Legal Pad: Living Wills Need Careful Attention

By MJ Goodwin

Do you have a Living Will? Do you know what it says? If you have one, you probably think that you are saving your loved ones the burden of making a tough decision during tough times.  That was certainly my intention when I signed mine.  But have you considered that the Living Will could, in fact, be a danger to you and possibly cost you your life?  This was not an issue I had ever considered, because I trusted the medical profession to understand the documents.  I was very wrong to do that.  I learned this week that the medical profession is very ignorant where Living Wills are concerned.  

Some basic law is necessary to understand what a “Living Will” is designed to do.  South Carolina has the “Death with Dignity Act”, which can be found in Title 44, Chapter 77, of the South Carolina Code of Laws.   This law allows a person, even while they are young and healthy, to draw up a document that tells doctors, at some abstract time in the future, that the person does not want to be kept alive by artificial means.   It is meant to apply to situations like bad car wrecks that leave a person brain dead and on a feeding tube; or to a stroke that renders a person in what is termed a permanent vegetative state.  It means you don’t want a feeding tube to keep you alive.  This is clearly stated in the state mandated form.  A “DNR” or “Do Not Resusciate” Order is entirely different.  And this distinction is where the danger lies.  

As the name implies, the DNR  designation communicates to medical personnel (whoever that might be, a nurse on duty or a paramedic or a doctor) not to even attempt to restart the patient’s heart or breathing once they have stopped. There are valid reasons to have a DNR.  The DNR  is chosen by patients who are nearing death and have expressed that they do not wish to be kept alive by heroic means. You might see it with a terminal cancer patient, who might be revived, but only for a brief time and only to face a life of extreme pain.  I once had a 98 year old blind, incontinent client who had DNR orders plastered all over his house.  He was ready to go.  I respect that.

You would NOT generally see a DNR designation on an otherwise healthy person.  The problem is that people in the medical field do not seem to know the difference between living wills and DNRs!  A living will is not the equivalent of a DNR order.  Not by a long shot.

This point was driven home to me in a big way this week when my mother suffered a stroke.  My mother is a strong woman and a lifelong advocate for personal responsibility and making one’s own decisions.  She carefully and deliberately read over her living will and signed it in 1997.  She made it clear that if the contingencies listed in the living will occurred, that she would not want to have a feeding tube and be kept alive in a persistent vegetative state.  However, that being said, she never signed a DNR.  

You can imagine my surprise when I found my mother, who despite having had what was described by the neurologist as a minor brain bleed, was conscious and able to feed herself and who had limited speech, to have a DNR bracelet on her arm and a DNR sticker on the door of her ICU cubicle at the  hospital.  After a brief discussion with the ICU nurse, who did not seem to know the difference in a living will and a DNR, I convinced her that a living will is not the same thing as a DNR.  The bracelet was removed and the sticker was taken off the door.  Being a lawyer, I kept the DNR bracelet.  

As the horror of what would have happened if she had “coded” or needed resuscitation before I arrived sank in, I realized how dangerous that living will really is.  It in no way means that my mother didn’t want to be treated for her condition any more than mine means I don’t  want CPR if I have drowned.  The fact that the ICU personnel were ignorant to this fact is astonishing.  You would think that if any unit was going to know the difference in a living will and a DNR, it would be the ICU.  But they were ignorant.  Woefully ignorant.  And I wonder how many people have died because of this ignorance.

I asked a few more questions. My father, who is 81 years old and who is very distraught, didn’t know what the purple band with the letters DNR on it meant.  Nobody told him or my brother, who is a college professor, what the DNR meant or that they did not intend to try to revive my mother if she needed that.  The seriousness of the DNR was not explained to anyone.  Astonishing.  Only when the lawyer arrived was the situation revealed and handled appropriately.  What about the families that don’t have a daughter or son who is a lawyer?

One thing is crucial.  Hospital staff and families need to understand when the living will actually comes into play. There is a difference between when a living will is effective and when a living will is enacted or comes into play. A patient’s living will becomes effective when the patient has completed the living will correctly. That part is usually done at the lawyer’s office.  The living will is only enacted  or come into play when the certain specified triggers, that are clearly outlined in the document, have occurred.  In my mother’s case, none of the triggers had occurred, and yet she had been designated as DNR.

