The Court Of Public Opinion

Anyone who cares about the feelings of their family members, or their own final health care treatment, should consider executing a Living Will. It has become an essential element in the practice of Estate Planning Attorneys.

Why? A Living Will permits the patient to communicate, in advance, the medical care decisions he or she would make if rendered incapacitated, so that their family wont be put in the difficult position of having to do so for them.

The recent nationwide controversy caused by the unfortunate situation of a woman in Florida, who did not possess a Living Will, has demonstrated the family pain created by this issue and sparked renewed public interest in the Living Will. Clients from California to New Jersey have contacted Estate Planning Attorneys to learn more about them.

The Basics:

The legal name for a Living Will is an Advanced Directive, a document codified nearly 15 years ago by The New Jersey Advanced Directives for Health Care Act.

In New Jersey, according to the law, an Advanced Directive, or Living Will, in and of itself, is a simple document needing only to be in writing, signed and dated in the presence of two subscribing adult witnesses who must attest to the fact that the person is of sound mind and free from duress and undue influence. Alternatively, it simply may be signed, dated and acknowledged before a notary public, an attorney or other person authorized in New Jersey to administer oaths.

The Advanced Directive becomes operative when it is transmitted to the attending physician who has determined that the patient lacks the capacity to make a particular health care decision.

Once made, the patient may revoke the Advanced Directive either by oral or written notification of the revocation to the Health Care Representative, physician, nurse or other health care professional, or by any other act evidencing an intent to revoke the document. In other words, the patient can change his or her mind, at any time, simply by saying so.

What It Does:

Consistent with the terms of an Advance Directive, life-sustaining treatment may be withheld or withdrawn from a patient if the life-sustaining treatment is:

Experimental and not proven therapy, or is likely to be ineffective or futile in prolonging life, or is likely to merely prolong an imminent dying process;

The patient is permanently unconscious, as determined by the attending physician and confirmed by a second qualified physician;

The patient is in a terminal condition as determined by the attending physician and confirmed by a second qualified physician, or

The patient has a serious irreversible illness or condition, and the likely risks and burdens associated with the medial intervention to be withheld or withdrawn may be reasonably judged to outweigh the likely benefits to the patients from such intervention or imposition on an unwilling patient would be inhumane.

The law allows the attending physician, consistent with the terms of the Advance Directive, to issue a Do Not Resuscitate Order.

Two Types — Instruction and Proxy:

There are two types of New Jersey Advanced Directive, or Living Will: An Instruction Directive and a Proxy Directive. You may choose to create either one or both.

The first type, an Instructive Directive is what clients usually mean when referring to a Living Will. It provides instructions and directions regarding health care in the event that the patient subsequently lacks such decision-making capacity. The Instruction Directive may state the persons general treatment philosophy and objections together with the persons specific wishes regarding the provision, withholding or withdrawal of any form of health care, including life-sustaining treatment.

The second type, the Proxy Directive is more similar to a Power of Attorney because it appoints a Health Care Representative to make health care decisions in the event the patient subsequently loses the capacity to make such decisions.

A person may appoint as his Health Care Representative any competent adult, including a family member, a friend or a religious adviser. Once the persons attending physician determines that a person lacks decision- making capacity (along with confirmation of another physician, unless that persons lack of decision-making capacity is clearly apparent), the Health Care Representative has the authority to make health care decisions on behalf of the patient. The Health Care Representative is to make all health care decisions the patient would have made had he or she possessed decision-making capacity, or where the patients wishes cannot be determined adequately, to make a decision in the best interest of the patient.

In carrying out the persons wishes, the Health Care Representative is to give priority to that patients Instruction Directive, if one exists. Also, a Proxy Directive can be written in New Jersey so as to place specific limitations upon the authority of the Health Care Representative.

Also important to note, the Living Will statute in New Jersey covering Proxy Directives specifically protects the patients Health Care Representative from liability. The law states that the Health Care Representative is not imposed with any liability for any portion of the persons health care costs, not subject to criminal or civil liability for any action performed in good faith and in accordance with the provisions of the act to carry out the terms of the Advance Directive.

