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With a little support, adult individuals with intellectual disabilities or mental illnesses often lead independent and fulfilling lives. For example, the Massachusetts Vocational Rehabilitation Services program, with offices throughout the Commonwealth, including in Lawrence, Lowell, Malden, Salem and Somerville on the Northshore, offers assistance to individuals with disabilities to obtain and maintain employment. However, some disabled individuals require additional support in their personal lives when they are unable to make certain decisions on their own behalf. In such situations, a guardianship may be appropriate.

commerce-acts-books-477966-mGuardianship is a formal proceeding in the Probate and Family Court that grants the court appointed guardian legal authority to care for and make decisions on behalf of an incapacitated person. An incapacitated person is defined as “an individual for reasons other than advanced age or minority, has a clinically diagnosed condition that results in an inability to receive and evaluate information or make or communicate decisions to such an extent that the individual lacks the ability to meet essential requirements for physical health, safety, or self-care, even with appropriate technological assistance.” MGLC 190B, §5-101(9). The guardian may be granted plenary or complete authority to make decisions on behalf of the incapacitated person; however, a limited guardianship that only grants the guardian decision making authority where the incapacitated adult cannot make her own effective decisions, is favored. The purpose of a guardianship is to promote the safety and well-being of an incapacitated individual, not to take away an incapacitated person’s independence.

The Probate and Family Court will tailor the guardianship to the incapacitated person’s specific needs in order to promote self-reliance. The question becomes, “what is in the best interest of the incapacitated person?” To answer this question, the court will consider evidence and arguments not only from the person seeking the guardianship, but also from the incapacitated person herself and any other interested person. Last year, in the matter of Guardianship of B.V.G., the Supreme Judicial Court of Massachusetts provided guidance as to who is considered an “interested person.”

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If you read this blog on a regular basis (who doesn’t!!) you may recall an article entry from a year ago about challenges one can face when contesting a Will.  In that entry we cautioned that a challenger to a probate estate can be held responsible for the other parties’ legal fees for an unsuccessful challenge.  Whether you are from Lynn, Saugus, Lynnfield, Peabody, Salem and seeking redress in the Essex Probate Court, or Wakefield, Reading, North Reading or elsewhere in Middlesex County; it is important to know your rights and what limitations and pitfalls could await you in contesting a Will or appointment of a personal representative.

commerce-acts-books-477966-mA recent Probate Court decision illustrates how tricky (and costly) an unsuccessful challenge in a probate court can be.  Here’s what went down in Giroux v. Laranjo, et al., Lawyers Weekly No. 15-007-16.

Ms. Giroux was the attorney in fact for the decedent during his life under a power of attorney and after his death was the estate’s personal representative.  While the decedent was living, Ms. Giroux amended the distribution percentages in the decedent’s realty trust so that her beneficial interest increased and the other beneficiaries’ interests decreased.  She did this under her power as attorney in fact for the principal.  This was apparently what the decedent wanted.

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Massachusetts federal and state courts have become a hub of mass tort actions. Mass tort actions are very different from typical North Shore, Lynnfield, Lynn and Saugus torts, accidents and injury law. Mass torts require massive resources and involve high-stakes but what exactly is a mass tort? Many people understand that a tort is a wrongful act that causes harm or injury to a person and exposes the wrongdoer to civil liability. Typically, tort actions involve one plaintiff and one defendant. For example, imagine that you are on your way home from work on Route 128 and the traffic comes to a sudden grinding halt. You come to a complete stop and the car following you slams into the back of your car. This is a classic tort action involving a wrongful act, you as the single plaintiff and the other driver as the defendant. A mass tort is different because where it also involves a single wrongful act; the wrongful act causes harm or injury to numerous victims.

commerce-acts-books-477966-mA majority of the mass tort actions in the Commonwealth are centralized in the Federal District Court District of Massachusetts; however some prominent mass torts are in the state civil courts. Just one mass tort action can involve numerous cases. For example, over 3,000 claims related to a mass tort action involving the dialysis products GranuFlo and NaturaLyte manufactured by Fresenius were filed in the Middlesex County Superior Court in Woburn. See In re: Consolidated Fresenius Cases, CV2013-03400. A settlement for the Fresenius cases in the amount of $250 million was reached earlier this year.

While many mass tort actions involve injuries caused by defective consumer products, specifically pharmaceutical drugs or medical devices, mass torts can also arise from large scale disasters (such as an oil spill) or toxic torts (such as contaminated groundwater). Mass tort actions allow a large number of plaintiffs to sue a common defendant in a consolidated action if their cases arise from a common cause.

