Baker, Braverman & Barbadoro P.C.

Everyone over the age of eighteen should have an estate plan, regardless of your net worth. An estate plan consists of documents that control decisions over your person or your affairs if you cannot make those decisions for yourself, or if you pass away. It includes not only the documents that everyone thinks about such as a Will or Trust, but it also includes important documents such as a Health Care Proxy, Power of Attorney, and beneficiary designations.

The wealthy may have a more complex estate plan, but everyone should have the basic documents; Health Care Proxies, Powers of Attorney, and a Will. A Health Care Proxy gives someone trusted the power to make health decisions on your behalf if you are incapacitated. While a Health Care Proxy controls health decisions, a Power of Attorney controls business decisions. A Power of Attorney appoints someone you trust to make financial decisions on your behalf. A Will directs how your assets will be distributed after you pass away.

Everyone, no matter your level of wealth, should consider the following as part of their estate plan:

Healthcare Proxy and Power of Attorney: Health Care Proxies and Powers of Attorney will save your loved ones time and money in a time of crisis. No one wants to become incapacitated; everyone wants to have control over their own affairs, unfortunately life doesn’t always work this way. Without a Health Care Proxy or Power of Attorney, if you become incapacitated, your family would need to petition the Probate Court in order to make medical and financial decisions on your behalf. Imagine the frustration of going to court multiple times in order to obtain this permission on top of the stress and sadness that your family is already going through due to whatever the circumstances are that led to your incapacitation.

Last Will and Testament: A Will can nominate someone to be the Guardian of your children if you pass away. This is the reason many people have Wills drafted. Without this designation in your Will, the Probate Court will decide who becomes the Guardian of your children. This Probate Court action can lead to fighting among family members who are already grieving. Additionally, a Will allows you to control who will inherit your assets. This is especially important if you are in a long-term relationship, but have not officially married. Pursuant to Massachusetts law, if you pass away and are legally single, your estate would first go to your children, parents, or siblings, in that order. As an unmarried couple, your significant other has no rights to your estate, making drafting a Will to include them vitally important.

The Massachusetts Appeals Court recently analyzed the burden of proof applicable to automatic renewal clauses, otherwise known as evergreen clauses, and concluded that the party seeking to prove performance of the acts required to stop the automatic renewal had the burden to prove compliance with the terms of the contract. Although the underlying dispute involved a commercial lease, the holding is applicable to any contact containing an evergreen clause.

The landlord and tenant in Patriot Power, LLC v. New Rounder, LLC, Mass. App. Ct. No. 16-P-420 (March 13, 2017), had disagreed as to whether the term of their commercial lease had automatically renewed. The landlord had filed a complaint seeking a declaratory judgment that the tenant had not effectively terminated the lease. The disagreement was purely factual, and the resolution depended on whether the jury believed the tenant’s assertion that it had included a termination letter in an envelope containing other correspondence or whether the jury believed the landlord’s assertion that there was no termination letter in the envelope received from the tenant.

The landlord raised the issue of burden of proof early in the dispute, and a judge concluded that the landlord had the burden of proof because it was the moving party. Executive assistants for each party testified in direct contradiction. The jury was instructed that the landlord had the burden of proof, and the jury returned a verdict in favor of the tenant. The landlord appealed. The Appeals Court reversed the jury verdict and remanded after concluding that the tenant had the burden of proof on this essential issue.

The Appeals Court recognized that the burden of proof in a declaratory judgment action depends on the nature of the underlying dispute, not on the party that initiated the action. Citing a case every Massachusetts law school graduate remembers, Gray v. Gardner, 17 Mass. 188 (1821) (burden of proof for delivery of sperm whale oil), the court concluded that the tenant had the burden to prove performance of the condition that would avoid the automatic renewal. In other words, the tenant was required to prove that the termination letter required by the lease was contained in the envelope that it sent to the landlord during the applicable notice period.

This decision reinforces the principle that parties should understand the requirements for compliance with their contract conditions, ensure full compliance with any conditions, and extensively document any notifications sent to the opposing party.

If you have any questions about evergreen clauses, please contact the business attorneys at Baker, Braverman & Barbadoro, P.C. – Kim Kroha.

