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Jaspers, Moriarty & Wetherille, P.A.
Seasoned Legal Judgment For The South Metro Area

August 2015 Archives

What is a Healthcare Directive?

Clients often ask us to draft a living will or heath care power of attorney to authorize someone to make health care decisions on their behalf. In Minnesota, we most commonly refer that document, which appoints someone to make health care decisions on behalf of the person granting that power, as a health care directive. The document outlines the health care decisions including consent, refusal of consent, or withdrawal of consent to certain kinds of health care. A health care directive authorizes who you, as the principal, want to make your health care decisions. It also serves as a written statement of your values, preferences, guidelines, or directions regarding health care. Anyone 18 or older can execute a health care directive as long you are of capacity at the time of execution. The legal requirements in Minnesota for creating a valid document for health care decisions are as follows: the document must be in writing, be dated, state the principal’s name, be executed by the principal or on their behalf by someone with authority, be either notarized or witnessed, and include health care instructions. Witnesses cannot be the nominated agent.

Often times, clients bring health care directives from their healthcare provider for our review. Generally, these documents are sufficient, as long as the legal requirements are met. Clients sometimes ask if it is necessary to have this document if they are married, assuming their spouse will automatically have the authority to decide. While that is likely true, having a document that states your wishes is a comfort to your family during what are often emotional and trying times. It is a gift to be prepared and communicate your wishes. Medical providers will ask for these documents when someone is admitted, and having terminal illness instructions or do not resuscitate language will allow the provider to know your wishes up front in the event of a terminal condition or vegetative state. The document can also include your other wishes, such as burial, cremation, or funeral service details. In the event you are a single person with a partner, medical providers will likely look to family members before friends, so it is important that you nominate the person you want making those decisions. On occasion a dispute arises as to end of life decisions; as lawyers, we live in the wake of the Terri Schiavo case. To avoid that type of situation, we encourage all of our clients to include health care directives in their estate plans. Additionally, if you have a diagnosis and want to be specific regarding what types of treatment you will endure, we can tailor the document to meet your specific needs.

Ashley Madison --- Right to Privacy on Cheating Site?

In the wake of the computer hacking efforts which led to a data breach of the affair-oriented dating site www.ashleymadison.com, customers of the site are crying foul and filing lawsuits against the site's parent company claiming it violated those customers' rights. Somewhat similar lawsuits have cropped up in recent years in the wake of the Home Depot, Target and other retailers' data breaches. These cases often include claims that the defendant company violated a consumer protection statute, breached a contract with the customer, or that the business was negligent in failing to safeguard the data by taking due care to prevent disclosure by hackers. Because this area of law is still developing, courts are split on how to address these kinds of claims. Traditionally, it is not possible to recover purely economic damages on a tort theory - in other words the plaintiff would need to show damage to their person or property for their tort theory to survive. With Target, that was an issue. However, with a cheating site data breach, the non-economic damages, like your wife divorcing you or your reputation being tarnished when branded a "cheater", will likely be those most important to the Plaintiffs.

It will be interesting to see how this all plays out. The plaintiffs will likely argue that the whole point of the Ashley Madison site is to cultivate secret affairs between married persons - so when the company failed to safeguard the data behind those affairs, they violated the privacy and contractual rights of the customers. On the other hand, there are a host of state statutes which make adultery illegal, so while those statutes are likely outdated and rarely enforced, I'm relatively certain Ashley Madison will claim it had no duty to protect the information concerning what amounts to illegal activity. Good opportunity for creative lawyering.

In another twist, Ashley Madison is sending "take down" notices to sites which are publishing the site's data. Ashley Madison is claiming copyright ownership (or that someone else has copyright ownership) over the data, and in accordance with federal law, is demanding other publishers like tabloid websites remove the data or face copyright infringement claims. Relatedly, because the data does not belong to an individual downloading and viewing it (typically), if you were to download that Ashley Madison database you might also be committing the crime of receiving stolen property. So in a bizarre turn of fate, be weary of the temptation presented by Ashley Madison...it might get you in hot water!

Minnesota's New LLC Act

Effective August 1, 2015 Minnesota has enacted a version of the Revised Uniform LLC Act. All LLCs formed in Minnesota after August 1 will be covered by the new act. Existing LLCs will have until January 1, 2018 to covert their entities to entities under the new act, and after January 1, 2018 old LLCs will automatically become subject to the new act.

Changes in the law include a shift from a corporation-model to a partnership model (board of directors versus direct member control). A related change is that profits and losses under a partnership model are distributed per capita meaning each partner gets an equal share, in comparison to the old model which was based upon contribution, the pro rata share model.

LLC owners can now significantly modify the default statutory provisions with the use of an Operating Agreement. Businesses are advised to discuss their options for an Operating Agreement because often the default conditions of the new statute are at odds with what business owners actually want for the manner in which their business is to be run.

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