November 2001
Vol. 10, Issue 3
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a print-friendly version)
|
 By
Jeannette
L. Knudsen
Welcome to the most recent edition
of the Buckingham, Doolittle & Burroughs,
LLP, Advisor. These articles are written
by attorneys at Buckingham and address current
topics of importance to businesses, employers
and individuals.
In this issue, George Weinstein discusses the importance of building a financial plan and tying to your life goals. He advocates balancing the importance of each goal with the level of risk that is acceptable in the investment intended to achieve it. Next, Phyl Divine outlines some college savings plans recently created by the Ohio Tuition Trust Authority. These plans may offer significant tax-planning advantages in addition to their tuition-saving features. Finally, David Hilkert and Michael Shanabruch review a recent Ohio Supreme Court decision that could affect a landowner's responsibility for preventing injuries to children who trespass on his or her property.
As always, we hope that you
find the Advisor both valuable and
interesting. If you would like more information
on any of these topics, please feel free to
call the author of the article.
Jeannette
L. Knudsen, Esq. is a member of the
Intellectual Property Practice and Real Estate
& Construction Law Practice Groups and can
be reached at jknudsen@bdblaw.com
or or at 330.643.0350.
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Grab
The Brass Ring: A Financial Plan that Meets Your
Goals
By George Weinstein, Esq.
 Do
you remember trying to grab the brass ring on an
old-fashioned merry-go-round as it rotated while
your horse bobbed up and down to the sound of joyful
music? Those were the "good old days." You had your
whole future to look forward to, and you probably
wondered what you would be doing when you were as
old as your parents - or even your grandparents.
Today most of the merry-go-rounds have vanished (and fortunate you would be if you
possessed one of the wooden animals), but the opportunity to grab the brass ring still exists -
and you should do so before it's too late.
By "brass ring" I mean a financial plan for your future. You should set out your goals, and then formulate and implement plans to meet them. You might even set your sights on some apparently unattainable goals because as Robert Browning wrote, "A man's reach should exceed his grasp, or what's a heaven for?" Next, prioritize your goals and develop a specific plan for achieving each one. That way, the failure to meet one objective won't adversely affect the achievement of another.
Clarifying Your Goals
The most useful goals are quantifiable, not general. For example, "I want to be rich" is not a measurable goal, since "rich" means different things to different people. Some examples of quantifiable goals are: (a) retirement at age 65 with an annual income of $50,000.00, (b) providing for yourself and your spouse at your present standard of living for your lifetimes, (c) providing for a four-year private college education for your child, (d) purchasing a vacation home, and (e) taking a trip to a place you have always wanted to go. Your goals should also be determinable as to time: Consider how many years remain until your retirement, or until your child will begin college, or until you will be taking that vacation.
To implement these objectives, select investment vehicles (for example, stocks, bonds, treasury bills and notes, certificates of deposit, and life insurance), preferably with the assistance of someone knowledgeable in this field. Match the investment vehicles with each goal, considering its priority in your ranking. Remember that the higher the priority of your goal, the less risk you can afford, and the lower the rate of return you should be willing to accept. Many people turn this analysis upside down, taking more risks (with the expectation of greater returns) to meet high-priority goals, while accepting less risk (and lower returns) to meet low-priority goals.
Financial planners almost always recommend that you diversify your investment portfolio to spread the risks of losses in particular investments or areas of investment. While this is generally sound advice, you should also be aware that diversification can get in the way of meeting your goals, since a low-priority goal might require taking a greater risk than would result from diversification of assets.
The older the person, the more his or her thoughts turn to fixed-income investments, such as taxable and nontaxable bonds, certificates of deposit and money market funds. While these may be "safe" as far as comparative risk is concerned, their returns will be eroded by inflation over the years. As a result, there may not be enough income and principal to meet future living expenses, etc. Therefore, it may be well to provide for some element of growth in the value of the portfolio, through stocks, so that there will be sufficient funds in the future. Income taxes, both present and projected (if one is capable of projecting what Congress will do in the future), should be considered in any investment decision.
Of great importance, also, is planning for the disposition of your assets during life and at death. You will need the advice of a qualified attorney to inform you about wills and trusts and other devices that provide for the orderly transfer of your assets, with maximum preservation of wealth and minimum impact of federal and state estate and gift taxes.