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It has been a red-hot residential real estate market all over Massachusetts. Homes in good locations that are updated and priced fairly are going under contract quickly. The weather may be turning colder as we head into 2017 but the sale prices of good housing throughout the North Shore, including Lynnfield, Saugus, Danvers, Lynn and Wakefield have stayed firm.  As New Englanders know, after a snow-filled winter, a warm spring is always welcome.  Traditionally the housing market heats up once the snow begins to melt. However, with the small inventory of available homes today, potential buyers may wish to keep close watch on new listings during the winter too. If 2017 is the year you will buy your house, be mindful that there are many complications involved with purchasing a home, from start to closing. An experienced and knowledgeable real estate attorney to represent your interests only, throughout the process, can be valuable. Actually, is a lawyer required for closing?

commerce-acts-books-477966-mMassachusetts is one of the few states in the country that is considered an “attorney state” for residential real estate transactions. That means that home buyers and sellers in Massachusetts typically have an attorney represent them (unlike other states where most matters are handled by a real estate agent and a title company). An attorney’s involvement is required by G.L. c. 221, s. 46A, which prohibits the unauthorized practice of law by non-lawyers.

The MA Real Estate bar Association (REBA) takes the position that real estate closings conducted by non-attorneys, often called “witness-only closings” or “notary closings”, are not in the best interest of the consumer or buyer.  “Decisions made by home buyers and other mortgage borrowers are particularly susceptible of improper influence, and even predatory behavior, by individuals who are unqualified to give legal advice.” REBA strongly recommends that the Buyer and Seller each have their own attorney in addition to the attorney conducting the closing, to prevent an issue of conflict and to assure that each side is adequately represented.

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Tax planning is an important component of an overall estate plan. Depending on the type and the value of assets owned, the services of an attorney and a tax specialist may be appropriate.  Throughout the Northshore of Massachusetts, including Saugus, Danvers, Wakefield and Lynnfield, it may save significant money and gifts for heirs if one works with an experienced estate planning lawyer. Any number of life events may provide a good time to trigger setting up an appointment to review your estate and discuss options – marriage, divorce, an addition to the family, health issues or simply natural aging.

commerce-acts-books-477966-mOne example of a tax planning issue to consider is the taxable basis at death of assets acquired during one’s lifetime, such as stocks, a home and real estate. A properly prepared estate plan may enable the heirs to use a legal step-up in basis so that the starting point for valuation of an asset will be the value at the date of death – instead of the value at acquisition or some other starting value.

What is a step-up in basis and how does it work?

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The North Shore has a number of outstanding facilities to assist in the care and education of special needs minors. For example, the Northshore Education Consortium, with facilities in Beverly and Peabody, is one of the largest provider of special education programs for children with emotional, behavioral or developmental disabilities in Massachusetts. See https://www.nsedu.org/

commerce-acts-books-477966-mFor many parents, their top priority when planning for the future is to ensure that their children will be cared and provided for. The issues may be complicated when there is a child with disabilities as part of the family. Planning for children with disabilities presents unique challenges and considerations. The two main concerns presented by gifting or leaving funds directly to a disabled child are: first, a child with disabilities may be unable to appropriately manage funds themselves; and second, such a gift or inheritance may cause the child to lose important government benefits. A properly drafted Special Needs Trust, also known as a Supplemental Needs Trust, can address these issues and ensure that a disabled child is cared for and financially protected.

Perhaps the main benefit of a Special Needs Trust is that assets held by the trust for the disabled individual are not considered “countable assets” for the purposes of means-tested government benefits. Means-tested government benefits include Supplemental Security Income (SSI), Medicaid (also known as MassHealth in the Commonwealth), and certain housing assistance programs. For example, in order to receive SSI an individual must not have countable assets worth more than a total of $2,000.00.[1]

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And so today it starts – whether you are a parent that starts planning for the holidays before you put a pumpkin out or you wait until the last minute to run to the Northshore Mall in Peabody or Square One in Saugus, like it or not – the holidays are coming.  One sure sign that the holidays are around the corner is the local news station’s annual report on the worst toys for the year.  Each year, the non-profit watch-dog group from Massachusetts, World Against Toys Causing Harm Inc. (or W.A.T.C.H.) releases its “10 Worst Toys of 2016”.  While some think the edict from W.A.T.C.H. can be alarmist, parents and anyone in Massachusetts looking for toys to buy children should be aware of the list.

commerce-acts-books-477966-mAccording to W.A.T.C.H.’s website http://toysafety.org/, its primary goals are to advocate child safety and correct abuses in the manufacturing and marketing of children’s toys and products.   It seeks to raise awareness about hazards prevalent in the marketplace, creates educational programs, and allows childcare givers and children to make more informed decisions with regard to toys and recreational products.

