Brown v. Brown, 91 Mass. App. Ct. 1110 (2017) (unpublished)

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The decedent’s three sons brought an action against the decedent’s second wife, claiming they were entitled to the proceeds of their father’s life insurance policy and the second wife was unjustly enriched when she received the proceeds. Under the terms of a divorce agreement with his first wife, the decedent was obligated to maintain a life insurance policy for the benefit of the sons until they were emancipated. The decedent had kept the three sons as the beneficiaries of his life insurance for a period of time, but then changed the designation to his second wife. When the decedent was diagnosed with cancer, he gave his sister power of attorney and asked her to designate his children as beneficiaries. The sister requested information about the policy which was sent to the decedent’s house, where the second wife confirmed that she was the primary beneficiary. The second wife received all the proceeds of the policy when the decedent died.

A Superior Court jury returned a verdict in favor of the sons. The trial judge denied the second wife’s motion for remittur. On appeal, the Massachusetts Appeals Court found no abuse of discretion in the trial judge’s denial, noting that there was ample evidence from which the jury could conclude that two of the three sons were not yet emancipated when the decedent died. Further, the sons only had to demonstrate that the second wife received a benefit that was unjust, not that she was guilty of any wrongdoing.

Special Needs Advocacy Forum Materials Now Available

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SPECIAL NEEDS ADVOCACY FORUM
Friday, October 28, 2016, 8:00-2:00
Marriott Boston Newton, 2345 Commonwealth Avenue, Auburndale

specialneedsbook

Important Articles from the February 2017 Edition of The MassNAELA Advocate

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From the President:

“Leadership and Learning are indispensable to each other.”  – John F. Kennedy

This is what I love about MassNAELA. We are a gold standard chapter that combines the wisdom and talent of our members to learn and to lead.

As we kick off our 25th anniversary year, my goals are three-fold:

Collaboration

Ensure that our vibrant chapter remains a viable and trusted voice in the fields of elder and special needs planning and to collaborate with the agencies and organizations that make these issues a top priority. We are in discussions with joining the Coalition for Elder Economic Stability led by the Mass Senior Action Council and Mass Council on Aging, as well as seventy other organizations and providers (continuing the efforts of our past president, Dan Surprenant.)

Involvement

Encourage each and every member to participate and offer their individual experiences and knowledge with the chapter. Please check out our website for information about our committees and a link to a committee sign-up sheet. In addition, I urge you to become an active participant at the public policy meetings chaired by Susan Levin and Patti Keane Martin and at the litigation committee meetings chaired by John Ford, Paula Nedder and Jack McNicholas, each of which meet immediately prior to our monthly meetings. This is one of the best ways to stay up-to-date with legislation and case related changes.

Legislation

Continue to sponsor legislation with the guidance of our lobbyist, Nomita Ganguly. We will re-file the Act to Support Equal Access to Community Care for Elders and the Disabled (formerly known as the PACE and Other Waivered Services bill) with the goal of expanding the Frail Elder Waiver to persons whose income is over the 300% of the Federal Benefit Rate through cost-sharing. In addition, we have finalized language for two additional bills – the first, relative to the countability of Veterans Aid and Attendance benefits when calculating income for purposes of eligibility, and second, preserving the ability for individuals over 65 to fund pooled trusts.

Efforts to Date

Beginning with the 2016 Thanksgiving break, a team of MassNAELA attorneys (Susan Levin, Emily Starr, Patti Keane Martin and Liane Zeitz) was in full gear around the clock to address the proposed MassHealth regulations which were slated to take effect on February 1, 2017. Thank you to this group which developed written comments which were submitted in response. Furthermore, MassNAELA representatives set forth our position at a public hearing on December 16, 2016. Thank you to Lisa Neeley, Pamela Greenfield and Arthur Bergeron for testifying on our behalf.

On January 5th, the Nadeau and Daley cases were heard by the SJC. Lisa Neeley, Brian Barreira and National NAELA’s Ron Landsman ably presented the cases.

Upcoming Events – Please mark your calendars!

On March 2, we will be running our annual satellite breakfast meetings at four locations across the Commonwealth (Natick, Westfield, Duxbury and Peabody). The topic will be Diminished Capacity.

On March 31, the Elder Law Institute, chaired by Karen Johnson, will be held at the Federal Reserve Bank in Boston. This year’s focus is Irrevocable Trusts.

On April 27-29, National NAELA’s convention will be held in Boston. Judy Flynn and Margot Birke are on the Planning Committee and our own Hyman Darling will be voted in as National President.

Our remaining dinner programs, all to be held at the Boston-Newton Marriott, will be held on May 18, June 15, September 7, October 25 and our annual meeting on December 7. Watch your emails for more information and topics. If you have an idea for a topic or speaker, please let the Program Committee co-chairs know.

We also intend to run our annual litigation workshop, led by John Ford, and the paralegal program.

Finally, three new initiatives are under development. First, a new member outreach committee will be formed under the guidance of Clarence Richardson. Second, we will solicit questions for the new MassNAELA Elder Advice column in our newsletter facilitated by Jessica Batsevitsky. Lastly, to further our past president’s goal of incorporating special needs into our practices, we hope to run another conference in the fall devoted to this topic.

I feel fortunate to be a part of this organization and privileged and humbled by the opportunity to lead and learn from our membership.

Join me as we take MassNAELA to new heights – onward to another 25 years!

