Health Care Proxies and Medical Directives: Guiding Your Health Care

In the last post, we discussed how a durable power of attorney allows another person to act on your behalf, especially at a time when you may be incapacitated.  A health care proxy document plays the same role for medical care – if you’re unable to make informed medical decisions, your health care proxy grants that authority to someone else.  As a result, a health care proxy is one of the most important estate planning documents everyone should have.

A health care proxy only becomes effective when the attending physician has determined you are unable to make informed decisions about your medical care.  At that time, your proxy will become authorized to make decisions on your behalf.  You can, however, limit your proxy’s authority by specifying that certain care should, or should not, be administered in specific situations.  You can amend or withdraw the health care proxy at any time, unless a court has determined that you are incompetent to do so.

If you become incapacitated, and do not have a health care proxy in place, the hospital or your family may be forced to ask the Probate Court to impose a guardianship, which can be a time-consuming and expensive process.  A simple and easily completed health care proxy can help avoid this situation.

In addition to a health care proxy, you should also consider completing a medical directive, which will outline specific medical situations and provide guidance to your proxy regarding what your wishes are for each situation.

If you have questions about health care proxies, durable powers of attorney, or any other estate planning issues, contact me at or 413-570-3170.

Solicitation Runs Both Ways (Update!)

Last month, we discussed a U.S. District Court case that found a non-solicitation provision signed by a former employee was enforceable even when contact between the former employee and the third party client was first initiated by the client. This finding (and the preliminary injunction issued against the former employee) was recently upheld by the First Circuit Court of Appeals, which has solidified the protections employers bargain for when they enter non-solicitation agreements.

The former employee asked the Appeals Court to adopt a per se rule that working with the clients of a former employer would be allowed if the clients were the first to contact the former employee. The Court declined to do so and, instead, found the facts of each situation would have to be analyzed to determine whether “solicitation” had taken place: “where the sales process is complex and the products are customized, initial contact is usually at a considerable remove from a closed sale. In such a situation, initial contact is likely to weigh far less heavily.” The Appeals Court held that “the amorphous nature of the term [initial contact] counsels persuasively against a per se rule.”

Ultimately, this decision will make it easier for employers to protect their goodwill and client relationships, even when a former employee is attempting to entice them away.

If you have any questions about this case, non-solicitation agreements in general, or want to discuss other business issues that commonly arise, contact me at or 413-570-3170.

Protecting Your Home: The Massachusetts Homestead Act

Your home is not only one of your single largest financial investments, it’s also the place where your family lives and makes memories. The Massachusetts Homestead Act, revised in 2011, helps protect your home from business creditors, lienhodlers, and personal debts.

Under the revised Homestead Act, your principal residence automatically receives a homestead protection of one-hundred and twenty-five thousand dollars ($125,000). However, by recording a Declaration of Homestead in the Registry of Deeds, you can protect up to five-hundred thousand dollars ($500,000) of equity in your home. If you are older than sixty-two or are disabled, you are eligible for even more protection.

If you decide to file a Declaration of Homestead, you should make sure all the owners sign the declaration. Owners eligible to file a declaration include anyone with a legal interest in the property who also uses the property as their primary residence (non-owner spouses and family members are automatically protected as long as they are using the home as their primary residence). Even if you have granted the property to children but hold a life estate in the home, or even if the property has been transferred to a trust but you are one of the beneficiaries of the trust, then a homestead can still be filed. (If the property is in trust, the trustee would file the declaration and name the trust beneficiaries in the declaration.)

Your homestead protects your primary residence from attachment, execution, or seizure for the payment of many types of debt. A homestead does not protect you from all obligations, and some exceptions include claims arising in connection with your mortgages, government taxes and assessments, or court orders regarding payment of alimony or child support. The protections afforded by the Homestead Act are not effective against liens or claims recorded before your Declaration of Homestead is recorded, so consider preparing and recording a homestead now.

If you have any questions about the Homestead Act, or other ways to protect your property, contact me at or 413-570-3170.

The Importance of the IEP to a Free and Appropriate Public Education

Earlier, we discussed a student’s Individualized Education Plan (IEP), including how it should be drafted, who should be involved, how goals, objectives, and benchmarks should be set, and which direct services and related services could be identified as necessary. We also discussed different examples of related services which might be available. The ultimate goal of the IEP, and the provision of all special education services, is your student’s free and appropriate public education (also known as “FAPE”).

Under federal law, each state is required to provide a free and appropriate public education to every student with disabilities between the ages of three and twenty-one. FAPE is defined as “special education and related services” that (i) are provided at public expense; (ii) meet the state’s education standards; (iii) include an appropriate preschool, elementary, or secondary school education; and (iv) are provided in conformance with an IEP.

Courts have determined the requirement to provide FAPE does not mean the school has to provide the “best” program available, nor does it mean the school has to provide a program that will “maximize” a student’s potential. Instead, it means only that the program must provide a “basic floor of opportunity” which allows a “child to benefit educationally from instruction.”1 This minimal standard allows many school districts to argue a proposed program meets the requirements for a free and appropriate public education merely because a student will receive some benefit from the program, even if the student would receive greater benefit from a different placement.

The requirement that FAPE integrates the IEP, however, opens a door to making sure a student is placed in a program that provides more than just minimal benefits. As we know, an IEP must be individually tailored to a student’s unique needs, and must be calculated to provide the student with services that help achieve specific goals, objectives and benchmarks. Because of this, what is a free and appropriate public education for one student may be different than what it is for another. As a result, by making sure your student’s IEP contains a very detailed listing of the special education services to be provided, you can ensure your student is receiving a free and appropriate public education that is both unique to them and provides benefits greater than the minimum standard required by the courts.

If you have questions about whether your student is receiving a free and appropriate public education, or whether a school district is complying with an individualized education plan, contact me at or 413-570-3170.

1 Board of Education v. Rowley, 458 U.S. 176 (1982).

Durable Powers of Attorney: The Key to Managing Your Affairs and Business

A durable power of attorney is a document that gives another person the authority to act on your behalf, and is something that everyone should have completed.

A durable power of attorney can take effect immediately or at some point in the future — many durable powers of attorney are drafted to “spring” into place only if you become incapacitated. A durable power of attorney can grant as much or as little authority as you like, and can exclude the authority to take specific actions. You can execute more than one power of attorney, and grant different powers to different people: for instance, a business owner may execute a power of attorney regarding operation of the business to her office manager, and execute a second power of attorney giving her husband the authority to handle the rest of her affairs.

If you become incapacitated and do not have a durable power of attorney, anyone trying to manage your affairs may be forced to ask the Probate Court to create a conservatorship, which can be a time consuming and expensive proposition. In contrast, drafting a durable power of attorney can help avoid many problems, and is a cost effective and important step in your estate plan.

If you need to execute or update your power of attorney, or have any questions about drafting an estate plan, contact me at or 413-570-3170.