Massachusetts Lawyer Blog

Massachusetts laws prohibiting discrimination against people with disabilities in Massachusetts disability cases, arising under Federal and MA Discrimination laws, may have different meanings in different contexts.

If you are being discriminated against due to a disability or perceived disability there may be a number of legal claims for you to consider to aid in protecting your rights.The enforcement of disability discrimination laws can involve different courts or commissions and may require various types of expert evidence and testimony.

The MA Disability Law Center offers a chart on Massachusetts laws prohibiting discrimination against people with disabilities and provides some examples of legal resources which may be available as a starting place.

Attorney John Parry has authored the book, Disability Discrimination Law, Evidence and Testimony. A Comprehensive Reference Manual for Lawyers, Judges and Disability Professionals, which covers a host of topics your lawyer or disability advocate may consider in handling your disability discrimination case.

Additionally, The Massachusetts Office on Disability (MOD) has prepared an online pamphlet to:

increase awareness of the rights of persons with disabilities, both by persons with disabilities themselves and by the larger community. Other goals of the Office include: the elimination of discrimination against persons with disabilities; the creation of a barrier free environment; the improvement of the state’s services delivery system for persons with disabilities, and the creation of fully integrated and accessible education, housing, transportation and employment in the public and private sectors.

Topics listed include:

• INTRODUCTION
• ABUSE / NEGLECT / TREATMENT CONDITIONS
• ARCHITECTURAL ACCESS
• AUTOMOBILES & TRANSPORTATION
• DISABILITY COMMISSIONS
• EDUCATION
• EMPLOYMENT
• EQUAL RIGHTS
• HATE CRIMES
• HOUSING
• PUBLIC PLACES & PROGRAMS
• SERVICE ANIMALS
• TELECOMMUNICATION AND TECHNOLOGY
• VOTING
• WHEELCHAIRS
• ZONING

Attorney Kevin Whitaker serves as a town councilor and as an appointed member of the Town of Weymouth, MA Commission on Disabilities.

Do you know what's being said about you on the internet? Whether you're a Massachusetts small business owner, an individual, or a parent, are you monitoring the conversations about you, your business, or your family taking place on the internet?

Check out What Should Every Company Be Monitoring? for a list of ideas.

You can't respond to what you don't know about. I use alerts and RSS feeds to help stay on top of issues and conversations involving our Weymouth, MA law firm and our Massachusetts clients. With more and more reputation attacks and defamation cases arising on the internet (as well as speculative and plainly erroneous information), this is likely to be growth area in law and business.

This morning my daughter suggested we take the net (from that game where you hit the thing that looks like an empty ice cream cone) and use it to play volleyball.  I knew immediately she was talking about the net from the old badminton set because the "empty ice cream cone" was certainly the birdie we hit back and forth about a month ago.  In communication and in law context is everything -- both combined can lead to real value.

You shouldn't need to talk in legal mumbo jumbo to get your point across or to achieve the result you desire.  Find a lawyer who knows the law but also gets where you are coming from.  Seek out an attorney who will invest in building a relationship with you.  This is the foundation for providing value -- a real value that seeks to first understand and then meet your needs.  Anything else is just an empty ice cream cone...

Imagine getting divorced, thinking the law states after divorce your ex is no longer your life insurance beneficiary. You don’t name a new beneficiary thinking the payout will go to your estate.

Maybe not...

Marla Presley in her firm’s website discusses a case in Penn, decided May 9, 2008 where the Penn. Superior Court ruled that the Employee Retirement Income Security Act (“ERISA”) preempts a state law that mandated the revocation of beneficiary designation upon divorce. The gentleman had filled out the beneficiary form listing his wife as the primary and his nephew as the contingent beneficiary. After his divorce he never changed the form. The ex got it all. Probably not the result that was intended.

Beneficiary designation forms are an often overlooked area of estate planning that can have dire consequences if not taken care of. I represented one person in a case where the beneficiary form was executed, put in an envelope, but never mailed. It became an expensive stamp.

Today was a great day for a bike ride and my four and a half year old daughter let me know it. We rode our bikes about ½ mile to Joe Fucile’s bike shop in Columbian Square. Our mission was to buy her a new helmet. Tweety bird may have been cool a couple of years ago, but now it’s time for an upgrade. While Joe was out today, we were pleasantly helped in finding her a new pink helmet with flowers on it. The outing was lots of fun. Although it can be difficult to keep pace with a flash of lightning on training wheels, I managed and the conversation was lots of fun.

