What is "Elder Mediation" (a.k.a. "adult family mediation")?

By: J. Bernstein What is Elder Mediation you ask? I know, I know, it sounds like someone is brought in to act as a fight referee in a nursing home. Can't you just see me now...running into the middle of two or three senior citizens who are wielding canes as swords? The truth is that "elder mediation" is used because nobody is able to come up with a better term. The goal of elder mediation is to allow families to come together with a third party neutral and attempt to come to an agreement as to how to care for an elderly relative. Hopefully, through mediation family members and other interested parties can come to an agreement without having to go through the painful process of going to court.

Unfortunately the need for families to come together and make decisions about the care of an older relative often comes when the elder is physically and/or mentally ill. If previous plans are not in place (ex: power of attorney or a living will) relatives are faced with many tough decisions. The issues that families often confront are: whether to care for a relative at home or place them in an assisted living situation; who will manage the elder's finances; who will pay for the elder's care; whether property owned by the elder should be sold or passed to another family member; and what type of care and life saving measures are desired for the elder?

All of the issues confronting family and friends are subjects replete with emotion and history. They gnaw at people and lead them to act in ways even they do not expect. Unfortunately, years of these emotions build up and seem to come to a head when decisions need to be made. These emotions often lead to anger and resentment between family members and arguments over the care of their relative. Bringing a mediator into the process as early as possible may assist to quell some of the emotions and arguments or allow you to feel the freedom to express emotions and desires not yet revealed. The mediation process allows family members to make agreements regarding their relative without court intervention and can lead to settling court disputes without the interference of a judge. Mediation also affords people the opportunity to preserve relationships with each other because it is not adversarial like going to court.

Making life decisions about an aging relative is often heartbreaking. If you are confronted with these issues, just remember that the mediation process can assist family and friends in coming to an agreement about the care of their loved one.

Your Tax Refund and Personal Bankruptcy

It's tax season and a question asked by many people is: "Do I need to report my tax refund?" The short answer is yes, your tax refund is part of the bankruptcy estate. However, you and/or your attorney may be able to use an exemption to allow you to keep all (or at least a potion) of your refund. Here's my little disclaimer before you read the rest of this blog...every case is different and every state is different. What's in this article is a general analysis under the federal code.

I guess it makes sense to explain and define the term "bankruptcy estate." I'll use Chapter 7 personal bankruptcy as an example. Under Chapter 7 all property and assets owned by the person filing bankruptcy (the debtor) are put into a big 'ole pot. This pot is called the bankruptcy estate. The technical definitions and requirements are found in the United States Code at 11 U.S.C. 541. This estate is then administered by a bankruptcy trustee whose job it is to liquidate any assets and administer payments to creditors. The point here is that your tax refunds are considered an asset and must be reported as part of your bankruptcy petition. But, as always, depending on the circumstances of each case you may have the ability to retain part of your refund.

After reporting the tax refund as an asset (along with all other assets) the bankruptcy code allows for certain exemptions (meaning you may keep some equity). When filing for bankruptcy you may choose either the federal exemptions (found at 11 U.S.C. 522(d)) or the state exemption/other federal exemption scheme. Here, I am going to explain how it is possible to use the exemptions found at 11 U.S.C. 522(d) in order to retain all or part of a tax refund. The code enumerates twelve categories of exemptions, unfortunately none of them say "tax refund." However, you may be able to exempt your tax refund under 11 U.S.C 522 (d)(5) which is also known in the biz as the "wild card" exemption.

The wild card exemption allows a debtor to exempt up to $1,075 an any property (the amount of this and all other exemptions changes every three years and is scheduled to change again this coming April). So, you can choose to exempt up to $1,075 of your tax refund under this subsection. Additionally, 11 U.S.C. 522(d)(5) allows the debtor to use up to $10,125 of the unused portion of their homestead exemption (11 U.S.C. (d)(1)). The homestead exemption is just what it sounds like. It lets the debtor exempt up to ($20,200) of equity in the property that the debtor uses as a residence. So, if you have money left over from subsection (d)(1) you can also use that to exempt the tax refund.

Like I've said, exempting a tax refund may not work in every case, but it's something to keep in mind. I guess the moral of the story is this...don't forget to report your tax refund to your attorney (and to the court). Also, remember to plan your exemptions accordingly.

