the phantom returns

What is Forensic Accounting?

Forensic, according to the Webster’s Dictionary, means

  • “belonging to, used in or suitable to courts of judicature or to public discussion and debate”
  • “pertaining to or employed in legal proceedings or argumentation.”

Accounting, as defined by The Random House Dictionary, is “the system of organizing, maintaining … the financial records of a company or an individual.”

Forensic Accounting, then, is the practice of accounting in support of litigation. A Forensic Accountant provides an accounting analysis suitable to the court that will form the basis for discussion, debate and ultimately judicial decision. A Forensic Accountant utilizes specialized accounting skills to conduct an investigation into the actual earnings and income stream of individuals and businesses. A benefit of employing a Forensic Accountant is for his or her ability to communicate financial information clearly and concisely in a courtroom setting.

After a Forensic Accountant is retained for a marital dissolution case, he or she typically would:

  • Assist the attorney in defining the accounting matters
  • Assist the attorney with discovery requests
  • Summarize and analyze financial data and transactions
  • Prepare reports and declarations
  • Perform complex business valuations under family law rules
  • Attend depositions to support opposing witness examination
  • Assist in settlement negotiations
  • Assess tax aspects of proposed settlements
  • Assess issues for trial
  • Prepare court exhibits for trial
  • Testify as an expert witness in trial, if necessary
  • Support attorney in witness cross examination at trial
  • Review judgment for accuracy of findings

Ron-Anfuso2Ron J. Anfuso, CPA, ABV, CFF, CDFA, FABFA is a Forensic Accountant and expert witness in the Los Angeles area. He has over 19 years experience in the valuation, financial, accounting and tax aspects of marital dissolution matters, which includes conducting business valuations, gross cash flow analyses, and tracings, as well as performing Moore/Marsden and other dissolution-related accounting calculations. He is also a founding member of A Better Divorce, and has prepared over 40 collaborative law cases.

Collaborative Divorce: Your Children’s Best Interest First

THE CHILD SPECIALIST AND THE COACH

 

There are significant differences between thetraditional adversary system of evaluations and therole of the child specialist and coach.

 

  1. The information from the child specialist is given to the persons who need it the most, the parents. Like a mediation session for child custody, the child specialist interviews the child or children, and shares impressions with the parents first.

 

  1. There are no depositions; there is no cross examination. The child specialist doesn’t have to spend countless hours on tests and interviews in anticipation of being questioned later. It’s like the physician who conducts extra tests and procedures, not because the patient needs it, but because not to do so could expose the physician to malpractice law suits.

 

  1. There is no written report that can be read years later by the children. Much damage is done when allegations, affairs, abuses are, “reduced to writing;” actually, writing allegations and critical impressions doesn’t usually reduce the harm. Many things contribute to a divorce and children seldom benefit when they hear the worse about their parents.

 

  1. Child specialists are able to actually help parents. Unlike like the evaluators who like judges at an Olympic ice skating event don’t develop relationships with the skaters, child specialists are seen as consultants, as helpers, to parents.

 

  1. Parents don’t sue Child Specialists or report them to the licensing boards. Private child custody evaluators and even the old Psychiatric Office, formerly based at the Superior Court of Los Angeles, have been sued. Complaints by unhappy litigants are being submitted to the state board that licenses mental health professionals. There have been no law suits or complaints to the licensing boards about coaches or child specialists in collaborative law.

Learn more about Collaborative Divorce

David-Kuroda2David Kuroda is the former Division Chief, Family Court Services, Superior Court of Los Angeles and directed the Mediation and Conciliation Service, the first and largest court mediation program in the nation.

In his 18 years with the Superior Court, he was responsible for the district courts, the PACT and Contemnors’ Programs, Divorce Seminars, and Visitation Monitors. Under his leadership, the service set high standards for the mediation service and other innovative programs serving children and families of divorce.