The most common trigger terms used in living wills are terminal condition and persistent vegetative state. Get down to the definitions.  A terminal condition is any health condition that does not respond to sound medical treatment and will result in the patient’s death, and a persistent vegetative state is a condition in which the patient is not aware of his/her surroundings and has lost the ability to think. Patients in a persistent vegetative state have lost their ability to speak or respond to commands and therefore cannot communicate their wishes for health-care treatment.  South Carolina requires that two physicians document that the patient has a terminal condition or is in a persistent vegetative state. It is important that doctors and families remember that stabilization is the first priority in an emergency situation, therefore providing enough time to assess the patient and diagnose the condition.  You certainly don’t just slap a DNR bracelet on a patient because she has executed a living will.  

As I write this column, my mother is being moved from the ICU to a regular room and her prognosis is very good.  She was able to say “I love you too, darling,” when I left her room. People in persistent vegetative states cannot do that. Wouldn’t it have been a tremendous tragedy if her time on earth had been cut short because the hospital staff was ignorant?  

So the take away message is that living wills are good things to consider and to have if you want one.  They can certainly spare your family an ordeal. But they are NOT the same thing as a DNR order.  And based on my experience, you better make darn sure that your family and your doctors know the difference.   If you don’t, your living will could cost you your life.

**Disclaimer:  M. J. Goodwin, Attorney at Law, LLC, is located at 113 North Main Street, Anderson, SC 29621.  864-375-0909.  The information in this column is not intended as a substitute for specific legal advice for any given situation.  Only clients who have hired M. J. Goodwin, Attorney at Law, LLC, are receiving actual legal advice that pertains to their particular situation.  If you would like to hire M. J. Goodwin, Attorney at Law, LLC to represent you in your family, criminal or civil court action, please call 864-375-0909. 

Legal Pad: Mediation: what is it? Why am I here?

Mediation:  what is it?  Why am I here?

By M. J. Goodwin

www.mjgoodwin.com

         Anderson County Family Court has a mandatory mediation requirement.  This was implemented in 2002.  Mediation is required before a party can even request a final contested hearing.  I completed my mediation training in 2002 and do a fair number of mediations each year. 

         Mediation is an informal process that allows opposing parties of litigation to meet with a neutral (the mediator) in an atmosphere that facilitates communication, with a view to resolving differences outside of court.  Mediation gives the parties a chance to make the decisions, with compromises that are implicit in settlements, rather than having a stranger (the Judge) make the decisions for them.  Studies have shown that resolutions reached by agreement are generally more satisfying for the litigants than Court determinations.  After all, who doesn’t want to have some control in the most personal parts of his or her life?  So what should one do to have a successful mediation?

         There are as many opinions on mediation as there are attorneys and litigants.  Like most things in life, you will get out of it what you put in it.  This point was driven home for me recently at a seminar.  A speaker who does a mostly mediation practice stated that an attorney would never dream of going to trial unprepared; with mandatory mediation, more cases are now mediated than tried.  So why do attorneys and litigants come to mediation unprepared? 

         That begs the question:  what preparation should be done in anticipation of mediation?  Again, the answers are as varied as the responder.  I like to see each party make a full financial discloser prior to mediation.  This includes a financial declaration on the court approved form, of course, but also goes further.  As a mediator and as a litigant’s attorney, I want to see the statements of the retirement accounts from both prior to the separation and at the time of the mediation.  If there is a lot of credit card debt, I want to see the bills.  Tax returns from the last five years of the marriage are useful.   Statements of net worth are useful.  Child support guidelines should be run in advance.   If alimony is a consideration, the alimony calculator should be consulted.

         For issues involving children, I want a Guardian ad Litem report if one has been done.  If not, then I want to speak to the Guardian ad Litem.  If there is not a Guardian ad Litem, I will assume it is not really a contested custody case.  If it is a contested custody case, I would like for both parties to make a reasonable proposal as to the amount of contact that he or she would like to have assuming that the OTHER SIDE wins custody.   To truly consider that question, the party must consider the possibility that he or she will not prevail on the issue of custody.   That sort of thinking leads to settlements.   Children generally suffer the most in custody cases.  It is by far better to settle the custody issues if at all possible.

         Litigants should really think about the issues and they resolutions that they are willing to consider prior to sitting down with the mediator.  If they do not do this, they are very likely wasting time and money.  It is helpful if the parties have exchanged settlement offers and even more helpful if they have several different acceptable scenarios in mind.  It is important to know what issues are most important to both parties.  I have mediated cases involving expensive vacation properties and cases involving essentially worthless (but sentimental) personal items.  I have mediated cases between bitter, warring parties.  Some have reached agreements; others have just wasted time and money.  The primary factor in whether or not a case settles at mediation is the amount of preparation that the attorneys and litigants put into the mediation process.