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In the Commonwealth of Massachusetts, Personal Injury Protection (PIP) coverage is mandatory. PIP pays reasonable expenses for necessary medical services, lost wages, and replacement services to you, your household members, and your vehicle occupants if injured or killed in an auto accident regardless of fault.

PIP pays the first $2,000.00 in automobile accident related medical bills and will usually cover up to a total of $8,000.00 if the injured party either does not have private health insurance coverage, has a private ERISA-covered health insurance plan, has MassHeath or Medicare, or has had his or her claim denied for non-covered services by the health insurance company. Once the initial $2,000.00 in coverage is exhausted, any remaining outstanding and future medical bills are deferred to your private health insurance company. The remaining $6,000.00 in PIP coverage is reserved for lost wage reimbursement (75% of gross earnings) and/or any medical expenses not covered by your private health insurance carrier, such as cosmetic and dental services, co-payments and deductibles.

It is important to understand the difference between PIP and Medical Payments (Med Pay) coverage when you are selecting your auto insurance coverage and optional coverage packages. Since Med Pay coverage is optional, it is in excess of your PIP coverage and cannot be carried without PIP coverage. The limit of liability you purchase for the Med Pay policy applies to each person who sustains bodily injury in one accident. Your Med Pay coverage moves with you, whether walking, riding in another vehicle, or on public transportation, or in or out of the Commonweath of Massachusetts, as well as with your insured vehicles, regardless of who’s driving and it carries no deductible or co-pay.

The benefit of Med Pay is that is covers myriad of other out-of-pocket costs that your typical health insurance policy will not cover, including chiropractic, dental, prosthetics and, in a worst-case scenario, funeral expenses. Additionally, after you have exhausted your PIP coverage you can tap into the Med Pay policy without ever needing to use your private health insurance.

In Metropolitan Property and Casualty Ins. Co. v. Blue Cross and Blue Shield of Massachusetts, Inc., 451 Mass. 389 (2008), the Massachusetts Supreme Judicial Court held that when the health insurance policy specifically defers payment to Med Pay coverage, then, after the initial $2,000.00 in PIP is exhausted, instead of your medical bills being submitted to your health insurance provider, your bills will be submitted for payment under your Med Pay policy.

Since your health insurance provider is entitled to reimbursement for all benefits paid on your behalf resulting from the accident and will attach a lien to your personal injury case for the repayment of same, having a Med Pay policy can avoid such a lien up to the amount of coverage you have purchased.

When searching for ways to lower your car insurance premium, you may be tempted to drop the Med Pay coverage from your policy because it is not a mandatory policy requirement. Keep in mind that a basic premium for a Med Pay policy is minimal. A $5,000.00 policy is likely going to cost between $20.00 and $25.00 per year. Med Pay coverage can be purchased in increments of as little as $5,000.00 or upwards of $25,000.00 or higher, the benefits of which far outweigh the premium.

If you have been in an accident and you are unsure of your coverage selection and benefits, contact Baker, Braverman & Barbadoro, PC and we will review your benefits and assist you in filing a claim to ensure you receive immediate use of your PIP and other benefits under your insurance policy.

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Everyone over the age of eighteen should have an estate plan, regardless of your net worth. An estate plan consists of documents that control decisions over your person or your affairs if you cannot make those decisions for yourself, or if you pass away. It includes not only the documents that everyone thinks about such as a Will or Trust, but it also includes important documents such as a Health Care Proxy, Power of Attorney, and beneficiary designations.

The wealthy may have a more complex estate plan, but everyone should have the basic documents; Health Care Proxies, Powers of Attorney, and a Will. A Health Care Proxy gives someone trusted the power to make health decisions on your behalf if you are incapacitated. While a Health Care Proxy controls health decisions, a Power of Attorney controls business decisions. A Power of Attorney appoints someone you trust to make financial decisions on your behalf. A Will directs how your assets will be distributed after you pass away.

Everyone, no matter your level of wealth, should consider the following as part of their estate plan:

Everyone has already heard that Massachusetts citizens voted to legalize nonmedical marijuana, often referred to as recreational marijuana, and now set forth in Chapter 94G of the General Laws. What legalization means, however, has been a little hazy. This article sets forth an outline of what legalized nonmedical marijuana in Massachusetts means to employers, businesses interested in joining the cannabis industry, municipalities, and everyone else. The focus is on the state law aspects of legalization as the laws stand today because Legislators have stated that they are open to changing some provisions of the law, and they have already pushed back the timeframes in the new law by six months. Additionally, marijuana is still an illegal drug under Federal law.

