When Incapacity Strikes: Helping Mom and Dad Make Decisions: Free Seminar and Discussion on April 27, 2016 at 7:00 p.m.

Edith is an eighty-three year old widowed woman with three adult children. Edith had always been very independent and active. Although none of her children reside near her, they called and took turns visiting her. During one of these visits, Edith’s son noticed that she seemed distracted and forgetful and that her normally pristine home was in disarray. When Edith’s daughter visited next, she noticed that these problems had worsened and that the clutter in the home included piles of unopened bills. One morning, her daughter found that Edith had gone. While it was not unusual for her to drive to the nearby coffee shop, she failed to return. Police in a nearby city later found Edith, confused and disoriented, when she attempted to park on the sidewalk. She had sustained minor injuries after hitting a pole. After a short hospital stay, Edith’s treatment team determined that it was not safe for her to return home due to her inability to care for herself. Edith denied her illness and insisted on returning home alone. Edith’s children now disagree about the best plan for her future. Could she live alone with home health care services or does she need a higher level of care in a skilled nursing home? Would an assisted living facility with a memory-care unit be appropriate? Who can legally make the decision for her to move to a facility if she refuses to go? How will she afford the care she needs and who has the authority to access her assets to pay for her care?

Above is a fictionalized account of a common situation in which the need to obtain a guardianship and/or conservatorship of an elder often arises. Usually, it can be a difficult time as both the elder and the family are under a great deal of stress. The family may find it hard to understand and accept the changes that have occurred in the elder’s life and may also be under pressure to make important care decisions quickly. The elder may feel frightened due to unfamiliar surroundings and abrupt changes in routine, in addition to the fear that he or she has lost control over decision-making. Sometimes, family disagreement over the elder’s future adds to the emotional stress of the situation.

In an ideal situation, the elder has previously executed both a Durable Power of Attorney and a Health Care Proxy nominating agents to make his or her financial and health care decisions in the event of incapacity. However, in order to be valid, these documents must be executed while the elder still has the capacity to do so. Once a physician has deemed the elder to be incapacitated, it is too late to do so. At that point, it is necessary to petition the Probate Court to obtain a guardianship and/or conservatorship of the elder.

A family member may petition the Probate Court to appoint him/her or another family member or friend to serve as either the guardian or conservator. Guardianship provides the authority to make personal and routine medical decisions for the elder. If there are extraordinary medical decisions to be made, such as for treatment with antipsychotic medication or the need to obtain a Do Not Resuscitate order, those must be specifically requested on the petition. Likewise, if there is a need for the elder to be admitted to a skilled nursing facility or a locked memory-care unit, or for the authority to access bank accounts in order to submit a MassHealth application (often required for skilled nursing home admission), the petitioner must specifically make those requests on the petition.

Conservatorship provides the authority to make decisions regarding the elder’s finances, including payment of bills and the investment and management of funds. If there is estate planning to be done, such as the creation of a pooled trust, the conservator will need to file a separate petition to set aside funds and create the trust.

Both a guardianship and conservatorship can be obtained relatively quickly if there is an emergency requiring immediate health care and financial decisions to be made. Appointment requires medical paperwork from the elder’s physician certifying his or her diagnosis, prognosis and need for the appointment of a fiduciary. A temporary appointment of a guardian or conservator lasts for ninety days, after which a permanent appointment may be sought.

Both the guardian and the conservator are accountable to the court for the decisions that they make. All decision must be made in the best interest of the elder. A guardian must file a yearly report with the Probate Court describing the elder’s personal and medical needs and how those needs have been met. A conservator must file a yearly plan with the court disclosing how the elder’s income will be used to meet his or her needs. In addition, the conservator must file an initial Inventory (snapshot of the elder’s assets at the time the initial appointment is made) and a yearly Account (listing the elder’s income and expenses for the year as well as the balance at year’s end). A conservator also must file a bond with the Court at the time of his/her appointment, either with personal or corporate sureties (requiring a yearly premium).

