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Monthly Archives: August 2013

Health Care Power of Attorney and Advance Directive Regarding a Natural Death (“Living Will”) – North Carolina

Health Care Power of Attorney and Advance Directive Regarding a Natural Death (“Living Will”)

Note:  You should use this document to name a person as your Health Care Agent if you are comfortable giving that person broad and sweeping powers to make health care decisions for you.

This document also gives your health care providers instructions to withhold or withdraw life-prolonging measures in certain situations.

There iis no legal requirement that anyone execute a Health Care Power of Attorney or a living will.

GENERAL INSTRUCTIONS

You have the right to name someone to make health care decisions for you when you cannot make or communicate those decisions.  This form may be used to create a Health Care Power of Attorney, and meets the requirements of North Carolina law.

This document gives the person you designate as your Health Care Agent broad powers to make health care decisions for you when you cannot make the decision yourself or cannot communicate your decision to other people.  You should discuss your wishes concerning life prolonging measures, mental health treatment, and other health care decisions with your Health Care Agent.  Except to the extent that you express specific limitations or restrictions in this form, your Health Care Agent may make any health care decision you could make yourself.

This form does not impose a duty on your Health Care Agent to exercise granted powers, but when a power is exercised, your Health Care Agent will be obligated to use due care to act in your best interests and in accordance with this document.

You can use also use this Advance Directive (“Living Will”) form to give instructions for the future if you want your health care providers to withhold or withdraw life-prolonging measures in certain situations.  You should talk to your doctor about what these terms mean.  The Living Will states what choices you would have made for yourself if you were able to communicate, and will offer guidance to your Health Care Agent where you have given your Agent discretion.  Talk to your family members, friends, and others you trust about your choices.  Also, it is a good idea to talk with professionals such as your doctors, clergypersons, and lawyers before you complete and sign this Living Will

This Health Care Power of Attorney and Living Will form is intended to be valid in any jurisdiction in which it is presented, but places outside North Carolina may impose requirements that this form does not meet.  If you want to use this form, you must complete it, sign it, and have your signature witnessed by two qualified witnesses and proved by a notary public.  Follow the instructions about which choices you can initial very carefully.

Do not sign this form until two witnesses and a notary public are present to watch you sign it.

You then should consider giving a copy to your primary physician, to each Health Care Agent you name, and a trusted relative, and should consider filing it with the Advanced Health Care Directive Registry maintained by the North Carolina Secretary of State.  For more information, see:  http://www.nclifelinks.org/.

This document is authorized by North Carolina General Statutes, chapter 32A, section 25; and chapter 90, sections 320-321.

Health Care Power of Attorney and Advance Directive Regarding a Natural Death (“LivingWill”)

My Desires Regarding Health Care and Natural Death

  1. Designation of Health Care Agent.  I, Declarant Name, being of sound mind, hereby appoint the following person(s) to serve as my Health Care Agent(s) to act for me and in my name (in any way I could act in person) to make health care decisions for me as authorized in this document.  My designated Health Care Agent(s) shall serve alone, in the order named.

A.

Name:

Home Phone:

Address:

Work Phone:

Cell Phone:

B.

Name:

Home Phone:

Address:

Work Phone:

Cell Phone:

C.

Name:

Home Phone:

Address:

Work Phone:

Cell Phone:

Any successor Health Care Agent designated shall be vested with the same power and duties as if originally named as my Health Care Agent, and shall serve any time his or her predecessor is not reasonably available or is unwilling or unable to serve in that capacity.

  1. Effectiveness of Appointment.  My designation of a Health Care Agent expires only when I revoke it.  Absent revocation, the authority granted in this document shall become effective when and if one of the physician(s) listed below determines that I lack capacity to make or communicate decisions relating to my health care, and will continue in effect during that incapacity, or until my death, except that, if I authorize my Health Care Agent to exercise my rights with respect to anatomical gifts, autopsy, or disposition of my remains, this authority will continue after my death to the extent necessary to exercise that authority.

1.

(Physician)

2.

(Physician)

[If I have not designated a physician, or no physician(s) named above is reasonably available, the determination that I lack capacity to make or communicate decisions relating to my health care shall be made by my attending physician.]