Laura Silver Traiger, President MassNAELA 2017

 

Probate Court Update:

Revised Massachusetts Uniform Probate Code forms will be accepted for filing on or after the effective date of March 1, 2017. See http://www.mass.gov/courts/forms/pfc/pfc-mupc-forms-generic.html.

 

Featured Board of Hearings Decision:

Office of Medicaid, Board of Hearings, Appeal #1613416-77 (January 18, 2017)

The appellant’s re-application for MassHealth long-term care benefits was denied due to excess assets. The dispute was over whether or not real estate held in a nominee and irrevocable trust was countable. The Board of Hearings held in favor of the appellant, finding that:

  • The possibility that the appellant and her spouse could become beneficiaries of the realty trust does not equate unilateral access to principal.
  • Citing the decision of Heyn v. Director of the Office of Medicaid, a power of appointment in the irrevocable trust does not make the trust property countable.
  • A “use and occupancy” trust provision does not make the trust property countable. Such a provision is a potential source of income; it does not provide access to principal.

Contributed by: Brian E. Barreira, Law Offices of Brian E. Barreira, Plymouth and Hingham

Summary by: Jessica S. Batsevitsky, Law Office of Jessica S. Batsevitsky, Needham Heights

 

Featured MassNAELA Committee:

The Litigation Committee of MassNAELA wishes to clarify for members the Committee’s goals and ways the Committee can assist MassNAELA members in their practices.

MISSON STATEMENT:

The MassNAELA Litigation Committee’s continuing goals are: to provide a forum for the discussion of matters of interest to its members; to provide information, contacts, and resources to its members through legal education seminars and informative publications; and to provide a litigation support system to address matters of concern to Chapter members.

The work of the Litigation Committee supports: legal and regulatory advocacy that enhances the lives and protects the rights of older adults and people with special needs; litigation and amicus briefs filed on behalf of MassNAELA or in partnership with like-minded organizations; and establishment of good legal precedent in matters of importance to the Chapter.

Meetings are held on the same day as the dinner meetings at the Boston Newton Marriot, from 2:30 – 4:00pm and open to all MassNAELA members. An agenda and invitation is emailed to the general listserv prior to each meeting.

HOW TO UTILIZE THE LITIGATION COMMITTEE:

  1. Come to the meetings to learn about the latest activity and to raise any litigation issue you may have
  2. Become a member by joining a subcommittee (see organizational structure below) and read about each subcommittee here
  3. Seek litigation assistance with a case by contacting the Litigation Review Subcommittee here

 

MassNAELA Elder Advice Column:

The MassNAELA Advocate is pleased to introduce MassNAELA Elder Advice, a new advice column written by MassNAELA members, for MassNAELA members, in the hope that those who are new to elder law and special needs planning will learn from their more experienced colleagues.

Questions? Topic ideas? Please contact Jessica Batsevitsky at jsb@maestatelaw.com.

Protecting Clients’ Homes from MassHealth Liens    

By Pamela Greenfield, Samuel, Sayward & Baler LLC, Dedham

On January 5, 2017, the Supreme Judicial Court heard oral argument on two irrevocable income only trusts where the MassHealth applicant placed his or her primary residence into the trust prior to applying for nursing home benefits.  With the fate of irrevocable trusts literally hanging in the balance at One Pemberton Square, what other options do elder law attorneys have to advise their clients on protecting a primary residence from the placement and collection of a MassHealth lien?  Often our clients’ largest, and arguably most intrinsically valuable asset, avoiding the dreaded MassHealth lien truly feels like the million dollar question.  Here are some options:

Long-Term Care Insurance: Advise clients to consider purchasing long-term care insurance before it’s too late and too expensive.  Under the MassHealth regulations, a policy which meets minimum requirements of $125/ day of nursing home care coverage for a period of two years will prohibit MassHealth from placing a lien on the applicant’s non-countable Massachusetts primary residence.  An added benefit—often these policies are absolutely crucial in allowing seniors to age in place with private-duty home care services or pay for assisted living care where there are minimal public benefits available.  The ideal age to apply for long-term care benefits is in your 50s and 60s so if your clients are in their 70s, 80s or 90s, this may no longer be an option.

Life Estate Deeds: Consider the pros and cons of a life estate deed.  The actual concept of a life estate deed is simple to explain to clients and even simpler to execute. However the devil lies in the details, which is why it is absolutely critical for your clients to be fully versed in all of the ramifications of executing a deed with a retained life estate before giving away a substantial interest in their most important asset.  In a life estate deed, the grantor-parent transfers the property to the child or other remainderperson but reserves the right to reside in the property for his or her lifetime.  MassHealth is still permitted to place a lien on the home should the life tenant ever apply for nursing home benefits. However, if the applicant still owns the property at his or her death, MassHealth releases its claim and the lien extinguishes, passing to the kids without any encumbrance.  Under MassHealth regulations, the “life estate” itself has one numerical value which decreases as the life tenant ages (and also changes monthly based on interest rates).  The “remainder interest” is the remaining value once the “life estate” value is subtracted.  This is often the much higher value.  If the home is sold while the life tenant is alive, the share he or she receives from the sale is subject to MassHealth spendown or the collection of the lifetime lien if the applicant is currently receiving benefits.  Finally, some unintended consequences of life estate deeds may include capital gains tax issues, difficulty in mortgaging/ refinancing the property, creditor claims of the remainder beneficiaries and even uncooperative or self-interested children (and spouses of children).  While life estate deeds may seem like a terrific substitute for irrevocable income only trusts, there are many issues to consider before recommending this option to your clients.