He has served on numerous committees with the Judicial Council, Los Angeles County Bar Executive Committee, Family Law Section, and has collaborated on numerous programs with the bar associations of the South Bay, Beverly Hills, San Fernando Valley, and Long Beach. He’s the past vice-president of A Better Divorce: A group of collaborative professionals; he also serves as vice-president of the California Social Welfare Archives., on he advisory board of the Los Angeles Collaborative Family Law Association, and was honored with the Lifetime Achievement Award by the National Association of Social Workers (NASW) California Chapter and with the George Nickel Award by the California Social Welfare Archives, USC.

In addition to directing the program, he has personally provided mediation services to over 7,000 families from the working poor to the wealthy and famous, including high profile cases and movie producers. Virtually all parents, whatever their backgrounds, love their children, and with some guidance, have been able to work together, even after divorce. Mr. Kuroda has provided training for graduate students from USC, and has taught professionals child custody mediation.

Collaborative Divorce: Learn How to Stay Out of Court

COLLABORATIVE DIVORCE – UNIQUE ROLES FOR MENTAL HEALTH AND FINANCIAL PROFESSIONALS – THE COACH – THE CHILD SPECIALIST

A key event in the emergence of Collaborative Divorce in Los Angeles was held in Dept. 2 on October, 2001. Judge Aviva Bobb hosted the program, co-sponsored by the South Bay and Los Angeles County Bar Associations. Over 100 attendees heard Pauline Tesler and Nancy Ross describe the newest way of getting divorced. Attorneys along with mental health, and financial professionals have continued to formed collaborative practice groups. In 2010 there were six and now there are twelve groups in Los Angeles County:

 

A Better Divorce, abetterdivorce.com, a South Bay group

Affordable Divorce Solutions

Alliance for Family Centered Divorce

Alternatives – A Collaborative Divorce Team, alternative-divorce.com

Association of Collaborative Divorce Professionals

Los Angeles Collaborative Family Law Association (LACFLA), lacfla.com

Los Angeles Westside Collaborative Divorce Professionals (LAWCDP), lawcdp.org

Pasadena Affordable Divorce

Pasadena Collaborative Divorce, pasadenacollaborativedivorce.com

San Fernando Valley Collaborative Professionals

The Coalition for Collaborative Divorce, nocourtdivorce.com

A new group is forming in Marina del Rey

 

In 2006, the inaugural statewide conference was held in Sonoma, and “Collaborative Practice – California” (CP-Cal) was established. In 2007, in Pasadena, the southern California conference was held at the Westin Hotel. CP-Cal, (cpcal.com) has been developing ways of expanding the practice of collaborative divorce by coordinating the efforts of the California groups. Past presidents, Kimberly Davidson and Kathleen O’Connor, have provided important leadership. The International Association of Collaborative Professionals (IACP) held its Annual IACP Forum in San Francisco, October 27-30, 2011. Collaborativepractice.com. The most recent CP-Cal conference was held last month at the Claremont Hotel. Chief Justice Tani Cantil-Sakauye was one of the speakers. The next Southern California Collaborative Practice California conference is held at the Manhattan Beach Marriott Hotel, April 26-28, 2013, this weekend.
In 2008, for the very first time, Collaborative Divorce training was held in Los Angeles by professionals from Southern California. The two-day program for Collaborative Family Law Interdisciplinary Training was taught by members of LACFLA, Los Angeles Collaborative Family Law Association. Fred Glassman, president of LACFLA, was responsible for this exciting program. Most of the practitioners of collaborative divorce have been trained outside the state; many have traveled to Arizona and other states for the training. Trainers had been brought in from other states for the previous programs. Now there are enough experienced and qualified professionals in Los Angeles County; LACFLA sponsored the training with a faculty of local practitioners. The training was repeated again last year. The next training is scheduled for early 2014. Completion of the training qualifies attendees for membership in LACLFA and IACP. Visitlacfla.org.

