Elizabeth Caruso invited to present to Stoughton Council on Aging

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Recently, Elizabeth Caruso, a probate and elder law/estate planning attorney at Baker, Braverman & Barbadoro, P.C., a Quincy based law firm, presented on basic estate planning and asset protection to a group of senior citizens at the Stoughton Council on Aging as part of a Massachusetts Bar Association sponsored event for Elder Law Month.

Caruso, Liz  @ 500

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SBA announces the return of the 504 loan refinance program

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In late May of this year the Small Business Administration (“SBA”) has re-established the debt refinancing program consistent with the more well- known SBA 504 loan programs.  The 504 loan program was historically only available to purchasers of commercial property.  The debt refinancing program, while available several years ago, was temporary.  The program, which expired in 2012, is has now been made permanent.

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The benefit of SBA financing, and more specifically, debt refinancing, is that borrowers who are approved and funded have a fixed mortgage rate for 20 years.  In today’s commercial loan market, it is very difficult to obtain fixed rate financing, and almost never for 20 years.  Also, the interest rates which are set at funding have recently seen historic low rates.  For June 2016, the 20 year rate was about 4.3%.

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Applications are being accepted after June 24, 2016 and borrowers have to meet certain criteria, including, but not limited to, that the debt being refinanced must be “qualified debt” as that term is defined in the act, the borrowers must be current on their 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.”  There are a host of other rules and regulations concerning these government guaranteed loans.  Therefore if you are interested in learning more about the SBA 504 Debt Refinance Program, the lawyers at Baker, Braverman & Barbadoro can answer your questions and introduce you to a Certified Development Company that can assist you with an application.

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Update On Regulations Defining And Delimiting The Overtime Exemptions For Executive, Administrative And Professional Employees

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On May 18, 2016 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.  The Final Rule updates the salary level required for exemptions to ensure that the Fair Labor Standards Act intended overtime protections are fully implemented and to make the exemption for executives, administrative and professional employees easier to understand and apply.

The focus of the Final Rule is primarily updating the salary and compensation levels needed for executive, administrative and professional employees to be exempt.  Specifically, in part, the Final Rule:

  1. Sets the standard salary level at $913 per week or $47,476 annually for a full-year worker;
  2. Sets the total annual compensation requirement for highly compensated employees subject to the “minimum duties test” to $134,004;
  3. Establish a mechanism for automatically updating the salary and compensation levels every three years (this will begin January 1, 2020); and
  4. Amends the “salary basis test” to allow employers to use nondiscretionary bonus and incentive payments to satisfy up to 10% of the new standard salary level.

Department of Labor updating the exemption of executive, administrative and professional employees from the minimum wage and overtime pay protections of the Fair Labor Standards Act

The Final Rule goes into effect on December 1, 2016.  If you are a business trying to determine how the Final Rule affects how you operate your business, contact one of the Employment Lawyers at Baker, Braverman & Barbadoro, P.C. to ensure that your business is prepared to be compliant with the Final Rule. – Susan M. Molinari.

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Tips on Filling Out Your Financial Statement Correctly in Divorce Matters

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In all divorce cases it is required that the parties each complete a Financial Statement.  The Financial Statements are exchanged between the parties and filed with the Court.  Financial Statements are signed under the pains and penalties of perjury, therefore itis imperative that the information contained on your financial statement be accurate and contain all the required information.. For example, if one party fails to include an asset in his/her Financial Statement, that asset is subject to division even after the Separation Agreement has been approved by the Court.  It is important to distinguish who owns an asset listed on your Financial Statement; you only want to list the interest and dividends income produced by assets that you own.  Where assets are jointly owned, you should include only one-half (1/2) of the dividend and interest income and make this indication on the Financial Statement.

Financial Statments

Although Financial Statements are filed with the Court, they are impounded to protect your personal information; this means that access is limited to the parties, attorneys of record and the court.  Your Financial Statement must include all of your income.  If you are self-employed you must file a Schedule A to your Financial Statement.  Much of the information needed from the Schedule A may be taken from your income tax returns; however some deductions on your income taxes are not deductions for purposes of your Financial Statement.  For example, a depreciation deduction is appropriate for income tax purposes but not on your Financial Statement.

