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Advance Health Care Directives: Marlise Munoz Story

Advance Health Care Directives likely would have helped poor Marlise Munoz.

Brain Death and Pregnancy - the Marlise Munoz Story

Thirty-three year old Texan, Marlise Munoz, who was kept alive by a ventilator for over a month in John Peter Smith Hospital, was taken off of life support on January 26, 2014. In November, she collapsed at home as the result of what doctors believe to be a pulmonary embolism. While Marlise's husband, Erick, administered CPR until emergency responders arrived, Marlise tragically, suffered brain death. Marlise, who is an EMT herself, reportedly told her family that she would never want to be kept alive by a ventilator. It would seem that her wishes are clear, despite the fact that she never executed a living will or other advance directive. However, doctors refused to take Marlise off of the ventilator. Why? Marlise was pregnant and, according to the hospital's interpretation of Texas' law on advance directives, a pregnant woman cannot taken off of life support.

Unfortunately, Marlise became one of extraordinarily few individuals to suffer the unique situation of being brain dead and pregnant. Like the case of Jahi McMath discussed in a previous blog, there was no question that Marlise's brain was no longer functioning. In accordance with the definition set forth in the Uniform Determination of Death Act, Marlise had suffered "irreversible cessation of all functions of the entire brain, including the brain stem" and, as such, is dead. The debate in Marlise's case, unlike the debate in Jahi's case, was not whether she is alive or dead. The debate was this: Even if Marlise is legally dead, can she be kept alive because she is pregnant?

The statute relied on by the hospital to keep Marlise on a ventilator is a provision of the Texas Advance Directives Act, which states the following:

"Section 166.049. PREGNANT PATIENTS. A person may not withdraw or withhold life-sustaining treatment under this subchapter from a pregnant patient."

The hospital argued that this provision prevents them from withdrawing or withholding life sustaining treatment (i.e.: a ventilator) from an individual who is pregnant.

Estate Planning Documents: Where Do I Keep Them?

Storing Your Estate Planning Documents

One question estate planning attorneys are frequently asked is "Where should I keep my original documents?" Generally, the answer to that question is somewhere in your home that is waterproof, fireproof, and secure, yet easily accessible to your loved ones when they need access to the documents. However, now it is possible to store at least one of your documents online. While online storage is not possible for wills, as the original is needed for probate, nor for Powers of Attorney, there are now websites where you can store your health care directive and living will.

These websites, such as U.S. Living Will Registry, allow you to electronically store your advance directive and living will and makes them available to hospitals and other health care providers across the county. When you register for U.S. Living Will Registry you scan in and upload your existing health care directive into the system. You are then given a label to place on your driver's license and your insurance card and a card to keep in your wallet, which lists your registration number. Health care providers can contact the computer on the telephone or via a secure Internet web site, and request a copy of your advance directive. The computer sends a copy to the provider, and it is kept as part of your confidential medical record. If you don't have your card, the health care provider can still access your document by searching using your name and birth date or by using your social security number. 

Pennsylvania Child Custody Myths Debunked!

COMMON CHILD CUSTODY MYTHS DEBUNKED

Many of our clients come into our office with the same misconceptions relating to custody of their children. Here are some of the most common misconceptions:

1. My ex doesn't pay child support so I don't have to let him/her see our kids.

This is probably the most common misconception. While most people think custody and support are intertwined, they are completely separate proceedings and generally one does not have any effect on the other. Therefore, one parent cannot withhold visitation from the other parent because child support has not been paid. If a parent withholds the children because the other parent has not paid support, the withholding parent could be found in contempt of the child custody order, leaving open the door for the imposition of sanctions and fines. Also, on the other hand, one cannot refuse to exercise his or her custodial rights in an effort to avoid paying support; in fact, if one parent does not have custodial rights of the parties' children at least 30% of the time, that parent might be ordered to pay more support. This is because the child support guidelines assume that the parent paying support has custody of the child 30% of the time. If this is not the case, an upward deviation to the support amount may be ordered.