LACFLA will be working with the Loyola Law School and will be providing a class in Collaborative Practice later this year. It will be one of the first law schools that will be providing instruction in this innovative way of getting divorced.

In an introductory session for the Los Angeles Collaborative Family Law Association several years ago, at a gathering of over 60 members of the family law community, a highly respected psychologist admitted she had almost decided not to perform any more child custody evaluations. Despite the income, it was just too hard. Recommending parenting plans, figuring out how much time children should be with their parents, choosing between two caring parents-these are difficult issues. Many child custody evaluators are providing their services outside of court as child specialist role in Collaborative Divorce.

Collaborative Divorce is an enhancement of the Collaborative Law model. In addition to attorneys, this model includes the participation of financial and mental health professionals. In cases involving children, a child specialist assists the parties in developing a parenting plan. Coaches help with the emotional aspects of a divorce, and the financial professional representing neither party, provides information about the financial aspects of the divorce.

 

Learn more about Collaborative Divorce

David-Kuroda2David Kuroda is the former Division Chief, Family Court Services, Superior Court of Los Angeles and directed the Mediation and Conciliation Service, the first and largest court mediation program in the nation.

In his 18 years with the Superior Court, he was responsible for the district courts, the PACT and Contemnors’ Programs, Divorce Seminars, and Visitation Monitors. Under his leadership, the service set high standards for the mediation service and other innovative programs serving children and families of divorce.

He has served on numerous committees with the Judicial Council, Los Angeles County Bar Executive Committee, Family Law Section, and has collaborated on numerous programs with the bar associations of the South Bay, Beverly Hills, San Fernando Valley, and Long Beach. He’s the past vice-president of A Better Divorce: A group of collaborative professionals; he also serves as vice-president of the California Social Welfare Archives., on he advisory board of the Los Angeles Collaborative Family Law Association, and was honored with the Lifetime Achievement Award by the National Association of Social Workers (NASW) California Chapter and with the George Nickel Award by the California Social Welfare Archives, USC.

In addition to directing the program, he has personally provided mediation services to over 7,000 families from the working poor to the wealthy and famous, including high profile cases and movie producers. Virtually all parents, whatever their backgrounds, love their children, and with some guidance, have been able to work together, even after divorce. Mr. Kuroda has provided training for graduate students from USC, and has taught professionals child custody mediation.

Collaborative Divorce Resources

How to Get a Divorce – What about a Divorce Coach?

This is the fourth in a multi-part series -How to Get a Divorce- Collaborative Divorce in Difficult Economic Times- on your options in the divorce process by A Better Divorce member, Christopher M. Moore of Moore, Bryan & Schroff LLP in Torrance, California.

Divorce Coaching

In most divorce cases, emotions run high. The parties can experience feelings like anger, denial, anxiety, and depression that make it hard to reach agreement on the real issues like the financial settlement and a parenting plan for the kids. To work past these dark emotions, the lawyers will urge each party to have a coach. The coaches are mental health professionals, but don’t act as therapists for their clients; rather the coaches create a team out of the parties, the coaches and the lawyers.

Professionals who practice Collaborative Divorce have been trained to mold both sides into a team with one goal. Where issues require an outside expert, the lawyers will agree on a neutral expert such as an accountant or child specialist.

Collaborative Divorce can have its negatives. The cost of the professional team, with lawyers, coaches and possible neutral experts, may seem daunting. If collaboration fails and the case must go to litigation, there is a cost to the parties in hiring new lawyers.

Experience teaches, though, that a collaborative divorce is almost always faster, cheaper and more amicable than litigation. That each party has a

lawyer avoids the potential for abuse. The coaches reduce the parties’ anger so they can get to the negotiating table.

A strong case can be made that in these difficult economic times Collaborative Divorce offers the best route to a divorce that is fast, friendly and fair.

