“Who Will Make Important Medical Care Decisions On Your Behalf If You Cannot?”
In light of the COVID-19 virus (the “coronavirus”) pandemic, the importance of having someone who is authorized to make timely and critical medical care decisions on your behalf if you’re unable to do so has taken on a greater importance.
Living wills, health care instructions and appointments of health care representatives fall squarely into the category of “better to have and not need, then to need and not have.” Where a will is a legal document which allows you to dictate how you want your estate to be distributed when you are deceased and who will be the person to do so, a living will, health care instructions and an appointment of a health care representative allow you to decide what medical care, if any, you will receive if you are unable to inform medical personnel of your wishes regarding such medical care and who you wish to make such decisions if you are incapable of doing so. However, those documents must be in place before you need them because you cannot sign those documents if you are deemed to be unable to make informed decisions for yourself.
A living will is a legal document that states your wishes regarding the types of medical care you wish to receive and/or to not receive. Should you be in a terminal condition or permanently unconscious, a living will can also tell your physician whether you want life support systems to keep you alive or whether you do not want to receive such extraordinary treatment. A living will is only utilized if/when you are unable to make or communicate informed decisions regarding your medical care. Health care instructions are similar to a living will.
A health care representative is a person (including a successor if that person is not able to act as your health care representative if the time comes to do so) which you appoint to make decisions about your medical care if you become incapable of making such decisions yourself. In most instances, a person will choose a family member or a close friend. The paramount considerations when choosing your health care representative are that: (1) the person is willing to undertake the responsibilities that come with this position; (2) you trust this person to carry out your wishes; and, (3) the person clearly understands your wishes when it comes to the medical care decisions which may need to be made. If you have a legally effective living will or health care instructions in place, your health care representative will make sure the directions and instructions set forth in your living will or health care instructions are followed. If you do not have a legally effective living will or health care instructions in place, then your health care representative will make medical care decisions (including end of life decisions for you) based upon his or her understanding of your wishes. However, a health care representative will not act unless you are deemed to be incapable of making informed decisions about your medical care.
If the need for decisions concerning the type of medical care you receive arises (including decisions regarding the withholding or withdrawing of life support systems) and you do not have a living will or health care instructions, or a health care representative, your physician will consult with your spouse (if you have one), next of kin, close relatives and/or your conservator (if you have one) to ascertain what you may have told them about your positions concerning such decisions. If your physician cannot ascertain your wishes from speaking with those persons, then decisions concerning your medical care will be made based upon what is in your best interests. Relying on discussions with or spoken instructions to the foregoing individuals is not recommended. If you do not have a legally effective living will or health care instructions, or have not appointed a health care representative, any such discussions or instructions, if not sufficiently specific, may need to be proven in a court.
You cannot be denied medical care or admission to hospitals or other health care facilities based on whether you have a legally effective living will, health care instructions and/or have appointed a health care representative.
In addition, the lack of a living will, health care instructions and/or an appointed health care representative does not eliminate the requirement that your physician provide you with medication for pain and/or treatment solely intended to keep you comfortable. Your physician is required to provide that type of care.
The foregoing is just some of the benefits of having a living will, health care instructions and/or an appointed health care representative and some issues that may arise if you do not have one or more of those. This article is not intended to discuss all possible benefits or issues concerning living wills, health care instructions and/or appointed health care representatives. Further, this article and the information in it do not constitute legal advice and are not substitutes for legal or other professional advice.
If you are interested in having a living will or health care instructions drafted and/or a health care representative appointed, please call me at (860) 455-5207 or email me at AttorneyTighe@tighelawfirm.com
Is The Coronavirus Pandemic An “Act Of God” Such That You Can Use It To Recover A Deposit Or A Full Refund For A Cancelled/Rescheduled Event?
By Attorney Kevin M. Tighe
Did you enter into a contract prior to the coronavirus pandemic for an event, such as a trip, wedding/wedding reception or party, only to have the other party cancel or reschedule the event based upon the virus itself or any legal restrictions based upon the virus (for example, a legal prohibition against gatherings of more than 10 people)? Is the party who was going to provide the services or venue now attempting to keep a deposit or not provide a full refund? If so, you will want to check your contract(s) to see if there is an “Act Of God” (also known as a “force majeure”) clause which could help you obtain the return of your deposit or a full refund.
First, what is a “force majeure” or “Act Of God” clause? A respected law dictionary defines such a clause as being one that is “meant to protect the parties in the event that a contract cannot be performed due to causes which are outside the control of the parties and could not be avoided by exercise of due care.” Examples of “Act Of God” events include hurricanes, tornados, and other natural disasters. However, a pandemic is not excluded from being considered an “Act Of God” for purposes of a contract.