Legal Pad: The Best Interest of the Child

By M. J. Goodwin

www.mjgoodwin.com

I spend about 85% of my professional life in the Family Court of South Carolina.  Most of that time is spent on cases involving child custody or child abuse and neglect.  The standard for determining which parent gets custody of a child is “what is in the best interest of the child?”  Our Supreme Court has repeatedly stated that “in a custody dispute, the paramount and controlling factor is the welfare and best interest of the child“.  What a slippery slope that can be.

But it is better than the standards that we used to have.  Way back, a long time ago, children were regarded as property and therefore, were usually awarded to the father.  Of course, divorce was less prevalent then.  But if it happened, the children went with the father.  Sometimes that was good, sometimes it wasn’t.  Later, as the “new” wisdom of the 1950s-70s came into vogue, the “Tender Years” doctrine was adopted, which stated that very young children were better off in the care of their mother.  Well, that is not always the case either.   So the law ultimately involved into where it is today, the best interest standard.

So how does one determine what is in the best interest of a child?  I would submit that you cannot know what is in the best interest of a child until the child has grown up.  In retrospect, you may be able to say that what was done with regard to child rearing resulted in a well-rounded, self-sufficient grown up.  But you might also say that some areas could be better.  Or that another approach would have produced a similar result.  But that is of little help to a family court litigant, family court attorneys and family court judges. 

Perhaps a better approach is to state what is not in the best interest of a child.  This is easier.  For example, most people would agree that being exposed to the following is not in the best interest of the child:

         *drunkenness on the part of either parent

         *drug use by either parent

         *domestic violence

         *child abuse (physical, sexual, emotional or verbal)

         *promiscuity on the part of either parent

         *truancy

         *tardiness

         *lack of necessary medical care

         *criminal activity

Those examples are pretty much universally agreed to be bad ideas for children.  But what about these things?

         *adultery by a parent.  Your gut reaction may be to say that is not in the child’s best interest.  But what about when the parents have been separated for years and the new paramour is an active, loving part of the child’s life?  Not so clear cut.

         *lessons and extracurricular activities.  Your gut reaction might be that these are good.  But what if they are too much?  Have you read about the “Tiger Mother” in the news lately?  What if the parent won’t take the child to the activities?  This could also cause problems, particularly if the child is very involved in the activities.

         *a working parent.  This the classic two edged sword.  If a parent works, he or she can support the child, but cannot be there for the child 24/7.  Do we want to teach children about work ethics?  What if the child goes to work with the parent?  Is that good or bad?  Does it depend on the job the parent does?  What about a parent who doesn’t work outside the home?  He or she is there 24/7, but has no financial resources. 

         *pets.  One parent allows them; one parent doesn’t.  Which is best?

         *an illiterate parent.  Well, he or she can’t read.  But surely the other parent was aware of that during the relationship?  Is it now enough to deny custody? 

         *exposure to “R” rated movies.  Sounds like a bad thing, right?  Well, maybe the child can handle it.

         *strippers, exotic dancers.  Sounds bad.  What if it produces good income and the child doesn’t know about it?

         *illegal immigrants

Other potential gray areas:

         *an obese parent. 

         *an anorexic parent.

         *a parent with any chronic health condition.

         *homosexuality

         *mental illness

         *very old criminal histories

         *an alcoholic or drug addict that is in recovery

As an attorney and a guardian ad litem, I am aware that litigants want certainty as to what will happen in family court disputes.  However, given that each case is as different as every child is different, uncertainty is the only thing that is certain.  Judges are individual people, too.  So while we do have law on the books that gives some guidance to judges in awarding custody, it remains very much a gamble in most cases.  For this reason, it is best to have a good attorney to represent you if you have contested custody case.  A good attorney will do you a huge favor and guard you against arguing about things that don’t matter and don’t impact what is in the best interest of the child. 

I am sure that most parents won’t want to hear my bottom line advice, but here it is:  fighting for custody is a big gamble and ultimately will likely involve weighing the lesser of two evils.  It is my experience that absent the obvious things listed above, really good parents seldom engage in full blown custody wars.  Most of the full blown custody wars that I see involve parties that have significant personal, emotional or psychological issues on the part of at least one parent. 