Outright transfers:  Sometimes a simple “get all of the assets out of mom’s name and into the kids’ name” approach seems tempting, however most often it is not the best strategy our clients.  First, all of the above-mentioned issues with life estate deeds are present here, only much worse—sweeping capital gains tax consequences regardless of when the home is sold, unfettered creditor issues, evil children and spouses with no recourse from the parents, etc.  But perhaps the most important concern is more of an intangible one—your clients’ financial independence and autonomy.  Don’t forget that anything we do to “protect the primary residence” does not benefit the parent-client directly.  It simply allows them to rest assured that if they ever need nursing home care something has been done to increase the chance that some inheritance will pass to their children.  Additionally, with many more options for care coming to the marketplace each day—most of which are not covered by MassHealth—the focus should be on addressing your clients’ most valuable goals rather than what we as elder law attorneys may perceive to be most important, given that it pains us to see our clients lose their life savings on nursing home care.  Consider this before recommending a plan that strips your client completely of his or her interest in the primary residence.

The MassNAELA Elder Advice column is provided for educational purposes only. The statements contained herein may not apply to your circumstances. No professional advice is being rendered, and no attorney-client relationship is formed by the use of this publication.

 

Save the Dates!

MassNAELA dinner meetings and educational programs will take place on the following dates:

March 2, 2017                         (Multi-site Breakfast Meeting)

March 22, 2017           (Board and Committee Meetings Only)

May 18, 2017

June 15, 2017

September 7, 2017

October 25, 2017

December 7, 2017

Paralegal Program to be Determined

Litigation Workshop to be Determined

 

SEND YOUR NEWSLETTER AND E-BULLETIN CONTRIBUTIONS TO:

JESSICA BATSEVITSKY

jsb@maestatelaw.com

For educational purposes only. Massachusetts Chapter of the National Academy of Elder Law Attorneys, Inc., P.O. Box 67137, Chestnut Hill, MA 02467, USA. Privacy Policy and Legal Disclaimer on the website, www.massnaela.com. An independent Massachusetts non-profit 501(c)(6) organization affiliated with the National Academy of Elder Law Attorneys, Inc. Phone: (617) 566-5640, Fax: (617) 734-9758, Email: info@massnaela.com.

 

Curt F. Pfannenstiehl v. Diane L. Pfannenstiehl, 475 Mass. 105 (2016)

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In prior proceedings of this Massachusetts Supreme Judicial Court case, the Probate and Family Court of Norfolk County entered an amended judgment of divorce awarding Diane 60% of Curt’s interest in his father’s trust. The Appeals Court affirmed, but on August 4, 2016 the SJC vacated and remanded, holding that Curt’s remainder interest in his father’s trust was a mere expectancy and was thus not assignable to the marital estate. Although Diane argued that the ascertainable standard and standard of living analysis would give Curt a presently enforceable property right, the Court found Curt’s right to distributions too speculative. Curt was one of eleven beneficiaries in an open class subject to future beneficiaries, and distributions had not been equal by year or by beneficiary. The trust was therefore a mere expectancy of future assets and income in determining the division of property. The order was vacated and the case was remanded back to the Probate and Family Court.

Summary by: Kathryn E. Szewczyk, Bowditch & Dewey, LLP, Worcester, Framingham, Boston, Massachusetts