Often, the question arises as to who will serve as the guardian and conservator. Both jobs are time-consuming, requiring frequent contact with medical providers and close attention to bank accounts, investment accounts and payment of bills. The job may fall to the adult child who resides closest to the elder or who has been the “responsible one.” Sometimes, particularly in families with a history of discord, there can be strong disagreements over who should be appointed. If these disagreements become contentious, the Probate Court may appoint a neutral fiduciary, often an attorney with extensive experience in this area of law.

If you have any questions regarding this process, give Levine-Piro, P.C. a call 978-637-2048 to schedule a time to meet with one of our attorneys.

Emoji Fever Takes Over the Judicial System

emojibrainLast month, we brought to you a story about how social media can negatively affect your case.

During our last piece, we touched on how social media could wreck a personal injury case – for instance if someone is claiming emotional distress but then posting about happy events in their lives, or even posting happy emojis.

It looks like this trend is catching on even in the criminal law realm. For instance, in Virginia, a 12-year old student is being prosecuted for using a specific set of emojis. The student used the gun, knife and bomb emojis on her Instagram account. The school is charging her with threatening her school because of these messages.

She is not the only person for whom emojis have caused trouble. A Michigan man used a policeman emoji and a gun emoji directed toward the officer; the grand jury there had to determine if that was a real threat, or just someone having a little fun.

With cases on both the civil and criminal sides dealing with how emojis and other social media posts might reflect an individual’s mental or emotional state, that begs the question, should this even be considered as evidence and even allowed into cases as such?

If you have a personal injury, employment law or other case that involves social media, Levine-Piro Law can help. Call us at 978-637-2048 or e-mail office@levinepirolaw.com to talk to one of our attorneys to set up a consultation.

To learn more about emojis in criminal law cases, you can read the original article here.

No More Tears - of Talc? Jury Hits J&J with Massive Punitive Damages Verdict

baby powderEveryone is familiar with the Johnson and Johnson brand. It is advertised everywhere – a familiar and trusted brand, associated especially with children. Who doesn’t know the slogan “No More Tears.”

However, recently J&J has come under fire in a Missouri lawsuit, in which a jury awarded $72 million in damages to the family of a woman who died of ovarian cancer – allegedly because of using Johnson’s talc-based baby and body powders.

Leaving aside the science – how did the jury come up with such a large number? Well it starts with the award of $10 million in compensatory damages. Compensatory damages are meant to “compensate” an injured party or their family for things they have actually lost – such as perhaps medical bills, lost wages, or “loss of consortium,” which is basically the legal name for the loss you experience when you no longer have a very close loved one in your life anymore.

The jury then took the amount of damages, and awarded the decedent’s family an additional $62 million in punitive damages.

Punitive damages are designed to “punish” a defendant and are considered to be an extraordinary award. Statistics show they are only awarded in a small percentage of cases, and when they are awarded, they are usually reasonably low awards. It’s just that when you hear about them, they’re huge awards, like the award in this case.

Here in Massachusetts, punitive damages can only be awarded if allowed by statute such as in wrongful death, employee discrimination or medical malpractice cases. In medical malpractice cases, there is a cap of $500,000 unless it is proven that the injury was catastrophic.

Case law here in the Commonwealth has established that punitive damages are only available for outrageous or evil conduct or where a defendant exhibited reckless indifference to a person’s well-being. Additionally, punitive damages can only be awarded in addition to compensatory damages.

So, how much in punitive damages can be awarded? In theory at least, it’s based on a multiplier using the level of negligence to determine the number; then the compensatory damages are multiplied by that number to determine the amount of punitive damages in a particular case.

Going back to Missouri, the family was awarded $10 million in compensatory damages. The punitive award was based on the evidence proving that the famous company Johnson & Johnson had lied about the health risks of their talc-based products for over forty years, and, in addition, had falsified information to pass safety regulations governing those products.

For more information about the Johnson case, see the original article here.

If you feel you have been injured, contact Levine-Piro Law at 978-637-2048 to schedule a consultation or e-mail office@levinepirolaw.com.