First, the laws are written in a manner that discourages public consumption but allows significant freedoms for those interested in consuming marijuana privately. Public consumption is restricted under the new law, but not illegal. Any person who consumes marijuana in a public place or smokes marijuana where smoking tobacco is prohibited is subject to a civil penalty of $100 or less. Additionally, marijuana sales continue to be illegal until a licensed dispensary is open. Home grow is the acceptable method for obtaining marijuana at this juncture — adults may grow up to six marijuana plants in their home or up to twelve plants if there are two or more adults in the home. Subject to some restrictions, such as possession in a school or open possession in a vehicle, it is also fully legal for adults to possess up to one ounce of marijuana outside of their homes.

Second, the law likely affects employment matters with the contours yet to be determined. Employers can still prohibit employees from consuming or being under the influence of nonmedical marijuana during working hours. It is unlikely, however, that an employer can make hiring decisions based on personal marijuana use unless such use had an effect on an employee’s performance. For adults over 21, marijuana is legal just like alcohol under state law, and until the courts provide additional guidance, employers should treat marijuana use the same as they would treat alcohol use.

Third, the laws encourage the licensing of nonmedical marijuana dispensaries. One of the issues with the medical marijuana laws, passed during the 2012 election, was the delay in licensing medical marijuana dispensaries. The first medical dispensary was licensed in 2015, almost three years after the law passed. Accordingly, the new law set forth timelines for the government to follow in licensure. Members of a new licensing commission, the Cannabis Control Commission, must be appointed in 2017 and the commission must adopt regulations for licensing. If regulations are timely adopted, medical marijuana professionals may apply for licenses on April 1, 2018. The timing for anyone else to apply depends on the amount of licensed medical marijuana dispensaries open or in the application process; applications will open to the general public on July 1, 2018 or April 1, 2019. If regulations are not timely adopted, licensed medical marijuana dispensaries may begin selling to the general adult population on July 1, 2018.

The law limits the scope of prohibitive bylaws that a municipality can enact to limit licensure. For example, municipalities must license nonmedical dispensaries equal to at least 20% of their licensed alcohol package stores. A municipality may be able to prohibit dispensaries by a town vote with a majority of voters voting to approve the ban; the law is open to interpretation on this point. Licensing preference is given to medical marijuana dispensaries, but anyone can apply on or after July 1, 2018 (this date could get extended to April 1, 2019 depending on the status of medical marijuana licensing).

Fourth, the nonmedical marijuana law opens up many other business opportunities besides the direct sale of marijuana or tetrahydrocannabinol (THC). The law authorizes the sale, possession, and manufacturing of marijuana accessories such as pipes and growing equipment. Previously, the sale of marijuana drug paraphernalia was illegal under state law. Businesses in the cannabis industry have struggled with banking relationships because of the existing Federal laws. Our client, Century Bank, has provided a method to cross that hurdle by accepting deposit relationships with businesses in the cannabis industry, subject to an application process.

Please contact our Licensing lawyers for more information or guidance with navigating the marijuana laws. – Kim Kroha.

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The Massachusetts Legislature recently enacted a bill that will go into effect in July of 2018 titled “An Act to Establish Pay Equity”, a sweeping new law aimed at ensuring equal pay for comparable work for all Massachusetts employees. The Act has several important ramifications for employers.

First, the new law bans pay discrimination for comparable work based on gender. The Federal Equal Pay Act, part of the Civil Rights Act, already prohibits gender-based discrimination for the “same job”. The new Massachusetts law uses the broader term “comparable work”, which is aimed at going beyond mere job titles and descriptions to ensure that the duties actually being performed by employees are used to determine comparability. It is important to note that under the new law, employers are allowed to consider qualifications like experience, training, education and geographic location when determining salaries.

Second, in order to help combat such discrimination, the bill explicitly prohibits “pay secrecy” policies and instead states that employers must allow employees to freely discuss their salaries with coworkers in order to facilitate transparency and reduce the risk of gender-based pay discrepancies. The bill does not, however, require that an employer disclose an employee’s wage to another employee or a third party.