Chapter Bylaws

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BYLAWS OF THE MASSACHUSETTS CHAPTER
OF THE
NATIONAL ACADEMY OF ELDER LAW ATTORNEYS, INC.
FINAL MANAELA Bylaws
(as amended December 11, 2014)
ARTICLE I.
Name and Territorial Limits
Section 1. Name. This organization shall be known as The Massachusetts Chapter of the
National Academy of Elder Law Attorneys, Inc. (hereinafter referred to as the “Chapter”).
Section 2. Territorial Limits. The territorial limits of the Chapter shall be confined to the
Commonwealth of Massachusetts. These shall not be changed unless permission shall first have
been obtained from the governing body of the Chapter currently having jurisdiction in such
territory and the Board of Directors of the National Academy of Elder Law Attorneys, Inc.,
(hereinafter referred to as the “National Academy”).
Section 3. Principal Office. The principal office of the Chapter shall be at an address to be
designated from time to time by the Board of Directors. The Chapter may also have offices at
such other place or places within Massachusetts as the Board of Directors may from time to time
determine or the business of the Chapter may require.
ARTICLE II.
Objectives
The objectives of the Chapter shall be:
a. To provide information, education, networking opportunities, and assistance to
Massachusetts attorneys, bar organizations, and other individuals or groups advising
elderly clients, clients with special needs, and their families;
b. To promote high standards of technical expertise and ethical awareness among
attorneys, bar organizations and other individuals or groups advising elderly clients,
clients with special needs, and their families;
c. To develop public awareness and advocate for the benefit of the elderly, those with
special needs, and their families, by promoting public policies that support our
objectives;
d. To encourage involvement and enhance membership in, and to promote networking
among members, of the Chapter and National Academy; and
e. To carry out the purposes set forth in the Articles of Organization.
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ARTICLE III.
Classes of Membership
Classes of membership shall be identical to those described in the current bylaws of the National
Academy. All applicants who qualify for membership in the National Academy also qualify for
membership in the Chapter, except that the Chapter may limit the rights of members in
accordance with the membership guidelines of the Chapter, as may be developed by the Board of
Directors from time to time.
ARTICLE IV.
Admission to Membership, Termination and Resignation
Section 1. Application Procedure. Applicants for membership shall be admitted to membership
under the following procedure: an application for membership, signed by the applicant attesting
to the accuracy of the information presented, shall be submitted to the National Academy
indicating desired membership in the Chapter. The application will be accepted based on the
National Academy’s criteria of membership and remission of the appropriate dues and fees.
Section 2. Termination of Membership. Membership shall automatically cease in the following
cases:
a. Membership is revoked by the Board of Directors of the National Academy or the
Chapter;
b. A member who ceases to meet the National Academy’s membership criteria or the
Chapter’s membership guidelines;
c. A member who is suspended from the practice of law in any state or other
jurisdiction; or,
d. Any member who fails to pay dues within the defined time constraints.
e. A member resigns from the Chapter or from the National Academy by a writing
submitted to the National Academy Office.
Section 3. Rights upon Termination. Any person whose membership in the Chapter has been
terminated in any manner shall forfeit all interest in any funds or other property belonging to the
Chapter, and all rights to the use of the name, emblem, or other insignia of the Chapter.
ARTICLE V.
Officers
Section 1. Officers. The Officers of the Chapter shall be a President, a President-Elect, an
Immediate Past President, a Vice President, a Clerk and a Treasurer. All Officers shall be
considered to be members of the Board of Directors.
Section 2. Qualifications. Each Officer shall be a member in good standing.
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Section 3. Tenure. All Officers shall take office on the first day of January of each year
following their election, and shall serve for a term of one year, or until their successors shall be
duly elected and qualified.
Section 4. Duties of Officers. The duties of the Officers shall be as follows:
a. President. The President shall be the executive Officer of the Chapter, and shall
preside over all meetings of the Chapter and of the Board of Directors. The President
shall appoint and be an ex officio member of all Standing and Special Committees
and shall serve as the chief liaison to the National Academy. He or she shall perform
such other duties as usually pertain to the office of President. The President may call
and shall preside over meetings of the Executive Board.
b. President-Elect. The President-Elect, in the absence of the President, shall preside at
all meetings of the Chapter and of the Board of Directors and shall perform such
other duties as may be assigned by the President or the Board of Directors. It shall be
the primary responsibility of the President-Elect, with the advice of the Board of
Directors, to anticipate the duties of the President during the next Chapter year and to
develop goals and objectives for his or her term. The President-Elect shall organize
and preside over an annual retreat for the Board of Directors and shall prepare for
submission to the Board of Directors, , committee appointments and recommended
goals and objectives, no later than the first Board of Director’s meeting of his or her
term.
c. Immediate Past President. The Immediate Past President shall perform such duties as
may be assigned by the President or the Board of Directors.
d. Vice President. The Vice President, in the absence of the President and the PresidentElect,
shall preside at all meetings of the Chapter and of the Board of Directors. The
Vice President shall also perform such other duties as may be assigned by the
President or the Board of Directors.