Chris-Moore2Christopher Moore is a member of A Better Divorce- A Collaborative Family Law Group in the South Bay area of California, a certified family law specialist, and a fellow of the American Academy of Matrimonial Lawyers. He has specialized in family law for many years. Those years as a litigator have taught him that collaborative practice is the best way to resolve a divorce. A collaborative case is always faster, costs less and is less stressful than a conventional case where the parties face court congestion, delays and an adversarial, often hostile, relationship. For more information about Christopher and his firm please click here.

Collaborative Divorce with a Child Specialist: Your Children’s Best Interest First

PUTTING YOUR BEST FOOT FORWARD V. BEING HONEST ABOUT ONE’S LIMITATIONS

A father, who may want to hide his ignorance of an infant’s needs during an evaluation, presents himself differently in collaborative divorce, and is more likely to be honest and seek the recommendation of a child specialist. It’s like being in a classroom and the teacher asking if everyone understands. We’re afraid to admit we don’t know if the consequences hurt. With the child specialist in collaborative family law, the parents know we’re there to help, not to judge. Because there is no report submitted to the court, parents are free to discuss their fears and concerns, without the fear that their admissions will be used against them.

THERAPISTS V. COACHES

Therapists don’t always help in a divorce case. Well, a correction. They help the person, but they may not be helpful in the divorce process. A professional therapist was going through her own divorce. Her husband was strong and assertive; she was considerate and often put his needs ahead of hers. During her therapy, her therapist had been helping her to become more assertive. Her husband hadn’t picked up his clothes as promised, so she decided to act.  She told him to come and get his clothes. He didn’t respond immediately, so she issued a confident ultimatum. “If you don’t come to get your clothes by Saturday, I’m going to dump them on the driveway.” Her therapist was proud of her; she was proud of herself. Sure enough, her husband didn’t respond to her request, so she dumped his Armani suits and Ferragamo shoes in the driveway. He planned on picking up his clothes Sunday morning, but late Saturday night, it rained. A coach would have given her better advice. Coaches care about personal growth but they care more about a good divorce and happy children.

Coaches in collaborative law help parents work out their differences and promote the behaviors that result in agreements and resolution. They listen to the story of the divorce as background for understanding the dynamics of the relationship, and help parents do the things that are necessary to resolve disputes not exacerbate them. Although our proximity to Hollywood might lead one to think we are a city of happy families and happy endings, there are many unhappy families who end up in divorce. A father who was particularly upset at the prospect of paying child and spousal support to the mother of his children, the same wife who was having an affair, was helped through the process by his coach. Coaches help parents deal with the difficult emotions of divorce. The goal is not insight as much as it is to help the parents get through the divorce while maintaining respect and dignity.

 

Learn more about Collaborative Divorce

David-Kuroda2David Kuroda is the former Division Chief, Family Court Services, Superior Court of Los Angeles and directed the Mediation and Conciliation Service, the first and largest court mediation program in the nation.

In his 18 years with the Superior Court, he was responsible for the district courts, the PACT and Contemnors’ Programs, Divorce Seminars, and Visitation Monitors. Under his leadership, the service set high standards for the mediation service and other innovative programs serving children and families of divorce.

He has served on numerous committees with the Judicial Council, Los Angeles County Bar Executive Committee, Family Law Section, and has collaborated on numerous programs with the bar associations of the South Bay, Beverly Hills, San Fernando Valley, and Long Beach. He’s the past vice-president of A Better Divorce: A group of collaborative professionals; he also serves as vice-president of the California Social Welfare Archives., on he advisory board of the Los Angeles Collaborative Family Law Association, and was honored with the Lifetime Achievement Award by the National Association of Social Workers (NASW) California Chapter and with the George Nickel Award by the California Social Welfare Archives, USC.

In addition to directing the program, he has personally provided mediation services to over 7,000 families from the working poor to the wealthy and famous, including high profile cases and movie producers. Virtually all parents, whatever their backgrounds, love their children, and with some guidance, have been able to work together, even after divorce. Mr. Kuroda has provided training for graduate students from USC, and has taught professionals child custody mediation.