Third, the law prohibits employers from asking prospective employees about their past salary history. The theory behind this component of the law is that women have been locked in a cycle of lower pay structures and that providing salary history perpetuates such a cycle. By not allowing previous salary history to be a factor in an employer’s offer terms, it is thought that a more level playing field based on experience and qualifications will emerge. However, it is important to note that job applicants are still free to volunteer their previous pay as part of salary negotiations if they so wish.

Employers found in violation of the new law will face costly non-compliance penalties, including claims for unpaid wages, liquid damages for 100% of the amount of unpaid wages, plus the employee’s attorneys’ fees and costs.

Finally, the law provides an important defense tool for employers. Employers may conduct good faith “self-evaluations” of their pay practices. If the Employer conducts such an evaluation and can show that they have made “reasonable progress” towards eliminating gender-based wage discrepancies, the employer will be entitled to an affirmative defense for a period of three years after the completion of the self-evaluation.

In anticipation of the Act going into effect on July 1, 2018, in the coming year, the Attorney General’s Office will likely issue regulations that will interpret the new law and provide direction for employers and employees.

Employers are encouraged to review their hiring practices and employment law policies in light of the new law. The employment law attorneys at Baker, Braverman & Barbadoro, P.C. are available to assist you in creating compliant employee policies. Call and ask to speak with one of our employment lawyers today to review your policies. – Theresa Koppanati.

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As parents we are used to taking care of our children’s medical and financial needs, this does not usually end when our children go off to college or ventures off into the world on their own. However what most parents do not realize, once their child turns eighteen, they are not legally entitled to make any medical or financial decisions on their child’s behalf. Turning 18 is a milestone birthday for many people; it is the year a child becomes a legal adult. Upon turning 18, the law assumes that the child has accumulated enough knowledge to make legal decisions on their own behalf. These include, but may not be limited to, entering into contracts and making healthcare decisions. The reality is that many eighteen year olds are unprepared for the responsibility that these type of decisions bring. This presents a challenge as a parent; legally the parent can no longer make decisions for their children, yet children often turn to their parents for assistance and guidance in making decisions. This is where a health care proxy and power of attorney can become invaluable tools.

A health care proxy is a document that gives someone else the power to make health care decisions on your behalf. Often a trusted family member or friend is chosen as that person. This person is known as the health care agent. A health care agent only has the power to make health care decisions when someone is incapacitated and cannot make decisions for themselves. This document can also include a HIPAA authorization that allows the release of medical records to the health care agent. If you were to receive a call from your child’s friend that your son or daughter had been in an accident and taken to the hospital, the heath care proxy will allow you to jump into action to make decisions regarding your child’s treatment. Without it, expect to be rebuffed by your child’s medical providers who are legally unable to provide you with information regarding your child’s condition or treatment.

A power of attorney gives someone else the power to make financial decisions on your behalf. Much like a health care proxy, the power of attorney gives the designated agent the power to make financial decisions, but unlike the health care proxy, a power of attorney can be valid when signed; it is not contingent on incapacity. A power of attorney will allow you to assist your child with their banking or to speak on their behalf to their car insurance company or their landlord.

With children away from home at college, these can be powerful time saving tools and can help avoid unnecessary legal mishaps that young adults may unwittingly get themselves into.

The estate planning attorneys at Baker, Braverman & Barbadoro, P.C. can speak with your family and draft the estate plan that fits your needs and goals, including health care proxies and powers of attorney for young adults. – Elizabeth A. Caruso.