There is no substitute for parental guidance and common sense, but it is helpful to be mindful of safety concerns that W.A.T.C.H. has with certain toys.  This year, a sampling of those products that made the list are: an inflatable suit that children wear while crashing into each other; hammer inspired by weapons in the movie “Warcraft”; “slimeball launcher” is similar to a slingshot, and is sold with bright green “slimeballs” as ammunition, which can be fired “over 30 feet!” Projectiles launched with such force have the potential to cause serious eye injuries and rank among the 10 most hazardous toys on an annual list released on Tuesday by U.S. child safety advocates.  A puppy with a string pull where the string is 31 inches long is suggested for children “2+”.   The package also contains no warnings.  These are just some of the many toys on the list to be mindful of.

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November 6 marked the end of Daylight Saving Time.  We turned the clocks back one hour.  That means it is lighter when we wake up and head out for the morning commute, but it is dark outside when most of us head home from work in the evening.  The loss of one hour of afternoon sunlight increases the risk of traffic and pedestrian accidents in Lynnfield, Lynn, Danvers and Middleton and throughout the North Shore.

commerce-acts-books-477966-m“The time change officially [took] place at 2 a.m., but you don’t have to spring out of bed and move the big hand on your clock back an hour. The change is automatic for most smartphones, computers, tablets and other digital devices.

If you’re still using an analog alarm clock, you’ll probably want to move it back before you go to sleep on Saturday or when you wake up the next morning.

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Do you know what happens if you are driving around Lynn, Lynnfield, Peabody, or  other North Shore community in Massachusetts and are injured by a federal government employee or vehicle owned by the federal government?  What if you are in a federal government building in Massachusetts and are injured?  If you are injured by the negligence of an employee of the federal government in Massachusetts, you or your attorney will need to determine whether or not your claim is subject to the Federal Tort Claims Act (“FTCA”).  If so, compliance with FTCA and attention to detail are musts, otherwise you could jeopardize your right to recovery.

commerce-acts-books-477966-mWhat is the FTCA?  While the statutory construction of the FTCA is somewhat complicated for a lay person, the purpose is pretty straightforward – to provide a limited window of recovery against the United States for the wrongdoing of one of its employees.  It starts with the concept of “sovereign immunity”.  This common law doctrine essentially shielded government officials and employees from personal liability in tort for carrying out governmental duties.  So, although private employers could be held liable for the wrongs of their employees, the federal government could not be held liable for the wrongs of its employees.  In 1946, the FTCA was enacted to provide a limited waiver of the federal government’s sovereign immunity when its employees are negligent within the scope of their employment.  28 U.S.C. 2671-2680.  Under the FTCA, the government can be sued ‘under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.’ 28 U.S.C. S 1346(b).  The FTCA includes a number of exceptions to its application, so it must be determined whether or not your claim falls within the FTCA’s window of allowable claims.

What is Presentment under the FTCA?  Before an action under the FTCA can be filed with a court, the claimant must make proper “Presentment”.   Presentment is written notice to the appropriate government agency. 28 U.S.C. § 2675(a).   Typically this is done by government’s Standard Form 95 (“SF-95”) linked here https://www.justice.gov/sites/default/files/civil/legacy/2011/11/01/SF-95.pdf  although the form is not required if another writing contains the required elements of notice to the agency. The written claim must provide the agency sufficient notice so that it can conduct a proper investigation to determine liability, conduct settlement negotiations and assign value to the claim.  State Farm v. United States, 2004 WL 1638175 (E.D.N.Y.); McNeil v. United States, 508 U.S. 106, 112 (1993).   Presentment must be made within two years after the claim arises and suit must be filed within six months after a claim is made or denied, whichever is first.

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Halloween has come and gone for 2016 in Lynnfield, Saugus and throughout the North Shore.  October 31st is an exciting day for children across the U.S. to dress up and trick or treat.  There is no better place for goblins and witches to roam the streets than nearby Salem, the home of the Witch Trials in the 17th Century. However, all goblins and witches must beware of the dangers of traffic accidents on this popular night.

commerce-acts-books-477966-mAccording to The Salem News a Beverly man was arrested in a hit-and-run accident that seriously injured two children and one adult in Salem.  He was charged with operating under the influence of alcohol, failing to yield to pedestrians in a crosswalk and leaving the scene of an accident with personal injury.  Halloween is a dangerous night throughout the North Shore due to impaired drivers. In 2015, over half (52%) of all highway fatalities across the nation on Halloween night involved a driver or a motorcycle rider with a Blood Alcohol Content of .08 or higher, according to Traffic Safety Marketing.

There’s nothing scarier on Halloween, or really on any night, than a drunk or impaired driver.