning.

By Michael H. Boyle & Macy Anderson

 

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Dog Bites – What You Need to Know

Jul. 29, 2019

By: Attorney Jeffrey A. Grace

Unfortunately, dogs occasionally hurt people in Minnesota.  When this happens, there may be a personal injury claim for pain and suffering, disfigurement, and medical bills.  A dog-related injury claim can be made by statute or under a theory of common law negligence.  This summary will focus on injury claims made under Minnesota’s dog statue. 

Minnesota’s Dog Statute

Commonly called the “dog bite” statute, Minn. Stat. § 347.22 states:

If a dog, without provocation, attacks or injures any person who is acting peaceably in any place where the person may lawfully be, the owner of the dog is liable in damages to the person so attacked or injured to the full amount of the injury sustained.  The term “owner” includes any person harboring or keeping a dog but the owner shall be primarily liable.  The term “dog” includes both male and female of the canine species.

This statute is favorable to an injured person.  The Minnesota Supreme Court has interpreted this statute to mean that:

“…liability is absolute.  It makes no difference that a dog owner may have used reasonable care; negligence is beside the point.  Past good behavior of the dog is irrelevant.  Neither the common law affirmative defenses nor statutory comparative fault are available to the defendant dog owner.” 

Lewellin v. Huber, 465, N.W. 2d 62, 64 (Minn. 1991).  In other words, that a dog has a history of biting, attacking, or being otherwise aggressive, or that it is a well-behaved dog does not matter.  And showing that a dog owner was acting unreasonably or negligent is not required to be successful in a claim for dog-related injuries under the statute. 

An injured person’s comparative fault will not bar recovery either.  Engquist v. Loyas, 803 N.W.2d 400, 406 (Minn. 2011).  Instead, recovery under the statute is not allowed when an injured person was (1) trespassing or (2) provoking the dog.  But the word “provocation” under the statute has a narrow meaning.  It has been defined as “voluntary conduct that exposes the person to a risk of harm from the dog, where the person had knowledge of the risk at the time of the incident.”  Engquist, 803 N.W.2d at 406.

Who is responsible?

The statute is clear that a dog’s “owner” is responsible for injuries her dog causes when the statute’s conditions are satisfied.  But a person “harboring” or “keeping” a dog can also be held responsible for injuries that dog causes, the same as the dog’s primary owner. 

“Keeping” a dog such that a person is deemed responsible for that dog involves:

  1. a voluntary acceptance;
  2. of temporary responsibility;
  3. as it relates to the management, control, or care of the dog;
  4. exercised in a manner generally similar to that of the dog’s primary legal owner.

Carlson v. Friday, 694 N.W.2d 828, 831 (Minn. App. 2005)(citations omitted).  Under this framework, a person hired to let a dog outside while the dog’s owner was at work was deemed responsible for that dog as its keeper.  Oldenhof v. Hansen, 2018 WL 3014625 (Minn. App., June 18, 2018).  A dog-sitter was also found to be responsible for a dog when she voluntarily assumed responsibility for care of that dog while the dog’s owner was on vacation.  Kent v. Block, 623 N.W.2d 906 (Minn. App. 2001).  Similarly, a veterinarian’s assistant was deemed to be a dog’s keeper when the veterinary office accepted delivery, possession and control of the dog.  Tschida v. Berdusco, 462 N.W.2d 410, 412-13(Minn. App. 1990)

A person “keeping” or “harboring” a dog at the time of the injury cannot, however, make a claim against the dog’s primary owner under the statute for injuries.  Carlson, 694 N.W.2d at 830 (citing Tschida, 462 N.W.2d at 412-13).  In Carlson, a dog groomer’s injury claim against the primary dog owner was rejected because the groomer was deemed to be the dog’s keeper. 

Bite” not required

Bite wounds are common in dog-related injury cases and often involve surgery, medical bills, and scarring. Even though it is commonly referred to as the “dog-bite” statute, Minnesota courts have interpreted Minn. Stat. § 347.22 to apply in situations where a dog did not, in fact, bite anyone. 

The statute is intended to cover scenarios where a dog attacks a person without provocation, but also “when a dog exuberantly jumps on or intentionally runs into a person and injures that person.” Lewellin, 465 N.W.2d at 64.  A dog’s accidental or innocent conduct that causes injury can also result in the dog owner’s liability.  Boitz v. Preblich, 405 N.W.2d 907 (Minn. App. 1987) (dog owner liable for neighbor’s injuries as a result of dog bumping into back of neighbor’s legs.). 