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PREMIUM LEGAL SERVICES WITHOUT THE BOSTON PREMIUM WELCOME BACK Were back and we hope that you are too. We took a year off to redefine and improve our quarterly newsletter to better serve your need to know what is going on in the world from a legal perspective. The improvements that we have made center on readability: sometimes we forget that outside our doors and the courthouses in which we spend so much time the rest of the world does not always speak legalese! Among the improvements that we hope you will appreciate this newsletter will Use terminology that is more common to our non-lawyer readers; Highlight our involvement in the community that we share; and Update you in a more consistent manner. Please accept our invitation to hit the REPLY button on your Email header and let us know what you like in it and what you would like to see improved. Paul Paul N. Barbadoro Partner 781-848-9610 paulb@bbb-lawfirm.com Update On Regulations FINAL RULE on OVERTIME EXEMPTIONS MAY IMPACT YOUR BUSINESS On May 18 the Department of Labor announced that it will publish a Final Rule updating the exemption of executive administrative and professional employees from the minimum wage and overtime pay protections of the Fair Labor Standards Act. Simply put this means that due to the expansion of the salary and compensation levels under the new rule more workers are entitled to overtime compensation without some sort of intervening action by an employer said Attorney Susan Molinari. The Final Rule updates the salary level required for exemptions to apply while ensuring that the intended overtime protections in the Fair Labor Standards Act are fully implemented. The Final Rule also makes the exemption for executives administrative and professional employees easier to understand and apply said Susan. The Final Rule updates for the salary and compensation levels needed for executive administrative and professional employees to be exempt. Specifically in part the Final Rule does the following: It sets the standard salary level at $913 per week or $47476 annually for a full-year worker; It sets the total annual compensation requirement for highly compensated employees subject to the minimum duties test to $134004; It establishes a mechanism for automatically updating the salary and compensation levels every three years (this will begin January 1 2020); and It amends the salary basis test to allow employers to use nondiscretionary bonus and incentive payments to satisfy up to 10 percent of the new standard salary level. The Final Rule goes into effect on December 1 2016. If you are a business trying to determine how the Final Rule may impact how you operate your business contact one of the Employment Lawyers at Baker Braverman amp; Barbadoro P.C. to ensure that you prepare your business to comply with the Final Rule. By Susan Molinari Esq. (781) 848-9610 susanm@bbb-lawfirm.com Theresa Barbadoro Koppanati and BBB legal assistant Ana Gomez BBB in the Community PAINT NIGHT a HIT On June 9 Baker Braverman amp; Barbadoro P.C. hosted more than 20 women from varying professions including banking public relations elder care financial services business consulting and entrepreneursfor a Paint Night at the firms Quincy office. A Paint Night for those who have not yet participated in one combines a creative painting opportunity with a decidedly social activity. Clare Donoghue of the Traveling Theresa Barbadoro Koppanati with visiting painters Kim Train Barbara Arena amp; Lisa Virello. Art Party supervised the painting experience. In a short time the painters produced a sufficiently well executed piece of artwork in this case a seascape to provide a sense of accomplishment. This was a great night of networking laughs and painting said event organizer Attorney Susan Molinari. Joining her in orchestrating the event Attorneys Lisa Bond Theresa Barbadoro Koppanati Elizabeth Caruso and Brandi Cerasuolo acknowledged the benefits of what others might construe as unusual for a law firm. We offer the broadest range of services in any one law firm on the South Shore said Theresa; so we work long tough serious hours. This gave us an opportunity to meet with a number of our clients and friends in a casual setting and to get to know each other as multi-faceted individuals. Masterpieces! Program Update Wishing you Could Refinance Debt? Welcome Back SBA 504 In late May of this year the Small Business Administration (SBA) re-established the debt refinancing program consistent with the more well-known SBA 504 loan programs. The 504 loan program was historically available only to purchasers of commercial property. The debt refinancing program while available several years ago had been temporary. The program expired in 2012 but this legislation now makes it permanent. The benefit of SBA financing and more specifically the debt refinancing is that borrowers who are approved and funded have a fixed mortgage rate for 20 years said Attorney Gary Hogan. In todays commercial loan market it is very difficult to obtain fixed rate financing and almost never for 20 years. Making the program even more attractive the interest rates (which are set at funding) have recently seen historically low rates. For June 2016 the 20-year rate hovered around 4.3 percent. The SBA started accepting applications after June 24 and borrowers have to meet certain criteria including but not limited to: the debt being refinanced must be qualified debt as that term is defined in the act; the borrower must be current on the existing debt payments for at least one year prior to applying; and the assets to be secured (real estate or personal