A few minutes ago, I checked my email and found a funny reminder that the ½ Ironman triathlon I signed up for, Mooseman, is a few weeks away. The water temperature is measuring a brisk 51 degrees. As I contemplated the lack of time training I’ve put in recently, I began to wonder... Perhaps I can use my daughter’s training wheels for the bike portion. Meanwhile my wife, Sue, is walking in the Avon Breast Cancer Walk this weekend. Her, her two teammates, and many others will be embarking on a marathon walk on day one, sleep in a tent for the night, and finish with a half marathon walk on day two. My firm is a sponsor of her walk, and I’m very proud of her commitment. Sue walks in memory of her mother, Barbara, who passed away from breast cancer when Sue was thirteen. You can read an article Ed Baker of the Weymouth News wrote about Sue a few months ago.

My daughter and son are very proud of her too. They have been hard at work on their t-shirts to cheer on their mom. Unfortunately, I had used the wrong side of the iron-on decorations, which in turn ruined the iron. To her credit, I think Sue was impressed I knew how to turn the iron on -- I’m no longer allowed to use the clothes washing machine after a similar incident.

But anyway, here’s my limited time special offer…

Some may find this an odd post to read on lawyer’s blog. As I was considering what to write about, it struck me that May is national bike month and The League of American Bicyclists is promoting Bike-to-Work Week from May 12-16 and Bike-to-Work Day on Friday, May 16. Having had a great bike ride with my daughter today, thinking about the bike ride I’m not looking forward to in a few weeks, and reflecting on our family’s pride in Sue’s efforts, I’ve decided to do something a little different in this post.

Many of our clients know we are active with many local causes and events. In fact, many of our clients are active too. I’d like to invite you to join us and to take action. If you live in Massachusetts and you send me a picture of you and your bike – with the picture postmarked before Sunday, along with a donation for any amount you decide upon payable to the Avon Breast Cancer Two Day Walk, I’ll prepare a simple will for you personally or for you and your spouse for free. That’s right, no legal fee whatsoever.

The donation amount is completely up to you and the amount will have no bearing on the offer. If you send me an email address, I’ll send you a questionnaire so we can get started or I can mail it to you if you prefer. After I receive your answers, I’ll call you if I have any questions or send you a draft will within one week. Once you’ve received the draft will, I’ll be happy to answer any questions you have at no charge. Next I’ll make any needed changes before sending you a final draft with instructions on how to execute it.

Since I do, however, want to strike while the iron is hot (in consideration of the iron I ruined), this offer is only open to the first ten people or couples who respond. If you’re number 11 or above, I’ll return your donation or forward it along, it will be your choice completely.

What do you have to lose? Simply:

1. Take a bike ride,
2. Send me a picture,
3. Make a donation to help fight breast cancer, and
4. Receive a free will prepared by a Massachusetts attorney.

Get pedaling…

Mail to:

Wilson & Whitaker, LLC
Attn: Avon Walk for Breast Cancer
53 Winter Street
Weymouth, MA 02188

p.s. To the skeptics out there, this isn’t some gimmick. I’ve done things like this before with other charitable events. Sue has already greatly exceeded her fundraising goal as have both her teammates. This is just frosting on the cake. What are you waiting for. Everyone wins.

p.p.s I'll make it even easier. Make a contribution on her donation site now, and I'll give you an extra week for you to send a picture of you and a bike. I can't, however, refund donations made through the site. If you're not donator 10 or under (since this was posted), you don't get the deal. Act now!

A Massachusetts Continuing Legal Education (MCLE) emailed press release quoted a Boston Herald April 14, 2008 article finding

"One Massachusetts homeowner in 48 will lose their property to foreclosure in the next two years. . .32,976 Bay State homeowners will face foreclosure by about 2010."

While a Boston Globe April 25, 2008 article states:

"Foreclosures during the first three months of the year topped 2,800 … up about 140% over the same period last year."

Recently, more small business owners have been raising issues about their businesses and how to go about protecting their personal assets.

Are statistics on small business owners next?

You’re a Massachusetts small business owner. Do you have a plan to pass your business down to the next generation? Who will take over for you? How much is the business worth? How does your estate plan address your business interest? How will employees be treated? How will you preserve the mission of your company and protect what you've worked so hard to build?

Small Business Notes states,

Ninety percent of U.S. businesses are family-owned, and one-third of the Fortune 500 are either family-owned or family-controlled. Yet only 30 percent of family-run companies today succeed into the second generation. An even smaller 15 percent survive into the third generation. The reason, according to many experts, is obvious - the lack of an orderly succession plan.