2. Mothers always get custody, especially of younger children.

Years ago, it was fairly the norm in co-parenting situations that mom received primary custody of minor children, while dad was permitted partial time every other weekend and one night per week. Many of these arrangements can probably be attributable to the "primary caretaker doctrine." The doctrine, which has since been abolished in Pennsylvania, gave primary custodial time to the parent who was the primary caretaker of any minor children and when both parents were equally fit. Years ago, the primary caretaker was almost always the mother, as many mothers stayed at home while the fathers worked. However, with the abolishment of the primary caretaker doctrine, the courts now determine custody based on the best interests of the child and mothers are given no preference over fathers. Today, many mothers now work and fathers are more hands on than ever before. Consequently, most courts try to give fit parents equal time with their children, as they find it to be more in the children's best interests to be involved in the lives of both parents. Therefore, unless there is a compelling reason to the contrary, shared custodial time, which means equal time with both parents, is usually the "norm" in these proceedings.

3. Parents must exercise the time given to them in a custody order.

It is unlikely that a parent would ever be found in contempt for not exercising their custodial time; courts can't force an unwilling party to act like a parent. Therefore, if your children's other parent is supposed to have them every other weekend, there is likely little you can do to force him or her to exercise this custodial time. On the other hand, if the other parent were to interfere with your custodial time, such as by not returning the children at the designated time, then you could file a motion and have them found in contempt.

Advance Health Care Directive and Living Will in Pennsylvania: Defining Death

Advance Health Care Directives and Living Wills in Pennsylvania

Defining Death:  Uniform Determination of Death Act

Can a person be simultaneously dead and alive? One would think that it's simple enough to define death. If your heart stops and you do not breathe, you are dead, right? For most of human history, death was exclusively defined as the complete and irreversible cessation of all cardiorespiratory function, meaning that if an individual's heart was not beating and their lungs were not breathing, they were dead. In this definition, it is necessarily implied that the individual's brain is functioning at some level. After all, it is the brain that tells the heart and lungs when and how hard to work. It is a miracle of modern medicine and technology that today, unlike in centuries past, an individual with no brain function can still breathe.

With the aid of a mechanical ventilator, Jahi McMath, a thirteen year old girl, has maintained cardiorespiratory function (breathing and heartbeat) despite being declared brain dead by multiple physicians. In early December, Jahi underwent a routine corrective surgery to address issues related to pediatric sleep apnea. Although she seemed fine, Jahi lapsed into cardiac arrest and suffered severe brain hemorrhaging shortly after the procedure. Before long, all of Jahi's brain function ceased and she was no longer able to breathe on her own. Without the help of a ventilator, Jahi would have stopped breathing and passed away. Jahi, however, is breathing. A machine may be doing all of the work for her, but she's breathing. So technically, since her cardiorespiratory function has not ceased, she is not dead. On the other hand, a battery of tests and multiple evaluations revealed that Jahi is incapable of both voluntary and involuntary movement. There is no blood flow to her brain and there are no signals or impulses coming from her brain whatsoever. She is brain dead and, almost certainly, irrevocably so. Jahi's family believes that she is alive. According to the traditional definition of death, which centers on breathing and cardiac function, they're technically correct. However, Children's Hospital and Research Center of Oakland, California disagrees and believes that, as Jahi's brain is no longer functioning in any capacity, Jahi is dead. Children's hospital went so far as to issue a death certificate for Jahi and, reportedly, staff at the hospital refer to Jahi as "the body" or "the corpse", even in conversations with her family. There was a protracted legal struggle in the local courts involving injunctions which barred the hospital from Recently, Jahi was moved to another facility, the name of which is undisclosed, who has offered to care for Jahi in her current state indefinitely.

