Advanced Healthcare Directive: What is it and Why You Need One

Author: Dustin Wetton

How many times have you been in a serious accident, and while checking into the emergency room you are asked if you have an advanced healthcare directive and had no idea what they were talking about? That used to be me, but luckily law school and experience opened my eyes to the beauty and necessity of an advanced healthcare directive.

This often simple document wields an immense amount of power. Remember the Terri Schiavo case? If she had an advance healthcare directive, the battle between her spouse and her parents over her life would have had a chance to be solved peacefully. Unfortunately, she did not have one, and she made national news because of it. Before I go into why her case was such a mess, let me first explain what an Advanced Healthcare Directive (AHD) is. An AHD is a written document that lets your physician, family, and friends know your healthcare preferences, including the types of special treatment you want or don't want at the end of life, your desire for diagnostic testing, surgical procedures, cardiopulmonary resuscitation, organ donation, and more. It is normally recorded with your primary physician, your attorney, your appointed agent, and yourself. The document is able to tell everyone your wishes and requests you when you are unable to make them yourselves, and they are implemented by your appointed agent who has the power to make care and treatment decisions on your behalf, and give instructions about their healthcare wishes.

The AHD is not something that you should wait for. It is necessary whenever you are in a state of incapacitation, which can vary anywhere from a surgical procedure to an enduring coma. Therefore, in the estate planning world, an AHD is one of the first documents that you should have, as it is necessary once you reach 18. Also, let me be clear, that an AHD is not the same thing as a Power of Attorney or a Living Will. A Power of Attorney is another great document to have, but its powers do not extend to the medical decisions necessary for your life. Therefore, this document is often irrelevant in a critical medical situation. The Living Will document is another good document, but in recent years attorneys have been using the AHD in place of the Living Will because it gives more specific and practical authority to the agents under its power, where the Living Will was often too vague to apply in many situations.

Now that you have a better understanding of what an AHD is, let me tell you why not having one can cause many problems, as it did with the Shiavo case. Most Doctors are limited in their ability to provide upmost care to their patients because of fears of acting against the wishes of their patients, and therefore running the risk of malpractice. Consequently, physicians look to close family members and friends for advice of the wishes of their patients in many life-threatening and life-sustaining situations. Thus, problems arise where the parents, spouse, friends, and the dog disagree about what is best for their loved ones. If unmarried, common-law will have no legal authority to make any healthcare decisions on your behalf. Even when you're married, the parents may have more legal authority than your spouse. Thus, the disagreements can end up in never-ending legal battles. Most of these issues can be resolved though an AHD where the physician understands their patients wishes. Also, family and friends can feel better knowing that even if they personally wanted something else, in the end, their loved ones received what they wished for.

In closing, it is a good idea to have this document. However, be aware that these decisions are not easy to think about. How long would you like to be on life-sustaining machines? Would you like to receive artificial nutrition and hydration while in a vegetative state, if so, how long? Funeral requests? Each of these decisions are moralistic, realistic, and philosophical, and therefore take time to come to a conclusion. Yet, they are all real concerns, so put your thinking caps on and get to work.

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How to Run an Effective Zone Defense against Workplace Romance

Author: Casey Rocha

Now that the NCAA champ has been crowned, I can stop thinking about basketball and focus on non-fraternization policies. “What a random medley of thoughts,” you say. Agreed, but rather than explore the rich tapestry of my inner psyche, let’s press on. There are profound doctrinal points to be made here.

How many of you have read your employment handbooks from front to back? I’ll bet not many. Yes, it’s long and soul-crushingly boring, but if you manage to get through it without falling asleep or lighting the document on fire, you at least have a quantitative sense of your legal rights and responsibilities.

Now let’s zero in on the paragraph(s) entitled, “Non-Fraternization Policy”. What does “fraternization” really mean? The dictionary defines it as the act of associating or forming a friendship with someone. In the context of employment, fraternization is commonly extended to romantic relationships between colleagues.

How can interpersonal relationships be prohibited in an employment handbook? Is this enforceable?? As is so often the case in the law, the answer is “maybe”.

Why adopt a non-fraternization policy? Primarily, an employer does so to limit the potential for on-the-job distractions and resulting negligence, thereby minimizing exposure to liability. They promote integrity, professionalism and discipline in the workplace. They protect against claims of favoritism based on personal bias and minimize cause for professional scrutiny. They eliminate conflicts of interest, etc. These provisions have become relatively commonplace in a wide range of settings, from small organizations to the U.S. armed forces.