Vesting Title To Your Real Property

By Cozette Vergari

How you hold title to your real property is critical. There are several options one can choose from, when deciding how title should be vested, with each option having its own serious legal and tax ramifications. When purchasing real property, the buyer(s) should consult with a trust and estates attorney at the beginning of the escrow process. The grant deed prepared during escrow, transferring ownership from the seller(s) to the buyer(s), should be reviewed by that attorney, prior to execution, to insure title is being vested properly. The individual facts and circumstances relating to the buyer(s) estate will dictate the appropriate way to vest title. If you have already purchased real property, without seeking legal advice, this issue may still be reviewed by a trusts and estates attorney. If necessary, title can be changed through a new deed, transferring ownership into the proper vesting of title.

Cozette-Vergari2Cozette Vergari is an attorney in the Los Angeles area with an active Family Law practice since 1996. She has litigated and mediated in hundreds of family law cases and have frequently served as a court-appointed minors counsel.  She is a member of A Better Divorce Group and has been active in the Collaborative Divorce movement since 2003. Learn more about Cozette on her website or her blog.

Providing Spouses with the Power to Make Healthcare Decisions

By Cozette Vergari Originally published in LOS ANGELES LAWYER / NOVEMBER 2007

THE RIGHT TO MAKE HEALTHCARE DECISIONS is a protected individual right held solely by the patient. Recently, federal law and state law expanded the scope of exclusivity of this right to the privacy realm by limiting the sharing of patient information and records. Thus a patient’s spouse, domestic partner, and other family members face increasing obstacles when they seek information from the patient’s records-even though some healthcare providers, perhaps motivated by compassion, are disregarding the legal restrictions.

Nevertheless, spouses, in particular, should be very clear about their ability to make healthcare decisions on behalf of their partners. Spouses often assume that when their husband or wife becomes incapacitated and unable to make medical decisions, they have an automatic right to step into the shoes of their spouses. A patient’s incapacity-his or her inability to understand the nature and consequences of a decision or communicate a decision-may be temporary or permanent. Under either circumstances, the patient’s spouse is not statutorily authorized to be first in line to assume the power to make healthcare decisions for the incapacitated patient.

Indeed, the Probate Code statutes applicable to medical decisions grant no such power to spouses. The code only places a spouse inside the category or class of “family members,” with no priority expressly stated for the spouse. Though many healthcare facilities and providers may create a hierarchy within the class of family members and place the spouse at the top, there is no exclusive legal right for a spouse to make healthcare decisions for his or her incapacitated spouse.

It is well-established in case law that marital status alone does not create agency between the spouses. Nevertheless, spouses are fiduciaries under the law and owe a duty to one another. Still, this duty is not accompanied by a spouse’s authority to act as an agent in making healthcare decisions on behalf of his or her spouse.

Since a spouse has no express successor right to a patient’s right to make his or her own medical decisions, all family members have equal standing in the choice of treatment. A family member may challenge a spouse’s choices as not being in the best interest of the patient. It is even possible that a family member other than the one challenging the spouse may be given the right to make healthcare decisions on behalf of the patient. To further complicate matters, when a patient becomes incapacitated and a spouse’s decisions are challenged by a family member, or family members cannot reach a unanimous decision, or the choices made by the spouse or family members are not deemed by healthcare providers to be in the best interest of the patient, the healthcare providers may ultimately make those decisions. The power may not only shift away from the patient’s spouse but also from the patient’s entire family.

In an emergency, these issues too often lead to a crisis. All parties are frequently unprepared. A spouse facing an unanticipated need to make serious medical decisions for his or her spouse faces an overwhelming burden. The chaotic atmosphere can lead to the healthcare  providers assuming the power to make the necessary decisions. By con trast, a patient facing a scheduled surgery has the time not only to consider the issue of future healthcare decisions but also to choose to relinquish decision-making power, should the need arise, through a written or oral assignment to an agent or surrogate. It is an option that many clients should consider long before any medical care is required or contemplated.