  1. Revocation.  Any time while I am competent, I may revoke this power of attorney in a writing I sign or by communicating my intent to revoke, in any clear and consistent manner, to my Health Care Agent or my health care provider.
  2. General Statement of Authority Granted.  Subject to any restrictions set forth in Sections 5, 6, and 10 below, I grant to my Health Care Agent full power and authority to make and carry out all health care decisions for me.  These decisions include, but are not limited to:
  3. Requesting, reviewing, and receiving any information, verbal or written, regarding my physical or mental health, including, but not limited to, medical and hospital records, and to consent to the disclosure of this information.
  4. Employing or discharging my health care providers.
  5. Consenting to and authorizing my admission to and discharge from a hospital; nursing or convalescent home; hospice; long‑term care facility; or other health care facility.
  6. Consenting to and authorizing my admission to and retention in a facility for the care or treatment of mental illness.
  7. Consenting to and authorizing the administration of medications for mental health treatment and electroconvulsive treatment (ECT) commonly referred to as “shock treatment.”
  8. Giving consent for, withdrawing consent for, or withholding consent for, X‑ray, anesthesia, medication, surgery, and all other diagnostic and treatment procedures ordered by or under the authorization of a licensed physician, dentist, podiatrist, or other health care provider.  This authorization specifically includes the power to consent to measures for relief of pain.
  9. Authorizing the withholding or withdrawal of life‑prolonging measures, subject to any limitations as specified in Section 10 below.
  10. Providing my medical information at the request of any individual acting as my attorney‑in‑fact under a durable power of attorney or as a Trustee or successor Trustee under any Trust Agreement of which I am a Grantor or Trustee, or at the request of any other individual whom my Health Care Agent believes should have such information.  I desire that such information be provided whenever it would expedite the prompt and proper handling of my affairs or the affairs of any person or entity for which I have some responsibility.  In addition, I authorize my Health Care Agent to take any and all legal steps necessary to ensure compliance with my instructions providing access to my protected health information.  Such steps shall include resorting to any and all legal procedures in and out of courts as may be necessary to enforce my rights under the law and shall include attempting to recover attorneys’ fees against anyone who does not comply with this Health Care Power of Attorney.
  11. To the extent I have not already made valid and enforceable arrangements during my lifetime that have not been revoked, exercising any right I may have to authorize an autopsy or direct the disposition of my remains.
  12. Taking any lawful actions that may be necessary to carry out these decisions, including, but not limited to: (i) signing, executing, delivering, and acknowledging any agreement, release, authorization, or other document that may be necessary, desirable, convenient, or proper in order to exercise and carry out any of these powers; (ii) granting releases of liability to medical providers or others; and (iii) incurring reasonable costs on my behalf related to exercising these powers, provided that this Health Care Power of Attorney shall not give my Health Care Agent general authority over my property or financial affairs.
  13. Special Provisions and Limitations.

(Notice:  The authority granted in this document is intended to be as broad as possible so that your Health Care Agent will have authority to make any decisions you could make to obtain or terminate any type of health care treatment or service.  If you wish to limit the scope of your Health Care Agent’s powers, you may do so in this section.  If none of the following are initialed, there will be no special limitations on your Agent’s authority.)

  1. Limitations Concerning Health Care Decisions.
Note:  Do not initial unless you insert a limitation.
________

In exercising the authority to make health care decisions on my behalf, the authority of my Health Care Agent is subject to the following special provisions:  (You may include any specific provisions you deem appropriate such as:  your own definition of when life‑prolonging measures should be withheld or discontinued, or instructions to refuse any specific types of treatment that are inconsistent with your religious beliefs, or are unacceptable to you for any other reason.)
                                                                                                                        
  1. Limitations Concerning Mental Health Decisions.
Note:  Do not initial unless you insert a limitation.
________

In exercising the authority to make mental health decisions on my behalf, the authority of my Health Care Agent is subject to the following special provisions:  (You may include any specific provisions you deem appropriate such as:  limiting the grant of authority to make only mental health treatment decisions, your own instructions regarding the administration or withholding of psychotropic medications and electroconvulsive treatment (ECT), instructions regarding your admission to and retention in a health care facility for mental health treatment, or instructions to refuse any specific types of treatment that are unacceptable to you.)
                                                                                                                        
  1. Advance Instruction for Mental Health Treatment.

(Notice:  This health care power of attorney may incorporate or be combined with an Advance Instruction for Mental Health Treatment, executed in accordance with Part 2 of Article 3 of Chapter 122C of the General Statutes, which you may use to state your instructions regarding mental health treatment in the event you lack capacity to make or communicate mental health treatment decisions.  Because your Health Care Agent’s decisions must be consistent with any statements you have expressed in such an Advance Instruction, you should indicate here whether you have executed an Advance Instruction for Mental Health Treatment.)

______ I have executed an Advance Instruction for Mental Health Treatment.
  1. Autopsy and Disposition of Remains.
DO NOT initial below unless you insert a limitation.
______ In exercising the authority to make decisions regarding autopsy and disposition of remains on my behalf, the authority of my Health Care Agent is subject to the following special provisions and limitations:  (Here you may include any specific limitations you deem appropriate such as:  limiting the grant of authority and the scope of authority, or instructions regarding burial or cremation.)
                                                                                                                        
  1. Organ Donation.

NOTE:  No authority for organ donation is granted in this instrument without your initials in at least one block in this section.

To the extent I have not already made valid and enforceable arrangements during my lifetime that have not been revoked, my Health Care Agent may exercise any right I may have to:

NOTE:  Do not initial both blocks.
______ donate any needed organs or parts; or.
______ donate only the following organs or parts:
                                                                                                                          

 

NOTE:  Do not initial both blocks.
______ donate my body for anatomical study if needed.
______ NOTE:  DO NOT initial below unless you insert a limitation.In exercising the authority to make donations, my Health Care Agent is subject to the following special provisions and limitations: (Here you may include any specific limitations you deem appropriate such as: limiting the grant of authority and the scope of authority, or instructions regarding gifts of the body or body parts.)
                                                                                                                          