International Custody Disputes and the Hague Convention

International Custody and the Hague Convention

Jack Redmond's parents met in Ireland while his mother, Mary Redmond, a United States citizen, was studying in the country. Jack's father was a citizen of Ireland. When the couple found out that Mary was pregnant, they moved to the United States, where Jack was born in 2007. They relocated back to Ireland when Jack was only eleven days old, giving him dual citizenship. However, shortly thereafter, when Jack was only nine months old, the couples' relationship soured and Mary moved back to the United States with Jack. Jack's father instituted a custody proceeding in the Irish courts and in 2011 it was ordered that the parties should share custody of Jack in Ireland. Shortly after the proceedings, Mary, who traveled to Ireland to participate in the proceedings, fled back to the United States with Jack and filed for custodial rights in the United States court system. Mary's move resulted in her being found in contempt in Ireland. Additionally, Jack's father filed a petition in the United States District Court alleging that Mary was in violation of international child abduction laws. The United States District Judge ordered Jack back to Ireland in the summer of 2012. Jack traveled there with his grandmother; Mary did not go as she feared being jailed as a result of disobeying the Irish custody order. Mary has not seen Jack in person since she put him on the plan almost a year and a half ago.

The story took another turn in the summer of 2013 when the U.S. appeals court reversed the District Judge's order and ordered Jack back to the United States. The appeals court reasoned that by the time Jack was relocated back to Ireland, he had already established deep roots in the United States - he was enrolled in school here, he was involved in extracurricular activities, and he has a large extended family here - that Ireland could not be considered his home. In December of 2013, the District Judge entered a final order that Jack be returned to the United States. Right now, Mary Redmond is awaiting the return of her son, whom she has been keeping in daily contact with through telephone calls and Skype. When Jack makes it back to the United States, he might not be able to stay long, as there is currently litigation pending in the Illinois states courts, which has been put on hold pending the outcome of the federal case.

Divorce and Social Security Benefits of Your Spouse

How does divorce affect your Social Security benefits?

In recent years, the divorce rate among the Baby Boomer generation is on the rise. A recent New York Times article revealed that, although the overall rate in the U.S. has declined markedly over the last decade, decreasing from 50% to 40% since 1996, the Baby Boomers are experiencing an upswing, with rates increasing a staggering 50% over the past twenty years. Fifty percent! With so many individuals who are close to retirement thinking about divorce, many people are asking "How does this affect my Social Security benefits?" When considering how a ending a marriage will impact your social security retirement and disability benefits, several general rules apply.

No matter what happens in any marriage, an individual is always entitled to the Social Security benefits they have earned on their own. If, however, you are divorced and your marriage lasted ten (10) years or more, you are also eligible for 'derivative benefits'. Derivative benefits are those earned by an ex-spouse, which an individual is entitled to claim. Derivative benefits are usually equal to 50% of the primary earner/ex-spouse's benefits. The following circumstances are required for an individual to be eligible for derivative benefits: The marriage must have lasted at least 10 years; the ten year period is measured from the date of marriage until the date the decree was entered, not the date of separation; the applicant must be unmarried; the applicant must be at least 62 years old; you cannot claim both your own benefits and the entire derivative benefit; you are limited to taking 100% of your own or the derivative benefit, whichever provides a higher amount; typically, the Social Security Administration will pay the applicant's individual amount plus extra to make sure the applicant receives the highest amount available to them; and derivative benefit rules apply to both Social Security Retirement and Disability.

Pennsylvania DUI & Refusing Chemical Testing

DUI & Refusal of Chemical Testing in Pennsylvania

When Lamar Odom was pulled over for a suspected DUI in August, he almost immediately earned himself a one year suspension of his driver's license. How is this possible when "innocent until proven guilty" is the principle by which our entire criminal legal system is based upon? Lamar made one big mistake: he refused chemical testing.

By obtaining a California driver's license, drivers consent to have their breath, blood or urine tested if they are arrested on suspicion of driving under the influence of alcohol or drugs. Refusal to consent to such tests automatically triggers a one year license suspension.