AHCDs, Surrogacy, and Conservatorship

Spouses who seek to ensure their ability to make healthcare decisions for one another can make their wishes known in an Advance Health Care Directive (AHCD), a form of protection provided under the Probate Code. AHCDs have replaced the Durable Power of Attorney for Health Care, the former statutory device for this purpose. While AHCD forms may be obtained from healthcare providers and online sources, estate planning attorneys may prepare AHCDs as well, tailoring each directive to fit the circumstances of individual clients. An AHCD is often included in an estate-planning package with other estate documents such as a trust or a will.

Spouses can use an AHCD to express their carefully considered choices about future medical treatment and end-of-life issues. These choices may be modified from time to time with an updated AHCD. Among the topics that may be addressed in an AHCD include organ donation, the decision to allow or forbid an autopsy, pain management, and the use of life-sustaining equipment, among others. With an AHCD, a patient who becomes incapacitated temporarily or permanently will still be able to communicate his or her wishes through this writing, which can be legally relied upon by the patient’s designated agent and the healthcare providers.

The AHCD is the means by which a spouse can assert the authority, granted by his or her spouse, to make healthcare decisions on behalf of his or her incapacitated spouse. If the spouse is named as the sole agent in the AHCD, the spouse holds the exclusive right to assume this authority. If the spouse is named as a co-agent, the spouse will work with the other designated co-agent or agents in making the necessary decisions on behalf of the patient. In some cases, individuals do not want to name a spouse as an agent and will designate someone else. There are many reasons why this may be an individual’s choice. If there is no spouse, the individual will appoint whomever he or she deems appropriate.

The agent or co-agents must follow the patient’s directives. These decisions have been expressed in writing by the patient, who has given his or her agents the power to make sure the patient’s wishes are honored by the healthcare providers in the event the patient is incapacitated. No agent may ignore the expressed intent of the patient.

Another way a spouse can gain exclusive authority to make healthcare decisions on behalf of a husband or wife is through the patient’s oral appointment of surrogacy that is communicated to the healthcare providers. Absent an AHCD—the existence of which is often queried by a healthcare provider or facility during the patient intake or admissions process so that the document, if it exists, can be placed in the patient’s records—a patient may orally communicate his or her choice of a surrogate to act on behalf of the patient. This oral appointment, along with the patient’s specific medical wishes regarding treatment, should be noted in the patient’s records by the healthcare provider. The patient may name a spouse to act as the surrogate who will assume the healthcare decision-making power if the patient becomes incapacitated. The medical wishes of the patient, as recorded by the healthcare provider, must be followed and implemented under the authority of the surrogate spouse. The patient may name anyone as a surrogate to act on his or her behalf.

A surrogate, however, might not have the same expansive authority as an agent named in an AHCD. The patient may not have expressed his or her wishes regarding the full range of circumstances that could emerge during a period of incapacity. A decision by the surrogate that lacks a foundation of evidence of the patient’s intent may be disregarded by healthcare providers who deem the decision to not be in the best interests of the patient. An AHCD provides firmer ground for the spouse acting on behalf of his or her incapacitated spouse. A spouse acting as the patient’s agent under an AHCD has the power to implement the patient’s wishes, which have been expressly stated in a writing. This writing constitutes clear and convincing evidence of the patient’s intent.

A spouse appointed as a surrogate may be absolutely certain of what the patient’s philosophical or spiritual choices would be regarding treatment. However, in the absence of specific evidence of intent in the patient’s medical file, the surrogate is powerless. This is true not only when the patient does not address an issue in the oral communication of surrogacy but also when the oral communication is not properly recorded by the healthcare provider.