  1. Guardianship Provision.  If it becomes necessary for a court to appoint a guardian of my person, I nominate the persons designated in Section 1, in the order named, to be the guardian of my person, to serve without bond or security.  The guardian shall act consistently with G.S. 35A‑1201(a)(5).
  2. Reliance of Third Parties on Health Care Agent.
  3. No person who relies in good faith upon the authority of or any representations by my Health Care Agent shall be liable to me, my estate, my heirs, successors, assigns, or personal representatives, for actions or omissions in reliance on that authority or those representations.
  4. The powers conferred on my Health Care Agent by this document may be exercised by my Health Care Agent alone, and my Health Care Agent’s signature or action taken under the authority granted in this document may be accepted by persons as fully authorized by me and with the same force and effect as if I were personally present, competent, and acting on my own behalf.  All acts performed in good faith by my Health Care Agent pursuant to this power of attorney are done with my consent and shall have the same validity and effect as if I were present and exercised the powers myself, and shall inure to the benefit of and bind me, my estate, my heirs, successors, assigns, and personal representatives.  The authority of my Health Care Agent pursuant to this power of attorney shall be superior to and binding upon my family, relatives, friends, and others.
  5. 9.      Miscellaneous Provisions. 
  6. Revocation of Prior Powers of Attorney.  I revoke any prior health care power of attorney.  The preceding sentence is not intended to revoke any general powers of attorney, some of the provisions of which may relate to health care; however, this power of attorney shall take precedence over any health care provisions in any valid general power of attorney I have not revoked.
  7. Jurisdiction, Severability, and Durability.  This Health Care Power of Attorney is intended to be valid in any jurisdiction in which it is presented.  The powers delegated under this power of attorney are severable, so that the invalidity of one or more powers shall not affect any others.  This power of attorney shall not be affected or revoked by my incapacity or mental incompetence.
  8. Health Care Agent Not Liable.  My Health Care Agent and my Health Care Agent’s estate, heirs, successors, and assigns are hereby released and forever discharged by me, my estate, my heirs, successors, assigns, and personal representatives from all liability and from all claims or demands of all kinds arising out of my Health Care Agent’s acts or omissions, except for my Health Care Agent’s willful misconduct or gross negligence.
  9. No Civil or Criminal Liability.  No act or omission of my Health Care Agent, or of any other person, entity, institution, or facility acting in good faith in reliance on the authority of my Health Care Agent pursuant to this Health Care Power of Attorney shall be considered suicide, nor the cause of my death for any civil or criminal purposes, nor shall it be considered unprofessional conduct or as lack of professional competence.  Any person, entity, institution, or facility against whom criminal or civil liability is asserted because of conduct authorized by this Health Care Power of Attorney may interpose this document as a defense.
  10. Reimbursement.  My Health Care Agent shall be entitled to reimbursement for all reasonable expenses incurred as a result of carrying out any provision of this directive.
  11. When My Directives Apply:  I, Declarant Name, being of sound mind, desire to specify the extent to which my life may be prolonged by life prolonging measures.  My directions about prolonging my life shall apply IF my attending physician determines that I lack capacity to make or communicate health care decisions and:
  12. IF I have an incurable or irreversible condition that will result in my death within a relatively short period of time.
Note: You may initial only one of these choices.
______ Directive for Maximum Treatment.  I do not authorize my Health Care Agent to withdraw or withhold or discontinue any life-prolonging measures.  I want my life to be prolonged to the greatest extent possible, within the standards of accepted, without regard to my condition, the chances I have for recovery, or the cost of the procedures.
______ Agent Discretion.  I authorize my Health Care Agent to make decisions for me regarding life-prolonging measures.  I do not want my life to be prolonged by life-prolonging means if my Health Care Agent believes that the burdens of such measures outweigh the expected benefits.  I want my Health Care Agent to consider the relief of suffering, my personal beliefs, the expense involved, and the quality of my life as prolonged, when making decisions for me regarding life-prolonging measures.
______ Withhold or Withdraw Life-Prolonging Treatment; Administer Artificial Nutrition.  I do not want my life to be prolonged, and I direct that life-prolonging measures shall be withheld or discontinued, notwithstanding any directions of my Health Care Agent to the contrary.  HOWEVER, I DO want to receive artificial nutrition and hydration.  Therefore, my Health Care Agent shall NOT have the authority to withhold artificial nutrition (such as through tubes) OR may exercise that authority only in accordance with the following special provisions, if any:

 

                                                                                                                        
______ Withhold or Withdraw Life-Prolonging Treatment; Withhold or Withdraw Artificial Nutrition and Hydration.  I do not want my life to be prolonged, and I direct that life-prolonging measures shall be withheld or discontinued, notwithstanding any directions of my Health Care Agent to the contrary.  I do NOT want to receive artificial nutrition or hydration, notwithstanding any directions of my Health Care Agent to the contrary.
  1. IF I become unconscious and my health care providers determine that, to a high degree of medical certainty, I will never regain my consciousness.
Note: You may initial only one of these choices.
______ Directive for Maximum Treatment.  I do not authorize my Health Care Agent to withdraw or withhold or discontinue any life-prolonging measures.  I want my life to be prolonged to the greatest extent possible, within the standards of accepted, without regard to my condition, the chances I have for recovery, or the cost of the procedures.
______ Agent Discretion.  I authorize my Health Care Agent to make decisions for me regarding life-prolonging measures.  I do not want my life to be prolonged by life-prolonging means if my Health Care Agent believes that the burdens of such measures outweigh the expected benefits.  I want my Health Care Agent to consider the relief of suffering, my personal beliefs, the expense involved, and the quality of my life as prolonged, when making decisions for me regarding life-prolonging measures.
______ Withhold or Withdraw Life-Prolonging Treatment; Administer Artificial Nutrition.  I do not want my life to be prolonged, and I direct that life-prolonging measures shall be withheld or discontinued, notwithstanding any directions of my Health Care Agent to the contrary.  HOWEVER, I DO want to receive artificial nutrition and hydration.  Therefore, my Health Care Agent shall NOT have the authority to withhold artificial nutrition (such as through tubes) OR may exercise that authority only in accordance with the following special provisions, if any:

 

                                                                                                                        
______ Withhold or Withdraw Life-Prolonging Treatment; Withhold or Withdraw Artificial Nutrition and Hydration.  I do not want my life to be prolonged, and I direct that life-prolonging measures shall be withheld or discontinued, notwithstanding any directions of my Health Care Agent to the contrary.  I do NOT want to receive artificial nutrition or hydration, notwithstanding any directions of my Health Care Agent to the contrary.
  1. IF I suffer from advanced dementia or any other condition which results in the substantial loss of my cognitive ability and my health care providers determine that, to a high degree of medical certainty, this loss is not reversible.
Note: You may initial only one of these choices.
______ Directive for Maximum Treatment.  I do not authorize my Health Care Agent to withdraw or withhold or discontinue any life-prolonging measures.  I want my life to be prolonged to the greatest extent possible, within the standards of accepted, without regard to my condition, the chances I have for recovery, or the cost of the procedures.
______ Agent Discretion.  I authorize my Health Care Agent to make decisions for me regarding life-prolonging measures.  I do not want my life to be prolonged by life-prolonging means if my Health Care Agent believes that the burdens of such measures outweigh the expected benefits.  I want my Health Care Agent to consider the relief of suffering, my personal beliefs, the expense involved, and the quality of my life as prolonged, when making decisions for me regarding life-prolonging measures.
______ Withhold or Withdraw Life-Prolonging Treatment; Administer Artificial Nutrition.  I do not want my life to be prolonged, and I direct that life-prolonging measures shall be withheld or discontinued, notwithstanding any directions of my Health Care Agent to the contrary.  HOWEVER, I DO want to receive artificial nutrition and hydration.  Therefore, my Health Care Agent shall NOT have the authority to withhold artificial nutrition (such as through tubes) OR may exercise that authority only in accordance with the following special provisions, if any:
                                                                                                                          
______ Withhold or Withdraw Life-Prolonging Treatment; Withhold or Withdraw Artificial Nutrition and Hydration.  I do not want my life to be prolonged, and I direct that life-prolonging measures shall be withheld or discontinued, notwithstanding any directions of my Health Care Agent to the contrary.  I do NOT want to receive artificial nutrition or hydration, notwithstanding any directions of my Health Care Agent to the contrary.
  1. I wish to be made as comfortable as possible.  I direct that my health care providers take reasonable steps to keep me as clean, comfortable, and free of pain as possible so that my dignity is maintained, even though this care may hasten my death.
  2. I understand my Advance Directive.  I am aware and understand that this document directs certain life‑prolonging measures to be withheld or discontinued in accordance with my advance instructions.
  3. My health care providers may rely on this Directive.  My health care providers shall not be liable to me or to my family, my estate, my heirs, or my personal representative for following the instructions I give in this instrument.  Following my directions shall not be considered suicide, or the cause of my death, or malpractice or unprofessional conduct.  If I have revoked this  instrument but my health care providers do not know that I have done so, and they follow the instructions in this instrument in good faith, they shall be entitled to the same protections to which they would have been entitled if the instrument  had not been revoked.
  4. I want this Directive to be effective anywhere.  I intend that this Advance Directive be followed by any health care provider in any place.
  5. I have the right to revoke this Directive.  I understand that at any time I may revoke this Directive in a writing I sign or by communicating in any clear and consistent manner my intent to revoke it to my attending physician.  I understand that if I revoke this instrument I should try to destroy all copies of it.

By signing here, I indicate that I am mentally alert and competent, fully informed as to the contents of this document, and understand the full import of this grant of powers to my Health Care Agent.

This the          day of August 2013.

Declarant Name       _____________________________________________________________

I hereby state that the declarant, Declarant Name, being of sound mind, signed (or directed another to sign on declarant’s behalf) the foregoing Health Care Power of Attorney and Advance Directive Regarding a Natural Death in my presence, and that I am not related to the declarant by blood or marriage, and I would not be entitled to any portion of the estate of the declarant under any existing will or codicil of the declarant or as an heir under the Intestate Succession Act, if the declarant died on this date without a will.  I also state that I am not the declarant’s attending physician, nor a licensed health care provider who is (1) an employee of the declarant’s attending physician, (2) nor an employee of the health facility in which the declarant is a patient, or (3) an employee of a nursing home or any adult care home where the declarant resides.  I further state that I do not have any claim against the declarant or the estate of the declarant.