Physician and Hospital Responsibilities:

Interestingly, the law requires the attending physician to make affirmative inquiry of the patient, his family or others as appropriate under the circumstances, concerning the existence of an Advance Directive. In other words, the attending physician must initiate the question of a Living Will. The attending physician is required to note in the patients medical records whether an Advance Directive exists and the name of the patients Health Care Representative, if any. If an Advance Directive exists, a copy must be attached to the patients medial records.

Health care institutions including hospitals, nursing homes, home health care agencies and hospice programs are required to adopt policies and practices that are necessary to provide for routine inquiry at the time of admission and other appropriate times concerning the existence and location of an Advance Directive. Moreover, health care institutions must adopt policies and practices necessary to provide appropriate informational materials concerning Advance Directive to all interested patients, their families and their Health Care Representatives, and to assist those patients in discussing the executing an Advance Directive.

These health care institutions will also be required to adopt policies and practices necessary to educate patients, their families and Health Care Representatives about the availability, benefits and burdens of rehabilitative treatment, therapy and services, included but not limited to family and social services, self-help and advocacy services, employment and community living, and the use of assisting devices. Health care institutions must establish procedures and practices for resolution of the disputes among the patient, and Health Care Representative and attending physician in the event there is disagreement concerning the patients decision making capacity or in the interpretation of the Advance Directive concerning the patients course of treatment.

The New Jersey law on Living Wills expressly states that it should not be interpreted to impair the obligations of health care professionals to provide for the care and comfort of the patient and to alleviate pain, in accordance with accepted medical and nursing standards.

The patients family, Health Care Representative, and appropriate others should be informed that if a person has appointed a Health Care Representative and subsequently lacks decisions-making capacity concerning a particular health care decision, the attending physician must obtain the informed consent for, or refusal of, health care from the Health Care Representative after discussing the nature and the consequences of the persons medical condition, and the risks, benefits and burdens of the proposed health care and its alternatives. However, if the patient is subsequently found to possess adequate decision-making capacity, the patient shall retain legal authority to make the health care decision.

Moreover, even if the patient lacks decision-making capacity, but nonetheless clearly expresses the wish that medically appropriate measures be utilized to sustain life, that wish shall take precedence over any contrary decision of the Health Care Representative and over any contrary statement in the patients Instructive Directive.

Conclusion:

The services of an Estate Planning Attorney are not necessarily required in New Jersey to execute a Living Will just as they are not required to execute a Real Estate Contract or a Last Will & Testament provided the document is in the proper form, correctly drafted, signed and witnessed. However to be sure that a Living Will conforms to New Jersey legal guidelines and that the patients wishes in the event of incapacity are clearly expressed so as to be understood and followed it may be prudent to consult a lawyer experienced in Estate Planning before the occasion arises in which the Living Will is needed.

Thomas G. McMahon, Esq. is a attorney in the Princeton-based law firm Pellettieri, Rabstein & Altman who specializes in estate planning and tax litigation. You can reach Mr. McMahon at 609-520-0900, or visit http://www.pralaw.com

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Unless you have been completely out of touch, you have probably heard all the hubbub about the dangers of asbestos. So, what is the big deal?

A Quick Guide to Asbestos and Health Issues

Asbestos is a fibrous material that is highly resistant to burning. It has a long history. While it was first used on a large scale commercial basis at the turn of the twentieth century, it has actually been around much longer. In fact, the ancient Egyptians were known for using it burial clothes.

Common modern applications used to include building materials, products and automobile brake pads, which all required a fire resistant element. Asbestos is still used today, but on a fairly small scope. The reason has everything to do with health. Asbestos in and of itself is not harmful to people. What is harmful, however, is asbestos dust.

Asbestos dust is a vicious thing. Due to the chemical makeup of the material, the dust is like a cloud of fine glass particles. While they will not damage your skin, they do great damage to the lungs. Making matters worse, asbestos dust is so fine that it is easily raised from asbestos material like ceiling tiles and walls. Once in the air, it is all but invisible. Prolonged exposure, such as when working on or in a building with asbestos materials, can result in massive amounts of the toxic dust entering the lungs.