To Compete or Not To Compete: Week 2 in Levine-Piro Law's Series on Employment Agreements

the-strategy-1080534_1920Just the title “non-compete” makes your skin crawl, doesn’t it? To go all Fox newsy, there’s something almost “un-American” about the word. Competition is in our blood. It’s part of what makes this country tick. But stay with me and I’ll show you how it – kind of sort of – makes sense.

A non-compete agreement (a.k.a. non-competition agreement or covenant not to compete) prohibits you from going to work for a competitor of your employer within a specified time period and within a specified geographic region. Non-competes are typically upheld by courts if reasonable in length and geographic scope.

First, a little history, should you ever wind up on Jeopardy. Laws allowing non-competes trace their origins all the way back to 1711, to a British court case called Mitchel v. Reynolds, a fight between two bakers. I personally would have liked to have tasted the fruits of that fight. Anyway, Reynolds rented his bakeshop to Mitchel; Reynolds also promised that he would not open another bakery in the same town. See that – that’s a non-competition agreement.

Guess what happened? You got it. Reynolds, that backstabbing baker, went back on his word. Mitchel sued. The Court upheld their agreement and found that the agreement not to compete was a “reasonable” restraint on trade necessary for Mitchel’s business to thrive. If Reynolds were allowed to open up a competing bakeshop, all the effort Mitchel had put into developing customers in the town, all the goodwill he had developed, would be damages.

So you can see where this leads. Non-competes help employers – from their perspective, they are “pro-competition agreements” that allow them to better compete in the market.

When you’re hired, the company presumably will spend time and money training you over the next several years. You will also likely become privy to trade secrets and other forms of intellectual property (don’t worry – we’ll cover IP agreements in another post). It’s understandable that they would want to put some limitations on your ability to benefit from that by picking up and walking down the street to the nearest competitor and then spilling the bean about how they do business. Like the baker brouhaha, it’s a “reasonable restraint on trade.”

Which brings us to the basic standard – in Massachusetts at least. In the Commonwealth, non-competes are generally upheld by the courts if they are reasonable in length and geographic scope. This will depend on the circumstances of the case – for example, what industry do you work in? A hair salon’s non-compete agreement will be judged a lot differently than a tech company’s, for example.

Let’s figure out why. In this example, it has to do with the geographic scope component. A tech company that, say, manufacturers a robotic product that is put on the market nationally could very well get away with a non-compete clause that bars employees from working for competitors throughout the United States. Yes – you could actually be prohibited from finding another job with a competitor anywhere in the United States. But a hair salon could not get away with this. A reasonable geographic scope for a hair salon would be 10 miles or so because that one hair salon’s reach would only be around that large. Any trade secrets that salon may have developed would not extend much farther than that.

Remember, too, that if you are barred from working for a “competitor,” the definition of what a competitor is may be flexible. In the robotics example just mentioned, a court may construe the industry in question very narrowly. Obviously, the court cannot expect you to simply not work. A narrow reading of what industry the non-compete applies to would allow you to obtain a job in a slightly different industry where your skills could be useful, but where you would not be putting any of your former employer’s trade secrets at risk.

If you have signed a non-compete and have questions about it, I recommend consulting with an attorney. There is a lot of litigation in this area of the law; in fact, litigation over non-competes has risen about 60% in the last decade or so.

Even lawyers sue about non-competes. For example, a journalist out of New York who had been working for legal newswire Law360 was hauled to court when Law360 sued to enforce their non-compete agreement after the reporter left for Reuters. The non-compete specified that following termination the employee would be unable to work in legal news for one year. This case is still pending; we’ll keep you updated on how it turns out.

Once again, I have to give a shout out to small businesses. Along the lines of what I said last week, I would advise a small business to use a non-compete clause, but I would also advise a small business to be flexible. This means consulting with an attorney and coming up with a reasonable non-compete agreement that’s tailored to the specific industry at issue. The point, let’s remember, is not to rake the former employee through the coals – the point of all of this is to protect the trade secrets a business has worked hard to create.

And on the other side, once again, I would suggest that if you sign on to work for a big national corporation, you will almost definitely have to sign a non-compete, and it will almost definitely be broader than it needs to be – but not so broad a court would strike it down.