So, if you have not already done so, get going! Go for the brass ring. Today is a good time to begin.
George
Weinstein, Esq. is a member of the
Trust & Estates Practice Group in Boca Raton, Florida
and can be reached by email at gweinstein@bdblaw.com
or at 561.995.2981.
Section
529 College Savings Plans
By By
Phylip J. Divine, Esq.
 Last
October, the Ohio Tuition Trust Authority launched
the College Advantage Savings Plan, which is also
called a "Section 529" qualified tuition plan. There
are five separate funds available under the Ohio
plan. The first, Guaranteed Savings Fund, was formerly
known as the Ohio Prepaid Tuition Program. The other
four funds, known collectively as the Variable Investment
Funds, are new to Ohio.
Under the Guaranteed Savings plan, contributions buy units of tomorrow's tuition at today's prices. The fund keeps pace with tuition inflation at Ohio's four-year public universities. Thus, five credit hours purchased today can be "cashed in" fifteen years from now for five credit hours, regardless of how much those credits cost at that time. Under the Variable Investment Funds programs, money is invested in portfolios made up of diverse types of funds. The investment portfolios are managed by a private investment company hired by the state.
Any Ohio resident can set up an account for any other person, whether or not the beneficiary lives in Ohio and whether or not the beneficiary goes to an Ohio educational institution. A resident of another state can establish an Ohio account if the beneficiary lives in Ohio. Although at least one of the parties must live in Ohio when the plan is established, it does not matter whether either or both parties continue to reside in Ohio after the account is set up.
Section 529 Plans offer various tax planning advantages, including certain deductions from Ohio taxes and flexibility in terms of meeting the $10,000 annual exclusion amount for federal gift tax purposes. Additionally, there are no federal or state income taxes on contributions while the money remains in the account. And if withdrawals are used for educational expenses, the income earned on contributions is never taxed. However, if withdrawn funds are used for other reasons, there is a 10% tax penalty.
For more information, contact the Ohio Tuition
Trust Authority at 1-800-233-6734 or visit www.collegeadvantage.com.
Phylip
J. Divine, Esq. is a member
of the Trust & Estates Practice Group and can be
reached by email at
pdivine@bdblaw.com or at 330.258.6456.
Bennett
v. Stanley: Landowners' Exposure to Liability for
Injuries by Trespassing Children
By David
W. Hilkert, Esq. and Michael
R. Shanabruch, Esq.
 Generally,
a landowner owes no duty to trespassers other than
to refrain from willful, wanton or reckless conduct
that is likely to injure the trespassers. Under
this general rule, a landowner is not required to
protect trespassers from dangers posed by swimming
pools or other artificial conditions on his land.
However, the Ohio Supreme Court recently held that a landowner who maintains an attractive nuisance on his property is required to exercise ordinary care to protect children who trespass from foreseeable and unreasonable risk of death or serious bodily harm.
 In
Bennett v. Stanley (2001), 92 Ohio St.3d
35, a five-year-old boy died when he fell into his
neighbors' swimming pool. The pool, which had not
been used in several years, was essentially a stagnant
pond in which tadpoles, frogs, and snakes were found.
The pool was neither surrounded by a fence nor covered
by a tarp. Moreover, the pool contained no ladders
and its sides were slippery due to an accumulation
of algae. The child apparently had been looking
at the frogs when he fell in. Under these circumstances,
the Supreme Court held that the landowner could
be found liable for the death of the child according
to the attractive nuisance doctrine.
Under the attractive nuisance doctrine, "a possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if:
1. The place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
2. The condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
3. The children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
4. The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
5. The possessor fails to exercise reasonable care to eliminate the danger or to otherwise protect the children."
The Supreme Court explained that this doctrine "harmonizes the competing societal interests of protecting children and preserving property rights." Thus, while it imposes liability upon the landowner for accidents that are reasonably preventable, it does not make the landowner an absolute insurer of the safety of trespassing children. For instance, the doctrine does not apply where the harm is unforeseeable, the dangerous condition is so open and obvious that even a child would appreciate the danger, or the dangerous condition is essential to the landowner's legitimate use of the property.