In addition to disclosing assets, parties must set forth their actual and anticipated expenses on their respective Financial Statements. It is not uncommon to have to estimate expenses particularly in cases where the other party was primarily responsible for the finances.  It is important to make a footnote indicating that these expenses have in fact been estimated.  Furthermore, reasonable anticipated expenses should be footnoted.

In a divorce matter, a Financial Statement is given great weight by the court in reviewing the assets and expenses of the parties, and therefore should be completed with great care and caution. Should you require assistance in the preparation of a Financial Statement you should contact the family law team at Baker, Braverman & Barbadoro, P.C. – Lisa Bond.

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BBB mourns the passing of our colleague Attorney Douglas C. Purdy

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In Memoriam

It is with great sadness that our firm mourns the passing of our colleague and friend Attorney Douglas C. Purdy

Purdy Doug @500

February 10, 1943 – May 25, 2016

Doug practiced law in Quincy for over 30 years with Serafini, Purdy, DiNardo & Wells and for the last eight years with Baker, Braverman & Barbadoro, P.C. He will be sadly missed by all that knew him.

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Why Do I Need a Health Care Proxy or Durable Power of Attorney?

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If you have failed to plan for your personal incapacity by designating an agent to act as your Attorney in Fact under a Durable Power of Attorney or as an Agent under a Health Care Proxy, the person who will make these personal decisions on your behalf will be determined not by you, but by a Judge in the Probate Court.  Many people recognize the benefits of having their estate avoid the Probate Court upon death, but most people forget that it is equally important to avoid the Probate Court in the event of an illness or incapacity during their lifetime.

Power of Attorney

In the event that you are incapacitated or gravely ill such that you cannot make decisions for yourself and you do not have either a Heath Care Proxy or a Durable Power of Attorney , your spouse, child, sibling or a friend will have to petition the Probate Court to be named your Guardian and Conservator.  There is also the possibility that the Probate Court will appoint someone that is unfamiliar with you and your needs, something that can happen without proper planning.

The Probate Court will appoint a Guardian who will be charged with the duty of making personal decisions on your behalf.  Those decisions are very personal and include health care choices, personal care choices, and decisions for your long term medical care.   In addition, the Probate Court will appoint a Conservator of your estate; this person will be charged with managing your finances.  Both of these court appointed agents will be required to get permission from the Probate Court to take action on many matters, including matters involving your property.  As a result, the Probate Court has an unnecessarily high level of control over your well-being and assets, which is also costly as the fees and costs from the Probate Court’s review will come from your assets.

To protect yourself in the event of incapacity and to ensure that decisions regarding your health care and finances will be made in your best interest by a friend or family member of your choosing, consult with a Probate attorney at Baker, Braverman & Barbadoro, P.C. to get your Health Care Proxy and Durable Power of Attorney drafted today. – Christopher Sullivan.

 

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How Bankruptcy Protection Affects Your Ability to Collect an Owed Debt

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The filing of a bankruptcy petition under section 301 of Title 11 of the U.S. Code (commonly referred to as the Bankruptcy Code) commences a bankruptcy case for the party filing the petition, who is thereafter referred to as the Debtor(s).  Once an individual or a business files a bankruptcy petition, as a creditor your rights become limited and it is important that you understand the steps you need to take to secure repayment of the owed debt.

How Bankruptcy Protection Affects Your Ability to Collect an Owed Debt

Immediately upon commencement of the case, all creditors are prohibited from taking any action against the Debtor, including, among other things, bringing or continuing any court action against the Debtor in an attempt to recover a claim that arose before the commencement of the case.  This is known as the “Automatic Stay.”  Additionally, creditors are prevented (stayed) from taking possession of collateral or foreclosing on property of the Debtor that may secure a loan, even if the loan is in default and even if the Petition is filed one minute before the foreclosure sale.