                                                                                                                                               

Witness Signature                                                                                                                             

Date                                                         

Witness Signature          __________________________________________________________

Date

 

STATE OF NORTH CAROLINA

FORSYTH COUNTY

I, Richard J. Rutledge, a Notary Public for Forsyth County North Carolina, hereby certify that Declarant Name appeared before me and swore to me and to the witnesses in my presence that this instrument is a Health Care Power of Attorney and his/her Declaration of A Desire for A Natural Death, and that he/she willingly and voluntarily made and executed it as his/her free act and deed for the purposes expressed in it.

I further certify that ____________________ and ____________________, witnesses, appeared before me and swore that they witnessed Declarant Name sign the attached Health Care Power of Attorney and Declaration of A Desire for A Natural Death, believing him/her to be of sound mind; and also swore that at the time they witnessed the signing (1) they were not related within the third degree to him/her or his/her spouse, and (2) they did not know nor have a reasonable expectation that they would be entitled to any portion of his/her estate upon his/her death under any will or codicil thereto then existing or under the Intestate Succession Act as it provided at that time, and (3) they were not a physician attending him/her, nor an employee of an attending physician, nor an employee of a health facility in which he/she was a patient, nor an employee of a nursing home or any group-care home in which he/she resided, and (4) they did not have a claim against him/her.  I further certify that I am satisfied as to the genuineness and due execution of the instrument.

This the         day of August 2013.

Richard J. Rutledge, Notary Public

My Commission Expires:    February 11, 2014.   

(seal)

 

Rick Rutledge (http://www.rickrutledgelaw.com/) practices law in Winston-Salem, North Carolina, focusing on how the law affects people—individuals, families, and the small businesses that make up the backbone of the American economy. His general practice concentrates on estate planning, life planning, property, small business, contracts, civil litigation, employment law, elder law, family law, and minor criminal matters.

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ADVICE FOR CUSTODY CLIENTS

You are in custody litigation. This is intended to give you basic information about what you can – and can’t – do if you want to enhance your chances of success.

Communicate with your spouse

Try to discuss your child’s welfare with your spouse. Limit your discussion to the child’s welfare. Don’t discuss your new boyfriend or girlfriend or your anger with the spouse – it’s counterproductive. If you cannot discuss these matters with your spouse, write the spouse a letter or e-mail. Save a copy.

Dating

This is addressed from a practical, not moral, stance. You are still married, and you will be until the judge dissolves your marriage. Terminate or put on hold any extramarital relationship. If the new boyfriend or girlfriend cares about you enough, he or she will wait for you. If not, so be it. You need to concentrate on maintaining and developing your relationship with your children. You do not have the time or money right now for affairs. That time will come later, after this case is closed. If you perceive the extramarital relationship to be a very stable one leading to marriage, and you elect to ignore this advice, remember that you have been warned.

Do not involve the paramour in your child’s life. Regardless of how much the new love object purportedly cares for your child, limit your contact with that person to times when the child is with the other parent. Your paramour’s lifestyle, behavior, marital status, and indeed relationship with his or her own children will come under scrutiny in your custody case.

Medical Care

Elective, non-emergency medical care should be undertaken only after consultation with the child’s other parent. If the parent refuses to discuss this with you, let that parent know the name of the service provider, the procedures undertaken, and the diagnosis. Don’t keep the child’s medical care a secret from the other parent.

School

If you’re the physical custodian, let the other parent know when parent-teacher conferences are scheduled. Give the other parent a copy of the child’s report care. Share the child’s schoolwork with the other parent. Discuss with the other parent homework and school responsibilities the child may have.

If you’re the noncustodial parent, you have the right to contact the school and ask that you be contacted about parent-teacher conferences and the child’s school records. Do so.  Don’t place all of the responsibility on your spouse. Take an active part in the child’s education.

Visitation

If you are the custodian, have the children ready for the visit. Have a supply of suitable clothing ready to accompany the child. You don’t want the judge to learn that you let your child go off on a weekend visit with only the clothes he or she was wearing and plastic bag with one change of clothes.

As a single parent, you need a break from the child. And the child needs a break from you. In an intact family, parents relieve each other from the constant demands of the child. In a divorce situation, the appropriate relief is visitation with the other parent.

If you are the noncustodial parent, pick up and return the child on time. If you’re going to unexpectedly late, call. Don’t demand that the child keep toys and clothing at your house just because you purchased them. After all, those items are the child’s not yours.

A child’s illness, short of his or her being hospitalized, is no excuse for denyhing visitation. The noncustodial parent can and should assume some of the responsibility for caring for a sick child.

Do not use the child as an intermediary to carry messages between you and your spouse. You’re an adult. You know how to communicate.

Visitation is not a time to revisit disputes with your spouse. It’s your time with your child. Us e it for that. Do not pump your child for information about life in the other parent’s home. If it’s worth telling, the child will tell you. Did you tell your parents everything that went on when you were 8 or 12 years old? Remember how you replied “Oh, nothing” to your mother when she asked you what you did in school?

Do not ask your child to keep secrets about what takes place in your home.

You do not have the right to refuse visitation because the other parent hasn’t paid child support. The two issues are not related. You have a remedy for nonpayment of child support; you can lose physical care of your child if you deny court-ordered visitation.

