Ruggiero Law Blog

Monday, November 28, 2016

Should a Non-Compete Agreement be in place to Protect your Business?

Courts typically disfavor “covenants not to compete” or “non-compete agreements.”  Therefore, the terms and provisions of these contracts must not be overly restrictive of the employee.  In order for a non-compete to be upheld, the document must “be reasonable in scope, geography, and time.”  It cannot last for years on end, or prevent the employee from working anywhere in the entire state. Likewise, an employer cannot prohibit an employee from working in a large variety of industries, especially if the restriction includes industries wholly unrelated to the employer’s line of work. 

Two other elements are analyzed by a court to determine the validity of a non-compete agreement:  (1) there must be mutual consideration between both the employer and employee at the moment the contract is signed and (2) the non-competition agreement must protect “a legitimate business interest of the employer.”  Preventing a former employee from working for an employer’s business rival, or preventing disclosure of trade secrets or personally identifiable information of important clientele, are typically considered justifiable business interests.

Non-compete agreements are generally implemented to protect a company’s most important assets:  its reputation and its confidential information.  However, the terms protecting these assets cannot be overly broad or vague.  Thus, in evaluating the “reasonableness” of a non-competition agreement, the court will conduct a “balancing test.”  This is a comparison of the employer’s need to protect its “business interests” with the “burden that enforcement of the agreement would place on the employee.” 

The validity of non-compete agreements is decided on a case-by-case basis. The court will consider circumstances such as the length of time certain information will be kept confidential, and the company’s reasons for limiting the employee's job search to a geographical area. If the court finds that the agreement serves a valid interest and does not exceed the range necessary to protect that interest, the entire agreement may be upheld. 

The court also has the option of doing away with overly intrusive terms in a non-compete, rather than invalidating the agreement entirely. In cases in which a non-compete is perceived by the court as punitive, unduly restricting an employee from obtaining employment, the agreement will not be upheld.  A licensed attorney who specializes in employment law will be able to gauge the likelihood that a particular non-compete agreement will be enforceable.


Monday, October 24, 2016

Medicaid Planning: Not Just for the Medicaid-Eligible Spouse


 

Families of individuals who need skilled care are often confronted with a mix of challenges and emotions, including worry, anxiety, concern, and fear. These stem from concern about their loved one’s health and safety, as well as a concern that they will lose their home or everything they own to a nursing home. Some families have heard of Medicaid planning, but this term sometimes has an unwarranted stigma attached to it in the minds of many. These concerns stop some families dead in their tracks. However, we all have heard the adage: failure to plan is planning to fail.
Read more . . .


Thursday, September 29, 2016

Do your College Age Children have a POA and HIPAA Release?


It is one of the biggest days of your life and theirs. It is the day you finally send your child off to college.  On that day you will probably realize that they aren't a kid anymore, and so will the law.  When your child becomes 18 you are no longer able to access their medical records.  So if they have a drastic accident or illness during their collegiate years, you may not receive communication from medical personnel and will be legally unable to help them.


Read more . . .


Tuesday, August 23, 2016

Why shouldn't I use a form from the internet for my will?

In this computer age, when so many tasks are accomplished via the internet -- including banking, shopping, and important business communications -- it may seem logical to turn to the internet when creating a legal document such as a will . Certainly, there are several websites advertising how easy and inexpensive it is to do this. Nonetheless, most of us know that, while the internet can be a wonderful tool, it also contains a tremendous amount of erroneous, misleading, and even dangerous information.

In most cases, as with so many do-it-yourself projects, creating a will most often ends up being a more efficient, less expensive process if you engage the services of a qualified attorney.  Just as most of us are not equipped to do our own plumbing repairs or automotive repairs, most of us do not have the background or experience to create our own legal documents, even with the help of written directions.


Read more . . .


Thursday, August 4, 2016

What is a tax basis and how will affect my estate plan?

A tax basis is essentially the purchase price of a piece of property. Whenever that property is sold, the seller must pay taxes on the difference between the sale price and the original purchase price. This concept applies to all property, including stocks, bonds, vehicles, mechanical equipment, and real estate. If debts are assumed along with the purchase price, the principal amount of the debt will be included in the basis. The basis can be adjusted downwards when a person deducts depreciation costs on his or her income tax returns, and may be increased for capital investments towards improving the property that are not deducted for income tax purposes.


Read more . . .


Thursday, June 30, 2016

Advance Planning Can Help Relieve the Worries of Alzheimer’s Disease

The “ostrich syndrome” is part of human nature; it’s unpleasant to observe that which frightens us.  However, pulling our heads from the sand and making preparations for frightening possibilities can provide significant emotional and psychological relief from fear.

When it comes to Alzheimer’s disease and other forms of dementia, more Americans fear being unable to care for themselves and burdening others with their care than they fear the actual loss of memory.  This data comes from an October 2012 study by Home Instead Senior Care, in which 68 percent of 1,200 survey respondents ranked fear of incapacity higher than the fear of lost memories (32 percent).

Read more . . .


Tuesday, June 21, 2016

Legal Concerns for Businesses Engaged in Social Networking


Legal Concerns for Businesses Engaged in Social Networking

Social media is a phenomenon and in this day and age, it is rare that an individual, organization or business does not utilize it.  The use of websites like Facebook, Twitter and Linkedin can be of great benefit to your business and can assist in advertising, marketing and branding.  But, it is important to remember that their use is not without legal pitfalls.

While there are many issues to address when your business is considering entering the social media realm, some are more poignant than others.  Because the purpose of social media is to share information and to do so rapidly, privacy is a major concern.
Read more . . .


