Don't Ignore the Benefits of a Health Care Power of Attorney

In the likely event you do not have a health care power of attorney, the Commonwealth of Pennsylvania has established a list of the people who can make medical and health care decisions on your behalf once you are unable to do so yourself.  No, Pennsylvania has not identified specific individuals to make these often critical decisions but, instead, has listed criteria of people (called "health care representatives") who will be permitted to do so on your behalf when you lack the requisite capacity.  In descending order of priority, the following can act as health care representatives:

1.   A person chosen by you (either in a signed writing or as communicated to your physician) while you were of sound mind.

2.   Your spouse (unless a divorce action is pending).

3.   Your adult child.

4.   Your parent.

5.   Your adult brother or sister.

6.   Your grandchild.

7.   An adult who has knowledge of your preferences and values.

8.   In the absence of a decision maker appointed by you while of sound mind, or a willing family member, the law permits the director of any nursing home, rehabilitation center or long term care facility of which your are a resident.

It's not hard to imagine a scenario in which an unmarried person with no children and no living siblings is left to rely upon the decision making processes of a nursing home administrator who may be a complete stranger.  Don't let your medical decisions be made by a stranger who has no understanding of your health care wishes.  Contact an attorney to prepare a health care power of attorney.

Jonathan Peterson is an attorney with Butera & Jones, P.C. in Wayne, Pennsylvania.  Mr. Peterson's practice focuses on commercial and guardianship litigation.  For more information, please contact Mr. Peterson at (610) 964-9770.

Junk Faxes Are Illegal

The Telephone Consumer Protection Act of 1991 is a federal law which restricts telemarketing practices which use automated telephone dialing equipment.  Unsolicited "junk" faxes advertise office supplies, cruise vacation and health club membership to name a few. Regardless of the quality of the product or service advertised of the attractiveness of the offer, if the faxes are unsolicited, they violate the 1991 consumer law.  The law permits each intended recipient to sue for damages equal to the greater of $1,500 or actual monetary loss per fax.

Recently, the Georgia Supreme Court heard a case where a home siding, gutter and window contractor hired a company to market its business.  The marketer sent out more than 300,000 unsolicited advertisements to fax machines in the metropolitan Atlanta area.  The contractor conceded that the faxes were sent but defended that it could only be liable for the faxes actually received.  This defense was rejected based on the clear language of the 1991 consumer law: "A sender is liable for the unsolicited advertisements it attempts to send to fax machines, whether or not transmission is completed or received by the targeted recipient."  The end result was a $459 Million judgment against the contractor which the Supreme Court upheld.

The goal of the Telephone Consumer Protection Act of 1991 is to punish companies that clogged people's fax machines and forced them to incur the costs of wasted paper and toner ink by sending unsolicited ads.  Contact an attorney if you have been receiving junk faxes.

Jonathan Peterson is an attorney with Butera & Jones, P.C. in Wayne, Pennsylvania.  Mr. Peterson's practice focuses on commercial and guardianship litigation. For more information, please contact Mr. Peterson at (610) 964-9770.

You May be Financially Responsible for Your Parents' Medical Bills

Few people know that Pennsylvania has a filial support law which requires the children and spouses of indigents to pay for their "necessaries" including health care costs which can amount to tens of thousands of dollars.  Health care providers have been using this law, 23 Pa.C.S.A. Sec. 4603, in their collection efforts.  Be aware that the term "indigent" does not necessarily mean a person is so completely destitute of property as to require public assistance.  The term can include people with some limited means but whose means are insufficient to provide for their maintenance and support.

Contact an attorney if you are named in a collection action for necessities based upon filial support.  Defenses and strategies may be available to you to either remove or at least reduce your liability.

Be careful what you put on Facebook

Increased privacy settings may provide limited protections to disclosure of your social media posts.

  

With the ubiquity of Internet social media (Facebook, MySpace, Twitter, Google+), resourceful attorneys have sought access to social media accounts in a variety of contexts – most commonly personal-injury claims, employment disputes and divorces.  To date, Pennsylvania courts have been inconsistent in their approach to requests for social media access.

In July 2012, Judge Wettig of Allegheny County (Pittsburgh) a leading jurist on discovery matters, issued a reasoned ruling regarding when Facebook postings are discoverable.  In sum, it all comes down to a question of whether the postings sought are relevant to a point of dispute in the litigation.  

For example, in a case in which personal-injury victim was alleging emotional distress arising from the stigma of bearing ugly leg scars suffered in an accident, discovery of photographs showing the victim wearing shorts and displaying his scars was permitted.  On the other hand, in a car accident case involving alcohol, discovery of Facebook posts showing the defendant drinking just prior to the accident was not permitted when the defendant admitted to drinking but was defending the action based only on the severity of plaintiff's alleged injuries.  In most cases, the court required both a showing that the requested social media information was relevant to a disputed issue in the case and also that there was a reasonable basis to believe that the requested type of information was posted through the social media.

The Pennsylvania Supreme Court has not ruled upon this issue so the law on this issue remains unsettled.  Judge Wettig's analysis and suggested approach in Trail v. Lesko makes a great deal of sense.

Pennsylvania Supreme Court makes major ruling on attorney-client privilege.

For several years the courts in Pennsylvania held that the attorney-client privilege applied only to communications made by the client to counsel, i.e., client–to–attorney communications.  Pursuant to then–existing precedent, inquiries regarding advice given by an attorney to his client was fair game during litigation discovery, especially during depositions.  The one-way nature of the privilege created an obstacle for attorney-client communications.

Recently in the matter of Gillard v. AIG Insurance Co., the Supreme Court eliminated this obstacle when it held that "in Pennsylvania, the attorney-client privilege operates in a two–way fashion to protect confidential client to attorney or attorney to client communications made for the purpose of obtaining or providing professional legal advice."

By ruling in this fashion, the Supreme Court made it more difficult for attorneys who were aware of the privilege's former one-way protection to pierce the privilege.  More importantly the new ruling provides necessary and appropriate protections to clients seeking confidential advice from the Council.  Clients are now free to discuss confidential matters with counsel and receive advice from counsel without fear that the communications will be obtained by opposing counsel.