As the articles below illustrate, our capacity to handle money and attend to our affairs can vary. Some older people never really run into difficulties, others seem ripe for exploitation and abuse.
Capacity, in the eyes of the law, the medical community and the field of social work is also defined differently by professionals in those fields. So trying to determine whether an adult “wanted or meant” to do one thing or another is sometimes a tricky question. Did they want to give money away, even though it might hurt later if they lack funds for long term care? Did they understand that adding a child to a deed could be divestment in the eyes of Medicaid, or were they pressured into this act by a child without having enough pertinent information from an unbiased attorney who understands elder law?
The law can help in many ways, via preventive arrangements and schemes, or by chasing down a bad apple after the fact. But even so, frustration continues since not every solution fits every individual, and because we often think too late about our slipping capacity. Further, we have long thought, and properly so, that adults are entitled to make their own decisions — even stupid ones — so long as they have a bit of reasoning power left, and have applied it to the choice or decision at hand.
This article from the Detroit Free Press helps illuminate some issues, as well as a tool being developed to better assess the types of capacity — or one might say, the areas in which our capacity is stronger or weaker. Perhaps we are great at knowing family, figuring out a course of health care, but we can no longer really figure out our own budget and get bills paid on time. A tool like this might help provide some structure or guidance as we evaluate the financial capacity of a person.
And the additional material from a recent AARP publication also outlines some current thinking on these issues as well as possible financial and management services one could use in an effort to keep our ship afloat.
The Free Press article is here: http://www.freep.com/story/news/local/michigan/2015/07/14/entitlement-senior-fraud/30103897/
And the AARP article is here: http://www.aarp.org/money/investing/info-2015/financial-services-for-memory-loss.html
In our firm, we help people with these issues. Sometimes by preventive actions, sometimes by chasing down the bad apple and trying to secure restitution.
As an author of a chapter on senior exploitation and abuse and the possible civil remedies one might try, I’ve had the opportunity to use such thinking to help several vulnerable adults.*
We are also trying, when practical, to see if mediation is helpful at times–mediation would seldom help in outright theft or scam, but what about family dynamics–where one child getting far more from mom or dad rather than others, and such generosity is now hurting the senior? Mediation might help there.
- *If you have access to ICLE you may find more about my work here: http://www.icle.org/modules/store/books/book.aspx?PRODUCT_CODE=2009552610&LINKDIRECT=CONTRIBUTORS
If you need help or are helping a loved one, call us. Since some options are time sensitive, calling sooner rather than later makes good sense. Our telephone is 517 853-8015, and our office is conveniently located in Grand Ledge and was designed with accessibility in mind.
Releases/Waivers of Liability
By Richard Rooney, J.D.
The basics of tort liability
Negligence is a fundamental component of the common law system. Negligence is based upon duties that the law imposes on individuals. Some duties are tied to relationships between individuals–for example, a landlord has certain duties to tenants of his/her property. Additionally, every individual “owes” a general duty to be “reasonably prudent” in his or her actions.
If someone fails to discharge an owed duty and another is harmed as a result, the person owing the duty may be liable for the resulting harm. As an example, if you are cutting down a tree and aren’t careful to make sure nobody is around and part of the tree falls on a passerby, you are liable for the harm the tree caused to that person.
What are releases and why do we need them?
Some activities and locations are inherently risky to people and injury is a foreseeable or even likely consequence. If people had to constantly worry about the looming threat of legal actions, many beneficial experiences couldn’t be organized or promoted. Businesses want some assurances that they are limiting their exposure to lawsuits as they go about their business–particularly in the recreation and fitness business areas.
Thankfully, there are contractual releases of liability for just such activities. Go to any business establishment that sells fitness related services and you will likely be asked to sign such a release.
These agreements are called waivers, releases, or exculpatory agreements. What they actually are is a contract agreeing that the signing party cannot sue for reasons stated in the release in exchange for being allowed to participate in the risky activity.
When are releases valid?
How valid are such agreements? In Michigan, releases will be upheld under most conditions. The courts have reviewed challenges to releases. In general, as long as the party granting a release has the capacity to enter into a contract, the parties agreed to the release fairly and knowingly and in exchange for some benefit, and the release is clear enough to not mislead the parties, releases have been upheld. So releases that are among adults, and not overreaching, are typically valid.
When releases aren’t valid.
Releases can be broad as long as they are clear enough for the person signing them to know to what they are agreeing. But releases cannot be ambiguous or misleading. And releases that seem to cover “gross negligence” on the part of a party, typically cannot withstand court scrutiny.
Also, because releases are contracts, releases signed on or for minors will generally not be enforceable. Minors lack the legal capacity to contract and parents/guardians lack the legal capacity to completely bind children in their care to contract.
What does this all mean?
To sum things up, in Michigan there are a few things to consider when evaluating a release’s validity:
- Does the person signing have legal capacity? (Is the person a minor, intoxicated, or incapacitated?) If the person lacks capacity the waiver can be challenged on those grounds.
- Does the waiver completely cover the subject matter intended? If the waiver is too narrow, it might still leave liability gaps.
- Is the waiver clear enough for the person signing to understand what he/she is waiving? If the waiver is confusing, ambiguous, or misleading, a court might find it invalid.
- Should minors or their parents sign waivers notwithstanding their unenforceability? While a parent cannot bind minors to contracts, signing a waiver may dissuade people from bringing a suit. If a minor signs directly, the waiver could be affirmed upon the minor reaching age 18.
Affirmation of a contract can occur by actions, meaning if the minor continued to participate the waiver would become valid. The widest legal cover possible under these circumstances (outside of barring minors from the activity), would be to have both the minor and guardian sign.
If you’d like help with releases or other parts of your fitness business or operations, please feel free to contact our firm. We are conveniently located at 912 Charlevoix Drive, Ste. 120, Grand Ledge MI 48837. Our telephone number is 517 853-8015.
Perhaps we become more thoughtful as we age, or at least once we hit our 80s? We are told that the older part of our population in the USA is among the “fasting growing” and it pays to think about the issues involved.
Having an elder law attorney or firm on your side might be a smart thing to do, and seeing them BEFORE a crisis hits, smarter still.
Here are four links, some more oriented to policy wonks, and one more poignant:
Contact our firm if you have questions or concerns, or if we can help. Call us at 571 853-8015. Our office is in Grand Ledge but we also, with the proper arrangements, can visit clients in a hospital, nursing home, assisted living center, their home or apartment, or elsewhere.
The idea of talking to doctors about the dying process, and your medical wishes, has been discussed before, including these pages, a little more than a month ago. Typically all adults speak for themselves when it comes to care and medical decisions.
But how informed are these decisions? And if a person can’t speak and express their own wishes, how can they appoint someone to speak on their behalf?Before a crisis, virtually any Michigan adult can name someone to serve as their patient advocate. If that hasn’t been done, a trip to probate court is probably going to be required.
But just this week I heard a good article on Public Radio regarding a proposal to pay doctors so they can have a discussion with patients about end of life medical care. http://www.npr.org/sections/health-shots/2015/08/18/427041879/medicare-says-doctors-should-get-paid-to-discuss-end-of-life-issues
Consider such conversations with family and friends, and make sure you get a designation of patient advocate (think medical power of attorney) in place that suits your needs and desires. We can help.