The least desirable option available for obtaining the right to make medical decisions on behalf of one’s spouse is a petition to the court for a conservatorship. A spouse or other interested party may request to be appointed as a conservator of the patient. This appointment is subject to objections from other parties. Through proper notice, the patient’s due process rights must be considered, along with those of extended family members. The court may decide to appoint an independent legal representative for the potential conservatee and may also choose to limit the scope of the conservator’s authority. This process can be untimely, cumbersome, and expensive. Conservatorship is a highly scrutinized area of the law and requires expertise.

The execution of an AHCD can avoid the need for a conservatorship. However, if the need for an appointment of a conservator arises, even when an AHCD exists, the good news is that the nomination of a conservator by the patient usually is embodied in the AHCD. Therefore, if a petition to the court is necessary, there will be no controversy regarding the appointee. The AHCD is clear and convincing evidence of the individual’s intent and choice of conservator.

Nonspousal Healthcare Authority

Everyone possesses the precious right to relinquish authority for his or her healthcare decisions, when incapacity arises, to a trusted family member, domestic partner, or friend, as well as a spouse. To do so requires express evidence of intent. The Probate Code generally protects the class of family members, but with no specificity. Domestic partners, if registered with the California secretary of state, are given status equivalent to that of a spouse under the Probate Code and the Family Code. Unregistered domestic partners and friends have no standing under state statutes.

Many middle-aged adults are caring for and assisting their elderly parents. An adult child might presume that he or she has the right to make medical decisions on behalf of the elderly parent when that parent lacks the capacity to do so. Under statutory law, however, no power for this purpose is granted specifically to the adult child. The adult child is only one in a class of family members. All family members have equal standing in the healthcare decisions involving the parent, unless the adult child has been authorized to make decisions on behalf of the patient through an AHCD, surrogacy, or a conservatorship.

Many couples choose to cohabit and not marry. Moreover, same-sex couples are unable to create a legal marital relationship, though they may gain marital rights if they register as same-sex domestic partners. Opposite-sex couples also may resister a domestic partnership if one or both of the partners are over the age of 62.

No matter how parties ultimately weigh the pros and the cons of establishing a legal domestic partnership, an AHCD provides a role for a domestic partner, whether registered or unregistered, in making medical decisions on behalf of his or her incapacitated partner. Further, for opposite-sex unmarried couples, an AHCD can establish their rights to make healthcare decisions for one another even as they choose to abstain from the legal entanglements of marriage.

Another relationship to consider is the parent seeking the authority to make medical decisions for an adult child. A parent is part of the class of family members, in which no one family member has any more power, under statutory law, than another. Further, many of the issues regarding a spouse’s limitations—absent the status of agent (under an AHCD), surrogate, or conservator—will also apply to the parent of an adult child if the adult child is incapacitated.

Once a child attains the age of 18, the right to make personal medical decisions becomes an exclusive right of that adult child. Even if the child is still attending high school, he or she gains this exclusive right at 18, and a parent does not automatically possess sole decision-making power when, for example, the child becomes unconscious due to injuries sustained in an automobile accident. Parents too often presume that the power to make medical decisions for their adult children is their right.

Absent an AHCD, parents fall into the class of family members with no more legal standing than another adult family member. Many hospitals create a hierarchy of decision makers and are likely to place the parents of unmarried young adults at the top of the list. However, there are no guarantees under statutory law. Even if the healthcare providers are listening to the parents, should they deem the parents’ decision to be not in the best interests of the patient, they are not obligated to implement the parents’ choices without an AHCD.

Generally, the most efficient way for an individual to protect his or her intent regarding healthcare in the event of incapacity is the execution of an AHCD. A well-constructed AHCD expresses medical choices clearly, appoints an agent or co-agents, appoints alternate agents, and nominates a conservator if needed. In this document, a person is able to direct and instruct his or her agent, who is not only authorized but obligated to carry out the person’s directives. The agent is empowered to speak—and the healthcare providers must listen.