e. Clerk. The Clerk shall be responsible for recording the minutes of the meetings of the
Board of Directors and of such other meetings as directed by the President. The
Clerk shall be responsible for circulating the minutes to the Board of Directors and
presenting the same for acceptance at the next Board of Directors meeting. The Clerk
shall be responsible for maintaining the minutes and such other records and
documents of the Chapter as may be appropriate within the Commonwealth and shall
make the same available to the Chapter members in accordance with the policies and
procedures established by the Board of Directors from time to time. The Clerk shall
keep written documentation of all votes by the members of the Board of Directors in
the absence of a meeting, which action is taken by the unanimous written consent of
all members of the Board of Directors, which may include e-mails, fax transmission
documents and other written consent by the members of the Board of Directors. The
Clerk shall submit all official reports required by the National Academy and laws
governing the conduct of the Chapter’s activities. The Clerk shall be a resident of the
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Commonwealth of Massachusetts unless a resident agent has been appointed by the
Chapter pursuant to law to accept service of process.
f. Treasurer. The Treasurer shall be responsible for receiving all funds paid to the
Chapter, shall deposit such funds in the Chapter’s official depositories, and shall
disburse such funds on the order of the Board of Directors. The Treasurer shall sign
or countersign all checks, shall at all times have the Chapter’s accounts and books
open to inspection by the President, the Board of Directors, and any authorized
auditors, and shall ensure that any annual audit or review mandated by the Board of
Directors is completed. The Treasurer will serve as the chair of the Finance
Committee. The Treasurer shall submit a proposed budget to the Board of Directors
for the following calendar year. The Treasurer shall make a report to the Board of
Directors at such other times as the President or the Board of Directors may require;
and shall be responsible for the completion and submission of forms required by laws
governing the administration and/or tax status of the Chapter.
ARTICLE VI.
Board of Directors
Section 1. Number. The Board of Directors shall consist of the Officers and a minimum of six
(6) and a maximum of twenty (20) elected Directors. At the discretion of the Board of Directors,
the Chapter Administrator (if one is employed) may be appointed to serve as an ex officio, but
non-voting member of the Board of Directors..
Section 2. Qualifications. Each Director shall be a member in good standing.
Section 3. Tenure. A minimum of three (3) Directors shall be elected annually and shall take
office on the first day of January of the year following their election. The term of office of all
Directors shall be two (2) years, except in cases of Directors elected to fill vacancies, or until
their successors shall be duly elected and qualified.
Section 4. Authority/Charge. The Board of Directors shall determine the policies and activities
of the Chapter, discipline members, approve the budget, approve all expenditures and authorize
all disbursements, take counsel with committees, and have general management of the Chapter
and its affairs. The Board of Directors may employ, or authorize the employment of, personnel
and fix the terms and conditions of such employment.
Section 5. Meetings and Quorum. The Board of Directors shall meet at least annually and at the
call of the President. Meetings may be called and set by teleconference, mail, email, or other
mode of communication then in common use. Meetings of the Board of Directors may be held
and Directors may participate in person or by teleconference communications, provided that all
persons participating in the meeting can hear each other at the same time and participation by
such means shall constitute presence in person at a meeting. Meetings of the Board of Directors
shall require a quorum for any action to be binding. A quorum shall consist of 51% of the
voting members of the Board of Directors.
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Section 6. Executive Board. There shall be an Executive Board, sometimes referred to as the
EBoard, composed of all of the Officers and the Chapter Executive ex officio, if one is
employed. The Board of Directors may assign to the Executive Board such duties and delegate
to it such powers as from time to time may seem advisable, such duties to be performed and
powers to be exercised only when the Board of Directors is not in session. The President, or in
his/her absence or inability to perform, the President-Elect shall have the power to call a meeting
of the Executive Board. The Executive Board shall maintain minutes of all action taken by it,
which shall be reported to the Board of Directors at its next meeting. The action of the
Executive Board shall be final to the same extent as though taken by the Board of Directors.
Section 7. Chapter Staff. There may be Chapter staff appointed by the Board of Directors, for
such periods, such compensation, and with authority, duties, facilities and assistance as the
Board of Directors may determine. Such Chapter staff may also include a Chapter
Administrator, shall have no vote and need not be a member of the Chapter.
Section8. Governance. The construction and interpretation of the Bylaws by the Board of
Directors shall, in the absence of prior interpretation and subject to subsequent interpretation by
the Board of Directors of the National Academy be final and binding.
Section 9. Removal. Any elected Officer or Director may, after due and proper hearing before
the Board of Directors, be removed from office due to failure or unwillingness or inability to
serve, malfeasance, or conduct unbecoming a member. In such a case, a vote of two-thirds (2/3)
of the entire Board of Directors shall be necessary to sustain the removal.
Section 10. Resignation. Any Director or Officer may resign by giving written notice to the
President or Clerk. Such resignation shall take effect at the time or upon the event specified
therein, or, if none is specified, upon receipt. Unless otherwise specified in the resignation, its
acceptance shall not be necessary to make it effective.
ARTICLE VII.
Nominations and Elections
Section 1. Election of Officers and Directors. The election of Officers and Directors by the
members of the Chapter, shall be held annually, by one of the following methods, as determined
by the Board of Directors: (a) at the annual meeting of the Chapter or (b) by ballot transmitted
by mail, email or such other means as determined by the Board, prior to the annual meeting as
set forth below.
Section 2. Committee on Nominations and Elections. At least two (2) months prior to the date of
the annual meeting, the President shall appoint a Committee on Nominations and Elections. The
duties of this committee shall be to solicit, receive and prepare nominations and to have general
charge of the election, including the preparation, distributions, collection and counting of the
ballots.
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Section 3. Procedure for Nominations. The Committee on Nominations and Elections shall
cause a ballot to be prepared containing the names of all nominees for the use of the members
during the election. Nominees selected by the Committee shall be published in the Chapter
newsletter or special bulletin and distributed to all members in good standing of the Chapter at
