Friday, September 28, 2007

What Qualifies As Wrongful Death Litigation?

In many cases, victims are usually unable to file a lawsuit themselves, especially when that person is already deceased or suffered huge injuries. In a wrongful death case, personal representatives of the estate of a deceased person are allowed to file a lawsuit against those responsible for the victim's death. Liability may often arise for both negligent and intentional acts of the person responsible.

Damages that may be recovered in wrongful death cases typically include medical, hospital, funeral and burial expenses. Compensation for the victim's pain and suffering are also covered, during any period when the victim was conscious from the time of injury and death.

Losses incurred by the spouse, children, or next of kin of the deceased may also be recovered. These include loss of financial support, loss of service, loss of gifts or other valuable gratuities, loss of parental supervision and guidance, and loss of society and companionship.

Distribution of the damages from lawsuits on wrongful deaths may be done among the heirs of the deceased. However, because the allocation of damages is governed by statute, it is oftentimes subjected to court oversight. Courts are covered by laws of interstate succession with regards to the distribution of damages. Nevertheless, they are ordinarily free to approve and award damages to certain family members who may not be legal heirs of the deceased.

Hence, many cases often have family members fighting with each other on who shall have more control over the representative of the estate of the deceased. The family member who gets more control may decide on who the attorney is and will have greater influence over the distribution of any award of damages.

On another note, one interesting case that is being syndicated in every press available is the lawsuit filed by a couple whose frozen embryo was accidentally discarded at a fertility clinic. This is a case where the parents of the deceased filed a lawsuit, and had a judge ruled for the case.

According to the Associated Press, the couple has the right to file a wrongful-death lawsuit in accordance to the Illinois laws. The judge rules on the case in the opinion that "a pre-embryo is a 'human being'… whether or not it is implanted in its mother's womb." The judge further added that the couple is entitled to seek compensation as any parents whose child has been killed.

Based on the state's Wrongful Death Act, lawsuits are allowed to be filed if unborn fetuses are killed in an accident or assault. This is where the judge based his ruling on. In addition, the law states that "the state of gestation or development of a human being" does not preclude taking legal action.

The couple who stored nine embryos at the Center for Human Reproduction in Chicago filed the suit. Their doctor told them that one embryo looked particularly promising. However, six months later, they were informed that the embryos hade been accidentally discarded.

The attorney for the fertility clinic said that an appeal would be filed by the defendants.

Article Source: http://www.articleset.com

DOJ Ruling on Disabled Rights in Cruise Ships

It is interesting to note that many disabled persons, instead of slinking away and being embarrassed by their conditions, are asserting their rights. They already educate themselves with the basics of the Americans with Disabilities Act (ADA) of 1990, a law which protects them against discrimination and rules that establishments and such give proper accommodations for them.

Adopted to remove the barriers that prevented the society from benefiting from the participation and contributions of individuals with disabilities, the ADA took effect in July 26, 1990. Its Title I prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities – whether in job application, procedures, hiring, firing, advancement, compensation, job training and other terms, conditions and privileges of employment. It also has the qualifications of a person with disability. Four other titles of ADA includes other aspects where the issue of disability is very much considered: public services and public transportation, public accommodations, telecommunications and miscellaneous.

Many states have also adopted and enforce versions of the federal ADA. Now, on the Supreme Court rulings posted by Peggy McGuiness at Opinio Juris, referred to by Walter Olson on March 2, 2005 at the site, http://www.overlawyered.com/archives/cat_disabled_rights.html several important and interesting issues about the ADA were raised.

An argument ensued at the Supreme Court when the Department of Justice (DOJ) sided with a group of disabled cruise passengers who sued Norwegian Cruise Lines (NCL) for failing to provide the kinds of accommodations required on public transportation under the Americans with Disabilities Act. The defendant, NCL argues that they should be exempt from ADA regulation in the same way that they are exempt from federal labor laws because their ships fly under the Bahamian flag. The DOJ and the plaintiffs argue that the ADA can be applied to foreign flagged vessels operating in US waters precisely because they come in and out of US jurisdiction and operate as a public accommodation.

