Newsletter - Winter 2010

This newsletter is designed to keep you up-to-date with changes in the law. For help with these or any other legal issues, please call today. The information in this newsletter is intended solely for your information. It does not constitute legal advice, and it should not be relied on without a discussion of your specific situation with an attorney.



A doctor signed an employment agreement saying she would resolve any disputes by going to arbitration rather than suing in court. But in spite of this, she can file a sex discrimination lawsuit, says the Massachusetts Supreme Judicial Court.

The doctor, who worked at Beth Israel Deaconess Medical Center, signed the contract when she was hired. In the contract, she promised that she would arbitrate any dispute “arising out of or in connection with this agreement.”

However, the court said that the contract only required the doctor to arbitrate disputes about the meaning or terms of the agreement. It didn’t preclude the doctor from suing for sex discrimination, which wasn’t covered in the agreement.

Of course, if the contract had specifically said that the doctor had to arbitrate discrimination claims, the result would presumably have been different.

home-constructionIt can be a great idea to buy a “fixer-upper” – as long as you’re sure the local zoning rules will allow you to actually fix it up.

Unfortunately, many people have bought a home or other property with the idea of remodeling it to their tastes, only to discover that what they had in mind is against the law.

For instance:

  • If you’re thinking of removing trees to enhance your view, is this permitted?
  • If you want to create a rental unit on the property, do the local zoning rules allow for rentals? If they do, what restrictions apply?
  • If you want to fill in a low-lying area, will this violate environmental regulations?
  • What if you want to build an additional building, such as a garage, guest house, or even a shed? Is this allowed?
  • If you want to add on an additional room, will this violate rules against building too close to a property line?

Of course, if the building is on a list of historic homes or is part of a homeowner’s association, other rules will apply as well.

In general, if you’re thinking of buying a property with an eye toward improving it, check the rules first. It’s better to be safe than sorry.

A child is raised for years by his father and by the father’s girlfriend, who is not the child’s mother but who acts in every way as his mother. When the couple split up, who should get custody?

Now assume that the father is a “good enough” parent, but the girlfriend is a better parent and the child would be much better off with the girlfriend. Who should get custody?

The father should still get custody, even in that situation, says the Massachusetts high court.

Unless a biological parent is truly unfit to raise a child, the biological parent is always entitled to custody even if the other person would be a “better” parent, the court said.

The girlfriend had claimed that the child’s best interests should be the deciding factor, but the court said this wasn’t true, and being the biological parent is the trump card.

The case raises interesting questions for custody cases involving grandparents who care for their grandchildren, gay couples who raise children, and other situations.

assisted-livingIf you live in an assisted living facility – or have a family member who does – you know that the costs continue to rise every year. But did you know some of those costs may be tax-deductible?

Medical expenses, including some long-term care expenses, may be deductible (at least in part) if they are more than 7.5 percent of your adjusted gross income.

Generally, people who are reasonably healthy can deduct only the medical component of their assisted living costs; they can’t deduct the cost of room and board. The assisted living facility is responsible for telling you what portion of your fees is attributable to medical costs. On the bright side, “medical costs” can include a portion of an entrance or initiation fee if a portion of that fee is dedicated to medical expenses.

In some cases, though, a resident can deduct room and board and other ordinary living expenses. In order to claim this larger deduction, the resident must be chronically ill and in the facility primarily for medical care, and personal care services must be provided under the guidance of a licensed health care provider.

However, you can’t deduct expenses that are reimbursed by insurance or other programs.

In some circumstances, adult children may get a tax deduction if they contribute to assisted living costs for a parent or other immediate family member, including an in-law. The adult children must provide more than half of the family member’s total support for the year, and may have to meet other requirements.

lastwillMany parents make gifts or loans to their children. Often they give more money to one child than to others, perhaps because one child has a greater need.

If you do make a significant gift or loan to one of your heirs, you should modify your will to address it.