least 30 days prior to the annual meeting. In addition, nominations from the floor may be
presented at the annual meeting provided that written notice of such nominations shall have been
received by the Clerk of the Chapter at least fifteen (15) days prior to the annual meeting.
Section 4. Procedure for Voting of Officers and Directors. A simple majority of the votes cast
will elect Officers and Directors. Votes may be received by the Clerk and/or facilitated through
the Office of the Chapter Administrator. Where voting occurs at the annual meeting, voting may
be by written ballot, by voice, by a show of hands or other method as directed by the Board of
Directors. Where election occurs by mail, email or other such means as may be determined
acceptable by the Board, completed ballots shall be accepted no later than seven days prior to the
annual meeting. Completed ballots may be returned to the Clerk and/or Office of the Chapter
Administrator for tallying. Voting shall not be cumulative. There is no voting by proxy for the
election of Officers and Directors.
Section 5. Number of Votes Required. The nominee for each office, except that of Director,
receiving a majority of all votes cast shall be declared elected. In the case of the office of
Director, the number of nominees (for the number of Directors’ seats to be filled in accordance
with Article VI, Section 3 hereof) receiving the highest number of votes shall be declared
elected. An additional ballot or ballots shall be taken if necessary to determine which of two or
more candidates receiving an equal number of votes shall be elected.
Section 6. Vacancies. In the case of a vacancy in the office of President, the President-Elect
shall succeed to the office. In the case of a vacancy in the office of other Officers defined in
Article V, Section 1, or Director, such office may be filled by the Board of Directors at a regular
or special meeting of the Board as soon as possible after such vacancy has occurred.
ARTICLE VIII.
Committees
Section 1. Standing Committees. There shall be the following standing committees:
a. Ethics
b. Finance
c. Litigation
d. Membership
e. Nominations and Elections
f. Programming
g. Publications and Website
h. Public Policy
i. Public Relations
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Every committee shallbe responsible to the President and the Boardof Directors and shall make
such reports as the President or the Board of Directors may direct.
Section 2. Appointment of Committees. The members of each standing committee shall serve
for a term of one year, commencing on the first day of January. The chair of each committee
shall be appointed by the President, with the majority approval of the Board of Directors, for a
term of one year, commencing on the first day of January. Each committee chair shall appoint
committee members, subject to the approval of the President.
Section 3. Special and Standing Committees. The President, with the approval of a majority of
the Board of Directors, may create, terminate or change the duties of Special and New Standing
Committees. Special and Standing Committees shall perform such duties based on the needs of
the Chapter.
Section 4. Removal. Committee chairs and members shall be subject to removal by the
President.
ARTICLE IX.
Duties of Committees
Section 1. Ethics Committee. The Ethics Committee shall be responsible for developing policy
regarding ethical issues as directed by the Board, presenting the same to the Board of Directors
for adoption or action, and for investigating and addressing ethical complaints as directed by the
Board of Directors or the Executive Board, and shall perform such other duties as may be
directed by the Board.
Section 2. Finance Committee. The Finance Committee shall assist the Treasurer in overseeing
the handling of all Chapter funds and shall perform such other duties as may be directed by the
Board.
Section 3. Litigation Committee. The Litigation Committee shall be responsible for developing
and maintaining a litigation support system to address matters of concern to Chapter members or
their clients, and shall perform such other duties as may be directed by the Board.
Section 4. Membership. The Membership Committee shall study and recommend to the Board of
Directors ways and means of obtaining new members and maintaining membership, communicate
with individuals whose membership has been or is about to be terminated for failure to meet
standards and requirements prescribed in the Bylaws of the Chapter, keep the records of
membership and perform such other duties as may be directed by the Board.
Section 5. Nominations and Elections Committee. The Nominations and Elections Committee
shall nominate candidates to fill vacancies on the Board of Directors as directed by the Board of
Directors, shall prepare a slate of Officers and Directors to present to the general membership for
election all in accordance with these bylaws, and shall perform such other duties as may be
directed by the Board.
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Section 6. Programming Committee. The Programming Committee shall aid in the promotion
and development of continuing legal education and shall perform such duties as may be directed
by the Board.
Section 7. Publications and Website Committee. The Publications and Website Committee shall
be responsible for organizing, preparing and disseminating any publications produced by the
Chapter, and shall be responsible for developing and maintaining the Chapter’s website, and
shall perform such other duties as may be directed by the Board.
Section 8. Public Policy Committee. The Public Policy Committee shall be responsible for
identifying public policy issues relevant to the objectives of the Chapter. The Committee may
formulate a legislative agenda to address such issues if the Committee determines such an
agenda is appropriate. The Committee shall present any such legislative agenda to the Board of
Directors for approval. The Public Policy Committee may also develop public awareness and
engage in advocacy in favor of the issues relevant to the objectives of the Chapter, and shall
perform such other duties as may be directed by the Board.
Section 9. Public Relations Committee. The Public Relations Committee shall be responsible
for promoting the works of the Chapter and Chapter members, and shall perform such other
duties as may be directed by the Board.
ARTICLE X.
Meetings
Section 1. Number, Location and Calling of Meetings. The Chapter shall hold a minimum of
two meetings per year on such date and at such time and place as shall be determined by the
Board of Directors. It may hold such other meetings as the Board of Directors or membership
may desire. Special meetings of the members may be called by the President or the Directors,
and shall be called by the Clerk, or in the case of the death, absence, incapacity or refusal of the
Clerk, by any other Officer, upon written application of members representing at least ten
percent (10%) of the smallest quorum of members required for a vote upon any matter at the
annual meeting of members in good standing.
Section 2. Annual Meeting. The annual meeting of the Chapter shall be held in connection with
a regular meeting.
Section 3. Notice. The membership of the Chapter shall be given at least two (2) weeks written
notice of the place, date and hour of all meetings. Notice shall be deemed to have been duly
given, if by mail, email, or other such means as determined acceptable by the Board. Transmittal
shall be sufficient if sent to the last known contact information for that member on file. No