Now, this is really quite an ruling since it essentially goes beyond the international law, which maintain that ships are generally only subject to the jurisdiction of the state under whose flag they sail. Infact, cruiselines choose to register under foreign flags precisely to avoid certain regulatory restrictions and costs (i.e., taxation, labor and employment laws).

The DOJ ruling favoring the disabled has become a broad application of the ADA to foreign-flagged vessels. This might even be conceivably applied not only to cruise ships, but also to every merchant marine vessel that ever enters US waters. But cruiselines are not interested in complying with the nation’s stringent ADA since compliance in those circumstances would be extraordinarily expensive and a burden on trade.

I think there’s nothing wrong with the ruling, though. It’s just that, public services, transportation and all other busness establishments must not just think about the expenses that go with compliance on several laws. They must simply learn to respect the rights of disabled citizens.

Article Source: http://www.articleset.com

Rulings on ADA Filing Rights

One of the major issues on a democratic country is the discrimination of a person on the basis of disability. A "disability" is a permanent physical or mental impairment (like sight, hearing, speech, walking, breathing, motor skills, but not temporary sprains, breaks, or diseases) that substantially limits any major life activities, including learning, recreation and working. Under the Americans with Disabilities (ADA) of 1990, more than 43 million Americans qualify as “disabled”, as noted by the Forbes Magazine.

The ADA was adopted to remove the barriers that have prevented society from benefiting from the participation and contributions of individuals with disabilities. Many states have also adopted and enforce versions of the federal ADA. The ADA replaced a collection of “barrier-free site design” initiatives making disables access to employment, goods and/or services on an equal basis with the rest of the general public, a civil right.

Now, regarding to Walter Olson’s post at http://www.overlawyered.com/archives/cat_disabled_rights.html on March 4, 2005, he had noted a series of scenarios and news bulletin which may cause a disabled golfer to file a complaint with regards to non-compliance with ADA rulings – in relation with accommodating disabled persons in the golf clubs/areas. Olson may have been concerned or bothered at the following concerns:

• Says Robert Trent Jones Golf Trail in Tuscaloosa won't provide free golf carts.

• The National Golf Course Owners Association maintains a page on ADA issues and compliance.

• At Cybergolf, Jeffrey D. Brauer ("Must golf courses accommodate wheelchair golfers?" undated) discusses the impact of wheelchair-access regulation on golf course design: "The golf industry at first feared that ADA might outlaw contoured greens and fairways, and possibly sand bunkers, to achieve disabled access.

Well all I can say is that, didn’t they know that golf courses, including most private clubs, must provide a wide variety of disabled individuals with “reasonable accommodation”? And reasonable accommodation is defined as one that does not present an undue burden or alter the fundamental nature of the activity.

Through complaints and litigation, golf facilities must:

• Allow wheelchair access anywhere carts are permitted, with similar limitations regarding specific weather conditions

• Erect rope barriers that don't eliminate access, but mildly inconveniencing disabled golfers is permissible.

• Provide access to all courses, not just one, at multiple-course facilities

• Make all new and renovation work ADA-compliant, but there is no reconstruction required solely to satisfy ADA.

• Make parking lots, practice facilities and buildings accessible. This has affected parking lots, walkways and two-story clubhouses, which often require an elevator to accommodate any job needing access to both floors.

Now if you will be setting up a golf club that took you a lot of worth and money, you must consider all options in setting it up. Would you risk investing more to accommodate even disabled persons or risk your reputation because of your non-compliance with ADA rulings and having wheelchair-bound golfers sue you for discrimination. Think that over, folks.

Article Source: http://www.articleset.com

The various types of powers of attorney

There are "Nondurable", "Durable" and "Springing" Power of Attorney. A "Nondurable" Power of Attorney takes effect immediately. It remains in effect until it is revoked by the Principal, or until the Principal becomes mentally incompetent or dies.

A "Nondurable" Power of Attorney is often used for a specific transaction, like the closing on the sale of residence, or the handling of the Principal's financial affairs while the Principal is traveling outside of the country.