The reason: If something happens to you, it might be unclear to your heirs what the effect of the gifts or loans should be on their inheritance. In some families, this kind of uncertainty can lead to family battles and even a legal challenge to the will. But even if this doesn’t happen, some children might be quietly offended or simply uncertain, and you probably want to avoid that if possible.

So if you are leaving some children more assets in your will than others as a result of gifts made during your lifetime, it’s a good idea to explain your reasoning in your will. If you’re leaving all your children equal shares in spite of having given some of them more gifts than others in your lifetime, you should say that as well – so there’s no question whether the lifetime gifts should be treated as an “advance” on their inheritance.

What if a loan is outstanding at the time you die? You might want to make clear that any such loan doesn’t have to be repaid, and doesn’t affect the distribution in your will. On the other hand, if you want the loan to be treated as an advance against an inheritance, you should make that clear.

If you want a loan to be repaid after your death or to be treated as an advance against an inheritance, then you should have a written loan agreement with your child. You might also want to specify in the agreement that any forgiveness has to be in writing, so your child can’t claim after you die that at some point you forgave the loan.

Are GM and Chrysler still liable for their lemons?

What if you or someone you know is injured as a result of a defect in a GM or Chrysler car? Are these companies still responsible for problems with their products now that they’ve been through bankruptcy?

The answer to this is somewhat complicated.

The good news is that people who are injured in cars that were manufactured by GM or Chrysler after the companies emerged from bankruptcy will have the right to recover from the company for their harm.

The bad news is that people who were injured before the bankruptcy, but haven’t been paid yet, will have their claims mostly wiped out. In the case of GM, this means that hundreds of people who had filed more than $1 billion of personal-injury claims due to defective manufacturing will recover little or nothing from the company, no matter how valid their claims are.

The next question is: What will happen to people who are injured after the bankruptcy as a result of defective cars that were manufactured before the bankruptcy?

In the case of GM, these people will be able to sue the “new” GM for their injuries. But in the case of Chrysler, the victims will be out of luck.

In any event, if you or someone you know is injured in an auto accident, it’s critical to speak to an attorney right away. There may be other ways to recover for your injuries, and you can’t be sure unless an attorney thoroughly analyzes your particular situation.

sobrietyPolice can stop motorists at a roadblock and direct those they suspect of being drunk to a secondary screening area where they can be given field sobriety tests, the state’s highest court recently decided.

However, police can’t direct a motorist to a secondary stop unless they have a “reasonable” suspicion that the driver is drunk, and can point to specific facts backing up that suspicion, the court said.

A mere hunch that a driver is intoxicated or is doing something else wrong isn’t enough.

If the police don’t have a good reason for sending someone to further screening, any evidence they find at the second screening –whether of drunk driving or of any other crime – can’t be used against the person in court.

A reasonable suspicion can be based on a driver’s glassy eyes or slurred speech, a smell of alcohol in the car, or an open container of alcohol in plain view.

Police can also detain a driver if they see clear evidence of a felony in the car.

The case resolves what had been a growing controversy in the state. Supporters of tougher measures against drunk drivers had welcomed the police roadblocks, saying they helped to catch drunk drivers and deterred others from getting on the road in the first place.

But others had worried that “double screening” roadblocks would allow the police to stop, delay and search motorists for no good reason.

Police might, they argued, detain drivers because of their race or ethnicity, or because they didn’t like the look of a particular driver or disagreed with a political opinion on a bumper-sticker. They might also detain drivers if they suspected them of drug use – based on their youth or appearance, for instance – even if there was no actual evidence of drugs.

The high court split the difference by saying that the roadblocks are okay, but police can’t detain anyone for a secondary screening unless they are able to provide a good, specific reason for doing so.

The court also said that police can set up roadblocks for drunk driving, but they can’t set them up for other types of crimes – such as drug possession – because those crimes have nothing to do with driving.