Rock Poster Art, Artists and the Law: One Lawyer's Journey into her Brother's Comic Book Life

By: J. Bernstein

Being the little sister of a comic book geek (I mean artist) constantly brings me to the most interesting places to meet people that I would never normally have the chance to know. Most recently, I had the pleasure of attending the Royal Flush art, film and rock & roll festival in NYC where my brother launched the newest installment of Royal Flush Magazine. At the festival I had the pleasure of viewing a fascinating screening of American Artifact, a documentary about rock poster artists, directed by Merle Becker. During this documentary I learned about the history and emergence of rock poster art the influence of this art on American society (and society's influence on the art) and the contemporary metamorphosis of the art. Rock poster art is becoming somewhat of a viable business now and older creations have become collectors pieces. So what does that bring with it? You guessed it, a host of legal issues. Shockingly, these legal issues are where I automatically focused my attention.

That's right, law school and layering have brainwashed me to see the legal issues surrounding every situation. So, I guess this post is more of a caution to my beloved illustrators and artists of all types...watch your butts (and CYA). Your talents have brought you to a place where you are now on the radar of main stream media, mainstream bands and more notably mainstream record labels. AND YOU ARE ON THE RADAR OF THEIR ATTORNEYS.

Your artwork began in its purest form. You took the music you loved and created visual masterpieces out of the songs you heard. You made these posters to promote the bands you admired and to encourage others to appreciate the music you adored. You created them by hand, in your bedroom, in your garage, in a library, or apparently, even at kinkos. At first you had no monetary interest in creating this artwork, but admit it, somewhere down the line that little thought popped into your head...maybe I can make a little bit of money doing this? Hey, it's a win win situation right? I get to keep creating AND I get to eat. It's the American dream right? Well...we all wish that were the case don't we?

Unfortunately, with mainstream recognition the bands, their managers, their labels and their big bad lawyers are going to want a piece. I know a select few poster artists have already received cease and desist orders from record labels and as the popularity of the art form grows, so will the legal backlash. Why else may you need a lawyer? CONTRACTS!!!!! Yes people, you may be able to keep these bands and their labels as PAYING CLIENTS and a properly drafted contract is the key to saving you time and headaches in the future.

So artists, don't forget that there may be consequences to your actions but more importantly BE PROACTIVE AND DON'T SELL YOURSELF SHORT!

Foreclosure Mediation – a good idea?

By: M. Yang Massachusetts is one of many States contemplating, if not already passed, a law on mandatory mediation prior to lenders foreclosing on residential mortgages. There is no doubt that MA residents are faced with financial struggles that impact not only their jobs but the domino effect of losing their homes to foreclosure when they lose their jobs or hours. So is this a good idea for MA residents? To answer, let’s take a look at the proposed legislation.

Representative Vincent A. Pedone of Worcester, 15th district, proposed House Bill 1649 (and Bill 4003) earlier this year. There are also Senate Bills 1805 and 1725 by Senator Spilka of Middlesex and Norfolk proposing a program for mediation in foreclosure proceedings. Specifically, the House Bill states, “in that program the mortgagor will have the opportunity to negotiate an agreement with the mortgagee. The mortgagor is encouraged to meet with a housing counselor or attorney prior to mediation.” All of these bills propose that the homeowner be given the right to participate in mediation (if exercised, the lenders must also participate) before a Court grants a lender a judgment for foreclosure sale.

So yes, this is a good idea, mostly because it gives the individuals an opportunity to sit down with a live person representing the big lenders, presumably, with authority to make a deal. That seems to eliminate one of the biggest hurdles in dealing with a foreclosure machine, that is the bank. The biggest benefit if these bills pass goes to those who have an income but not enough to make their mortgage payments. It will not help those who lost their income all together. This makes sense because the lenders probably will not “negotiate” a lower payment, higher interest, give the borrowers more time to make payment or any other options if there’s no income at all. So what’s the incentive for lenders to negotiate? It’s more cost effective to get something (if not the full payment) than to spend the tens of thousands of dollars it takes to foreclose on a property. Therefore, if you have SOMETHING to offer, the lenders (should) listen.