A dog owner has also been held liable under the statute when a dog did not make contact with the injured person.  In Morris v. Weatherly, a dog ran toward a person riding his bicycle, but never made contact.  Morris v. Weatherly, 488 N.W.2d 508 (Minn. App. 1992).  The bicycle rider believed that the dog was going to attack, jumped off of his bicycle, and suffered a shoulder injury.  The dog’s owner was held liable for the bike rider’s injury under the statute even though the dog did not make contact with the rider.  Id. at 510 (noting that the statute does not require physical contact between the dog and inured party.).

Contact Blethen Berens

Claims for dog-related injuries are subject to a statute of limitation and can expire over time.  If you were injured by a dog, contact our office to schedule a consultation with one of our personal injury attorneys.

Landlord Legislative Update

Jul. 25, 2019

The Minnesota Legislature has added and amended provisions of the landlord-tenant statutes. The following changes govern residential leases:

Written Lease Specifications

  • Before a tenant signs a written lease, the lease must identify the specific unit the residential tenant will occupy. Failure to provide this information can subject a landlord to a petty misdemeanor.

Duration of Lease and Prorated Rent

  • Written leases must identify both the lease start date and the lease end date.
  • If a tenant’s move in or move out date does not fall on the first or last day of the month, and the rent is prorated, the first page of the lease must state that amount of prorated rent for the specific month.

Notice Changes

  • Tenants may give notice of an intention to quit the premises using either: (1) the time period stated in the lease for the tenant or landlord to provide notice of intention to quit the premises; or (2) the time period stated in the lease for a landlord to give notice to increase rent.
  • Landlords cannot give a notice to quit the premises or to increase rent that is shorter than the time period provided to tenants for giving a notice of intention to quit the premises.

We encourage all landlords to review their leases and operating procedures to ensure compliance with these new provisions.

If you are a residential landlord who has questions about this new legislation, reach out to Blethen Berens – Silas Danielson or Alyssa Nelson at 507-345-1166.

2019 Super Lawyers & Rising Stars

Jul. 08, 2019

Blethen Berens is pleased to announce that seven attorneys have been selected to the 2019 Minnesota Super Lawyers and 2019 Minnesota Rising Stars lists.

The following attorneys were selected as Super Lawyers:  Julia Ketcham CorbettBen McAninchChristopher Roe and James Turk.

The following attorneys were selected as Rising Stars:  Beth Serrill, Jeremy Berg, and Jeffrey Grace.

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional development.  The selection process is multi-phased and includes independent research, peer nominations, and peer evaluations.  To learn more about Super Lawyers visit www.superlawyers.com. Congratulations to each of the attorneys selected for this honor!

Need legal expertise? Contact one of our Super Lawyers, Rising Stars or any of our experienced attorneys at 507-345-1166.

What you need to know: Minnesota’s New Wage Theft Law Effective July 1, 2019

Jun. 28, 2019

Minnesota’s New Wage Theft Law

The Minnesota Legislature passed a new Minnesota Wage Theft Law that is set to take effect on July 1, 2019, with the exception of criminal wage theft and sanction provisions which take effect August 1, 2019. This law provides many new and amended provisions related to documentation, recordkeeping, retaliation, enforcement authority, and criminal sanctions.

Listed below are some of the many requirements and rights addressed in the Wage Theft Law:

  • Mandated written notice to new employees which includes specific items of information regarding status and terms of employment;
  • Mandated written notices of change in terms of employment or compensation to employees before the changes occur;
  • Modification of pay stub content requirements;
  • Additional information to be kept in records and mandated record locations;
  • Penalties for insufficient recordkeeping;
  • Mandated commission payment timing;
  • Creation of a substantive right to payment of commissions and wages;
  • Prohibition on retaliation for asserting rights and protections under MN wage and hour laws;
  • Changes to Commissioner enforcement authority;
  • Penalties for hindering or delaying enforcement actions; and
  • Creation of the crime of “wage theft” for employers with criminal sanctions (including both imprisonment and fines)

There are many components of this new law that affect all Minnesota businesses. If you have questions about this new legislation or would like assistance analyzing the application to your business, please reach out to any of the Blethen Berens employment-law attorneys – Julia Corbett (Julia Ketcham Corbett Bio), Beth Serrill (Beth Serrill Bio), or Kevin Velasquez (Kevin Velasquez Bio) at 507-345-1166.

