Who decides DNR decision when patient is non compos mentis? My 83 year old mother's mental and physical health has deteriorated rapidly in last six months. At this point, she asks if her mother (dead 35 years) is coming to see her, if her grandchildren are taking music lessons in elementary school (all graduated from college now), etc. She is married to a much younger man, my stepfather, a good guy who loves her and only wants the best for her, and he has asked if she has a DNR wish. There is no DNR order in effect that anyone knows about, and I'm pretty confident that she would not be considered competent to be able to understand her situation well enough to make her own decision regarding this. My guess is that it would be the husband's decision, even if he asks for and takes the advice of her children (my brothers and sister and I). Is this correct? DISCLAIMER: I'm obviously not asking for binding, rock-solid legal advice here, just wondering if anyone has any idea before we inevitably go to a lawyer. (By the way, the jurisdiction is the State of Florida, USA)
tl;dr Spouse before adult child. Patient’s designated surrogate, and court appointed guardian, before both. Assuming your mom does not have an advanced directive or has not designated a proxy, then her husband would come before you. He can ask whoever he wants and in fact he should get the information he can to determine what she would want. The standard is what the decision maker believes the patient would want, not necessarily what the decision maker wants. For example, if the patient has for as long as anyone can remember said repeatedly “I’m not dying hooked up to machines- when the time comes, let me go.” And the next of kin is of the “try whatever is possible to try” mindset, they should still go with what they believe the patient wants. This can be very hard in real life. In Florida, the decision to withhold (e.g. DNR) or withdraw must be with evidence that that is what the patient would want or is in her best interests. You may recall this coming up in the Terry Schiavo case- husband (who was also court appointed guardian) takes precedence over parents, but parents challenged his decision in court. Florida law laws out the order: 765.401 The proxy.— (1) If an incapacitated or developmentally disabled patient has not executed an advance directive, or designated a surrogate to execute an advance directive, or the designated or alternate surrogate is no longer available to make health care decisions, health care decisions may be made for the patient by any of the following individuals, in the following order of priority, if no individual in a prior class is reasonably available, willing, or competent to act: (a) The judicially appointed guardian of the patient or the guardian advocate of the person having a developmental disability as defined in s. 393.063, who has been authorized to consent to medical treatment, if such guardian has previously been appointed; however, this paragraph shall not be construed to require such appointment before a treatment decision can be made under this subsection; (b) The patient’s spouse; (c) An adult child of the patient, or if the patient has more than one adult child, a majority of the adult children who are reasonably available for consultation; (d) A parent of the patient; (e) The adult sibling of the patient or, if the patient has more than one sibling, a majority of the adult siblings who are reasonably available for consultation; (f) An adult relative of the patient who has exhibited special care and concern for the patient and who has maintained regular contact with the patient and who is familiar with the patient’s activities, health, and religious or moral beliefs; or (g) A close friend of the patient. (h) A clinical social worker licensed pursuant to chapter 491, or who is a graduate of a court-approved guardianship program. Such a proxy must be selected by the provider’s bioethics committee and must not be employed by the provider. If the provider does not have a bioethics committee, then such a proxy may be chosen through an arrangement with the bioethics committee of another provider. The proxy will be notified that, upon request, the provider shall make available a second physician, not involved in the patient’s care to assist the proxy in evaluating treatment. Decisions to withhold or withdraw life-prolonging procedures will be reviewed by the facility’s bioethics committee. Documentation of efforts to locate proxies from prior classes must be recorded in the patient record. (2) Any health care decision made under this part must be based on the proxy’s informed consent and on the decision the proxy reasonably believes the patient would have made under the circumstances. If there is no indication of what the patient would have chosen, the proxy may consider the patient’s best interest in deciding that proposed treatments are to be withheld or that treatments currently in effect are to be withdrawn. (3) Before exercising the incapacitated patient’s rights to select or decline health care, the proxy must comply with the provisions of ss. 765.205 and 765.305, except that a proxy’s decision to withhold or withdraw life-prolonging procedures must be supported by clear and convincing evidence that the decision would have been the one the patient would have chosen had the patient been competent or, if there is no indication of what the patient would have chosen, that the decision is in the patient’s best interest.