These cases can only be remedied by trial and the only real sanction a judge can impose on the unreasonable party is to make him or her pay the other party’s attorney fees and costs.

**Disclaimer:  M. J. Goodwin, Attorney at Law, LLC, is located at 113 North Main Street, Anderson, SC 29621.  864-375-0909.  The information in this column is not intended as a substitute for specific legal advice for any given situation.  Only clients who have hired M. J. Goodwin, Attorney at Law, LLC, are receiving actual legal advice that pertains to their particular situation.  If you would like to hire M. J. Goodwin, Attorney at Law, LLC to represent you in your family, criminal or civil court action, please call 864-375-0909. 

Living in Electronic Age Changing Legal World

By MJ Goodwind

       For 2010, Time Magazine’s Person of the Year was Mark Zuckerberg, a young man who was born the year that I graduated from high school.  He is a 26 year old billionaire and the founder of FaceBook.  Now, if you don’t know what FaceBook is, I can’t imagine how you come to be reading an online newspaper.   But in the interest of clarity, I will say that FaceBook is a social networking site with so many members that  if it were a country, it would be the third largest in the world.  This mega-empire was founded in Zuckerberg’s college dorm room.  It is an electronic world.  

       I began law school in 1988.  At that time, though from a family considered fairly well off, I did not own a personal computer.  There were only three or four people in my law school class that owned computers at that time.  Computerized legal research was in its infancy and was very expensive.  Now, it is free through my SC Bar membership.

       When I went to work at the Anderson County Solicitor’s Office in 1991, I owned a computer, but it was very slow and was primarily a glorified word processor.  By 1994, when I opened M. J. Goodwin, Attorney at Law, LLC, the internet was becoming more common place and I opened my first AOL account.   Now computers are an integral part of my daily practice.  In fact, if they go down, we are in trouble!  We have multiple daily back ups and consider ourselves “state of the art.”

       So, what does all this have to do with my Legal Pad column?  This e-history lesson does have a purpose.  The legal establishment resists change.  And hiring a lawyer can be expensive.   But change, it is a-coming.  In fact,  it is here.  To attempt to increase access to Family Court, our State Supreme Court developed a self-represented litigant package for uncontested divorces.  More and more of those are being filed.  However, many have problems and are not effective.  One of my earlier Legal Pad columns was about the dangers and benefits of self-representation.  There is now an in between solution.  One no longer has to choose between representing one’s self with no legal assistance and paying thousands of dollars to hire an attorney.  One can hire a virtual lawyer. 

       Virtual law offices, or VLOs, have been around for several years.  But they are only now gaining more widespread attention.  Like FaceBook, it is taking them time to get noticed and “go viral”, as the computer literate say. 

       A VLO works like this:  the prospective client contacts the lawyer online and contracts with the lawyer for specific, unbundled legal services.  For example, a client could contract with the lawyer for advice about filing a self-represented divorce and for assistance in drafting the documents.  The client then files the documents himself and goes to the hearing on his own.  The total cost for a virtual package is a fraction of the cost of hiring an attorney to do the work and go to court.  With a VLO package, a client in a uncontested divorce case walks into the courtroom with all the necessary documents, including an expertly drafted Divorce Decree for the Judge to consider.  Additionally, by using a VLO, the client can be more certain that his or her case is actually appropriate for self-representation in court.

       VLOs are not limited to divorces.  They are useful for simple wills, power of attorney documents, contracts and legal research issues, to name a few.  Again, the documents are generated by a lawyer, with specific legal advice being provided.  The client executes the documents on his own.

       VLOs are not form generating websites like Legal Zoom ™.  With form generators, there is no customized legal advice.  In fact, there is no legal advice whatsoever.  With a VLO, you are getting a lawyer.  You are establishing a relationship with a trained legal professional to guide you through a legal process.  Your information is submitted securely.   Flexibility is greatly increased as you can contact your virtual lawyer 24/7 and your virtual lawyer can respond 24/7.  Neither party is restricted to the normal 9am to 5pm relationship. 

       Attorneys practicing with a VLO must follow the same rules as a traditional brick and mortar law firm.  Conflicts of interest must be checked.  Professional responsibility rules apply.  The only real difference in the VLO and the traditional attorney-client relationship is the face to face contact.  If that element is important to you, then a VLO is probably not for you.