property) must qualify as eligible assets. A host of other rules and regulations concerning these government guaranteed loans apply; therefore if you are interested in learning more about the SBA 504 Debt Refinance Program the lawyers at Baker Braverman amp; Barbadoro can answer your questions and introduce you to a Certified Development Company that can assist you with an application. By Gary Hogan garyh@bbb-lawfirm.com (781) 848-9610 BBB Attorneys in the News We wish to congratulate Lisa Bond Esq. on her recent nomination to the Massachusetts Lawyers Weekly Top Women of the Law. Each year Lawyers Weekly honors women attorneys who have made tremendous professional strides and who have demonstrated great accomplishments in the legal field. I am deeply honored by this nomination said Lisa. Through me I want my clients to receive the very best representation available. A nomination like this communicates that to them. Attorney Bond joined Baker Braverman amp; Barbadoro P.C. in 2002. Promoted to Partner in January 2016 Lisas practice concentrates on civil litigation family law and personal injury. ______________________________________________________________________ Congratulations to Theresa Barbadoro Koppanati Esq. on her recent recognition by Boston Magazine as one of the Top Women Attorneys in Massachusetts. Attorney Barbadoro Koppanati has served as an attorney at Baker Braverman amp; Barbadoro P.C. since 2010.Prior to joining the firm she served as a corporate associate at Latham amp; Watkins LLP in London and in-house counsel at Red Bull North America in Santa Monica California. Theresa advises clients in all areas of corporate law including asset purchases contract negotiation commercial finance secured transactions mergers and acquisitions and joint ventures. She also counsels clients on corporate compliance and intellectual property matters. _________________________________________________________________________ As part of a Massachusetts Bar Association sponsored event to mark Elder Law Month in May Elizabeth Caruso a probate and elder law/estate planning attorney at Baker Braverman amp; Barbadoro P.C. presented on basic estate planning and asset protection to a group of senior citizens at the Stoughton Council on Aging. As part of our mission to give back to the community Attorney Caruso found this wonderful opportunity to reach out to some of our societys most vulnerable said Paul Barbadoro Partner at Baker Braverman amp; Barbadoro. _________________________________________________________________________ Lawrence DiNardo Elected President of John Hancocks Historic Military Unit Congratulations to Lieutenant Colonel retired Lawrence DiNardo (U.S. Army Reserve) on his recent election to President of the First Corps of Cadets an historic military association. Quincy born and bred Attorney DiNardo has practiced law in the city for more than 30 years and for the last eight years with the Law Firm of Baker Braverman and Barbadoro P.C. He will serve as the President of the First Corps of Cadets from 2016 to 2018. Founded in 1741 the prestigious military organization First Corps of Cadets boasts Quincys John Hancock as its most famous elected commander. Hancock led this unit during the Revolutionary War and it has since fought in all of our countrys major conflicts and wars including the Civil War World War I World War II Korea Vietnam and all of our Middle Eastern conflicts. Currently the 211th Military Police Battalion of the Massachusetts Army National Guard constitutes the active unit of the First Corps of Cadets. This unit now focuses on providing security to the Boston Marathon and the Fourth of July on the Esplanade. The First Corps of Cadets has maintained a military museum on Commonwealth Avenue in Boston where it displays portraits busts and artifacts associated with John Hancock including a picture of Hancocks home that was painted on an actual panel from its door. Courtesy: Post-Gazette As a full service law firm our team of attorneys is uniquely positioned to provide a broad spectrum of premium legal services promptly and efficiently without the Boston premium. 781-848-9610 The post appeared first on QUINCY ATTORNEYS-Baker Braverman amp; Barbadoro P.C. 300 Crown Colony Dr 500 Quincy MA 02169 (781) 848-9610. from QUINCY ATTORNEYS-Baker Braverman amp; Barbadoro P.C. 300 Crown Colony Dr 500 Quincy MA 02169 (781) 848-9610 http://ift.tt/297SL2w via http://bbb-lawfirm.com via Tumblr http://ift.tt/29gtHe9

Chances are if you have a swimming pool you are aware of many of the safety precautions such as having a fence; displaying signs prohibiting diving (in shallow pools or shallow parts of the pool) and other well-known hazards. But did you know that there is a federal regulation concerning the safety of pool slides? The regulation (16 C.F.R. § 1207(a)) was enacted in 1978 and was designed to “reduce or eliminate the unreasonable risks of deaths or injury associated with swimming pool slides”.

The regulation requires that all pool slides be capable of supporting three hundred fifty pounds and that they be tested for head-first sliding. There are numerous types and models of swimming pool slides on the market and available on-line and at retail stores. Not all models comply with the federal regulations even though they may have warnings about weight requirements and caution against head-first sliding. Since using a slide that does not comply with federal law can lead to personal liability if an injury occurs, your best bet to stay out of trouble with your pool slide is to check the testing background before you buy. – Paul N. Barbadoro.

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