New Jersey is not a community property state, but it is an equitable distribution state. This means that in a divorce marital property is divided, not automatically 50-50, but in a way that seems financially fair to the supervising judge, or according to an agreement entered into by both spouses. This also means that the state considers a car bought during the course of the marriage "marital property". There are also special rules for property bought before May 28 1980, which do not seem to apply in the case in the question. However, "marital property" mostly applies when a marriage ends which the question says is not in view here. NJ does allow for a car to be titled to only one, or to both. A title with both names may read "John Doe OR Mary Doe" or "John Doe AND Mary Doe". In the AND case both spouses must sign to sell or borrow against the car, in the OR case either signature will do. If only one name is on the title, that person must sign to sell or borrow. If it comes down to a dispute, the person whose name is on the title can decide where it is to be garaged, and who has permission to drive it. If the "sporty" car is in the name of both parents, either could move it to some other location, and either could move it back. Going back and forth could easily get ugly. If both names are on the 'sporty' car's title with an OR, the husband could sell it without consulting the wife. if there is an AND he would need her to agree. If the older car is in the husband's name alone, he could deny the wife or the son the right to drive it. The wife could, of course, buy a different older (used) car and allow the son to use it. Obviously it would be a good idea if the husband and wife came to a voluntary agreement about all this, but no law requires them to do so.
It would be more common to leave a separate direction regarding the disposition of your body in a document other than your will, entrusted with your next of kin. This is because a dead person's body is usually disposed of in less than a week following death, but a determination that a will is valid and effective often has a minimum five day waiting period from death and can take months. Often, this direction regarding your own remains would not be phased in terms of a sale or gift. Instead, it would usually be a "direction" about their disposition. Someone else's remains would be property governed by a will. But, we don't normally think of body parts of a recently deceased person as becoming property, rather than a person, until they are processed in a way that makes them not a biohazard. This would not be the case, obviously, immediately upon your death when the direction regarding your remains is intended to take effect. Also, while selling already processed bones can be permissible, selling organs for transplantation is generally not permissible, although there can be reimbursement for any medical costs or similar out of pocket expenses incurred in connection with that process, again reflecting the distinction between an unprocessed dead body which is often not considered property, and a processed dead body part which often is considered property.
I think the Washington law and order is fairly clear: you must stay home unless you are engaged in certain allowed activities. The underlying law, RCW 43.06.220(h) empowers issuing an order prohibiting "Such other activities as he or she reasonably believes should be prohibited to help preserve and maintain life, health, property or the public peace". Therefore I can walk my dog. When I do, there are a lot of people also out walking their dogs, so that provides a letter-of-the-law permitted exception to the stay-at-home order. Nothing in the order specifically addresses the situation where you pause your dog-walk to talk to a neighbor (the "appropriate social distancing" sub-rule only applies to recreational departures from your home). It is well-established that the central legal issue is what the "compelling government interest" is, and whether these restrictions fail on grounds of narrow-tailoring or least-restrictiveness. The failure to include "go to your brother's place for lunch, provided you follow appropriate social distancing guidelines" as a permitted activity is a candidate for not being least-restrictive. The problem is that the courts will not engage in an infinite regress of second-guessings about whether certain measures are "truly necessary". There is a SCOTUS challenge where the Pennsylvania Supreme Court upheld that's state's order, but a SCOTUS order requires the state to reply to a petition by Monday. The "status quo" is that these orders are legal, until someone constructs a compelling argument that they are not, and that matter is then resolved in favor of petitioner by SCOTUS (which has not happened). So far, governors have prevailed at the state level.
Your lawyer must act in your best interests; not follow your directions Lawyers are professionals and they are supposed to use professional judgement in how they run a case. While a client can suggest a course of action, the lawyer is not only not obliged to follow it, they would be committing malpractice if they unquestioningly did so. Just like a doctor would be if they unthinkingly implemented a patient suggested treatment plan. A panel of lawyers I was watching commentate on the hearing said it was a critical error and may have blown the case. So, a group of Monday-morning quarterbacks who weren’t chosen and don’t know all the facts would have done it differently? Perhaps it was a mistake. Or, perhaps the lawyer judged that there was nothing he could say that would help and considered that sounding desperate about the video would elevate its import in the minds of the jury.