If you have an issue related to a non-compete agreement or any other employment law issue, give us a call at 978-637-2048 or e-mail at office@levinepirolaw.com.

The Digital Death Knell of Court Reporting

court repWith the age of technology comes new challenges for an old system that has, with some exceptions, of course, proven tried and true. Along the way, many paper-based professions are starting to become digital. This includes attorneys as well as the court system.

With the introduction of online case management programs, it has become increasingly easy to keep digital records of client files. Many firms now keep minimal, if any, client files on paper. Incoming and outgoing mail is scanned, and paper copies are shredded. Correspondence between attorneys is primarily done via e-mail.

The court system too has also been digitalized. Most filing is done electronically, especially in the federal court system.

But now, the digital age is expanding to affect court reporters. This means that instead of a court reporter taking down what is said during a trial or hearing, the court will install microphones and recording equipment to the stands and jury boxes to have the hearings recorded. A transcriber who was not present in the courtroom will then process the recordings after the fact.

In Massachusetts, these systems are already in place for most civil matters in Superior Court, but the Commonwealth is set to spend $5 million to upgrade the entire system, including expanding it to the criminal side. This would include installing the digital reporting system in 455 courtrooms in 100 different courthouses.

But this poses some potential problems. The primary concern is how well the microphones will pick up the voices of the attorneys as they move around the courtroom to examine witnesses. Another concern is that it will be difficult for transcribers to distinguish between two lawyers arguing over each other.

And what about the one caveat that no one has managed to figure out? What if the equipment, and the program, just stops working? By the time it would be noticed, valuable testimony might have already been given. This could potentially compromise someone’s case, an especially troubling fact in a criminal case.

Perhaps the next thing they should do is replace lawyers with machines?

Arbitrate. Or Else! The First in Levine-Piro Law’s Series on Employment Agreements

174cb0a476dcf7a4e7e4a9e79c7c5919You’ve just started work at a big-box employer. It’s your first day and you’re given a stack of papers to read through and sign. Chances are you will skip right to the signature page. Don’t do it! It might not be the most scintillating thing you’ll ever read, but take the time to read it before you sign.

Over the next few weeks, we’ll focus on a few of the common provisions in employment agreements, starting today with arbitration clauses, which have been in the news recently.

A few weeks ago, it was revealed that Guitar Center, the largest chain of musical instrument retailers in the world with revenue of over $2 billion, was essentially forcing all of its employees to sign a consent to arbitration mid-employment. If employees declined to sign the arbitration clause, they would be terminated.

By signing an arbitration agreement, an employee basically signs away her ability to go to court over issues that come up in connection with her employment, whether it be wage violations, discrimination, or wrongful termination. Instead, those disputes are heard by an arbitrator, who is supposed to be impartial, like a judge. In actuality, many of the big corporations who use arbitration clauses are able to hand-pick the arbitrators that preside over their disputes, thereby all but ensuring the case will be decided in their favor.

It’s one thing to be presented with an employment agreement containing an arbitration provision at the outset of your employment. At that point, you have a choice whether to sign. You could even try to negotiate it. But to be presented with an arbitration agreement mid-employment and told you will be terminated if you decline to sign it? It doesn’t take a legal genius to see that this might not hold up in court. There is a good argument that an arbitration agreement signed mid-employment under threat of termination was signed under duress, thereby invalidating the agreement. In addition to being potentially unlawful, it’s also downright shady.

The moral of this story, if you ask me, is the importance of small business. At Levine-Piro Law, we routinely advise small businesses in all stages of growth. While we would always advise a small business to use an employment agreement no matter how many employees they have, we would also advise them to be flexible if a particular employee has a concern about one of the provisions in the proposed agreement.

If you are looking for a job, you have a lot of things to consider. Employment with a large national corporation comes with lots of perks, but there are drawbacks, too. You will have no bargaining power when you start in terms of the employment agreement you are asked to sign. You will have to sign it. Your only choice, if you don’t like what you read, is to walk away. If you seek employment with a small business instead, you may have the possibility of negotiating some of the provisions we are going to tell you about over the next few weeks.