It seems to be a simple, straight forward tool for limiting liability, right? Nope. On the one hand, you want these provisions to be effective. However on the flip side, you don't want them to be so far-reaching that they become unenforceable. Finding the balance can be tricky. A spate of civil lawsuits has challenged the parameters of these policies, requiring that they be sufficiently narrow to avoid interference with other types statutorily protected conduct. For example, an overly broad or ambiguous non-fraternization policy may be unenforceable if it improperly discourages union activity under the National Labor Relations Board. I doubt that you want to navigate these murky legal waters unaccompanied. I recommend that you hire an attorney to draft an ironclad non-fraternization policy for you.

Non-fraternization policies are worth their weight in gold when drafted properly, but they can be worthless if not appropriately and uniformly enforced.

Imagine the following scenario: you are the chief executive at a hospital. You learn that two of your employees have become romantically involved. You foresee problems… catastrophic ones. Nonetheless, you elect not to enforce your non-fraternization policy. Now imagine that the unthinkable happens—you’re slapped with a medical malpractice lawsuit arising from injuries caused by one of those employees. An employer’s failure to swiftly and effectively end the offending behavior may contribute to the allegation that the employer was negligent in overseeing its employees. In addition, the lack of consistency may ultimately weaken the employer’s potency in a general sense.

Ultimately, your best bet for combating workplace romances is two-fold. First, you want to make sure you have a legally enforceable policy in place. Second, you should establish and implement policies and procedures for enforcing that provision. Consulting with an attorney on the matter can help you preemptively address these risks & close up the gaps in your defense against fraternization in the workplace.

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A Marital Compromise: Filing Bankruptcy without your Spouse

Author: Dustin Wetton

Filing bankruptcy is a tremendously difficult decision to make, especially if the consequences of that decision may disrupt marital peace. To keep things harmonious on the home-front, an important option to consider is whether spouses should file together or separately.

A common misconception is that all debts of a marriage are each spouse’s responsibility, called “community debts.” While there are instances where community debts do exist, many debts are not community debts and therefore are not the liability of both spouses. Generally marriage alone does not make community debts, it is often through contracts and agreements between the lenders and the debtors. Commonly, only persons who signed for a loan or credit are liable for such debt. Thus, while finances and situations may be leading your family towards considering bankruptcy, it is very important to analyze each and every debt to see if it is in the best interest of your family to have only one spouse file bankruptcy.

A bankruptcy filing by one spouse is allowed under the Bankruptcy Code, and this filing does not bring the other spouse into the bankruptcy. While this may sound great, I must reiterate the necessity to analyze all of the debts to ensure that most, if not all, of the debt is that of the filing spouse, i.e. “separate debt.” I say this because if it is community debt, the protections of filing bankruptcy, called the automatic stay, will not be allocated to the non-filing spouse. Therefore, if there is community debt, and only one spouse is filing bankruptcy, then the non-filing spouse will be 100% liable for that debt themselves and the creditors will come after them hard as they would be aware of the other spouse filing bankruptcy. Thus, it is important to make sure what debt is what and how much at risk the other spouse may be.

Another important consideration is joint property. Under California law, property purchased during marriage is community property. Therefore, in bankruptcy, the bankruptcy estate will consist of rights to the community property. So even if only one spouse is filing, both halves of the community property rights enter the estate and all of it is both protected if it can be exempted, or is available for paying creditors. Therefore, it is important to analyze what properties may be at risk and to ensure that there are allowable exemptions or other protections available.

In sum, even if you are married, only one of you can file bankruptcy without affecting the others credit record, however, to do this without causing turmoil at home, be sure to have your debts and properties properly analyzed.

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Immortal? When should you have an estate plan?

Author: Dustin Wetton

Chuck Palahniuk once advised that “we all die. The goal isn't to live forever; the goal is to create something that will.” Many of us have the difficult problem of making the mistake that we are immortal, or that it will never happen, yet, despite our best efforts, we must remember Chuck’s advice, “we all die.” Thus, to leave behind anything the way that we want to, we need to have an estate plan. Many people are also confused to when they need an estate plan. The are many common mistakes that I hear of : 1)You don’t need an estate plan unless you are getting old, 2) you don’t need an estate plan unless you have something to give away, and 3) my family will know what to do with my things.