California's law is almost identical to Pennsylvania's implied consent law. In Pennsylvania, drivers are required to take blood, breath, and urine tests if they are lawfully arrested for suspicion of driving under the influence. By carrying a Pennsylvania driver's license, drivers impliedly consent to such searches. However, an officer cannot force a suspect to submit to chemical testing. If an individual suspected of driving under the influence refuses such testing, in Pennsylvania, they will automatically be hit with a one year license suspension for their first refusal. For a second refusal, or if the individual has had a prior drinking and driving conviction, they will automatically earn an 18 month license suspension.

Stars Without Prenuptial Agreements & Divorce

Stars Without Prenups and the Divorces that Follow

Michael Jordan. Madonna. Tiger Woods. Alec Baldwin. Rupert Murdoch. Mel Gibson. What do all of these individuals have in common? Yes, they are all famous celebrities. Yes, they are all worth millions upon millions of dollars, perhaps even billions. However, what likely does not come to mind is the fact that all of these famous faces wed without having their significant other sign a prenup. While the idea of planning for your divorce before you even walk down the aisle is hardly romantic, the cold hard truth is that many marriages end in divorce. According to the Pennsylvania Department of Health, 36,345 marriages ended in a divorce or annulment in 2012 in Pennsylvania alone. While no one marries expecting that they will divorce, entering into a prenuptial agreement can serve to protect your assets in the event your marriage eventually breaks down. Mel Gibson had to pony up an estimated $300 million to his wife when their divorce was finalized. However, that hardly compares to the $1.7 billion dollars Rupert Murdoch lost to his ex-wife, Anna when their marriage ended. Had these stars had the foresight to enter into a prenup, they may have salvaged millions of dollars of their personal fortunes.

What exactly is a prenup? A prenuptial agreement is a contract entered into by a couple in anticipation of an upcoming marriage. While child custody and child support are not issues to be covered in a prenup, entering into a prenup can be an effective way of dealing with the division of assets and debts and spousal support and alimony. There are many reasons why one may want their future spouse to sign a prenup. One spouse may be pursuing an advanced degree and the couple may want a prenup to outline how this debt will be allocated in the event of a divorce. 

Special Needs Guardianships

Special Needs Guardianships: Why you must go to court to get control over your own child

Many parents of special needs children are shocked to find out that when their disabled child reaches adulthood, they no longer have a legal right to control or decision making for their child, medically or financially, even if that child is completely disabled. Once a child reaches the age of 18, the law presumes that they are able to make decisions relating to their health and finances. All children over 18 are legally competent in the eyes of the law meaning that their parents no longer have the right to make financial, educational, and health related decisions on their behalf. For many 18 year olds, this is wonderful news. They are ecstatic to finally be free to make their own decisions without requiring input from others. For many special needs children, this presumption means that the adults who they depend on for day-to-day care, can no longer legally make many decisions on their behalf.

To overcome the presumption of competence and gain back decision making powers over their child, parents of disabled children must file a guardianship petition. A guardianship is court proceeding through which an incapacitated person is appointed a guardian to manage his or her affairs. The court will only appoint a guardian of a special needs individual after hearing evidence that the person is incapacitated and deciding, based on the evidence, that there is a need for a guardian.

Who Needs a Special Needs Trust?

Who needs a Special Needs Trust?

Special Needs Trusts provide disabled individuals and their families with a way to protect assets, thereby allowing funds to be used to enhance the disabled individual's quality of life to the highest extent possible. Who can or should have one of these estate planning documents? Any individual who receives or might receive income-based public benefits for disabled individuals should have this.

While it is clear that those who already receive such disability benefits should have a Special Needs Trusts, what about those who aren't receiving benefits yet? There are many different definitions of what it means to be "disabled", but for purposes of creating a Special Needs Trust, an individual is "disabled" if they suffer from a physical or mental impairment, which has lasted or expected to last for at least 12 months or will result in their death, and the impairment prevents them from earning a substantially gainful living. 

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