Although it's information may be dated (1991), a Small Business Association article's "Appendix" contains several forms that may assist a business owner considering succession planning. Download file

As a MA business owner, designing a succession plan is an important undertaking. Our law office has worked with many small business owners on the South Shore who are looking for legal counsel but want to avoid the time involved traveling into Boston. As a smaller firm (by choice) we are able to form quality relationships allowing us to understand the dynamic challenges you may face over time. Our personalized approach allows us to help you with both your business and personal planning. When an issue unexpectedly arises, our clients can pick up the phone and talk with a lawyer they know and who knows them. Regardless of the law firm you work with, the assistance of someone who understands your goals provides you with an enhanced opportunity for your life's work to succeed both now and in the future.

Residential real estate deals in Massachusetts can lead to the repair or replacement of failed cesspool or septic systems (Title V). They can also involve issues dealing with lead paint abatement. These are examples of only a couple of tax credits (cesspool or septic/sewer or lead paint) which may be available to you.

For seniors, the DOR publication, Tips for Seniors and Retirees: Deductions, Exemptions and 2007 “Circuit Breaker” Tax Credit, is a useful resource for understanding how the 2007 “Circuit Breaker” Tax Credit works.

The Massachusetts Department of Revenue lists Tax Credits (2007) for Individuals and Families and includes: a description of the credit, calculation of the credit, where to calculate the credit, whether the credit is refundable or not refundable, and if there if carryover is permitted. Credits to consider (this is not tax advice) include but are not limited to:

Brownfields Credit for Rehabilitation of Contaminated Property, Earned Income Credit (EIC), Economic Opportunity Area Credit (EOAC), Film Incentive Credit, Full Employment Credit, Historic Rehabilitation Credit, Home Energy Efficiency Heating Credit Carryover to 2007, Lead Paint Removal Credit, Limited Income Credit (LIC), Massachusetts Low Income Housing Credit, Medical Device Tax Credit, Real Estate Tax Credit for Persons Age 65 and Older (known as the Circuit Breaker Credit), Repair or Replacement of Failed Cesspool or Septic System Credit (Title V), Solar Wind and Energy Credit, and Taxes Paid to Other Jurisdictions Credit.

Additionally, the DOR Web Services for Income (WSI) is a website where individuals and tax professionals can use many online services related to personal income taxes.

A child left out of a will in Massachusetts may still be able to recover under their parent's will.

M.G.L. Chapter 191, Section 20 discusses the rights of children not included in a will (intentionally or by mistake). Timeliness, however, is critically important. Don't delay if you have been omitted from a will, act quickly to safeguard your interests.

The law states, “If a testator [decedent leaving a will] omits to provide in his will for any of his children, whether born before or after the testator’s death, or for the issue of a deceased child, whether born before or after the testator’s death, they shall take the same share of his estate which they would have taken if he had died intestate [without a will], unless they have been provided for by the testator in his life time or unless it appears that the omission was intentional and not occasioned by accident or mistake; provided, however, that no such child or issue shall take any share in any real property in the testator’s estate unless a claim is filed in the registry of probate by or in behalf of such child or any of such issue within one year after the date of the approval of the bond of the executor.”

I attended an interested training last evening at the Norfolk Probate and Family Court in Canton. The training is part of a pilot program allowing lawyers to represent clients on a limited basis in probate and family law maters.

This program is being offered in three counties with discussions of its expansion at the end of the year. Under the pilot program the attorney and client enter a fee agreement for a limited purpose (i.e., attend one day at court, review a case, draft documents or pleadings, coaching, conduct or respond to discovery...). The analogy being made here is to transactional law where clients routinely seek advice on only part of a matter -- like a buyer asking an attorney to review a purchase and sales contract for a set fee.

The testing of this concept in Massachusetts probate and family law litigation matters is a new and interesting development, but one that has been growing in other states (California and Maine were given as examples).

Continue reading "Massachusetts Limited Representation Probate & Family Court Pilot Program" »

With Super Tuesday approaching, the field of candidates should be narrowing. As the debate continues where will the candidates land on the estate tax or death tax issue? Will this be an issue that appeals to an aging population looking to pass on their accumulated savings and wealth or will it stay in the background? Only time will tell.

Actor Heath Ledger, 28, died, apparently drug related. Here's yet another story of a smart, funny, and talented performer being lost in the prime of his life. Drugs change people and ruin lives. The damage they cause may even reach beyond the grave. Could drug use and overdose fatalities form the basis for legal challenges in probate matters? Sure. Overdose and drug use could certainly be raised as issues concerning mental capacity. Drug use -- prescription or street -- may have a growing impact on probate matters.