Each of this three sayings are incorrect, and for various reasons. Mostly, what is incorrect with them is that an estate plan is not for the rich, the old, and for those with good family relations. An estate plan is a way to govern your life when you are not capable of doing it yourself. Its called planning for the future, and is as important, if not more important, than saving for a retirement, creating a savings account, or planning for your child’s future. A customized estate plan will ensure that you are best protected, that your family and the nest that you created are managed and guarded as best as possible, and that you don’t leave a burden on those left behind. Estate plans are also not just for your death, but also are used for many other purposes. For instance, a power of attorney can be used to buy property out of the state, and a healthcare directive can help guide medical decisions on your behalf when you are not conscious to do so yourself.

In the end, an estate plan can do many things, but when should you really have one? I guess the best answer would be that everyone should have some sort of estate plan, customized to your current situation, but people normally don’t like that answer. So I came up with three scenarios where you really should have an estate plan. (1) You are the parent of minor children. Whether or not you are married, regardless if the other parent is alive, each parent should have an estate plan in place. Their plan should consist of at the minimum a Nomination of Guardianship, a pour-over will, and a Guardianship/Minor Trust. The idea here is to protect your minor children, both with a nominated guardian and financially, in case you become incapacitated or unexpectedly die. Next, (2) you have property that you care about. If you own any kind of property, whether it be a house or jewelry, and care about how it will be taken care of once you are not able to control it, you should have an estate plan with at least a will. If you are really particular about controlling its positioning, then a trust might be a better solution for you. Lastly, (3) you care about your health care treatment. This is important because if you become unconscious, or are in a life-threatening medical emergency, you will need someone to make medical decisions for you. In this situation, you would want a healthcare directive, so that you can inform your family and the doctors of your health care treatment desires and other related request. You also may want to have a durable power of attorney to make sure that any necessary legal documents can be signed on your behalf.

Thus, while you may feel immortal, or sometimes forget that no matter how hard we try, we will all perish someday, it is best to remember that while death may be scary, its fate is imminent, and therefore a plan is always necessary. A good idea may be to use your upcoming tax return to plan for you and your family best. Then you can truly enjoy the fulfillment in the saying “death and taxes.”

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Rehabilitating Properties: Does your entity of choice protect you?

Author: Eric Townsend

First of all, if you’re saying to yourself, “this doesn’t apply to me, I never chose any entity”, you are exactly my target audience. More investors are returning to the business of buying properties to rehabilitate and resell (flip). These can be profitable endeavors as prices seem to have bottomed. Unfortunately, many of these investors are purchasing these properties with other investors and using agents (like contractors) to do some of the repairs and work without consideration of the entity in which they operate. This could leave these investors open to immense liabilities because they did not take a few simple steps to form an entity providing them limited liability.

In California the default entity when a person does business with another, without forming a recognized entity by the State, is a general partnership. This means that the person is generally liable to any creditor for the actions of any of the general partners or agents who are acting on behalf of the general partnership. If a partner or agent accepts credit from a lender, or is found liable in a civil action for injuries that arose from the actions of a partner/agent while acting on behalf of the general partnership, then those creditors may seek their damages generally from all partners.

A simple example, a General Partnership “GP”, made up of Partners A, B, and C, hired a contractor as their agent to install a new roof on a property they intended to rehabilitate. Partner A had only contributed $5,000 to the GP, which was used as the down payment to buy the investment property. B and C had contributed $10,000 each to hire a contractor to fix the roof. When installing the roof, the contractor did not fully latch the mechanism to secure the a-frame structure. Half-way to the desired location, it fell upon an unsuspecting victim V. The V was unable to work again and was awarded a judgment of $250,000 in damages. In this case the GP would be liable for these damages (i.e., the injured party can seek these damages from any and all of the general partners including judgment liens on their personal property). Partners B and C had no personal assets for the V to go after, but A had a property worth $250,000 that was owned free and clear. So a lien was placed on A’s property and then sold to pay off the judgment. A then sought contribution from B, C and the contractor for the $250,000 and prevailed in that action. Unfortunately, the following month B, C and the contractor declared Chapter 7 bankruptcy and the general partners’ claim against them as judgment creditors was liquidated. For a $5,000 investment A lost his home.

Could this have been avoided? The answer is absolutely! Anyone who registers a business with the Secretary of State of California in a recognized limited liability entity under California Code, and operates legally under that business name, is only liable for their own acts and the amount of money they contribute to that business. So had A instead decided to form a LLC or corporation, his maximum liability in the above example would have been the $5,000. Is it worth it to spend the time, cost, and effort to limit your liability? You be the judge.

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Internships: Who do they really benefit?