Once asbestos dust is in your lungs, you cannot expel it by coughing. That doesnt mean the body does not try. Asbestosis is scarring of the lungs from acid created by the body in an effort to get the asbestos dust out. If this process is allowed to occur for 10 to 20 years, the lungs may stop functioning because of excess scarring. If that sounds bad, it only gets worse. Asbestos dust can lead to terminal cancer in the form of mesothelioma. [What is Mesothelioma?

Asbestos is an excellent fire resistant material that saves us from burning while killing us in a much slower manner. Since 1989, it has been banned in the United States in all but a few commercial areas.

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(Internet Resources on Employment Compliance for Californias Small Businesses)

Californias labor laws have given it a reputation as a non business friendly state that makes life difficult for employers. In my consulting practice we have audited many California small businesses and found most of them to be seriously non-compliant with many state employment standards and regulations.

A business owner could face serious fines or disruption if a government agency finds his or her company in violation of Californias labor code regulations, which are extensive. Disgruntled ex-employees can find trolling lawyers who will pay them a fee for insider information that leads to their filing suit against you for even minor infractions. The plaintiff bar attorneys have prospered from this states confusion of rules and regulations and have targeted numerous small and medium sized businesses with employment related litigation.

If you are a small California business employer, it is in your best interests to take the steps necessary to ensure you are compliant with the states labor laws. The links in this article can assist the small employer in taking the steps he or she needs, using free or inexpensive resources available on the Internet, to avoid labor law compliance problems. The guidelines outlined here are intended for use by employers with under 50 employees. For those firms with over 50 employees, this advice is still valid but there are other major legal requirements that the larger employer must consider to be fully compliant with the labor codes, such as state and federal leave laws and sexual harassment training for your managers. For the smaller business, here are the primary five areas on which you will need to focus.

#1 Update your Employment Law Posters!

The California Department of Labor and the federal government require employers to post information related to wages, hours and working conditions in an area frequented by employees where it may be easily read during the workday. The number of posters required is determined by the size and nature of your business but could total up to 10 or more. You can obtain the requisite California and federal posters through these websites: http://www.dir.ca.gov/WP.asp .and http://www.dol.gov/osbp/sbrefa/poster/matrix.htm. If display space is an issue, you may want to consider purchasing an approved combination poster which condenses and combines all the necessary posters. You can find these online at http://allinoneposters.com or http://www.ihrsource.com or similar sites on the Internet.

Employers should study and make sure they understand the regulations on these posters to determine which regulations are applicable to their business so they can answer questions from employees.

#2 Be compliant with all Safety and Health regulations - In California, every employer has a legal requirement to provide and maintain a safe and healthy workplace for its employees, according to the California Occupational Safety and Health department standards. As of 1991, each employer must have in place a written, effective Injury and Illness Prevention Program (IIPP). This does not have to be a complex document but must encompass certain elements. You can get an outline from the state for developing a plan for your work site at http://www.dir.ca.gov/dosh/doshpublications/iipp.html . In addition to developing a plan, there is a requirement that you train your workers on preventing workplace hazards (and document that training). Your IIPP plan must be updated every time you change your operations where the hazards involved also change. In addition, all employers with over 10 employees must also keep an accident and injury log (OSHA 300). You can download that form and instructions at http://www.dir.ca.gov/dosh/doshpublications/RecKeepOverview.pdf .

#3 Pay close attention to how you pay your employees In California, most state employment regulations trump federal regulations because state standards are usually stricter. Many small business owners make the mistake of paying all or many of their employees a straight salary in order to keep payroll a simple process. This is especially true in businesses which have an office environment. This can be a very perilous approach as you most probably will be in violation of overtime rules which have very stiff penalties. Study the CA Industry Wage Commission (IWC) orders for your industry at http://www.dir.ca.gov/IWC/WageOrderIndustries.htm to know the legal requirements for overtime wages, breaks and lunch periods for your workers.

A critical area many small businesses fail to recognize is the proper classification of employees, as they apply to mandatory overtime pay exempt from overtime or not exempt. This can be a technical area which you may need some professional advice, but the general rule is that every employee should be paid hourly and paid overtime according to the IWC orders unless the proper testing is done to make a case for an exemption which usually only applies to top managers or certain professional employees. Some guidelines are available at http://www.management-advantage.com/products/overtime-exempt.html .