I don't think that's an accurate interpretation of the statement. The key difference between the two scenarios is the defendant's legal assessment of who owns the necklace. In the first he thinks he is the owner and can claim mistake of law; in the second, he he thinks someone else is the owner, so he cannot. To say he believes "the law allows for someone to do whatever they want with lost property even if they know who the rightful owner is" is very different from saying he thinks he's the owner. He doesn't think he's the legal owner, he just thinks he has legal rights that include some rights associated with ownership. So if the defendant's statement had actually been, "I thought I was the owner," that would have been a successful defense when the crime requires depriving the owner of the property. The defense was actually, "I thought I was allowed to deprive the owner of the property," which is an admission of guilt when the crime requires depriving the owner of the property. There are a couple questions here: a. A different crime that did not require intent -- or even required a different kind of intent -- could still lead to a conviction. A legislature is free to define larceny differently, so it could say that anyone who recklessly or negligently deprives another of property is guilty. Or it could say that your state of mind doesn't matter and that depriving another of property is larceny regardless of intent. b. In most cases, the mistake of law defense requires that the defendant honestly believe in the mistake; unlike mistake of fact, it does not require that his belief also be reasonable. Either way, the question of reasonableness would probably be a question for a jury, so a judge wouldn't be able to reject it (except in a bench trial). c. Mistake of law is a potential defense to any crime that requires an intent to do something that requires an assessment of what the law is. So if it's illegal to intentionally have sex with a woman who is not your wife, and you mistakenly believed you were in a legal marriage, sex with your non-wife would not be a crime. It has potentially very broad implications, but keep in mind that in many cases, the mistake a defendant would have to claim would be pretty far out there. If it were illegal to intentionally let anyone under 21 years old into your bar, I guess you could argue that you only let a 20-year-old in because you thought the law started calculating at conception, but I doubt you'll convince a jury. Mistake of law defenses still pop up pretty regularly. Here's one just yesterday from the Tenth Circuit. And this one is a Kansas case where a conviction for carrying a weapon while a felon was overturned because the court wouldn't allow a mistake-of-law defense. The Kansas case, though, uses the more modern definition of mistake of law, which also includes reasonable reliance on official statements from the government. In that case, the felon's parole officer had told him that it was OK to carry a pocketknife, but in reality, the law titled "Criminal possession of a firearm by a convicted felon" prohibited carrying knives, as well.
This is a valid question that comes up from time to time. The answer can be a bit fuzzy and the law on questions 1 and 2 is often not well spelled out. This answer refers only to U.S. legal history without much customization for Maryland in particular, so I may omit references to some relevant Maryland specific statutes or cases of which I am not aware. Often there is no statutory guidance or there is only inconclusive or vague statutory guidance. There is often also little appellate case law precedent to provide guidance. The issue comes up far more often than it is litigated, in part, because these issues tend to become moot before they can be resolved by a precedent creating appellate court, and because statutes addressing the issue tend to be recent and not yet litigated, or non-existent. These issues are often highly time sensitive and don't have an economic prize to spend money litigating over are often not litigate to the maximum extent. Court rulings when cases are presented to them often depend a lot on the procedural context of the way the issue comes up, how the issue is framed by the litigants, and upon the court's gut feelings and upon unwritten social norms. For example, one recent case involving the ability of a priest to visit a man who was sick with COVID-19 in a Maryland hospital notwithstanding hospital visitation policies was resolved in the context of a complaint to the Maryland Office of Civil Rights and would not be generally applicable to an intrafamily dispute as opposed to an allegation of religion based discrimination. The hospital's opinion is often given outsized weight, since it is a &quot;neutral&quot; party in a family dispute, has a vested interesting in having litigation resolved that is more economic than that of the family members, and is likely to have counsel that is most familiar with the issues presented. this is true even though often, a hospital has a religious affiliation or is for some other reason specific to the facts of a case is not truly a &quot;neutral&quot; party in a visitation dispute and takes a position for a non-medical reason. As a young lawyer at a law firm that represented a hospital, I handled cases like these for a hospital when they came up for a couple of years, because nobody more experienced wanted to deal with these emotionally draining and time consuming conflicts with few monetary rewards for the hospital, and because the stakes from the hospital's perspective were low, so junior associate attorneys could be trusted with this cases. Appellate courts also often frame these decisions as fact bound case by case questions decided under general considerations applicable to all forms of injunctive relief in civil cases, rather than questions presenting more general questions of law to which general policy rules apply. Furthermore, the conceptual foundation in which we think about the authority of different family members over an incapacitated person at common law has shifted materially since the 19th century when these issues started to arise, and mostly hasn't been formally discussed by the courts as applied to these particular situations in the meantime. So, even when there are old precedents governing these situations, there is doubt regarding whether they are still good law, because the old precedents are based upon assumptions about spousal and parental and family member rights that no longer hold in other areas of the law. See also an analysis of issues of visitation and medical decision making for disabled persons, primarily under the federal Americans with Disabilities Act and related regulations, with footnotes particular to Maryland's state laws on the subject. Can E block B, C and D from visiting A in the hospital? What legal authorization form(s) can person A fill out and provide to B, C and D to prevent that from happening if this is a serious concern? The right of a private individual to visit someone in a hospital is usually not codified into law and is usually a matter of hospital policy within reason, acting in the best interests of its patients from a medical perspective. Usually E could only block B, C and D from