Monthly Archives: April 2010

Trusts, Estates, Adopted Children, and Unintended Consequences

We’ve all had experiences where intentions and results are not always the same thing.  Assuming good faith, laws sometimes have unintended consequences.

Last year, legislation dealing with adopted children and trust instruments was passed that became known as Chapter 524 of the Acts of 2008. At the Boston Bar Association, warning bells went off among our Trusts and Estates Section.

A bit of background. . . What once seemed like a benign piece of narrowly written legislation had been filed numerous times over the years – without garnering much attention.  Public hearings were held and the bill would sometimes make its way out of committee or be put into a study order for further review.

During the last legislative session, this same bill finally found its way to a different committee whose jurisdiction seemingly had nothing to do with trusts and estates law. Following a public hearing, this bill received a favorable report from the committee.  The bill made its way through the process and eventually got signed into law by the Governor.

This sounds fine, but almost 10 months after the public hearing and the committee’s action, the bill was amended to include a group of people I’d find it hard to believe were contemplated by the original bill.

Much to the dismay of trusts and estates practioners, the new law actually changed the clearly understood rule of construction that applied to terms like “child,” “grandchild” and “issue” in wills, trusts and similar instruments executed before August 26, 1958.  (In 1958, the Legislature modernized our law to presume that adopted persons are included in these terms unless the instrument plainly states otherwise, and made the law applicable only to instruments executed after its effective date.)

Caught by surprise, the trusts and estates bar and banks and other professional trustees were left scrambling to review all pre-1958 trusts to determine which ones were affected by this sweeping change.

After analyzing the substance and implications of Chapter 524, the BBA and others began to work on a repeal of this new law.  The best we could do in the short term was secure a postponement of its implementation until July 1, 2010.  While this was a small victory, the process has begun again.

The BBA and others are still working on this issue. Amendment 367, filed in the House budget, will not only repeal chapter 524 but also create a retroactive, blanket immunity for trustees who either acted (or failed to act) in relation to it.

In the midst of a week of potentially tough votes, legislators are contemplating almost 870 amendments dealing with spending, revenue and reform.  Let’s hope that Amendment 367 will be adopted.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

A Really Bad Sports Analogy: BBA Lobbying Marathon (of sorts) in DC

Washington, D.C. – Here for an American Bar Association lobbying day on Capitol Hill that will emphasize the need for federal funding of legal aid for poor people, I had an interesting conversation with a guy whose accent quickly gave him away as being from a state with elected judges and a reputation of “pay to play” justice. Realizing I was from Massachusetts, he seemed eager to talk about the Boston Marathon.  He knew a lot about the route, Heartbreak Hill, which he told me is actually just 4 rolling hills between mile 20 and 21.  He’s read a lot of books on what it takes to be successful running a marathon.  This brings me to his bad sports analogy.

Just as I was about to wish him good luck on his Hill visits , he said that one could equate preparing for and attending ABA Day in Washington to training for a marathon.  I had to hear him out.

A little background on my southwestern colleague’s DC visit compared to mine. . .  He’s spending 5 days in DC — with two full days before the two day meeting.  By contrast, the Massachusetts contingency is squeezing everything into one jam packed day (following a welcome dinner the evening before).  He says he spends his first two days walking the route between the Senate and Congressional office buildings.  He likes to scope out the public entrances and assess how crowded the doors are in the morning at the very time he would be arriving for his meetings.

As he said, marathoners do this too.  They read about the course, drive the course and some even run parts of the course during training.  I believe him.  He’s meeting with 3 members of his Congressional delegation tomorrow and three on Thursday.

We are meeting with 8 members of our delegation starting at 9:30 a.m. today. Our last meeting begins at 3:45.  Here’s hoping this gives us enough time to make our 6:30 p.m. flight back to Boston.  I’m already wondering if I’m going to remember which building is next to which and whether or not we have enough time to get from a 10:30 am meeting in Rayburn to a 11:00 am meeting in Longworth.

My colleague offered three comparisons between our lobbying day tomorrow and a marathon:

(1) Lobbying days and marathons are long and difficult.  I’m not so sure I’d describe the lobbying day as difficult per se. Exhausting yes but not difficult.

(2) Lobbying days and marathons require staying on the course.  Why run over 26 miles if you can’t stay on  course?  We intend to take full advantage of the time we have during our meetings to outline the importance of Legal Services Corporation.  So I won’t take the time to ask Mike Capuano what happened in the primary and to pull Scott Brown aside and ask him if he’s pinched himself yet.

(3) Lobbying days and marathons require breaks and staying hydrated.  I’m convinced we’re not going to have more than a quick lunch break tomorrow.  So I really hope the ABA provided boxed lunch will be the fuel we need to get through our afternoon meetings.

The marathon analogy is a great lesson on persistence and staying on course.  Marathons and ABA Day in DC are not for the weak or weary — no matter if you spread your meetings out over two full days or if you cram 8 meetings into a little more than 6 hours.  Being from Massachusetts we are lucky that our Congressional delegation has such a strong history of support for LSC. Legal Services Corporation is the nonprofit agency that receives and disburses congressional funding to legal aid organizations. The BBA’s Volunteer Lawyers Project is one of their beneficiaries and last year Massachusetts received over $6 million in funding from LSC.  We will be lobbying on two specific issues.  The first issue is the reauthorization for LSC.  LSC has been operating since 1981 without a renewed authorization and exists by virtue of its annual appropriation.  The second issue we are looking for support is for a $20 million increase for LSC.

While our approach to the effort may resemble more of a full sprint than a marathon we will work hard to urge Congress to support legal aid.

– Kathleen Joyce

The House Ways and Means Budget Is Out. Now What?

We have our work cut out for us. While casino gambling dominates the headlines and a veto-proof Casino bill moves to the Senate, the House prepares to debate the $27.8 billion budget released by House Ways & Means Chairman Charley Murphy yesterday. That debate is scheduled to begin on Monday April 26th.

Here’s what worries us. As a report released last month by the Boston Bar Association Task Force on the FY2011 Judiciary Budget, our courts are operating on the margins. And as Joan Lukey, the Chair of that Task Force told Neighborhood Network News’ Chris Lovett a few weeks ago, we hope it doesn’t take a tragedy to demonstrate the need for adequate funding of our state courts. Needless to say, what’s at stake is nothing less than public safety and timely access to justice for everyone – including a lot of people in dire straits.

The budget released yesterday provides cold comfort for our state courts. Alas the Massachusetts Trial Court budget took a hit to the tune of $36.7 million. Given the court’s maintenance request of $565.8 million, the House Ways & Means proposed budget of $529.1 million will undoubtedly curtail access to justice at a time when the Commonwealth can least afford it.

We certainly appreciate the fact that House Ways & Means remains dedicated to the importance of civil legal aid for poor people – allocating $9.5 million (level funding) to the line item for the Massachusetts Legal Assistance Corporation – we need to continue to remind the Senate of the importance of level funding for legal aid. Just in case you’ve been out of the loop, the need for legal aid has increased as legal resources have plummeted.

While MLAC and also District Attorneys’ offices were level funded, the Committee for Public Counsel Services was funded at $192 million, or about $18 million less than their request for Fiscal Year 2011.

We will continue to keep a watchful eye on activities in the House while working to press the importance of adequate funding for state courts, civil legal aid, and CPCS in the Senate.

– Kathleen M. Joyce

Government Relations Director

Boston Bar Association