A "Durable" Power of Attorney enables the Agent to act for the Principal even after the Principal is not mentally competent or physically able to make decisions. The "Durable" Power of Attorney may be used immediately, and is effective until it is revoked by the Principal, or until the Principal's death.

A "Springing" Power of Attorney becomes effective at a future time. That is, it "springs up" upon the happenings of a specific event chosen by the Power of Attorney. Often that event is the illness or disability of the Principal.

The "Springing" Power of Attorney will frequently provide that the Principal's physician will determine whether the Principal is competent to handle his or her financial affairs. A "Springing" Power of Attorney remains in effect until the Principal's death, or until revoked by a court.

How to Secure your relationship by Power of Attorney

A power of attorney is a document that allows you to dictate who you would like to make decisions on your behalf. While there are many useful purposes for a power of attorney, they are especially important to lesbian and gay couples when a partner becomes incapacitated and unable to make decisions. In such situations, the law usually designates the incapacitated person's next of kin as the decision maker. With a power of attorney, lesbian and gay couples can give their partners the power to make such decisions.

Powers of attorney can be as general or specific as you decide. You can give your partner the power to make decisions on your behalf at any time or only when you become incapacitated. You can also dictate what types of decisions you are authorizing your agent to make. A health care power of attorney (also referred to as a durable power of attorney for health care, medical power of attorney, health care proxy and appointment of health care agent of surrogate) would authorize your partner (or other agent) to make decisions about your medical treatment and dictate who you would like to be able to visit you while receiving medical treatment.

By executing a power of attorney for finances (also referred to as a durable power of attorney for finances) you could dictate who you want to make decisions about your legal and financial matters. You can be very specific about what actions you are authorizing your partner (or other agent) to make, including which accounts he or she has access to and the types of decisions he or she can make.

Durable Power of Attorney

University of Iowa Health Science Relations
Peer Review Status: Internally Peer Reviewed

Many people have heard of a Living Will, a document that explains to your family, friends, doctor, and the courts what you do and do not want done to prolong your life. Fewer people have heard of the Durable Power of Attorney for Health Care.

"Durable Power of Attorney for Health Care lets you choose a person, or persons, who can legally make health care decisions for you if you become unable to make those decisions and speak for yourself," says Gretchen Schmuch, a family practice social worker in the University of Iowa College of Medicine. "One of the most difficult things about choosing your legal decision-maker is discussing end-of-life matters," Schmuch says.

Questions you should ask yourself include:

1. Whom do I want to make decisions about my health care?

2. Is quality of life more important than quantity of life?

3. How important is physical and/or mental functioning in decisions to accept, refuse, or limit medical treatment?

4. What are my spiritual beliefs and how do they fit with my choices?

5. Are food and water basic human rights, regardless of delivery (tube, mouth, or vein)?

A majority of Americans say they want to participate in their health care decision-making until they die, but approximately15 percent have completed a Durable Power of Attorney. If asked, most people have a general idea of what they want, Schmuch says. It is important for people to discuss their values, health care beliefs, and wishes with their families and their doctors.

"But doctors often wait for the patient to bring the subject up, and patients wait for the doctor. So we have a lack of communication, with no decisions being made until a crisis arises," Schmuch says. During a crisis, such as when an elderly parent dies but is revived or a spouse has a heart attack and is in a coma, a decision as crucial as what treatment the patient would want makes a difficult situation more painful.

If a patient does not have a Durable Power of Attorney, decisions must still be made. "In Iowa if no one has been designated, the decision-making authority passes--in order--to guardian, spouse, majority of adult children, parents, and sibling. In a few cases the matter would be decided by a hospital board or the courts.

"It's so important to talk with each other to determine what should be done," Schmuch says. "Living wills are valuable tools, but no document can provide answers in all situations. Selecting someone who understands and can advocate for your health care directives and giving him/her over the authority to make decisions for you will put you at ease now," says Schmuch. "And your family and friends will not have to worry about who will make the decision in the future."

If you have questions about Durable Power of Attorney and Living Wills, talk to your doctor.