#4 Respect your Employees Privacy and secure personnel files Today the law protects the privacy of employees with some pretty severe sanctions against employers who violate a persons medical privacy or identity. Separate basic personnel information into two files a personnel file (with payroll tax forms, or basic job information in it such as training documents, performance reviews and disciplinary or commendation notices) and a separate confidential file with medical, credit, benefits and personal family or dependent information. Supervisors or other interested management must be restricted in their access to the personnel file only. Only the person designated as the human resources record keeper is to be entrusted with the access to the confidential file. Make sure these files are always secured. Protect your employees personal information. For a more thorough discussion on employers responsibilities on employee privacy download this article at http://www.hunton.com/files/tbls47Details\FileUpload265\1513\Sottoworkplaceprivacy.pdf

#5 Dont forget to properly verify your employees work status The immigration authorities are under increasing pressure to enforce the laws, and experts agree that enforcement will increase in the coming years as the debate wears on regarding illegal immigration. There have been some well publicized raids all over the country. The I-9 employment form must be completed by every employer on every employee, even US citizens. These documents must be completed properly and kept up to date if certain documents are presented on an employees legal status to work in the US. Attached are two good primers and forms on the employers responsibilities in that area which can be found at http://www.ahmcp.com/articles/employerrecords.html or http://www.twmlaw.com/resources/formI9.html .

As a further measure, you should also use the governments free service to verify that the social security numbers being presented by applicants are valid, which will reduce the chances that you are hiring an illegal alien. Instructions for verification online are available at http://www.socialsecurity.gov/employer/ssnv.htm . This may become a requirement in the near future as the immigration service cracks down on employers. The government is now using tax filings with mismatched or invalid social security numbers to look for employer who knowingly hire workers who are in the US without proper labor authorization.

While this article is not inclusive of every labor code issue employers may face, it does cover the hot areas which will give you a running head start to being essentially compliant with California state and the federal laws. It might be a prudent investment for every business owner with more than five employees to have a human resource and payroll audit done periodically by an HR professional. This exercise can help you spot areas of vulnerability and non compliance so that you can address those issues before they become a major crisis and costly disruption of you business.

Copyright 2006 Daniel Curtin, Curtin & Associates, (full rights for republishing granted if reproduced as is, with no editing of points 1 through 5)).

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My mom told me she has a living will. That way she’s going to avoid probate

I can’t tell you how many times I’ve heard this when a new person finds out I was a living trust lawyer.

They go on to say, She got one of those forms at the seniors’ center. You know, the one she can fill out herself. They even witnessed it for her.

I hate it when this comes up, because I have to set the record straight, I have to let the person know that a living will and a living trust are two different instruments that serve two different purposes.

One, the living will, is your statement that If I am terminally ill or mortally injured (I’m using simple language here to get the point across), then don’t hook me up to life support that will never return me to life. It’s the issue that’s currently being fought in Florida, with Governor Bush signing a law to keep a woman alive over her family’s wishes and a court ruling.

Her living will has nothing to do with avoiding probate. It is a health care document. Really it should be called a death desire, but our society can’t handle that bluntness.

A living trust, on the other hand, IS a probate avoiding document.

Basically, probate is used to transfer property you own when you die. If you have a will, your executor uses the probate court to carry out the terms of your will. If you die without a will, the laws of your state has statutes that describe where your property goes and who is in charge of getting it there.

So, if you don’t own any property when you die, then (generally…there are always exceptions) there is no need for probate.

This is where the living trust steps in. It called a living trust because it is created while you are living.

When you create a trust, you transfer title to your property to the trustee of the trust. You, as an individual, no longer own the property.

So, if you die, no probate is needed (remember, there are always exceptions), since YOU don’t own the property. The property is owned by the trustee of the trust. The trust instrument instructs him/her on what to do with the property upon your death.

A living trust is a LOT more complicated to set up and maintain than a living will. They accomplish different tasks.

So, when you hear that a loved one has a living will to avoid probate, it might be smart to ask a few questions.

Good luck and until next time,

Phil Craig

P.S. Feel free to forward this on to any friends.