The Supreme Court further held that the landowner could be liable for the death of the child's mother, who died in an unsuccessful rescue attempt. The court explained that while the attractive nuisance doctrine does not ordinarily apply to adults, it may be applied where an adult is injured in an attempt to rescue a child who is imperiled by an artificial condition maintained by the landowner.
David W.
Hilkert, Esq.,
is a shareholder and a member of the Litigation
Practice Group and can be reached at dhilkert@bdblaw.com
or at 330.258.6521. Michael
R. Shanabruch, Esq., is a member of the
Litigation and Real Estate & Construction Practice
Groups and can be reached at mshanabruch@bdblaw.com
or at 216.615.7346.
BDB
Welcomes New Attorneys
 Bret A. Adams,
Of Counsel
Business Law Practice Group - Columbus, Ohio
Office
Bret nationally represents and counsels clients in the sports and entertainment arena including professional artists, media personalities, NBA, NFL, NHL athletes and MLS coaches. His expertise includes entertainment issues and personal contract negotiations.
 Betsy J.
Houchen, Of Counsel
Health Law Practice Group - Columbus, Ohio Office
Betsy counsels in administrative law, health care and government affairs regarding state and federal issues including legislative, regulatory and licensing for home care, adult care, assisted living, community alternative homes and residential care facilities.
 Marian Pearlman
Nease, Of Counsel
Health Law Practice Group - Boca Raton, Florida
Office
Marian represents corporate clients and individuals on health care issues including home health and long-care facilities. In addition, Marian represents individuals in probate and real estate transactions.
Beth A. Nagel, Associate Attorney
Medical Malpractice Defense Practice Group -
Cleveland, Ohio Office
Beth represents individual clients concerning medical malpractice, personal injury and general liability practice matters, and her expertise is compounded by the knowledge gained from working directly in the medical field.
 Anne
M. Markowski, Staff Attorney
Medical Malpractice Defense Practice Group -
Cleveland, Ohio Office
Anne represents clients concerning medical malpractice
issues and joins Buckingham after working for the
Montgomery County Prosecutor's Office in Dayton,
Ohio.
 Michael R.
Shanabruch, Staff Attorney
Real Estate & Construction and Litigation Practice
Groups - Cleveland, Ohio Office
Michael represents corporate clients and individuals on commercial real estate and construction issues, including commercial litigation.
New BDB Attorneys Pass Bar
 Jeffrey
A. Fickes, Associate Attorney
Business Law, Merger & Acquisitions and Taxation
& Employee Benefits Practice Groups - Akron, Ohio
Office
Jeffrey earned his J.D. from The Ohio State University
Moritz College of Law, where he was a member of
the U.S. Department of Education Foreign Studies
Fellowship and Delta Theta Phi Law Fraternity, Treasurer
of the Student Bar Association, and received the
CALI Award for Excellence in the Study of Trademark
Law. Jeffery has an extensive corporate finance
and accounting background with "Fortune 500" corporations.
Also, he received his M.B.A. in Finance from The
Ohio State University Fisher College of Business
and his B.S. in Accounting from The University of
Akron in 1990.
Shila Nalawadi, Associate Attorney
Health Law Practice Group - Canton, Ohio Office
Shila graduated with her J.D., cum laude,
from Case Western Reserve University School of Law.
She served as an intern for the Ohio Attorney General's
Office in Cleveland and extern in the United States
District Judicial Court in the Southern District
of Ohio. Shila also, was the Director of Corporate
and Foundation Relations of the Ohio Presbyterian
Retirement Services Foundation. She received her
M.P.H. from The University of Illinois and a B.S.
from Mount Union College, 1989.
Christina
M. Royer, Associate Attorney
Trusts & Estates and Litigation Practice Groups
- Akron, Ohio Office
Christina received her J.D., summa cum laude,
in 2001 from The University of Akron School of Law,
where she was Editor-in-Chief of the Akron Law
Review. In addition, she was extern for United
States District Court in the Northern District of
Ohio. Christina received her M.A. from Kent State
University and graduated from Miami University,
with a B.S. in Secondary Education and B.A. in French,
cum laude, 1992.
Speaking
Out in the Community
Nicholas T.
George, President of Buckingham, Doolittle &
Burroughs, presented "The Three C's of
Leadership: Character, Conviction and Communications"
on October 31, 2001 for Heart to Heart Communications
Lawyer's Vocational Reflection Group. Heart to Heart
Communications is about strengthening the connections
-- to our deeper selves, to core ethical values,
to the meaning and purpose of our work, and to one
another.