Meet Our Summer Associate

Jun. 03, 2019

Blethen Berens is honored to welcome Macy Anderson to our firm as a Summer Associate. Macy is going to be a third-year law student in the fall at Mitchell Hamline School of Law in St. Paul, Minnesota. Originally from the area, Macy was raised in Eagle Lake and graduated from Mankato East High School. Macy obtained a Bachelor’s of Accountancy from the University of North Dakota before beginning law school. During her time in law school, Macy has been a member of the Legal Association of Women Students, the Business Law Society, and she volunteers with the Minnesota Justice Foundation. In her free time, Macy enjoys spending time with her family and dogs; attending various festivals, fairs, and concerts; and watching sports.

 

 

How I Sustained My Legal Career and Avoided Burnout

May. 09, 2019

By Beth Serrill

Shared with the Official Journal of Minnesota Women Lawyers

I’ve been practicing close to 14 years, and I love being an attorney. I can’t say that when I started my career I had a grand plan to sustain it and avoid burnout, but, looking back, there are a few things that seem to have put me in a good position to do so.

Joining the Right Firm

My husband and I didn’t have any connections to Mankato when we accepted our jobs. We weren’t sure where we wanted to move after I graduated and I signed up for an on-campus interview with Blethen because we thought maybe we wanted to be in Minnesota and the size of the firm, about 12 attorneys at the time, seemed nice. If I’m totally honest, as an Iowan with very little familiarity with Minnesota, I was also confusing Mankato with Minnetonka. I hate to admit that now because I have a lot of Mankato pride, but it’s the truth – and it ended up being a very happy geographical miscue!

I was lucky that Blethen had (and still has) a truly fantastic mentoring program that helped to make Mankato my home, both professionally and personally. I was assigned two mentors who guided me through a two-year program that gave me opportunities to work within all the firm’s practice areas and with all the firm’s partners. I wasn’t pushed into a role that the firm needed to fill, but, instead, felt supported and valued and that the partners truly wanted me to find practice areas that were the best fit for me. Being a partner now, I know my perception was correct because that’s our approach with every new hire. Having practice areas I’m passionate about has helped me stay excited about my job. I have genuine interest in the areas I work and enjoy going to CLEs and keeping up to date on changes and trends. Had I been pigeon-holed into a practice area based solely on the firm’s needs, I don’t think I’d have the same motivation and satisfaction.

Finding the Right Community – and Getting Involved

Mankato is a great fit for my family. It’s a wonderful community that’s growing in strategic and exciting ways. One thing I learned quickly is that non-profit boards are always looking for attorneys and accepting opportunities has brought a wonderful balance to my life. Mankato is the perfect size: it’s big enough to have a wide variety of amazing nonprofit organizations doing phenomenal work, but small enough that opportunities to be involved in really incredible things were plentiful, even as a newcomer.

I was invited to join the founding board of Feeding Our Communities Partners , an organization that’s first initiative was a backpack food program for elementary school children to help combat hunger. My mom is a retired elementary school teacher and knows firsthand the impact hunger can have on students, so helping to fight that problem was particularly fulfilling.

I also had the opportunity to join the board of the Children’s Museum of Southern Minnesota and help to establish its permanent location in Mankato. I feel a great sense of pride every time I walk my daughter through the doors and experience the joy that is created in that phenomenal place.

I’m currently the vice president of the board of the Mankato Family YMCA, and the board is exploring the possibility of building a second location to serve community needs. The opportunity to be involved in a project that could have such an expansive, lasting impact on our community is inspiring.

Having connections to non-profit organizations and projects has given me a sense of belonging in the community. I may not have grown up in Mankato but I’m so thrilled to call it my home.

Being Thankful

The law is a wonderful profession and I’m thankful every day to be a part of it. One of my first clients was a woman in crisis. The county had taken custody of her child and she had pending criminal charges. In our initial meeting we realized we were the same age, born just a couple months apart. As we talked it struck me how many things outside of my control impacted the side of the table I sat on. I was born into a fantastic, supportive family, got a great education, and married a man who is a true partner. A change in any of those circumstances could have drastically impacted my life, and I do my best to appreciate and give thanks for all the things that put me in the position I’m in today.

As attorneys we have the privilege of being invited into people’s lives and that’s an extraordinary thing. Frequent reflection on that helps me stay engaged and enthusiastic. I’m thankful every day to be a part of this profession.