Second, if you are seeking to recover your deposit or a full refund, and the other party to the contract is resisting providing you with your deposit or full refund, you will need to check your specific contract to see (1) if there is an “Act Of God” clause, (2) if there is, how is an “Act Of God” defined, i.e., broadly or narrowly, and, (3) if there is, what you need to do in order to be able to rely upon the “Act Of God” clause. Note, that an “Act Of God” clause must be expressly included in your contract for you to attempt to rely upon it. A court will not read an “Act Of God” clause into a contract if such a clause is not expressly included in the contract.
Third, if your contract does not contain an “Act Of God” clause, that does not mean you will unequivocally not be able to recover your deposit or a full refund. There are other legal principles which are similar but do not have to be expressly included in a contract to be applicable. “Impossibility,” “impracticability,” and “frustration of purpose” are all similar legal principles which will excuse one party from having to perform his/her/their part of a contract if some intervening or superseding event makes that party’s performance “impossible” or “impractical,” or frustrates the purpose of the contract.
If you have not been able to obtain the return of your deposit or full refund after informal communications with the other party to the contract, then informing them that the contract has an “Act Of God” clause and it is your position that the coronavirus pandemic qualifies as such an “Act Of God” may move them to reconsider their position. If not, you can bring a civil lawsuit against them. If the amount you are seeking to recover is less than $5,000, you can even bring the lawsuit in small claims court.
This article and the information in it do not constitute legal advice and are not substitutes for legal or other professional advice. This article only applies to contracts which are governed by Connecticut law.
If you need assistance recovering a deposit or a full refund, please call me at (860) 455-5207 or email me at AttorneyTighe@tighelawfirm.com, and we can discuss the specific facts of your situation.
Permitting Minors To Possess/Drink Alcohol On Your Property Could Result In You Being Held Civilly And/Or Criminally Liable.
By Attorney Kevin M. Tighe
The COVID-19 pandemic has resulted in the cancellation of many, if not all, high school graduation ceremonies. However, when the restrictions against groups gathering in Connecticut is ultimately either loosened or lifted, there will almost certainly be high school graduation parties held on private property. In addition, with the summer upon us, picnics and other gatherings on private property will take place. That said, it is important to understand that minors are not permitted to possess alcohol -- even at a party or other gathering which is held upon private property.
If you permit a minor to possess (which includes drinking) alcohol on your property and that minor ends up getting injured due to being inebriated or due to having drank the alcohol on your property, or injures one or more other persons because of the same reasons, you may end up being held civilly liable for the minor’s and/or other persons’ injuries. That means you will likely be sued and could potentially have a monetary judgment entered against you.
In addition to potentially being held civilly liable, it is possible that you could also be held criminally liable (subject to imprisonment and/or a fine). Connecticut law prohibits someone who owns or controls private property from failing to make reasonable efforts to prevent a minor from illegally possessing (which includes drinking) alcohol on their private property. The law (Connecticut General Statute § 30-89a) requires the person to know that the minor possesses alcohol on the property before being required to make reasonable efforts to halt possession. That said, turning a blind eye to minors possessing (including drinking) alcohol on your property is likely not going to provide you with a viable defense. An arrest, prosecution, and potential conviction under the law in question can be based upon your constructive knowledge of minors possessing (including drinking) alcohol on your property. This means that if, based upon all the facts, you “should have known” that minors were possessing (including drinking) alcohol on your property, then you can potentially be found to have violated the law in question.
A violation of the law in question (Connecticut General Statute § 30-89a) is a class A misdemeanor. Class A misdemeanors are the most serious misdemeanors in Connecticut, punishable by up to one year in jail and a fine of up to $2,000.
Given the potential for being held civilly and/or criminally liable, the best course of action if you are hosting a party or other gathering on your property is to have a zero tolerance policy relative to minors possessing (including drinking) alcohol. In addition, you should undertake to be observant of any situation or set of circumstances which could be relied upon to prove that you “should have known” that minors were possessing (including drinking) alcohol on your property.
Finally, the foregoing does not apply only to parties or other gatherings on your private property. If even just one minor is located on your private property, and that one minor possesses (including drinking) alcohol on your property, you could be held civilly and/or criminally liable.
This article and the information in it do not constitute legal advice and are not substitutes for legal or other professional advice. Further, this article only addresses Connecticut law.
If you need assistance regarding a civil and/or criminal matter based upon a minor possessing alcohol on your property, please call me at (860) 455-5207 or email me at AttorneyTighe@tighelawfirm.com, and we can discuss the specific facts of your situation.
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