One last consideration are the restrictions mandated by two laws: the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) and California’s Patient Access to Medical Records Act. The major goal of these laws is to ensure the protection of an individual patient’s health information while balancing the need to provide quality healthcare. The violation of these statutes could result in substantial fines for a healthcare provider or facility.

While the laws have resulted in their intended effect of providing more protection for patient privacy, they have also led to more limited accessibility by a patient’s family members to the patient’s medical records. These records are strictly protected from disclosure to anyone other than the patient. To overcome this obstacle, a patient may execute a written authorization for use and disclosure of his or her information, enabling the patient’s agent to obtain needed information. This written authorization should accompany an AHCD. Estate-planning attorneys should make sure they execute the necessary instrument when they draft an AHCD.

With the execution of an AHCD and with the execution of an AHCD an attorney will help to empower a spouse, a domestic partner, or other family members to make medical decisions on behalf of an incapacitated loved one. The story of Terri Schiavo, which gained national media attention, was a grim illustration of what can happen to a family without a patient’s expressly written intentions regarding medical treatment. For nearly 16 years, Schiavo existed in a vegetative state while her parents and her spouse battled in court over her end-of-life care. Had Schiavo executed a document like an AHCD, this long nightmare could have been avoided. An AHCD will speak for the patient and will enable the designated agent to carry out the patient’s express wishes.

Cozette-Vergari2Cozette Vergari – principal of Vergari & Associates, has had an active Family Law practice since 1996. During that time, she has litigated and mediated in hundreds of family law cases and have frequently served as a court-appointed minors counsel. In 2003, she became active in the Collaborative Family Law movement, joining A Better Divorce. She regularly participates in workshops and seminars to solidify and further develop her expertise in Family Law with an emphasis in Collaborative Family Law. She is retained by clients as either a consultant, mediator, collaborative family law attorney, or litigator. Learn more about Cozette by visiting her blawg at vergariandassociates.wordpress.com. 

Mental Health of Children in Divorce

Child’s Testimony in Custody Cases

ELKINS TASK FORCE REFORMS – UNCERTAINTY ABOUT IMPLEMENTATION

An important change regarding children’s testimony in custody cases, (Family Code §3042).went into effect last year. “If a child is 14 years of age or older and wishes to address the court regarding custody or visitation, the child shall be permitted to do so, unless the court determines that doing so it not in the child’s best interests. In that case the court shall state its reasons for that finding on the record.” Professionals have expressed concerns about how this is going to be implemented. There is a provision that a minor’s counsel, evaluator, an investigator or recommending mediator may help the court determine if a child wishes to express a preference.

Learn more about Collaborative Divorce

David-Kuroda2David Kuroda is the former Division Chief, Family Court Services, Superior Court of Los Angeles and directed the Mediation and Conciliation Service, the first and largest court mediation program in the nation.

In his 18 years with the Superior Court, he was responsible for the district courts, the PACT and Contemnors’ Programs, Divorce Seminars, and Visitation Monitors. Under his leadership, the service set high standards for the mediation service and other innovative programs serving children and families of divorce.

He has served on numerous committees with the Judicial Council, Los Angeles County Bar Executive Committee, Family Law Section, and has collaborated on numerous programs with the bar associations of the South Bay, Beverly Hills, San Fernando Valley, and Long Beach. He’s the past vice-president of A Better Divorce: A group of collaborative professionals; he also serves as vice-president of the California Social Welfare Archives., on he advisory board of the Los Angeles Collaborative Family Law Association, and was honored with the Lifetime Achievement Award by the National Association of Social Workers (NASW) California Chapter and with the George Nickel Award by the California Social Welfare Archives, USC.

In addition to directing the program, he has personally provided mediation services to over 7,000 families from the working poor to the wealthy and famous, including high profile cases and movie producers. Virtually all parents, whatever their backgrounds, love their children, and with some guidance, have been able to work together, even after divorce. Mr. Kuroda has provided training for graduate students from USC, and has taught professionals child custody mediation.