North Carolina's First Elder Law Firm

FOLLOW THE RULES, WE MUST

Frequently clients will call us with what they believe to be a perfectly routine request that we prepare documents for someone they are assisting. The request may come from a spouse, child or trusted friend who recognizes the need for an updated general durable financial power of attorney or for a health care power of attorney or for a will to be prepared for and executed by a person to whom they are lovingly giving care and services. They have discussed the issue with the person whose needs they are trying to serve and report to us that what we are being asked to do is exactly what that person wants done. I very often offer to come by and pick up the documents when ready, deliver them to the person to have them notarized in order to avoid inconvenience for all concerned. Sometimes the person they are assisting is too ill or frail to get out, and they are certainly reluctant to suggest that we make a house call. So they are quite surprised to learn that we cannot accommodate their request, that we simply furnish to them the papers that need to be signed.

Under the North Carolina Code of Professional Responsibility governing the activities of North Carolina licensed attorneys, it would be improper for us to furnish those documents. Our ethics opinions require that when we draft documents for a client we must have direct contact with that person for a number of reasons. First, we need to review the document with the person for whom it has been prepared. Second, we must be satisfied that the person signing has the legal capacity to sign documents; and finally, we make inquiry to satisfy ourselves that the documents have not been procured by undue influence. In other words, we want to be sure that what someone is signing is what they want to do and not what someone else is insisting that they must do. So, when we insist on having contact with the person whose papers we have prepared, it is not because we are trying to make it harder than it seems it should be. Instead, it is because we are following the rules mandated for ethical behavior in our profession.

A Call to Action

A Call To Action

Unfortunately, North Carolina still resides in the 19th century in its assessment of liability when people suffer injuries due to the negligence of others. Legal responsibility for damages arising out of an accident in North Carolina is based upon an assessment of fault. The legal term is negligence. Negligence is the failure to use due care to avoid injury to others either by things that we do or things that we fail to do. In North Carolina a complete defense to a claim of negligence is that the person injured was contributorily negligent. Thus our rule of law is that if the driver of a vehicle is 95% at fault in an accident and the injured pedestrian was 5% at fault, there will be no recovery by the victim regardless of how devastating the injury may have been, up to and including death.

Forty-six of the 50 states have abandoned the rule of contributory negligence in favor of a more equitable system of assessing liability known as comparative negligence. Only North Carolina, Alabama, Maryland, Virginia and the District of Columbia still adhere to the contributory negligence rule that unless your injury is 100% the responsibility of the other party, you are without legal remedy. In comparative negligence states, when a jury apportions responsibility 70% to the one who caused the accident and 30% to the victim, then when damages are assessed for the victim’s hospital bills, loss of earnings, permanent disability, disfigurement, pain and suffering, etc., the victim receives 70% of the damage award. Thus in a comparative negligence state, the victim would receive only $35,000 of a $50,000 damages judgment. However, in North Carolina upon a finding of any percentage of contributory negligence by the party injured, the jurors would not ever reach the damages issue and the injured person would receive no recovery for their losses.

Efforts have been made from time to time to change the law in North Carolina through the General Assembly. Such efforts have lobbied for by victims advocacy groups, but have been successfully resisted by the liability insurance companies and business interests. During this session of the General Assembly, it is expected that legislators will again consider the Uniform Apportionment of Tort Responsibility Act. Legislators are responsive to constituent concerns. If you feel that North Carolina needs to come into the 21st century and join the over-whelming majority of jurisdictions which have found comparative negligence to be more just, equitable and fair, please write your legislators and encourage their support of this legislation.

Can You Be Forced to Move from Your CCRC Private Apartment to Assisted Living? Read On

A federal court has ruled that a continuing care retirement community (CCRC) can force one of its residents to move from her private apartment to an assisted living unit.

Sally Herriot, 90, is a resident of Channing House, a CCRC in Palo Alto, California, that provides three levels of care -- independent living, assisted living and skilled nursing. Since moving to the facility with her now-deceased husband in 1991, Ms. Herriot has lived in a spacious independent living apartment. After Ms. Herriott returned from a hospital stay in 2006, Channing House determined that it was necessary to transfer her from her apartment to a much smaller, hospital-like assisted-living unit where she could be served by a trained nursing staff. Ms. Herriot, her family and her physician objected to the transfer, arguing that she is able to remain in her apartment with the help of round-the-clock private aides she had hired. Channing House rejected this arrangement.

Ms. Herriot subsequently filed suit in federal court, alleging that Channing House had discriminated against her based on her disabilities by refusing to accept her accommodation of hiring private aides. (See "Retirement Home Resident Fights Move to Increased Level of Care," ElderLawAnswers, 3/3/2007.)

The U.S. District Court for the Northern District of California now rules that Channing House has a duty to provide Ms. Herriot with medical care based on her level of need, and that it cannot delegate that duty to private help hired by Ms. Herriot. The court finds that Channing House would be violating its legal obligations by accepting Ms. Herriot's plan to allow her to remain in her apartment. Herriot v. House ( U.S. Distr. Ct.,  N.D.  Cal., No. C 06-6323 JF (RS), Jan. 29, 2009).

Hot Off the Press: Link Between Diabetes and Alzheimer's

New research indicates that diabetes increases the risk of getting Alzheimer's disease and may speed dementia once it strikes.  Doctors have long suspected diabetes damaged blood vessels that supply the brain. It now seems even more insidious, that the damage may start before someone is diagnosed with full-blown diabetes, back when the body is gradually losing its ability to regulate blood sugar.  In fact, the lines are blurring between what specialists call "vascular dementia" and scarier classic Alzheimer's disease. Whatever it's labeled, there's reason enough to safeguard your brain by fighting diabetes and heart-related risks.  "Right now we can't do much about the Alzheimer's disease pathology," those sticky plaques that clog patients' brains, says Dr. Yaakov Stern, an Alzheimer's specialist at Columbia University Medical Center. But, "if you could control these vascular conditions, you might slow the course of the disease."  The link has staggering societal implications: More than 5 million Americans have Alzheimer's, and cases already are projected to skyrocket in the next two decades as the population ages. The question is how much the simultaneous obesity-fueled epidemic of Type 2 diabetes may worsen that toll.  There are about 18 million Type 2 diabetics who are considered to have at least two to three times a non-diabetic's risk of developing Alzheimer's.  Still, Type 2 diabetes often leads to heart disease and other conditions that kill before Alzheimer's typically strikes, in the 70s.

Source:  AP (17 March 2009)
Full story:  http://www.google.com/hostednews/ap/article/ALeqM5i-IBRVPDi_0QTfYIGWwemqib4uEgD96VKLU80