From Guest Contributor: LifeCare Advocates
An article in the Boston Globe on August 6, 2018 entitled “There’s a window, and once it closes, it closes forever” details the challenging decisions faced by elders and their families who wish to “age in place” at home, but for whom a move to a more supportive living environment may be recommended.
In this article, the experiences of many professionals in the elder care community, including several Aging Life Care Professionals and LifeCare Advocates’ CEO Kate Granigan, are highlighted. The challenges of finding the right time to make a move (too soon, too late?) are discussed, as well as the impact that couples requiring different levels of care, elders or family members who aren’t “ready” to make a move, ageism, perception, and relationships have on these important decisions and transitions.
Our professional, objective, skilled LifeCare Advocates Aging Life Care Professionals assist and support elders and families every day in making these difficult decisions. Is it safe for Mom to stay home? Can she afford the care she will need now and in the future? What are the qualifications for independent living, assisted living, or skilled nursing care? How will a facility or campus of care support different levels of care for a couple while allowing them to be together?
We always begin our work with a thorough objective assessment, including speaking with adult children or other family members, meeting the elder(s) in person, talking with providers, and providing detailed recommendations and resources for care. We have relationships with care providers at every level of care, and can help advocate for our clients to receive the least restrictive but safest level of care possible. We pride ourselves on our ability to guide our clients and their families along this journey. We are skilled in hearing their concerns, debunking myths, providing a perspective on the reality of care options, providing an objective voice amongst family members in disagreement, and coaching family members on communication strategies with their elder loved ones with dementia. We use our clinical understanding as well as our compassionate approach to develop relationships with our clients and their families to help them make these tough decisions, implement care decisions including moving to care facilities, and monitor our clients’ adjustment to care changes.
As Life Care Professionals, we have trodden these paths of elder care many times, and though the details are unique to each individual, the guidance and support of a professional can be invaluable in these times of adjustment and change.
If you are interested in learning more about our services, please go to , or call 617-928-0200.
Recent news has shifted from remembrances of Aretha Franklin and all she gave to the music world to discussions of the fact that it appears she did not have an updated and comprehensive estate plan in place to guide the management and distribution of her assets. We have seen this story before - Prince, Heath Ledger, and so many others. When we learn of a celebrity passing away without the right estate plan - or any estate plan - in place, people will examine why they didn't pay attention to this important aspect of their life.
This is one area in which, as the tabloids say, celebrities really are just like us. Well over half of Americans do not have an estate plan in place - and many more probably have one that has not been reviewed or updated in years. So, what is holding us back?
Many people understand that they need an estate plan - but have no idea what one is. Part of the reason is that there is no "one size fits all" answer, and each person's estate plan may consist of different documents with different provisions.
The thought of finding someone who you will tell all of your family secrets, worst fears, and deepest hopes can be overwhelming. If you want to start the estate planning process but aren't sure how to find an estate planning attorney, start asking around. You can ask your friends and family who they have used and what their experience was like. Your financial advisor, accountant or insurance agent might have suggestions as well. You can and should always review a potential attorney's website and LinkedIn page for more insights into their experience and approach.
There is no getting around the fact that estate planning is going to be an expense. There is a wide range of appropriate fees depending upon the location, level of experience and service, type of practice and many other factors. Educate yourself so that you can ask the right questions and prevent any surprises. Open a candid conversation with your estate planner about the costs of your plan now and in the future - often, having no plan or a plan that does not adequately address your needs will cost less now, but cost far more in money, time and frustration in the future.
People often say that they haven’t undertaken estate planning because they didn't have the answers to the questions they knew they would be asked. For example, one of the most common obstacles people cite to completing their estate plan is not knowing who to name as the guardian for minor children. Remember that your estate planning attorney has years of experience working with people to answer the questions you are now facing. Bring your concerns and your questions to her or him.
If you are interested in talking further about your estate plan, please contact any of the attorneys in Pabian & Russell, LLC's Estate Planning practice group at 617-951-3100.
Governor Baker signed legislation on August 10, 2018, regulating the use and enforcement of noncompetition agreements in Massachusetts. The Massachusetts Noncompetition Agreement Act (the “Act”) takes effect on October 1, 2018 and will apply to non-competition agreements entered into on or after that date for employees that reside or work in Massachusetts, including independent contractors. The Act does not apply retroactively to existing agreements; however, judges may use the provisions of the Act in determining whether current agreements are fair and reasonable. As the Act is quite extensive, we are providing you the highlights below.
What are the new requirements for a noncompete agreement to be valid and enforceable on October 1, 2018?
- Agreements with new employees—must be in writing; signed by both the employer and employee; expressly state that the employee has the right to counsel prior to signing; and must be provided to the employee by the earlier of a formal offer of employment or 10 business days before the hire date.
- Agreements with existing employees— must be in writing; signed by both the employer and employee; expressly state that the employee has the right to counsel prior to signing; be supported by “fair and reasonable consideration” independent from the continuation of employment; and provide advance notice of the agreement not less than 10 business days before the effective date of the agreement.
- The restricted period within the agreement cannot exceed one year from the date of cessation of employment (however, the restricted period can be extended to two years if the employee has breached the employee’s fiduciary duty or has unlawfully taken, physically or electronically, property belonging to the employer).
- The agreement must be “no broader than necessary” to protect one or more of the following legitimate business interests of the employer: employer’s trade secrets; employer’s confidential information; or employer’s goodwill.
- The agreement must be reasonable in geographic scope. The geographic scope will be considered presumptively reasonably if it is defined as the areas in which the employee “provided services or had a material presence or influence” during the past two years.
- The agreement must also be reasonable in the scope of the prohibited activities in relation to the interests protected.
- Lastly, the agreement must include a “garden leave clause” or “other mutually-agreed upon consideration” between the employer and employee. A “garden leave clause” is defined as payment during the restricted period of at least 50% of the employee’s highest annualized based salary during the last two years of employment.
Is the Act enforceable against all employees?
The Act does not apply to the following categories of employees:
- Non-exempt (overtime eligible) employees under the Fair Labor Standards Act;
- Undergraduate or graduate students who enter into an internship or short-term employment relationship, whether paid or unpaid;
- Employees terminated without cause or laid off; or
- Employees age 18 or younger.
Are there exceptions under the new Act?
Yes. The Act expressly does not apply to the following agreements:
- Covenants not to solicit or hire employees of the employer;
- Covenants not to solicit or transact business with customers, clients or vendors of the employer;
- Noncompetition agreements made in connection with the sale of a business entity;
- Noncompetition agreements made outside of an employment relationship; and
- Certain other agreements;
What should employers do next?
- Massachusetts employers should consult with their corporate attorneys before entering into new agreements to make sure they comply with the new Act.
- Employers should have their current agreements reviewed to determine if they will withstand judicial scrutiny in the event an employee challenges their validity under the “fair and reasonable” standard that courts will continue to apply to agreements entered into prior to the Act.
Please contact any of our corporate legal team partners Jay Pabian, Kim Kramer or Lara McKenna, with any questions you may have. We will be happy to review existing employment agreements and draft new agreements to comply with the new Act.
Disclaimer: This article has been prepared for informational purposes only. This article is not intended to provide legal advice and we urge you to consult with your legal consult regarding the application of the Act to your particular situation.