Don’t get too upset about your child’s behavior at the beginning or end of each visit. The physical custodian views the child’s cries at the end of a visit as the joy of being reunited with the parent; the same outburst is viewed by the noncustodial parent as sadness at the separation. Plan some kind of activity to allow the child to “wind down.”

It’s not the end of the world if the child misses a Little League game or Sunday school because it took place during the other spouse’s time with the child.

Child Support

If you are ordered to pay child support during the pendency of this action, pay it. If you simply can’t make the full payment, make a partial payment. The judge will not look kindly upon your claim for increased visitation or physical care when you have failed to contribute to the child’s support.

Child support is money you have paid to the court (if an ordered has been entered) or money paid directly to your spouse for the child’s support. Child support is not a Schwinn bicycle or Mike shoes that you bought for the child during the weekend visit. It is the money that puts bread on the table and pays the rent.

Counseling

Divorce is tough. It’s kind of like death, without condolence cards. As much as it hurts, it’s not fatal. Go to a mental health professional. It’s often easier to discuss your feeling with someone you’ll never see again, someone who’ll not say “I told you so.” Therapy will not be held against you in court. In fact, the court could well look positively on the fact that you sought therapy.

 Parenting

You can never learn enough about parenting. It’s an ongoing process. Enroll in a parenting class. Read about child care, child development, and parenting techniques. Show the judge that you know something about parenting and that you have a willingness to learn.

Telling the Child about Divorce

Your child knows more about what’s going on in his or her life than you may realize. You do not need to go into details about the reasons the marriage is ending, but you do need to talk about it. A number of children’s books, geared to varying ages and reading levels, discuss divorce and single parenting. Go through them with your child.

 Adjustments

Remember when you first became pregnant? You were filled with worry and doubt about what your life was going to be like. Your friends and relatives all gave you advice. But when you actually went through childbirth and bringing the new baby home, your feelings were unique. Divorce is much the same. Although everybody’s case has common threads, the actual experience for each is unique.

As a divorcing parent, you are making the same adjustments in your life day by day as you did as a new parent. Be the best parent that you can be. Try to be a good example for your child in all aspects of your life. Your child will undoubtedly end a love relationship or quit a job sometime in his or her life. The example you give your child as a divorcing parent is as important as the rest of the good examples  you try to give your child.

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WHAT HAPPENED TO MY MAILING LIST MESSAGE?

You’ve spent at least an hour, carefully composing your message to a mailing list, checking and double-checking your grammar and punctuation, spell-checking it at least twice – and that was after checking all the cites, Shepardizing the relevant cases, and giving your message double the effort you’d normally devote to a Supreme Court brief. You clicked “send,” and you sat back patiently waiting for your words of wisdom to find their way into every list subscriber’s inbox. And after hours and hours, nothing happened. All that work for nothing, you think. “Why wasn’t your message distributed to the list?” you wonder.

A number of reasons answer your frustration. If the list is a moderated one, that means the list’s moderators must approve each message before distribution to the list. List moderators’ human frailties often prevent them from sitting at the keyboard on the ready 24/7/365 to approve each and every message. Some of them have actually been offline for as long as a whopping 48 hours. You may be on a moderated status, which means that some subscribers’ messages are automatically distributed, while yours must wait for approval. If you’re using Gmail for mailing lists, your message will not show up in your inbox, even though it has been distributed to the entire list, because no one’s responded to it yet, thereby creating a threaded conversation. Or the listserver may be down.

Or it could be your own actions which prevent the message from reaching its destination, along with a copy of it in your own inbox. Did you sent it to the wrong address? Did you send the message from an address that was not subscribed to the list? Have you opted not to receive copies of your own messages? Did your very own spam filter intercept your copy? Well, did you even remember to actually send the message?

And then again, your message may be lost in space. Try, try again. And if that fails, contact the list owner.

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PUBLICIZING AND PROMOTING A NEW MAILING LIST

 

Setting up a new mailing list is as easy as “just add water,” but building a subscriber base, creating conversations, and making a new list known requires some heavy lifting and a dose of fertilizer.

Naturally, it takes more than just a single list owner to make a mailing list. If the list is part of a committee or other defined group, automatically adding members to the list, giving them the option of opting-out, is the obvious route. Some members may not want to participate, and others may prefer to use another e-mail address. If the list is an open list, you’ll want to cross-pollinate by promoting the list to potential subscribers. Publicize the list on other lists, in print and online publications, on relevant websites, and get the news about the new list out to bloggers. Stagger the press releases to grow interest in the list incrementally, to keep interest levels up, and to introduce new subscribers to a party that’s already in full swing.

There’s nothing lonelier than a list with a solid subscriber core and no action.  Seed the list with pertinent posts to encourage and direct discussion, even if means privately asking a few co-conspirators to help the list along. Conversation begets conversation, and it only takes a few early subscribers performing on the dance floor to get the wallflowers up from their seats and participating. Continue to monitor other relevant lists, watching for the appropriate thread and piping in when someone asks about dog law “Have you heard about this list on dog law?”  Include the URL for an easy subscription method such as http://www.lawyerwithalist.com/listsubscribe, simply because clicking on a link is far easier for many would-be subscribers than following a command.

Count on about six months for a new list to develop and grow legs. Nurture the list, tending to it like a hothouse tomato, weeding away the chaff and weak branches, and hope that it takes root.