So who are you going to get as a mediator? The big difference between the House and Senate bills are that the House bill calls for court employees as the mediators. This is a huge burden on the Courts and its budget since mediators need a 33-40 hour training for confidentiality to be upheld. The Senate bill, on the other hand, allows mediators who “provide mediation services for the attorney general or are mediators for current approved community mediation”. This broader definition of those who can mediate seems to be a better option since the Court employees are already stretched thin.

It’s a good idea but is this going to happen? Well, simply put, SHOW ME THE MONEY! The House bill doesn’t specifically seek a dollar amount but only states, “the money necessary to establish and operate the foreclosure mediation program shall be appropriated to the judicial department.” The Senate bill gives power to the Attorney General to implement the program and train the mediators but “subject to appropriation.” So at the end, these legislators have good intentions and have made the first step in the right direction but without clear cut and ample appropriation towards implementing these mediation programs, the light seems dim.

No Contact Orders Must Include Social Media (Facebook, Twitter...)

By: J. Bernstein That's right folks the internet has changed the world. With the advent of Facebook and instant messaging nobody can hide from their internet viewers. Hell, I just Googled myself and found a site that tracks my entire family history. So, what happens when a person seeks the protection of the court system and receives a no contact order? Does that order include contact through social networking sites? In my humble opinion, it must or there is no real protection.

No contact orders are an unfortunate necessity for those seeking protection from threats, intimidation and bodily harm. If an offender is ordered not to contact a victim they are prohibited from being in the physical presence of, speaking to or calling the victim. As it stands now there is a gray area when considering contact through social media such as Facebook, Linkedin, Myspace, Twitter and whatever the next web-craze ends up being.

Therefore, the formation and drafting of a the no contact order becomes even more important. All parties should be informed at the outset the parameters of the non contact. In drafting the Complaint (the way the case is brought to court--for our non lawyer friends) the plaintiff should make a conscious effort to include language such as "defendant is ordered NOT to contact plaintiff by any internet, email and/or social media, including but not limited to: America Online, Gmail, Yahoo, Hotmail, Facebook, Myspace, Linkedin and Twitter."

The moral of the story...a no contact order should include no poking, no picking, no tweeting, no twiting, no winking, no linking, no smooching, no smiling and most important NO CONTACTING.

Consumer Bankruptcy 101: The Pros & Cons of Chapter 7 (educational lecture)

Please join Bernstein & Yang, LLP for this informative lecture on Monday, November 9th from 7:15 PM to 8:00 PM at the Cambridge Community Center (http://www.cambridgecommunitycenter.org/). The Center is located at 5 Callender St., Cambridge, MA 02139.

Founding partners of Bernstein & Yang, LLP, Jennifer S. Bernstein and Marianna J. Yang are offering a lecture about consumer bankruptcy. This lecture explains the basics of filing a consumer bankruptcy and informs participants of the effects bankruptcy may have on people’s lives. This event is free and open to all members of the general public.

An RSVP is appreciated but not required. Please RSVP to Jennifer Bernstein by email at jbernstein@bernsteinyang.com or by phone at (617) 973-5029.

What Can Consumer Bankruptcy (Chapter 7) Do For You (your five minute primer)?

By: J. Bernstein. I’ve often been asked the simple question…”what can consumer bankruptcy do for me?” To which my response is usually…”it depends on your specific situation and you also need to know what it can’t do for you.” So, here is a quick hit list for those of you with this question. Of course this list is not exhaustive, but solely intended to give you a short overview of the possible benefits to filing a consumer bankruptcy.

What CAN a consumer bankruptcy do? Some benefits may include:

• “discharge” (elimination of your obligations) of most of your consumer debts


• lower your periodic payments on some of your debts


• stop the garnishment of your wages


• stop harassment from debt collectors and stop other debt collection activities


• prevent termination of necessary utility services


• stop home foreclosure/allow you to cure a default


• stop automobile and some personal property repossession

What consumer bankruptcy CAN NOT do? When filing for consumer bankruptcy usually you can not:

• discharge debts that you incurred after filing for bankruptcy


• discharge most student loans


• discharge child support/alimony payments


• discharge criminal fines


• discharge taxes


• discharge the duties of those who have cosigned on your loans


• discharge the debt from certain secured creditors.

So, there is your five minute primmer. As I said, your individual circumstances will always determine whether consumer bankruptcy is the best course of action.