To Tweet or Not to Tweet: How Social Media Can Tank Your Case

Social-media rubix cubeImagine you’ve won a settlement in a court case after a protracted and difficult legal battle. Naturally you’re going to want to share the good news with your friends on Facebook!

Not so fast.

Chances are your settlement agreement contains a clause prohibiting you from discussing the details publicly. If you violate that provision by spreading the word on social media, you risk forfeiting your settlement money.

In one instance, a Florida plaintiff won an age discrimination settlement from his former employer – but his daughter’s braggadocious tweet violated the agreement’s confidentiality provisions and cost him the entire $80,000 settlement. He kept the smaller amount of $10,000 owed in back wages, but his loose lips, and his daughter’s loose fingers, cost him bigtime.

This isn’t the only type of problem that social media can cause in court. Even what seems like the most innocent of posts can be used against you.

For instance, in a personal injury case, if you claim to be suffering from whiplash or some physical injury that is greatly affecting you, but then post about going to an amusement park, it could be used against you by savvy defense counsel in court – even if you did nothing but watch the babies in their strollers on the outing.

If you are allege that an incident has caused you emotional distress, but you constantly post happy or excited news, or even use happy “emojis,” a creative defense attorney could easily use this type of information to show that you are not being truthful about the true nature of your emotional well-being.

This complicates cases and may make settling your case more difficult.

Beware: A common mistake people make is believing that changing privacy settings will stop posts from being used in court. This is not always true. Facebook privacy settings are complicated. In addition, if you are “tagged” in a friend’s post, you will show up in their news feed.

If you have a case pending, you should discuss social media use with your attorney. Especially if your claim is for personal injury, your attorney will want you to limit your use of social media. If he or she has no idea what you’re talking about, get a new attorney. Many attorneys now have clients sign a “social media warning,” acknowledging that they have discussed these issues at the outset of representation. If you are asked to sign one of these, this isn’t a sign that you have met a slimy lawyer – it’s a sign that you have met a lawyer who is well-versed in current trends.

If you have a personal injury, employment law, or other case, Levine-Piro Law can help – and we will be sure to advise you on how best to navigate social media and protect yourself from your posts being used against you in court. Give us a call at 978-637-2048 or e-mail office@levinepirolaw.com to set up your consultation.

Veterans Claims: Hurry Up and Wait!

Veteran salute flagYou may have heard in recent months that the wait time for Veterans benefits claims has decreased – but many have had claims pending for months or even years. So which is it?

Well, for one, the astounding ‘decrease’ only applies to new applicants – not those who have claims on appeal. VA has also instituted some new programs in the last few years in order to make initial claim processing faster. One of these is the Fully Developed Claim program, which allows claimants to submit all of their evidence at once, certify that there is no additional evidence, and thereby in theory throw the ball into VA’s court for a faster decision.

This is not always the best course of action, however, as VA has a Duty to Assist claimants in developing their claims, and many claimants need that assistance in locating service records and medical records and obtaining a medical exam before there would be enough evidence for VA to issue a favorable decision.

VA also has a few other fast track programs, including for Agent Orange claims and claims filed by Veterans who are homeless or in grave need of financial assistance.

The VA says they used to have 600,000 cases backlogged, meaning having been waiting more than 125 days. Now they are reporting only 73, 000 cases that have met or are over that 125 day limit. But, as a reminder that is just new applicants. While there might only be roughly 73, 000 new applicants, there are still over 400, 000 claims waiting on appeal. This means that there are roughly 500,000 claims pending.

If VA has denied your claim, call Levine-Piro Law at 978-637-2048 to schedule your consultation. A certified Veterans law attorney can assist you in developing the evidence in your case, strengthening your claims, whether for service connection, increased ratings, or earlier effective dates.

Snow Removal: Dealing With A Messy Situation

City life comes with some uniquely vexing issues. As Metro Boston residents collectively groan – or, in limited instances, rejoice – at the area’s first snowfall, many renters and landlords alike may wonder: Whose responsibility is it to take care of this snowy mess?