Save
The Date for these Upcoming Presentations:
The Finance and Public Law Practice Group will
be holding a Complimentary Seminar for Newly Elected
Public Officials, Law Directors & General Counsel
on November 30, 2001 at the Radisson Hotel
City Centre in Downtown Akron, Ohio. For additional
information contact Maria Hawkins at mhawkins@bdblaw.com
or at 330.258.6478.
On January 9, 2002 in Akron, Ohio Patrick
J. Keating will be a presenter for the National
Business Institute seminar, Advanced Real Estate
Law in Ohio. For additional information contact
the National Business Institute at 800.930.6182.
On February 28, 2002 the Real Estate
& Construction Practice Group will be holding
their Annual Seminar in Akron, Ohio. Watch for more
details in the upcoming issues!
Out
and About - Recent Presentations:
Employment Law Group
James D. Kurek,
Ashley M. Stouffer,
Vincent J. Tersigni
(Akron, Ohio), Robert
C. Meyer, and Tod
T. Morrow (Canton, Ohio) presented in October
at Buckingham's 13th Annual Employment Law Seminar
in Akron and Canton, Ohio on Recent Employment Law
and FMLA Developments, Arbitration Agreements and
Employment Claims, Sexual Harassment, OSHA, and
Worker's Compensation issues.
Family Law Practice Group
Joel H. Mirman
(Columbus, Ohio) was a panelist at the Joint
Bench/Bar Conference of the U.S. Courts for the
Northern & Southern Districts of Ohio in Columbus.
Health Law Practice Group
Eric Simon
(Akron, Ohio) was recently appointed to the
Cleveland Bar Association on the Council of Health
Law.
Thomas W.
Hess (Columbus, Ohio) spoke at two Ohio
Health Care Association Seminars in Cleveland and
Columbus, Ohio on Advanced Directives and Employee
Criminal Background Checks.
Thomas W.
Hess also recently provided an overview
of Health Law Cases and Regulations and How to
Implement a Health Care Corporate Compliance Plan
at the Annual AOPHA Convention in Akron, Ohio and
at the Healthcare Institute of Cleveland Ohio.
Betsy J.
Houchen (Columbus, Ohio) spoke on the HIPAA
Privacy Regulations for the Ohio Council for
Home Care and Lorman Education Seminars.
Marian Pearlman
Nease (Boca Raton, Florida) gave two presentations
at Life Care Services Symposium one on Legal
Updates and one on Corporate Compliance Plans.
Patrick H.
Reymann (Akron, Ohio) facilitated a seminar
providing an update on recent Legal Developments
in Ohio at the Wadsworth-Rittman Hospital Quarterly
Medical Staff Meeting in collaboration with Northeastern
Ohio Universities College of Medicine Office of
Continuing Medical Education.
Intellectual Property Practice Group
Karen D. Butera,
Louis F. Wagner,
Philip R. Wiese
(Akron, Ohio), Steve
A. Armatas, David
P. Dureska, and Mark
J. Skakun, III (Canton, Ohio) spoke in October
at the Firm's Law & Technology Seminar: Protecting
Your Intellectual Property at Home, Abroad and in
Cyberspace, and we were pleased to be joined
by Keynote Speaker, James A. Baker, Esq., Vice President and
Deputy General Counsel of Parker Hannifin Corporation and the Chairman of
the Board of Directors of the National Inventors Hall of Fame.
Karen D. Butera
was recently part of the board meeting and conference
for the Rubber Division of the American Chemical
Society.
Tax Law Practice Group
Steve A. Dimengo
(Akron, Ohio) recently spoke at the "Ohio Tax
Update for Manufacturers" sponsored by Manufacturer's
Education Council.
 If
you are interested in having a speaker from BDB
make a presentation to your organization, please
contact: Cheryl Warren, Director of Client Relations
and Marketing 800.686.2825 ext. 546 or cwarren@bdblaw.com
At BDB we are always improving our processes
so that we operate efficiently and effectively.
Please let us know how you like our new broadcast
format. E-mail: bdb@bdblaw.com
Phone: 330.258.6473 Fax: 330.252.5473.
Thank you.
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