       I have always believed in citizen access to court.  But access to court is of little value without an experienced lawyer to help the citizen.  The VLO allows that access for low to middle income people.  It is my hope that it will help them navigate the waters of the legal system at a cost that they can afford.

       So 2011 is the year of my grand experiment with a virtual law office.  I believe this to be the first full service virtual law office in the Anderson area.  If you think these services would be useful to you or someone you know, please visit my website at www.mjgoodwin.com  I will continue to offer my traditional brick and mortar firm as well.

Adoptions Create New Families

By MJ Goodwin

Registry Prevents Surprises

Adoptions are wonderful things.  Families are created by adoptions.  They are virtually the only “happy” case filed in Family Court.  But like many Family Court cases, they can go wrong and when they do, it is particularly devastating.  Other than the biological mother of the child changing her mind at the last minute, the worst thing that happens, in my opinion, is when the biological father shows up, after not being around for the nine months of gestation, or longer, and claims the child.   I have vivid memories of the news footage of that five year old child that was wrenched from the arms of the only parents he had ever known and returned to his biological father several years ago.  In that case, the father claimed he had not known about the child until after the adoption.  

The new South Carolina Responsible Father registry is designed to prevent “surprises” for adoptive parents by requiring putative fathers to register their desire to know of any adoption of a child that they might have fathered with a particular woman.  The purpose is to give unmarried biological fathers, who affirmatively assume responsibility for children they may have fathered, notice of any proceedings regarding their parental rights.  

The Responsible Father Registry can be found at: https://ssl.sc.gov/DSSFatherRegistry/FatherReg/RegIndex.aspx.  Like everything in life, there are rules.  In order to file, the man must be at least eighteen years old and not married to the biological mother of the child of whom he claims to be the natural father.  Only the father himself can register.  So, grandparents or other interested relatives cannot sign their sons up for this.  The father must register his claim of paternity either before or after the birth of the child, but before the date of a petition for termination of parental rights has been filed and before and adoption petition has been filed.  Any claims filed after the dates of the petitions are void.  Addresses must be kept up to date.   

To make the process idiot proof, DSS has developed form 1549, which is found on the website.  The claim must include all of the information on the form marked with an asterisk.  The claim must be signed by the putative father and mailed to DSS. If there is a multiple birth, a separate form must be filed for each child.  I suppose that a particularly promiscuous man might have to spend a lot of time filling out these forms.  There is no fee to file the claim for paternity.  There is a $50 fee to search the registry and get a certificate.  This is a cost borne by the adoptive parents.

It is the grand hope of everyone involved in adoption work that this will eliminate the legal risk associated with John Doe adoptions.  I suppose there is room for abuse, as there is with any thing of this sort.  I suppose a man might file a claim when he knows he is not the father of the child, but other than spite, I cannot imagine why he would do so.  There are penalties for filing false claims.  A person who knowingly, maliciously or in bad faith files a false claim of paternity with the registry, upon conviction, must be fined not more than $500 or imprisoned for not more than 30 days or both.  I have tried to imagine how one would prove this crime.  I suppose if the putative father had had a vasectomy that might qualify.  But I suspect we will see few, if any, prosecutions of this crime. 

Adoptions require a lot of paperwork.  All of them begin with a Summons and Complaint for termination of the biological parents’ rights and adoption.  Assuming that it is a “stranger” adoption and not a step-parent or other relative who is adopting the child, a home study must be done.  An accounting must be filed.  A Guardian ad Litem is appointed in all adoptions.  There are Consent Relinquishments done by biological parents who consent.  Now there is the search of the Responsible Father Registry.   Hopefully this registry will eliminate some of the uncertainty and pain that adoptive families have endured for many years. 

There is never any question about who a baby’s mother is.  The problems associated with the mother are with her changing her mind at the last minute following the child’s birth.  In these cases, there is no recourse for the adoptive parents who may have spent thousands of dollars on prenatal care, food, clothing and shelter for the biological mother.  It is a chance they take willingly because they want a child. 

**Disclaimer:  M. J. Goodwin, Attorney at Law, LLC, is located at 113 North Main Street, Anderson, SC 29621.  864-375-0909.  The information in this column is not intended as a substitute for specific legal advice for any given situation.  Only clients who have hired M. J. Goodwin, Attorney at Law, LLC, are receiving actual legal advice that pertains to their particular situation.  If you would like to hire M. J. Goodwin, Attorney at Law, LLC to represent you in your family, criminal or civil court action, please call 864-375-0909.  http://www.mjgoodwin.com/**