A Debtor will often file a bankruptcy petition on the eve of, or just prior to a foreclosure sale in order to stop the sale from going forward.  As long as the bank has notice of the filing of the Petition, it must cancel the sale or risk violating the automatic stay which violation can result in the payment of penalties and legal fees for the offender.

Other actions against the Debtor are prohibited by creditors including the attempt to create, perfect or enforce a lien against property of the Debtor or the setting off of a debt of the Debtor against funds on deposit.  While there are a few exceptions to this Automatic Stay rule, most common creditors do not have the benefit of these exceptions.  They are generally reserved for the US government, the State Government, the IRS and a spouse seeking domestic support from the Debtor.

There are several additional provisions that pre-empt the Automatic Stay to the benefit of a creditor, but they typically involve violations of a prior Bankruptcy Court order or when a Debtor has filed several cases in a short period of time.  In one circumstance, the Automatic Stay is only active for thirty (30) days unless the Debtor receives approval from the Court after motion and hearing to extend the stay.  In yet another circumstance, in the case where a Debtor has had two or more individual cases pending within the previous year that were dismissed, there is no Automatic Stay in effect on the filing of the third petition.  Creditors are encouraged, however, to seek a Court ruling to this effect so they don’t run the risk of violating the stay.

Last, even though the Automatic Stay prevents the creditor from immediately continuing its action against the Debtor, the creditor may nonetheless file a motion in Court to terminate or condition the Automatic Stay.  The Code provides that the Automatic Stay may be released for a creditor if it proves, for instance, that the Debtor “has no equity in the property” it seeks to protect and, the property “is not necessary for an effective reorganization.”  This is the ground relied on by most creditor attorneys when seeking relief from the Automatic Stay.  There are other grounds, including bad faith and a motivation by Debtor to frustrate the creditor’s actions.  These are sometimes hard to prove, but all creditors who are stayed as a result of the filing of a Bankruptcy Petition are encouraged to speak with competent legal counsel to assess their options. – Gary M. Hogan.

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Lawrence DiNardo Elected President John Hancock’s Historic Military Unit

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Lieutenant Colonel, retired, Lawrence DiNardo (U.S. Army Reserve) was recently elected president of the historic military association, the First Corps of Cadets.

DiNardo was born in and grew up in Quincy. He has practiced law in the city for more than 30 years. The First Corps of Cadets is a prestigious military organization that was founded in 1741. The First Corps’ most famous elected commander was Quincy’s John Hancock, who led this unit during the Revolutionary War. The First Corps has fought in all of our country’s major conflicts and wars, to include the Civil War, WWI, WWII, Korea, Vietnam, and all of our Middle Eastern conflicts.

Quincy Attorney Lawrence DiNardo Elected President John Hancock's Historic Military Unit
Courtesy: Post-Gazette
Currently, the 211th Military Police Battalion of the Massachusetts Army National Guard is the active unit of the First Corps of Cadets. This unit is now focused 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 many portraits, busts, and artifacts associated with John Hancock. There is a picture of John Hancock’s home that was painted on an actual panel from John Hancock’s door. Quincy’s Lawrence DiNardo will serve as the President of the First Corps of Cadets from 2016 to 2018.

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Tips For Landlord Regarding Lien Waivers

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Commercial landlords are routinely requested to enter into waivers with tenant lenders and equipment lessors regarding the secured interest that the landlord acquires in the tenant’s personal property either statutorily, in a lease provision, or in bankruptcy.

TIPS FOR LANDLORD REGARDING LIEN WAIVERS

Since landlords succeed when their tenants are successful, landlords usually sign lien waivers without much thought or concern.  Although the better business practice is to accommodate lien waiver requests, the landlord should take care to insure the language is modified to protect the landlord’s interests.