Phil Craig, All Rights Reserved

Phil Craig is a licensed attorney and entreprenuer. He started practicing law at age 25 in 1979. He does not take on any more clients, but is advisor to some of the biggest names in the internet world. He shares his knowledge gained over the last 25 years at his Living Trust Secrets newsletter site: click here=========>http://www.LivingTrustSecrets.com

** Attn Ezine editors / Site owners ** Feel free to reprint this article in its entirety in your ezine or on your site so long as you leave all links in place, do not modify the content and include our resource box as listed above.

If you do use the material please send us a note so we can take a look. Thanks.

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Becoming a lawyer in todays society is a noble goal to undertake. There are many jokes about lawyers that we all have heard, but the truth is, it takes a lot of work to become a an attorney. Pursuing a career as an attorney allows one to experience the gift of helping people in ways that most people are unable to. If your heart ever goes out to struggling individuals legal battles, then this career may just be for you.

To get into law school, you must first have an undergraduate degree from an accredited institution. Unlike Medical school, there is not really a certain type of major that is required at this time of writing. Some may major in pre-law which focuses on the government, criminal justice and aspects of politics. But it would be perfectly fine to major in math or history. As long as your GPA is high enough to get into the college and your score well on the LSAT, then you increase your chances of getting into this field. Depending on what type of law you decide to study and the school you go to, requirements for your GPA will be different. For example, in you decide to go to Harvard Law School; your competition will be fierce because most of the people applying will have 4.0 GPAs. On the other hand, if you decide to go to a law school in Hawaii, the GPA requirements will be lower because most people will be trying to go to more recognized law schools. This is not to say that non Ivy League schools will not offer a wonderful education for any individual who is focused and determined. For example, the late Johnny Cochran did not got Harvard or Yale, but received his law degree from Loyola University School of Law in 1962. In 1977 he was named Criminal Trial lawyer of the Year. Cochrane later became one of the most sought after attorneys of his time.

Another point to mention is cost. Cost varies greatly depending on the affluence of the school. The tuition at Harvard is quoted on their website at 35,000 per year with an estimated 21,000 a year for living expenses. A law school in Hawaii is around 10,500 per year. Idaho is reported as one of the lowest with tuition cost of 6,700 per year. However, with inflation these costs are increasing each year. The Law college experience lasts three years currently. After this opportunities open up for Private Practice, Corporate Law, Military and teaching, just to name a few. This is an immense field and again, can offer some very rewarding experiences in your life if you choose to pursue this career.

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When you talk about the health risks caused by asbestos, mesothelioma is at the top of the list. It is a sad story with a very unhappy ending.

A Quick Guide to Mesothelioma

Beginning in 1926, various studies started revealing that the wide spread use of asbestos for its fire resistant properties might not be such a good thing. The problem? Dust from asbestos materials was easily ingested into the lungs, but was nearly impossible for the body to expel. This resulted in a host of health problems of which Mesothelioma undoubtedly is the worst.

Mesothelioma is a nasty form of cancer. It is almost always caused by exposure to asbestos dust. This primarily occurs when a person has worked directly with or around asbestos materials. For example, a person who works on older buildings with asbestos materials or a person in the ship building industry to mention only a few. The disease can also impact secondary individuals who come in contact with such people, particular said peoples clothes.

On the medical side of things, Mesothelioma is a cancer that attacks the mesothelium. This anatomical term refers to the lining found around most organs of the body including the lungs and chest cavity. The cancer can also attack the sack encompassing the heart as well as other areas of the body. In short, it is a devastating form of cancer.

The truly horrific thing about Mesothelioma is the fact it takes a long time to appear. Gestation periods can be from twenty to fifty years. Even when it begins to show symptoms, it is very difficult to diagnose because it shares many symptoms common to aging and other health issues. These can include chest pain, coughing, shortness of breath, wheezing and blood clotting.

Unfortunately, Mesothelioma is deadly once it fully presents. A variety of treatment methods have been tried, but nothing has worked. The average person presenting with the cancer has a life span of less than a year. Radiation, surgery and pharmaceutical approaches have failed to significantly extend this time.

Mesothelioma is terminal cancer caused by exposure to asbestos dust that takes a long time to manifest, but a short time to kill.

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