Pet poetry

Tails of the City, the San Francisco Chronicle pet blog, recently ran a pet haiku contest. Here are the results.

Here's one of the submissions that I particularly like:

Dogs wait patiently / With their origami ears / Folded precisely. -J. Fenton

Even the best-laid plans...

can go awry. Sometime we call this "law in action"--when the legally correct thing is ignored, and the person in front of you says something else is required or expected. Case in point, the instances where same-sex partners were denied visitation access to their ill partners in hospitals. The New York Times reported on two such couples, where the access-seeking partner had a valid health care power of attorney, but was turned away anyway.

[One] case, now the subject of a federal lawsuit in Florida, is being watched by gay rights groups, which say same-sex partners often report being excluded from a patient’s room because they aren’t “real” family members.

And lawyers say the case could affect the way hospitals treat all patients with nonmarital relationships, including older people who choose not to marry, unmarried heterosexual couples and single people who rely on the support of close friends rather than relatives.

One point of contention in the lawsuit is whether a hospital has a legal duty to its patients to always give visiting rights to their designated family members and surrogates.

Stay turned for an interesting, evolving area of healthcare, family, and patient-rights law.

Celebrity, privacy, and inelegant charitable solicitation

By now, nearly everyone knows that actress Farrah Fawcett has serious cancer, and the media have reported on her every twitch. The L.A. Times ran this piece about how her medical privacy was breached for the sake of tabloid news and how her treating hospital asked for a large donation from her for a cancer foundation.

In an interview with the Times (given last August, but green-lighted by Fawcett recently), "Fawcett described how she was deprived of the choice that most other cancer patients have: when, and even whether, to share information with family, friends or strangers."

In the time since the interview, the hospital employee who leaked the information was criminally prosecuted and convicted, the medical center has attempted to remedy its policy, and the governor of California has signed a stricter medical privacy law.

On the topic of the solicited donation, the story notes:

The university went so far as to give her a prewritten letter that she could sign and fill in a dollar amount for the foundation, documents show. It also created an official-looking proposed announcement that said, "Ms. Farrah Fawcett has established a fund in the Division of Digestive Diseases with the expansive goal of facilitating prevention and diagnosis in gastrointestinal cancers."

The uncertain definition of "competence"

The excellent entries continue on "The New Old Age." Here is the discussion on mental competence, the legal way of determining whether someone has the cognitive ability to make decisions for oneself, usually meaning signing documents. Often, that determination varies even by the type of decision to be made: for example, voting, making a will, or entering into marriage may all have different thresholds for "competence."

The entry in "The New Old Age" considers competence in the context of non-deceased wealthy philanthropist Brooke Astor's later years when she had Alzheimer's disease. Here's a bit of the entry:

. . . Alzheimer’s sufferers may experience days of comparative lucidity alternating with days of bewilderment. Cognitive ability “may even vary throughout the day,” said Dr. Ronald C. Petersen, a neurologist at the Mayo Clinic who chairs the medical and scientific advisory board of the Alzheimer’s Association. “A person might be
relatively sharp in the morning and by evening be quite confused.”

Caregivers are familiar with the late-day agitation called “sundowning.” Medications, disrupted sleep, social stimulation and even a minor cold can affect these diurnal cycles. Though a variety of doctors are expected to testify during the two-month trial, they may shed little light on whether Mrs. Astor had, in legalspeak, “testamentary capacity” on a particular January afternoon in 2004, when she altered her will.

. . .

The bar for establishing testamentary capacity is set fairly low. The person in question needs to have a general understanding of her assets, know to whom bequests are normally left, and be able to state what she wants to do and explain why.

Prominent New York case draws attention to financial abuse of the elderly

Financial exploitation of the elderly is a problem that has received growing attention in recent years. A recent post to the excellent New York Times blog, "The New Old Age," considered how elusive detection of such abuse is, in light of the pending case in New York regarding the estate of Brooke Astor, her son, and the son's attorney.

According to the piece, "[m]ost cases involving suspected financial exploitation of the elderly . . . are never prosecuted and probably never discovered." Here are a few reasons why:

1. The elderly person may be isolated from others who would be in a position to detect abuse. Isolation may be from poor health and mobility, shrinking social circle, or imposed by the abuser.


2. Defining financial abuse can be elusive. Some action may indeed be abusive, but others may be well-intended, but just done in poor judgement. The Times post notes that, "[t]rying to specify exactly what behavior constitutes elder abuse . . . remains a shadowy, insufficiently investigated subject."

3. Abusers can be family members, so then the abuse is often unreported because of the closed circle of those involved. A study cited in the post found "that the most likely perpetrators are family members, friends and caregivers, who feel entitled to take funds because of their established relationship."

4. In our legal system, recourse is often expensive and may take a long time. If the funds stolen are not significant (say, over $10,000), it may be cost-prohibitive to litigate under civil law or persuade the district attorney to prosecute under criminal law. Further complicating matters, with an elderly victim, they may not wish to give testimony (or be mentally competent to), or they may have died before a case can be resolved.

Fortunately, many states, including Wisconsin, have recently enacted tougher statutes against financial exploitation of elderly or other at-risk adults. In addition, agencies and task forces have been formed or empowered to address abuse.

Whether through government, non-profit entitities, or personal vigilence, the awareness and prevention of elder abuse (of all types) is improving, but requires involvement on everyone's part.

