First, as a political junkie, I generally watch candidate debates, even primary debates, regardless of which party is debating. So in the past few months I’ve spent many an evening watching the Republican candidates, not always paying particularly close attention, but keeping one ear on the candidates while reading or playing games on Facebook or whatever.
Last night, in a question aimed at getting the candidates’ positions on Congressional intervention into state/personal matters, the moderator asked a question about Terri Schiavo, who most of you probably remember. She was the woman who was in a vegetative state and there was a battle between her husband (who wanted to remove her feeding tube and let her die) and her parents (who wanted life support continued).
When I speak with clients or give a presentation on the importance of estate planning, I often invoke the Schiavo case because it’s a case most people remember, and a case that could so easily have been avoided if Ms. Schiavo had had a health care proxy and an advance directive (aka “living will”). A health care proxy names a person of your choosing who you authorize to make medical decisions for you in the event you are unable to make them. An advance directive/living will states your wishes with regard to end-of-life matters, including what sorts of life sustaining measures you do or do not want administered, and under what circumstances.
So although three of the candidates limited their answers to whether or not Congress should have gotten involved as it did, one candidate—Ron Paul, who is a physician—took a different tack and instead talked about the importance of having a health care proxy/advance directive. He talked about other similar, although less infamous, situations in his own practice where the lack of such a directive caused family strife and a lot of expensive court battles before a decision was made, one way or the other. He ended his answer by urging people to get a health care proxy/advance directive in place. This is not an endorsement of Ron Paul, but it is an endorsement of his answer to this particular question.
Any sound estate plan will include a health care proxy/advance directive—sometimes as two documents, sometimes as a single document. Either way, when you go to a lawyer to create a will, make sure—at a minimum—that the package includes a health care document. Additionally, although I never recommend a person write their own will or use a store-bought form, I especially don’t recommend that a person attempt to create their own health care document. The reason is that there is very precise language that needs to be used—bases that must be covered in a particular way; it’s just not worth the risk of trying to get it right on your own, and well worth the expense to have the peace of mind that it’s been done correctly.
The second item I saw on TV was about the Italian cruise ship disaster. The story talked about how Americans who bought tickets for the cruise--by virtue of simply buying the ticket--entered into a contract that severely limited their rights with regard to any claims they might have against the cruise line in the event of an accident like this one.
It is a relatively little known fact that when you buy a service or certain products—airline tickets, cruises, tour packages, theatre tickets, and more—in many cases the purchase itself creates a contract between you and the company providing the product or service. Every time you click “I Agree” when buying something online, you are agreeing to the terms and conditions, and it is a legally binding contract. Most people--quite understandably--rarely if ever read the terms and conditions of a purchase before clicking “I Agree”. But that is no excuse or defense in the eyes of the law.
In the Italian cruise ship accident situation, the specific issue discussed in the news item I saw is the venue in which any lawsuits must be brought against the cruise line. One of the terms and conditions was what is known as a “forum selection clause”. Virtually all contracts contain one. The forum selection clause dictates where a legal claim can be brought against the service provider/manufacturer, and it need not always be a forum that makes the most sense or is at all convenient for the purchaser of the product or service.
In this case, the forum selection clause dictated that any claims must be brought in Italian courts. This means that any Americans affected by the accident must go to Italy for any required court appearances or depositions, etc., they must hire Italian lawyers, and abide by Italian laws about how much they might be entitled to recover for the damages they suffered.
It is possible, but extremely unlikely, that an American court will invalidate the forum selection clause in this case. Contracts entered into by clicking an “I Agree” button and similar methods are generally legal and rarely invalidated by a court. It may seem unfair since you really have no choice but to either accept the terms or not buy the ticket—take it or leave it, in essence—but that’s the law in most instances.
So, while there is little you can do but accept the terms and conditions you’re offered, it is still important to read them, just to make sure you understand what you’re getting yourself into and so you can be forewarned about the potential consequences of purchasing whatever it is you’re purchasing. If any of the terms and conditions are confusing or concerning to you, many contract lawyers, myself included, will be happy to spend a few minutes by phone or email to help you make sense of it all.
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