As a landlord you should keep in mind the following, in reviewing and prior to signing any lien waiver:

  1. Description of Collateral Being Secured. Be sure to limit the description of the collateral that the lender or equipment lessor is attempting to secure to only personal property that is related to the loan or lease.  Real estate fixtures and other items that would cause damage to the premises should they be removed should be specifically excluded from the collateral.
  2. Removal Notice. The landlord should receive reasonably sufficient notice prior to any removal of the property and the time period in which the lender or equipment lessor has to remove the items should be limited to a date certain.
  3. Use and Occupancy. If a lender or equipment lessor wants possession of the tenant’s property, it is most likely that the tenant has defaulted under its lease with landlord and vacated the premises. Since the equipment being left behind prohibits a new tenant from initially moving into the space, the landlord should insure that the waiver provides for recovery of occupancy fees until such date as the property is removed.
  4. Indemnification and Insurance. The waiver should also provide for the landlord to be indemnified and that adequate insurance exists during such period that the personal property remains at the premises.
  5. Auctions and Other Signage. The landlord also wants to avoid signage that taints future leasing of the property such as auctions or for sale signage.  Such signage should be specifically prohibited in any lien waiver.
  6. Bankruptcy. The landlord should also specifically reserve its rights as a preferred creditor in any bankruptcy proceeding.

In conclusion, lien waivers are generally requested and landlord’s refusal to sign may prevent the tenant’s business from succeeding.  The landlord, with the correct revisions to the lien waiver document, can protect its interests and allow for the tenant to be successful. For more information contact our real estate attorneys.– Gene Guimond

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Key Considerations for Long Term Care Planning

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Creating an estate plan and planning for your legal future can seem like an overwhelming task. It forces you to think about your own mortality, and that of loved ones, among many other unpleasant topics. What many people do not realize is that a lack of planning can be even worse for you and your family. The senior citizen population in America is growing, as is the cost of caring for those seniors, both in and out of nursing homes. With proper planning, you can achieve peace of mind and tackle the looming costs of long term care.

Key Considerations for Long Term Care Planning

There are three ways to pay for long term care, you private pay yourself, carry long term care insurance, or for people who qualify, Medicare, a government program, can pay for a portion of the cost. Private paying is easy and self-explanatory. Long term care insurance can be an easy solution for some, but the premiums can be costly. Qualifying for Medicaid is not always easy, but is a route that many families plan toward.

Medicaid, as previously stated, is a government program that pays for long term care for those who qualify. To qualify, single people can only have $2,000.00 and a married couple can only have a combined $121,000.00. Additionally, for married couples, if the healthy spouse is still living at home, the home is not countable toward the asset limit. One car, regardless of value, also does not count toward the asset limit.

For those seeking to qualify for Medicaid, assets cannot just be given away. Medicaid imposes a 5 year look back period on all asset transfers. This means, for example, if you gifted a child $50,000.00 Medicaid would continue to consider that $50,000.00 as asset of yours until 5 years have passed since the date of that gift.

Before you give away all your assets so that you qualify for Medicaid in 5 years, there are some other considerations, including standards of living and the cost of care that falls short of long term care. The level of care associated with long term care is the 24 hour type care that you typically see in a nursing home. Often the need for long term care does not come suddenly without warning. It is usually a gradual adding of daily care here and there that eventually adds up. The adding of daily care, through home health care agencies or assisted living facilities, may or may not be covered under long term care insurance, depending on your policy. Additionally, there are different rules, more focused on income levels, to qualify for Medicaid to pay for these types of care. Giving away all assets to qualify for Medicaid often leaves people unable to afford some daily care that falls short of nursing home level care.

While this is just a broad overview of somethings to consider when contemplating long term care planning, the estate planning attorneys at Baker, Braverman & Barbadoro, P.C., can sit with you and craft and estate plan that meets your needs and goals. We make a comprehensive review of your assets and explain to you how various types of estate planning (wills, irrevocable trusts, life estates, etc.) can affect your planning goals, as well as taking into consideration tax and Probate Court implications. Contact Baker, Braverman & Barbadoro today for your Confidential Estate Planning Questionnaire that will get you started in our estate planning process. – Elizabeth Caruso

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