notice need be given to any member who waives such notice by a writing executed before or
after the meeting and filed with the records of the meeting or by his or her attendance at the
meeting without protesting at or before the commencement of the meeting the lack of notice to
him or her. No notice of adjourned meetings of the members need be given.
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Section 4. Quorum Requirement and Proxy Voting by Members. Except as provided in Article
VII, Section 4, with respect to the prohibition on voting by proxy for the election of Officers and
Directors, at all meetings of the members, or member votes by proxy or such other means as
determined by the Board, ten (10%) percent of the members then in good standing shall
constitute a quorum. Proxies may be used to satisfy quorum requirements at any meeting of
members, regardless of whether the proxies are used to vote on specific proposals presented at
the meeting. All voting by proxy shall be in accordance with the provisions of Chapter 180,
Section 6A (as may be amended) regarding the use of proxies, with the Directors in each
instance determining the form of proxy to be used and the procedures to be followed.
Section 5. Action at Meeting. Action may be taken upon a majority vote of those present at any
Chapter meeting where a quorum is present.
Section 6. Action Without Meeting. Any action that may be taken at any meeting (of the Board
of Directors, or of the members) may be taken without a meeting if all those entitled to vote on
the matter consent to the action in writing, including by email or other such written consent as
determined acceptable by the Board, and the written consents are filed with the records of the
meetings of the Chapter. Such consents shall be treated for all purposes as a vote at a meeting.
Section 7. Board Meetings. Regular meetings of the Board of Directors may be held, , at such
time and place as the Board of Directors may determine. Any Director not present at the time of
the determination shall be advised, in writing, of any such determination. Special meetings of
the Board of Directors, including meetings in lieu of the annual or regular meetings, may be held
upon notice at any time upon the call of the President and shall be called by the President or the
Clerk or, in the case of the death, absence, incapacity or refusal of the Clerk, by any other
Officer, upon written application, signed by any two Directors, stating the purpose of the
meeting. Members of the Board of Directors or any committee designated thereby may
participate in a meeting of such Board or committee by means of a telephone conference video
conference, or similar communications equipment by means of which all persons participating in
the meeting can communicate with each other at the same time. Participation in a meeting by
such means shall constitute presence in person at such meeting.
Section 8. Notice of Board Meetings. Whenever notice of any meeting of the Board of
Directors is required by these Bylaws or by vote of the Board of Directors, such notice shall state
the place, date and hour of the meeting and shall be given to each Director by the President,
Clerk or other Officer calling the meeting at least two days prior to such meeting if given in
person, by telephone, by email, or other such means as may be determined acceptable by the
Board, or at least four days prior to such meeting if given by mail. Notice shall be sufficient if
by mail, email or other such means as determined acceptable by the Board. Notice shall be
sufficient if sent to the last known contact information on file for that Director. No notice of
adjourned meetings of the Board of Directors need be given.
Section 9. Quorum and Voting Requirements for Board Meetings. At all meetings of the Board
of Directors, a majority of the members of the Board of Directors then in office, but in no event
less than two members of the Board of Directors, shall constitute a quorum. If a quorum is not
present, those present may adjourn the meeting from time to time until a quorum is obtained. At
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any adjourned meeting at which a quorum shall be present, any business may be transacted
which might have been transacted if the meeting had been held as originally called. At any
meeting of the Board of Directors, the vote of a majority of those present shall decide any matter
except as otherwise provided by law, the Articles of Organization of the Chapter or these
Bylaws.
ARTICLE XI.
National and State Affiliation
Section 1. Obligations. In recognition of the values of cooperation available to the Chapter and
its members through its privileges and rights of participation in the government and activities of
the National Academy, it is hereby declared a major policy of the Chapter to exercise fully those
privileges and rights, and to discharge promptly all lawful obligations imposed upon it by the
National Academy.
Section 2. Reports. The Board of Directors shall provide for the prompt review, approval and
forwarding of all reports required or requested by the National Academy.
Section 3. Dues. The Board of Directors shall provide for the prompt payment of all dues and
other indebtedness owed by the Chapter to the National Academy.
ARTICLE XII.
Revenue
Each member of the Chapter shall pay annual dues as set by the Board of Directors.
ARTICLE XIII.
Finance
Section 1. Fiscal Year. The fiscal year of the Chapter shall begin on the first day of January of
each year.
Section 2. Budget. Not later than the date of the annual meeting of the Chapter each year, a
budget of estimated income and expenditures for the fiscal year shall be adopted by the Board of
Directors.
Section 3. Review of Books. The Chapter’s book of accounts shall be reviewed at least once
each year. The reviewers may be a group of members or an outside entity so appointed by the
Board of Directors.
Section 4. Banking. The Board of Directors shall determine the official depository or
depositories for Chapter funds and shall designate one or more persons in addition to the
Treasurer to sign or countersign checks or other documents for the disbursement of such funds,
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provided, however, that the signature of only one, acting singly, of the Treasurer or such other
designated person shall be permitted for such checks or other documents for the disbursement of
such funds.
Section 5. Dissolution. Upon dissolution of the Chapter, all remaining assets shall be
transferred to the National Academy, unless otherwise required by law or by applicable
provisions of the Internal Revenue Code of 1986, as amended, or any regulations promulgated
thereunder. No part of the assets distributed shall be paid to or inure to the benefit of any
individual.
ARTICLE XIV.
Rules of Order
“Roberts Rules of Order Newly Revised,” as same may be revised from time to time, shall be the
parliamentary authority for all matters of procedure not specifically covered in these Bylaws.
ARTICLE XV.
Approval of Bylaws and Amendments
Section 1. Approval of Amendments. Any amendment of these Bylaws, if in conformity with
the policy of the National Academy, may be adopted by a two-thirds (2/3) vote of the members
present, including by proxy, at any meeting of the Chapter; provided that written notice,
including notice by e-mail, or such other means as the Directors shall approve, of the meeting
and of the proposed amendment shall have been given to the members at least seven (7) days
prior to the meeting.