Friday, June 10, 2016

When is a person unfit to make a will?


Testamentary capacity refers to a person's ability to understand and execute a will. As a general rule, most people who are over the age of eighteen are thought to be competent to make and sign the will. They must be able to understand that they are signing the will, they must understand the nature of the property being affected by the will, and they must remember and understand who is affected by the will. These are simple burdens to meet. However, there are a number of reasons a person might challenge a will based on testamentary capacity.
Read more . . .


Tuesday, May 31, 2016

Is a Life Estate a solution to your long-term care plan?

Overview of Life Estates

Establishing a Life Estate is a relatively simple process in which you transfer your property to your children, while retaining your right to use and live in the property. Life Estates are used to avoid probate, maximize tax benefits and protect the real property from potential long-term care expenses you may incur in your later years. Transferring property into a Life Estate avoids some of the disadvantages of making an outright gift of property to your heirs. However, it is not right for everyone and comes with its own set of advantages and disadvantages.

Life Estates establish two different categories of property owners: the Life Tenant Owner and the Remainder Owner. The Life Tenant Owner maintains the absolute and exclusive right to use the property during his or her lifetime. This can be a sole owner or joint Life Tenants. Life Tenant(s) maintain responsibility for property taxes, insurance and maintenance. Life Tenant(s) are also entitled to rent out the property and to receive all income generated by the property.

Remainder Owner(s) automatically take legal ownership of the property immediately upon the death of the last Life Tenant. Remainder Owners have no right to use the property or collect income generated by the property, and are not responsible for taxes, insurance or maintenance, as long as the Life Tenant is still alive.

Advantages

  • Life Estates are simple and inexpensive to establish; merely requiring that a new Deed be recorded.
  • Life Estates avoid probate; the property automatically transfers to your heirs upon the death of the last surviving Life Tenant.
  • Transferring title following your death is a simple, quick process.
  • Life Tenant’s right to use and occupy property is protected; a Remainder Owner’s problems (financial or otherwise) do not affect the Life Tenant’s absolute right to the property during your lifetime.
  • Favorable tax treatment upon the death of a Life Tenant; when property is titled this way, your heirs enjoy a stepped-up tax basis, as of the date of death, for capital gains purposes.
  • Property owned via a Life Estate is typically protected from Medicaid claims once 60 months have elapsed after the date of transfer into the Life Estate. After that five-year period, the property is protected against Medicaid liens to pay for end-of-life care.

Disadvantages

  • Medicaid; that 60-month waiting period referenced above also means that the Life Tenants are subject to a 60-month disqualification period for Medicaid purposes. This period begins on the date the property is transferred into the Life Estate.
  • Potential income tax consequences if the property is sold while the Life Tenant is still alive; Life Tenants do not receive the full income tax exemption normally available when a personal residence is sold. Remainder Owners receive no such exemption, so any capital gains tax would likely be due from the Remainder Owner’s proportionate share of proceeds from the sale.
  • In order to sell the property, all owners must agree and sign the Deed, including Life Tenants and Remainder Owners; Life Tenant’s lose the right of sole control over the property.
  • Transfer into a Life Estate is irrevocable; however if all Life Tenants and Remainder Owners agree, a change can be made but may be subject to negative tax or Medicaid consequences.

Monday, April 11, 2016

Who may “Claim & Suspend” Social Security in the Aftermath of the Bipartisan Budget Act of 2015?


 

Who may “Claim & Suspend” Social Security in the Aftermath of the Bipartisan Budget Act of 2015?

“File and suspend” (or “claim and suspend” as it is sometimes called) is a strategy that, until recently, permitted an individual at or after reaching full retirement age — currently age 66, but gradually increasing to age 67, starting with individuals born on or after Jan. 2, 1955 — to claim a benefit and then immediately suspend the claim. 

Key items in new legislation under BBA 2015

Under the new legislation, a worker is still able to suspend a benefit. However, once suspended, no one else may collect a benefit on that worker’s account during the time the benefit is suspended. Under BBA 2015, the new law applies “with respect to requests for benefit suspension submitted beginning at least 180 days after the date of the enactment of this Act.
Read more . . .


Friday, March 18, 2016

Wish you could have a Financial and Legal "Selfie"?

 

Our lives today are all at the touch of our fingertips - literally via our cell phones.

With all our phone numbers, photos etc. at our fingertips, why don't more people have their financial/legal "Selfie" at their fingertips?

A financial selfie is a plan that includes planning for college, disability, insurance, guardian for young children, using trusts to hold retirement assets and so much more that is readily visible to you and your family.  With a clear visual and professional guidance to change your plan as your life changes, you empower yourself to be prepared for what life brings.  Being secure in your plan allows you to care for an elderly parent, travel, or explore new avenues.   

Build your Financial "Selfie" with us:

 March 30th at 12:00 pm or 7:00 pm  (Webcast and Live presentation options)

 Learn more: http://www.paolilaw.com/

 

 

 

 

 


Archived Posts

2019
2018
2017
2016
2015
2014
2013



© 2019 Ruggiero Law Offices LLC | Disclaimer
Paoli Corporate Center - 16 Industrial Boulevard, Suite 211, Paoli, PA 19301
| Phone: 610-889-0288

Estate Planning | Estate Planning/Non-Traditional Families | Special Needs Planning | Probate & Estate Administration | Elder Law | Veterans Benefits | Guardianships | Business Law | Purchase/Sale of a Business | Real Estate | Pet Trusts | About | Media

Attorney Website Design by
Amicus Creative