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DIFFERENT RULES FOR DIFFERENT LISTS

 

Is it any surprise that mailing lists geared toward lawyers tend to be rule-heavy? A list’s culture and audience determine its rules and expectations, but there’s wide variation among the kinds of rules and attitudes towards those rules. Even the debate among the list’s leaders differs.

An open mailing list for more than 2,200 solo and small firm practitioners – the kind of lawyers who don’t play well in the sandbox with others – may require more narrowly-defined rules than a list designed for military lawyers. Some rules seem simple enough, e.g. disallowing attachments, yet others would tax the minds of Talmudic scholars. Deciding whether political posts should be allowed, and, if so, when and how to shut down the conversation perplexed those leading the list.

Last month, when I was asked to manage a new mailing list for military lawyers, it seemed easy enough to simply adopt and slightly modify the rules that had been crafted for the larger solo and small firm lawyers’ list. The military lawyers had absolutely no quibble over a political ban, but they insisted upon allowing attachments. No amount of explanation about why mailing lists often disallow attachments would satisfy these soldier-lawyers; they were adamant about attachments. So the “no attachment” rule went by the wayside. Surprisingly, when new members on this list introduced themselves, they simply attached a paragraph to their e-mail instead of pasting something onto the body of e-mail. The style of officers and gentlemen was markedly different from those lawyers who merely considered themselves gentlepersons and scholars. Military lawyers must be better at dealing with and following rules than solo and small firm lawyers.

The polestar of rule-making for legal mailing lists is MacLaw,

http://groups.yahoo.com/group/MacLaw/, a large, very active mailing list for MacIntosh-using lawyers. Perhaps it’s simply a personality trait among MacIntosh folk, but this list has raised rule-making and democracy to new heights. And they seem to play well together.

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IT’S NOT THE FINAL ROUND OF JEOPARDY!

 

One reason many lawyers cite for not participating – or even subscribing to – law-related listserves is the time involved in responding to questions posed by a law. Who hasn’t opened up a mailbox to see a sequence of posts responded to by the same person, a lawyer who has taken the time to answer every single post? Either that lawyer is obsessive-compulsive – or someone hasn’t clued him in that each post does not require his answer. That list subscriber dutifully responds to everything, even if it means looking up the answer, telling the list that he will look up the answer in a day or two, or he might even add, “I don’t know the answer to this one.” And, as time passes by, other list subscribers begin to jeer at him or quietly delete his posts, or the Answer Man simply goes away.

Here’s a little-known secret. You don’t have to answer each post, even if you do happen to know the answer. No one is paying you to respond to mailing list posts. No one will consider you a dullard and slacker if you simply sit back and lurk. Wait for all of the mail to come in on a single subject before responding. In a day or two, when everyone else has discussed the finer points of the Veterans Administration and divorce, then weigh in. And then do so only if your post will add to the body of knowledge. If your answer is desperately needed, and you’re the only one around who knows the answer, someone will nudge you for your response. Until then, it’s all right to keep mum.

Ignore the mail. You’re not playing Jeopardy! – and moreover it’s even not the Final Jeopardy! Round. It’s only a mailing list. There is no prize for being the first to send in the winning answer to a legal mailing list. Just as copyright guru Lawrence Lessig declared e-mail bankruptcy, you can do so too.

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HOW TO LOOK LIKE AN ABSOLUTE FOOL ON MAILING LISTS

More than a dozen years ago, The New Yorker ran the Peter Steiner cartoon featuring two dogs in front of a computer, one carefully instructing the other that “On the Internet, nobody knows you’re a dog.” While pseudonyms and cute handles might still work well for posts to Match.com, eBay.com and hobby lists, mailing lists designed for lawyers generally require that participants disclose their real names. But revealed identity still doesn’t stop many from looking like complete idiots on law-related mailing lists.

 

Let’s explore some of the ways that you can convince the world that you should stay off mailing lists:

 

Requests to “unsubscribe me right this very minute” when the instructions for leaving the list are prominently displayed at the bottom of each message.

 

Persistently engaging in off-topic, inflammatory and controversial discussion, even after being asked to stop.

 

Posting a client’s personal information to a mailing list.

 

Using an autoresponder to advise everyone on the list over and over again that you’ll be out of the office until 6 July 2005. Using the wrong date will make you look even more negligent.

 

Responding to every message with “I agree,” Me, too,” or “I don’t know.”

 

Not trimming an overly long message or a digest of messages.

 

A ridiculously long signature file, including quotes, a favorite poem, a mission statement, a slogan, and ASCII art.

 

Diatribes, political infective, and venom spewed at individual list members.

 

Beating dead horses into the ground.

 

Distributing to an entire mailing list messages which are better saved for off-list and private e-mail.

 

Cross-posting from another list without permission.

 

Using a mailing list as personal bully pulpit.

 

Harvesting other list subscribers’ addresses for mass mailings.

 

Harassing list subscribers, either on- or off-list.

 

Nearly every human on earth, lawyers included, has done something remarkably stupid in face-to-face interactions, but memories fade. Akin to the much-feared permanent record, mailing list archives outlast human memories, and the acts of a buffoon can come back to haunt and humiliate lawyers for a long time.