As the Times post ends with a quotation from the president of NAELA (National Acadamy of Elder Law Attorneys): "A sensational case like this, or the Terry Schiavo case, hits the hot button and helps make people aware that there could be a problem and that they should protect themselves."

They're lining up at the courthouse...

Today was the first day for same-sex couples to marry in Iowa. Here's the Des Moines Register's web section on the topic. The Register's update from late April 27 said that over 360 couples have applied to be married.

Not to rain on anyone's parade, but even state-permitted marriage for same sex couples only goes so far. On Reason's website, Steve Chapman makes "A Federal Case for Gay Marriage."

Here's the thrust of Chapman's essay:

It's at moments like this that the framers of the Constitution begin to look even wiser than usual. Somehow they anticipated that people in Massachusetts would not want to live under exactly the same laws as people in Mississippi. So they set up a system known as federalism, which allows different states to choose different policies. Thus we simultaneously uphold majority rule and minority rights.

This, at least, is how federalism is supposed to operate—letting subsets of the national population get their way in their own locales. There's only one hitch: In this case, it doesn't quite work that way.

Why not? Because of a huge imbalance created by that longtime nemesis of state sovereignty—the federal government. Under the 1996 Defense of Marriage Act
(DOMA), Virginia has complete authority to deny the privileges and responsibilities of marriage to same-sex partners. But Iowa doesn't have the complete authority to grant them.

And in a slightly related story, halfway across the country in California, the economic recession is prompting (heterosexual) couples to get hitched at the courthouse to save money. As the L.A. Times reports, the over-the-top weddings of the past two decades may be over.

"I didn't need to put on a frilly fairy tale wedding for everybody else," said [one bride in L.A.], who picked up a bouquet from a local florist on her way to the high-rise courthouse. "We really just wanted to get married."

. . .

In L.A. County, civil wedding ceremonies performed in government buildings were up 17% in 2008 over 2007. Nationally, the number of couples marrying in civil, rather than religious, ceremonies in the first quarter of this year increased by 60% over the same period last year.

Passing of an ukulele virtuoso

As noted in the New York Times, John King, a renowned ukulele player, died at the age of 55.

Here's an excerpt from the Times' obituary:

Mr. King resurrected a guitar technique from the time of Bach to play a piece that was almost certainly never before tried on a ukulele, Bach’s Partita No. 3, and went on to play other difficult classical works with dazzling mastery.

. . .

The foundation of Mr. King’s achievement was reviving a Baroque guitar technique and applying it to the ukulele. The technique involves playing each succeeding note in a melodic line on a different string. The ukulele — which is tuned so that the four strings go not from the lowest to the highest note but instead run G, C, E, A — turns out to be great for doing this. . . . The result is a bell-like quality of sound in which individual notes over-ring one another, producing an effect that some compare to a harp or harpsichord.

I'm feeling inspired to pull my ukulele out of the closet and practice!

Keep talking about advance directives until everyone has them

Facing a loved one's serious medical condition or end of life is always agonizing. But it approaches being unbearable when there is no way of knowing what the person would want for treatment or care.

Advance health care directives are SO IMPORTANT and can spare families a world of grief. Advance directives and why people tend to avoid them is the topic of a recent post on the New York Times' blog, "The New Old Age."

In light of the recent National Healthcare Decisions Day (April 16), consider this excerpt:

One reason is that advance directives may be misperceived, theorized Nathan Kottkamp, a health care attorney in Richmond, Va., and organizer of this month’s National Healthcare Decisions Day. People may equate such documents with limiting care, with “pulling the plug.” In fact, Mr. Kottkamp said, “Your living will can say you want every medical treatment known to science applied to you at the end of life. Or no treatment. Or anywhere on that spectrum.”

Elder mediation as an option for resolving disputes

Morning Edition on National Public Radio ran this story about turning to a mediator when adult children and elderly parents have a dispute about the parent's affairs.

In one example, the mediator said, "[The father] simply didn't want any of his kids to know how much money he had and how his finances were organized."

But as the report continued, " [T]hings were getting worse. One son insisted on going to court to get his father declared mentally incompetent, so the family could take control of the father's finances."

The story goes on to decribe the benefits of involving an outside, neutral party to mediate the matter. The downside may be that there are no national standards for mediating, so the family needs to carefully interview the potential mediator for qualifications. One option for finding a mediator is Eldercare Mediators (I have no basis to vouch for the quality of the organization beyond the reference in the NPR story.)

Perhaps this type of scenario is another opportunity for collaborative law.

Lots of hub-bub about same-sex marriage

First, the Iowa Supreme Court struck down that state's statutory ban on same-sex marriage on April 2.

Next, on April 5, the Vermont house and senate passed legislation, overriding the governor's veto, to allow same-sex marriage.

Check out today's New York Times article on the move toward equality flowing through Iowa, Vermont, and beyond.

Just for a bit more fodder, consider how the cultural definition of marriage is shifting, as discussed in this article from Slate.com. In looking at how various dictionaries have expanded their definitions of marriage, the article comments:

[F]or those judges who are open to the notion that statutory and constitutional meaning can change over time, the dictionary acceptance of same-sex marriage will offer evidence of a shift in public views. Instead of fending off or ignoring the dictionary, gay advocates will be able to cite the new editions in their briefs. The new entries in Webster's, Black's, and soon the OED signal that the idea of same-sex marriage has come of age. The Supreme Court cited an "emerging awareness" that gay people shouldn't be treated like criminals in striking down remaining state sodomy laws in 2003. Now the dictionaries herald the same kind of "emerging awareness" about gay marriage.