Under Massachusetts law, if you’re renting an apartment or home, feel free to put your feet up: It is the landlord’s, not the tenant’s, legal obligation to clear away snow and ice from the property.city-snow

An important change to snow removal law occurred in 2010, when the Massachusetts Supreme Judicial Court decided the case Papadopoulos v. Target Corp. Prior to this case, property owners in Massachusetts had no duty to warn of or remove so-called “natural” accumulations of snow or ice. Papadopoulos abolished this “natural accumulation” defense, finally bringing Massachusetts in line with every other state in New England and reinstating the general standard of reasonable care found in other areas of premises liability law. In other words, now landlords must keep their property “reasonably safe” vis-à-vis injuries from snow and ice, just as they have to do in general. As the Court pointed out, what is “reasonable” depends on the circumstances – the type of property at issue, the amount of foot traffic, the expense of snow removal, and the foreseeability of injury, among other factors.

Moving onto leases – Can landlords shift snow removal responsibility and resulting injury liability to their tenants through carefully crafted lease language? Can landlords make their snowy mess their tenant’s snowy mess?

The answer is, for the most part, no. A landlord may not use a lease to shift responsibility for snow removal to his or her tenants – with one exception: where the tenants enter through a private door they do not share with others (for example, where they rent a single family house).

Even in this case, however, it is the landlord, not the tenant, who is nevertheless still liable for any injuries that result from failure to properly remove snow and ice – just as he would be had he kept that responsibility for himself. So it may be wise for landlords to keep this in mind and retain control over this responsibility, where feasible.

If you are a landlord who needs advice on snow removal issues or who is worried about liability for snow and ice related injury, contact Levine-Piro Law for a consultation. If you have been slipped on snow or ice on your landlord’s property or a commercial property and been injured, Levine-Piro Law can help with a personal injury claim. Contact us at 978-637-2048 or office@levinepirolaw.com for a consultation.

Deciding to Open a Small Business

Small Business
There are some things that you will want to do before starting a small business.

Having a plan is crucial. Not just a business plan, which is the framework of your business, you will need to know if your idea for a business is feasible and worth the time, effort and money you will put in to it.

Factors to consider are what the purpose of your services and goods is , what competition there is, and can your potential client base afford, or want, or even need, your services.

Once you are able to determine the feasibility of your business, then you will need a business plan. Your business plan will cover what your short term, mid-term and long term goals of the business are. Your plan should include how you expect to get clients, how many clients you can reasonably expect to get during the initial phase of your business. How you will market your goods/services and how you expect to pay for the expenses of the business. You should be realistic in your expectations.

In starting a small business you should consult with an accountant to determine what you financially can afford to contribute, whether you will need financing, what financial decisions need to be made before deciding whether or not to incorporate a business or use some other form of business, such as a dba. Deciding where to locate your business, whether in a store front, your home or just a virtual office is important. You must decide what structure will best suit your business.

Sole Proprietorship
A sole proprietorship is the most basic type of business to establish. You alone own the company and are responsible for its assets and liabilities. Learn more about the sole proprietor structure.

Limited Liability Company Small Business
An LLC is designed to provide the limited liability features of a corporation as well as the tax efficiency and operational flexibility of a partnership. Learn more about how LLCs are structured.

Cooperative
People form cooperatives to meet a collective need or to provide a service that benefits all member-owners. Learn more about how cooperatives are structured.

Corporation
A corporation (C-corporation) is more complex and generally suggested for larger, established companies with multiple employees. Learn more about how Corporations are structured.

Partnership
There are several different types of partnerships, which depend on the nature of the arrangement and partner responsibility for the business. Learn more about how these are structured.

S Corporation
An S corporation is similar to a C corporation but you are taxed only on the personal level. Learn more about how S corporations are structured.

If you are interested in starting your own small business, we would be glad to help you navigate the many different avenues of business! Contact Levine-Piro Law at 978-637-2048 for a free ten minute phone consultation or e-mail at office@levinepirolaw.com.