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FLASH POINT

Does there exist a mailing list focused upon legal topics that hasn’t seen a flame war now and then? Unmoderated lists of critical mass populated by lawyers are prime tinder for explosive bursts of e-mail exchanges, each one raising the ante and challenging others to a duel. It doesn’t even take a politically charged topic such as the war, abortion or Homeland Security to spark the flames. A straightforward and seemingly innocuous thread about COBRA can easily descend into passionate argument about the Hyde Amendment, managed health care, government benefits for illegal immigrants, and health care in secret CIA prisons. In the space of a morning, Godwin’s law (“As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches one.”) is set into motion.

 

Is a flame war the death knell for a mailing list? Not necessarily. An innocent who wanders onto a list in the throes of rebellion may be frightened away, but those who are already invested in a list’s culture take it all in stride. There are trolls who flit from one list to another, simply to wreak havoc before moving on. Some list stalwarts simply cannot resist the urge to flex their debating skills in any passionate argument, letting off steam, and some are simply bored and looking for any brawl. Watching a flame war is not unlike coming upon a car wreck engulfed in flames on your way to work. Seasoned listserve subscribers simply learn to hit the delete key and sit back for meaningful discussion.

 

Like simple roadside grass fires, some flames fizzle out on their own after a few hours when the players have simply run out of fuel and energy. Sometimes it’s necessary for list leaders to step in, calling a halt to the flamethrowers’ distractions before a list turns into charred ruins. Just as a planned burn can fertilize barren ground, a good old-fashioned flame war can fertilize barren ground, revitalizing listserve discussion and stirring up the troops’ interest in the list.

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CLICK-THROUGH RULES KEEP IT SIMPLE

Many list owners spend hours creating rules for the conduct and operation of a mailing list. Lawyers are often the worst of the lot, drafting pages and pages of verbiage  covering every exigency, narrowly defining a list’s mission and subscriber circle, detailing what may and may not be posted, dotting the landscape with more whereofs and heretofores and to-wits than a corporate merger and acquisition document. After agonizing over the rules, the list owner will automatically send out this finely tuned document to all new subscribers, expecting that they’ll hold it in as much regard as the Magna Carta. But does anyone really read and obey the rules of engagement?

One legal mailing list takes a simpler and probably just as effective route to describing the parameters of its list. The AmericanBarAssociationCenter on Children and the Law, which sponsors the Child-Case Discussion group, http://www.abanet.org/child/childcase.html, simply elicits a would-be subscriber’s name, telephone, address and e-mail online, in a click-through agreement that says:

I have read and agree to the CONDITIONS OF GROUP MEMBERSHIP below.

CONDITIONS OF GROUP MEMBERSHIP. The information shared within this discussion is provided by the participants, not by the ABA, and I understand and agree that the ABA is not responsible for the content of any such information. I am a licensed attorney or judge and I understand that this e-mail discussion group is open only to those licensed attorneys and judges who have enrolled and been approved for group membership. I will not allow others to participate in the group discussion and will not share messages outside this group without the express permission of the group manager. I will not provide information to this group in violation of attorney-client privilege or in violation of any federal, state, or local confidentiality laws. I understand that information shared within this group does not constitute legal advice and should not be relied upon as such.

The agreement covers all the bases, neatly and succinctly. Why don’t more lists adopt this concept? If a click-through agreement is sufficient for users of new software to promise obedience, down to pledging all of their worldly possessions and first-born male children, isn’t a click-through good enough for a legal mailing list?

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LIMITING MESSAGE SIZE

The Supreme Court has limits on length of briefs, and so too do mailing lists. Who hasn’t received an overly long message from a mailing list which contains the full text of the preceding message and the one before that, including the list’s top and bottom banners, or the entirety of the list’s digest? And the only new content inscribed by the sender is simply “unsubscribe” or “me, too”? List subscribers – and sadly, lawyers are among the worst offenders – simply are often too careless to snip extraneous matter from posts like this.

Beyond the aggravating annoyance of message bloat exists a security concern: embedded binary files harbor viruses.

List owners can control the length of messages by setting size limitations. The e-mail list management software LISTSERV® offers up just such a feature in Sizelim, which will cause the mailing list to automatically reject all messages which exceed a predefined number of lines or number of kilobytes or megabytes, including all Internet headers. A typical configuration might read Sizelim= 500 or Sizelim= 100K. Those configurations would work to reject all messages which contain more than 500 lines or 100Kb. Other software version may simply truncate overly long messages.

Let’s say you’ve just written the definitive response to a post on a law-related mailing list, laboring over more detail than the average Supreme Court opinion or law review article, only to have your message rejected for length. What’s the solution?

 

  • Excise the text of the message to which you’re responding.
  • Trim the fat from your own response.
  • Split up your message into Part 1, Part 2, and Part 3, posting each as separate messages.
  • Synopsize your response, inviting interested subscribers to contact you off-list for the whole bloody version.
  • Park your response on an online document repository such as MyDocsOnline,
  • http://www.mydocsonline.com/, invited those who’re interested to peruse it at their leisure and providing them with the access to do so.
  • Upload it to your own website, pointing the list to the URL.

 

On the other hand, if it’s really that important, perhaps your words should be carefully bound in leather and held for posterity at the Library of Congress.

 

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