visiting A in the hospital (1) with the cooperation of the hospital based upon its own policies (since as a practical matter, the hospital is generally in control of the situation and has broad authority to restrict access to its patients for health reasons), or (2) with a restraining order or protective order obtained from a court, or (3) as a legal guardian appointed by a court of person A (who generally has the authority to decide who their ward can interact with). In old common law cases (usually mid-19th century or earlier, but sometime in the early 20th century), the spouse of a married person (sometimes only the husband of a wife, but not vice versa), or the parents of an unmarried minor or unmarried person more generally, had the rights of a legal guardian with respect to an incapacitated person, and a family member had authority to make decisions for an incapacitated person as next of kin, in the absence of a parent or spouse. But, for the most part, this is no longer legally enforceable law. The Married Women's Property Acts of the late 19th century and early 20th century generally eliminated the authority of a spouse to act as legal guardian of an incapacitated spouse without a court order, sometimes subject to cases of &quot;necessities&quot;, and control of personal family property like a marital residence, household goods, or vehicle titled in a spouse's name alone that the competent spouse used in the ordinary course prior to the incapacity. The authority of a parent or next of kin person to take action for an incapacitated person without a court order was largely abrogated by state probate codes establishing court procedures for guardianship and conservatorship appointments for incapacitated people giving spouses, parents and next of kin priority, but not authority in the absence of a court order, except in the case of minor, unmarried, unemancipated minor children. And, even then, it is rare for statutes for expressly grant parents that authority over the children by statute and the authority is merely assumed as background common law to other statutes limiting that authority in cases of child abuse or child neglect, and some kinds of decisions still need court approval even in the case of parents of unemancipated, unmarried minor children. Documents specifically authorizing visitation are rare (I've never seen one in real life outside a civil union of a same sex couple), although states with &quot;civil union&quot; laws enacted before same sex marriage was legalized, often expressly afford a civil union partner visitation rates with priority over other family in hospitals, despite the fact that the status quo law is often ill defined. Hospital policies that denied visitation to de facto civil union partners were an important driving force in causing civil union legislation to be adopted with the support of legislators who didn't have a strong feeling about gay rights as an overall matter and who were otherwise indifferent to the economic rights of civil union matters but adopted the rights of married couples because it was the mindless default way to adopt a body of pre-existing law with little serious thought or fact rich informed deliberation. This is, in part, because visitation is not a matter over which a patient at a hospital has unilateral decision making power. Hospitals generally have their own policies regarding visits to patients. See, e.g.,, discussing the University of Maryland's hospital visitation policy. Usually, a hospital will honor a patient's reasonable request to not allow someone to visit them (out of general respect for patient autonomy). But, a hospital will often decline to allow a patient to have visitors out of concern for the best interests of the health of the patient even when a patient would like to have a visitor (e.g. a hospital would often refuse to allow someone with a recent positive COVID-19 test to enter an Intensive Care Unit (ICU) even if the patient would like to visit that person). Even here, however, the conceptual foundation behind traditional hospital practices related to visitation have shifted. The modern view is to more strongly respect the personal autonomy interests of a hospital patient than hospitals did in the past (the trend started to shift more strongly to a patient autonomy mindset in the late 1950s and gradually shifted toward greater patient autonomy in that time frame, particularly, following the deinstitutionalization of the mentally ill). Hospitals are loathe to create a situation where their express statutory, contractual, and/or common law authority to regulate visitation could be overridden by a patient, and laws related to hospital visitation are rarely adopted by a legislature over the objection of the hospital lobby. What legal authorization form(s) can person A fill out and provide to B and C so that they get precedence in medical decision-making authority over E? Many hospitals would give E priority over B and C and D in making medical decisions for A, if A is incapacitated and there are no court orders or legal documents that provide otherwise, as a matter of policy. And, these policies are often traceable to the mindset associated with the old common law rules that no legal have binding legal effect. But some states have a scheme in which the hospital makes unilateral decisions in the best interests of the patient as they see it, unless B, C, D and E (and possibly other people designated by mutual agreement) jointly agree on who should make those decisions. See, e.g., Colorado Revised Statutes § 15-18.5-103 (Proxy decision-makers for medical treatment authorized--definitions). On paper, Colorado is such a state, although in practice, a hospital would offer listen to a spouse over other family anyway. I don't know if Maryland is such a state. I could not easily locate any statute in Maryland governing medical decision-making authority for an incompetent patient in the absence of a health care power of attorney or the equivalent or a guardianship proceeding, although my search was not exhaustive. A document commonly known either as a medical power of attorney, or a health care power of attorney, or a health care proxy designation made by a competent person who does not have a legal guardian appointed for them at the time, can designate someone such as B and C to have priority over E in making medical decisions for them. This document would be controlling absent a court order to the contrary, and usually a court would give authority to the person named in that document (although a court is almost never required to do so without regard to the suitability of the person seeking court ordered decision making power).
What’s the problem? Most likely the situation is 100% sure that he or she wouldn’t have performed the operation without anaesthesia. Therefore anaesthesia was not something his brain needed to remember, therefore it didn’t. He gave a truthful answer. He has no memory of it. He doesn’t need a memory of it, he just needed to make sure it’s done. Do you have any reason to believe it was not done? Operating without anaesthesia would be negligent. Not remembering it is done is not. On the other hand, he would have remembered the patient screaming if he started cutting without anaesthesia.