Section 2. Effective Date. Notwithstanding the provisions of Section 1, these Bylaws and any
amendments thereto shall be effective only when submitted to and approved by the Chapter and
the National Academy. True copies of these Bylaws and all such amendments shall be made
available by the Clerk of the Chapter to the Chapter Administrator and the National Academy.
ARTICLE XVI.
Indemnification; Limitation of Liability; Conflict of Interest
Section 1. Requirements for Indemnification. The Chapter shall, to the extent legally
permissible and only to the extent that the status of the organization as an organization exempt
under Section 501(c)(6) of the Internal Revenue Code is not adversely affected thereby,
indemnify each of its Directors, Officers, employees and other agents (including persons who
serve at its request as Directors, Officers, employees or other agents of another organization in
which it has an interest) against all liabilities and expenses, including amounts paid in
satisfaction of judgments, in compromise or as fines and penalties, and counsel fees, reasonably
incurred by him or her in connection with the defense or disposition of any action, suit or other
proceedings, whether civil or criminal, in which he or she may be involved or with which he or
she may be threatened, while in office or thereafter, by reason of his or her being or having been
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such a Director, Officer, employee or agent, except with respect to any matter as to which he or
she shall have been adjudicated in any proceeding not to have acted in good faith in the
reasonable belief that his or her action was in the best interests of the organization; provided,
however, that as to any matter disposed of by a compromise payment by such Director, Officer,
employee or agent, pursuant to a consent decree or otherwise, no indemnification either for said
payment or for any other expense shall be provided unless such compromise payment shall be
approved as in the best interest of the Chapter: (a) by vote of a majority of the disinterested
Directors then in office (even though the disinterested Directors be less than a quorum); or (b) by
a majority of the disinterested Directors then in office, provided that there has been obtained an
opinion in writing of independent legal counsel to the effect that such Director, Officer,
employee or agent appears to have acted in good faith in the reasonable belief that his or her
action was in the best interest of the organization; or (c) by a majority of the disinterested
members entitled to vote, voting as a single class. Expenses, including counsel fees, reasonably
incurred by any such Director, Officer, trustee, employee or agent in connection with the defense
or disposition of any such action, suit or other proceeding, may be paid from time to time by the
Chapter in advance of the final disposition thereof upon receipt of any undertaking by such
individual to repay the amounts so paid to the Chapter if he or she shall be adjudicated to be not
entitled to indemnification under Massachusetts General Laws, Chapter 180, which undertaking
may be accepted without reference to the financial ability of such person to make repayment.
The right of indemnification hereby shall not be exclusive of or affect any other rights to which
any Director, Officer, employee or agent may be entitled. Nothing contained herein shall affect
any rights of indemnification to which corporate personnel may be entitled by contract or
otherwise under law. As used in this paragraph, the terms “Director”, “Officer”, “employee” and
“agent” include their respective heirs, executors and administrators, an “interested” Director is
one against whom in such capacity the proceedings in question or another proceeding on the
same or similar grounds is then pending, and a “disinterested” person is a person against whom
no such action, suit, or other proceeding is then or had been pending or threatened. No
amendment or repeal of the provisions of this paragraph which adversely affects the right of an
indemnified party under this paragraph shall apply with respect to such indemnified party’s acts
or omissions that occurred at any time prior to such amendment or repeal, unless such
amendment or repeal was voted for by, or was made with the written consent of, such
indemnified party.
Section 2. Insurance. By action of the Board of Directors, notwithstanding any interest of the
Directors in such action, the Chapter may purchase and maintain insurance, in such amounts as
the Board of Directors may from time to time deem appropriate, on behalf of any person who is
or was a Director, Officer, employee or other agent of the organization, or is or was serving at
the request of the Chapter as a Director, Officer, employee or other agent of another organization
in which it has an interest, against any liability incurred by him or her in any such capacity, or
arising out of his or her status as such, whether or not the Chapter would have the power to
indemnify him or her against such liability.
Section 3. Liability to the Chapter. No Officer or Director of the Chapter shall be liable to the
Chapter or its members for monetary damages for breach of fiduciary duty as an Officer or
Director notwithstanding any statutory provision or other law imposing such liability, except for
liability of an Officer or Director (i) for any breach of the Officer’s or Director’s duty of loyalty
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to the Chapter or its members, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, or (iii) for any transaction from which the
Officer or Director derived an improper personal benefit.
Section 4. Contracts and Transactions by Officers and Directors. No contract or other
transaction of the Chapter shall, in the absence of fraud, be affected or invalidated by the fact
that any member, Director or Officer of the Chapter or any organization, firm or association of
which he or she may be a director, officer, stockholder or member may be a party to or may have
an interest, pecuniary or otherwise, in, any such contract or other transaction, provided that the
nature and extent of his or her interest was disclosed to, or known by, the entire Board of
Directors before acting on such contract or other transaction. Except in the case of any contract
or other transaction between the Chapter and any other organization controlling, controlled by or
under common control with the Chapter, any Director of the Chapter who is also a director,
officer, stockholder or member of any organization, firm or association with which the Chapter
proposes to contract or transact any business, or who has an interest, pecuniary or otherwise, in
any such contract or other transaction, may not be counted in determining the existence of a
quorum at any meeting of the Board of Directors which shall authorize any such contract or such
transaction, and such Director shall not participate in the vote, at any such meeting, to authorize
any such contract or transaction. Any such contract or transaction may be (but need not be)
authorized or approved by a vote taken by unanimous written consent signed by all of the
Directors then in office, excluding any interested Director(s), provided that the Directors entitled
to vote thereon at a meeting shall in such instrument affirm that they have independently
reviewed the contract or transaction and have determined that said contract or transaction is fair,
reasonable and in the best interests of the Chapter.
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