Author: Alisa Vanegas - Intern

There tends to some confusion regarding internships. Are they employees? Volunteers? Well, it all depends on how you handle it.

Employees are defined as someone in a contract with the employer who receives compensation for a service or ‘job’. They must qualify for employment in the United States and file all appropriate forms. Employees are entitled to things other than basic compensation or ‘pay’. They may also qualify for certain other benefits, such as workers’ compensation and overtime pay. Thus, when asking, who does it really benefit; employment benefits both the employer and the employee.

On the other hand, an intern is ultimately a ‘trainee’ or ‘student’. Just like a student is not considered an employee of the school they went to, an intern is not considered an employee in the workplace because they are there to learn. One of the biggest factors of an internship is that the agreement between the employer and the intern is for the intern’s benefit, not the employer’s. An intern works under close supervision, learning general skills that will benefit them in future schooling, programs, or employment. Giving such supervision may impede the business, take up the supervisor’s time, and only adds to the interns skills.

Even if this is the setup of the relationship between the intern and the employer, there are certain rules that Employers must be aware of when accepting someone for an internship. The Department of Labor has released 6 guidelines that determine whether someone is an intern or an employee, and there are as follows: 1. The internship is similar to training that would happen in an educational environment; 2. The internship experience is for the benefit of the intern; 3. The intern does not displace regular employees, but works under close supervision of existing staff; 4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded; 5. The intern is not necessarily entitled to a job at the conclusion of the internship; and 6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

In addition to these guidelines, the California Division of Labor Standards Enforcement (DLSE) has added to these guidelines with a few more of their own, which are subject to enforcement for employers here in California. They are: 1. The training should be part of an educational curriculum; 2. The students should not be treated as employees for such purposes as receiving benefits; 3. The training should be general in nature, so as to qualify the students for work for any employer, rather than designed specifically as preparation for work at the employer offering the program; 4. The screening process for the program should not be the same as for employment; and 5. Advertisements for the program should be couched in terms of education rather than employment.

These guidelines have helped determine the true difference between employees and interns. While an internship should be for the sole benefit of the intern, these guideline help protect the employer from any potential wage claims, penalties, insurances, or other complications.
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The Apollo Mission

The Apollo Mission
January 27, 2011
Author: Dustin Wetton

Did you know that the moon is only 223,000 miles away when it is closest to the earth? I did know this, for I recently tried to make it there. Yet sadly, as of yesterday, after eight years of traveling, my mission failed. With only 400 miles to travel, my epic journey came to an abrupt end. My vessel on its voyage to the moon was struck by a moving object, thus resulting in its ultimate demise and termination.

While I was not traveling in a spaceship, or actually even leaving the ground, I really was on a mission to travel the distance to the moon. My vessel was a 1999 Toyota 4Runner named “Myrtle.” Myrtle was hit while parked on the side of the road by a negligent driver, causing damage that resulted in it being a total loss. With 222,600 miles on the speedometer, she was unable to reach the moon before she had to be put down. Yet on her way to the moon, Myrtle was able to travel through beautiful cities such as Santa Barbara, San Diego, and Honolulu. While the mission failed, it was a great adventure none the less.

In getting in a car accident, there are many steps that you should take to ensure that you are best protected. First, make sure you gather all of the information from the other persons involved. You will need names, addresses, phone numbers, place of work, drivers license number, and all of their insurance information. Be sure to get the insurance company and policy numbers. If they are not insured, or if you notice that the insurance is past dated, be sure to get even more information than normal as to ensure that you will have some sort of coverage or ability for indemnity. Also, be sure to get all the vehicle information, such as the make, model, color, and license plate number and state. Pictures of the scene are also very helpful, and many insurance companies can have these uploaded to their claims.

Lastly, be sure to call the police and ask for an accident report. Sometimes the police will not respond to a fender-bender, but anything else they will most likely come out and write an accident report. These bits of evidences are highly valued and have much weight in determining fault for insurance companies. If there are any injuries, you should probably go to the hospital. The idea is to get as much documentation and dependable records as possible to ensure that all of your rights are protected. Also, witnesses and their information are valuable. It is also important to remember that insurance is just the first step; you may also have a legal claim and could seek the advice of an attorney who may be able to protect your rights more than insurance is able to.

In conclusion, if someone ruins your ability to get to the moon, make sure that you are as best protected as possible by being a good evidence gathering patron. Myrtle will be missed, but she at least proved once again that it is the means, and not the ends, that brings true happiness.

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