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Bar Journal - Spring 2005



While this issue of the New Hampshire Bar Journal presents developments covering numerous areas of the law, the major focus of this edition is on Elder Law. The editors would like to thank the New Hampshire Bar Association’s Elder Law, Estate Planning and Probate Law Section for encouraging its members to write and publish in this important legal area. Because of the interest and effort of the New Hampshire Bar Association Elder Law Section, the issue begins with three articles on Elder Law.

Elder Law. The first article is by Ann Butenhof and examines Medicaid eligibility and asset protection for elderly nursing home patients. The article examines the income and resource eligibility rules to qualify for Medicaid as well as resource allocation between spouses. After discussing these income and asset rules, attorney Butenhof then analyzes various methods for turning "countable assets" into non-countable assets in order to qualify for Medicaid coverage. Finally, the author discusses Medicaid liens and recovery.

Our second elder law article is written by Jan Myskowski and examine special needs trusts under the Uniform Trust Code, which was recently enacted in New Hampshire. Attorney Myskowski begins by explaining the three common types of special needs trusts: self-settled, pooled and third party trusts. Attorney Myskowski then describes how special needs trusts help beneficiaries qualify for public assistance programs such as SSI and Medicaid. The article concludes with practical drafting considerations for New Hampshire attorneys and examines the tax implications of these special needs trusts.

The third elder law article reminds New Hampshire attorney of the ethical pitfalls associated with representing elderly clients. Attorney Nelson Raust considers the basic issue of identifying the client and then discusses the proper method for handling clients that have diminished capacity. Finally Attorney Raust provides a valuable reminder about keeping client communications confidential — a difficult task when the entire family is typically involved in estate planning for elderly parents.

Regulation of the Non-Profit Sector. Recent federal laws regulating for-profit corporations, such as the Sarbanes-Oxley Act, have led the non-profit sector to review its own policies and self-regulation. Attorney Michael DeLucia, who heads the New Hampshire Department of Justice’s Charitable Trust Unit, wrote about these changes in last summer’s Bar Journal (see 45 N.H.B.J. 46-57) and continues his discussion by examining recent non-profit sector scandals involving the Cabot Trust and Allina. He discusses the diverse recommendations now being considered by the U.S. Senate Finance Committee for regulation and self-regulation in the nonprofit sector. He further describes what the nonprofit sector is doing in New Hampshire to stay ahead of the curve. He also considers governance ideas originating from academic circles.

Taxation of Settlements and Judgments. Peter Beach and Michael Valentine examine recent changes in the taxation of attorney fee awards. The article includes a discussion of the American Jobs Creation Act of 2004 and its new "above the line" deductions for attorney fees awards or payments in certain cases, including discrimination suits. This change has significant tax benefits for plaintiffs, but only for specific types of claims and only if the fee payments are structured appropriately. Attorneys Beach and Valentine also discuss the United State Supreme Court’s recent Commissioner v. Banks case, which held that the portion of a judgment used to pay contingent attorneys’ fees is fully includable in the plaintiff’s income, settling a split between circuit courts.

Securities Law. Jeffrey Spill, the lead enforcement attorney for the New Hampshire Bureau of Securities Regulation, discusses the interplay of state and federal regulation of mutual funds, a topic that has been in the news lately. He reviews current federal law affecting mutual fund companies and related entities, describes common abuses within the industry and describes what the SEC and State of New Hampshire are doing to curb those abuses.

Gender Equality Survey. Finally, the issue concludes with the results from a recent survey of Bar members conducted by the New Hampshire Bar Association’s Gender Equality Committee. Its findings are sure to generate discussion among members of the Bar on the issue of how male and female attorneys are treated in the courts and law offices in our state.

We have enjoyed working with the authors in putting together this issue for our fellow members of the Bar, and we encourage you to contact Bar Journal Editorial Board Chair Michael DeLucia with your ideas for articles or themes for future issues. (His e-mail is

As fairly new members of the Bar Journal Board, we also want to extend a special invitation to newer members of the Bar to consider becoming involved with the Bar Journal – either as contributors of articles or by serving on the Board. This is YOUR Bar Journal; we welcome your contributions to the ongoing dialogue on the law in New Hampshire and beyond, as well as your suggestions and your efforts to help shape this publication to better fit your needs.

Daniel C. Garvey, admitted to the New Hampshire Bar in 2001, practices with the Concord law firm of McCaffrey & Moffett. His practice is concentrated in bankruptcy, debtor-creditor law and litigation.

John-Mark Turner, of the Manchester law firm of Sheehan Phinney Bass + Green, was admitted to the Bar in 2003. He practices primarily in the areas of commercial and ERISA litigation.

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