Is Your Graduate Off to College? Consider an Advance Directive

HEALTH CARE DIRECTIVES FOR COLLEGE STUDENTS AND ADULTS

 

Parents face many challenges when their children leave home and go to college. Aside from the emotions of leaving home, parents have to deal with tuition payments, moving their child into their first dorm, and such. But as children grow into young adults (and in Alabama, a person is deemed an adult at the age of 19), it is a time for children to begin making their own life decisions.

While most 19 year olds do not have enough assets to require a Last Will and Testament, an Advance Directive and Health Care Proxy and a Medical Power of Attorney are another matter. Without an Advance Directive and Health Care Proxy and Medical Power of Attorney, the parent of a child who has reached the age of majority (again, that is 19 in Alabama) cannot make certain medical decisions for their child. Please understand this can be a delicate topic for many, but due to the important legal implications of these decisions, the remainder of this blog contains a frank and direct discussion of this issue.

The first thought that comes to everyone’s mind is a tragic situation following a horrible accident where the victim remains alive only through life sustaining medical treatment. However, situations which also warrant the need for an Advance Directive and Health Care Proxy and Medical Power of Attorney can also arise from a terminal illness or injury or a permanent unconsciousness. In such situations, without an Advance Directive the State of Alabama and medical providers will follow the protocol of continued medical treatment, even it only means delaying an impending death.

In Alabama, an adult may make an election to withhold life sustaining medically indicated health care treatment and/or artificial nutrition and hydration (i.e., a feeding tube). This decision applies in two situations:  (1) a terminal illness or injury, and (2) a permanent unconsciousness.  In a terminal illness or injury situation, an individual’s physician and another physician who is not the physician of the individual must determine that the individual has six months or less left to live, and medically indicated health care treatment will not cure the individual but only prolong the dying process. In a permanent unconsciousness, the individual’s physician and another physician who is not the physician of the individual must determine that the individual has no indication of mental function, and medically indicated health care treatment will not cure the individual but only maintain the individual in a permanent state of unconsciousness.

In either of these situations, an adult in Alabama may make an election to terminate any medically indicated health care treatment. In addition, the individual may also make an election to forego artificial nutrition and hydration. This is called an Advance Directive.

Alabama also allows an adult to specify an individual who can make medical decisions on behalf of the individual when the grantor is incapacitated or otherwise incapable of making their own health care decisions. The need for this authority certainly arises in the two situations involving the use of an Advance Directive, but more typically the need for this authority can arise in a simple surgery where the grantor will be under anesthesia. For out of state parents, this could be a critical instrument if their child become seriously sick or injured while away at school.

Another recommended instrument is a Medical Power of Attorney. Medical Power of Attorney allows the agent of the grantor of the Power of Attorney to authorize or withhold medical treatment, to obtain medical records, sign medical documents, and so forth. It is important to understand that a Medical Power of Attorney will not address end of life decisions like an Advance Directive and Health Care Proxy does. Therefore, we recommend the use of both instruments.

These are important decisions that young adults and their parents should talk about and discuss. But it is important to understand that a health care decision to not continue medical treatment should be in writing and prepared after consultation with an attorney who understands these issues.

At the Law Offices of Thomas J. Skinner, IV, LLC, we understand these issues. Unfortunately, we have had to face these decisions in our personal lives, and we can attest to the importance of an Advance Directive and Health Care Proxy. If you have questions and would like to discuss an Advance Directive and Health Care Proxy or a standard Power of Attorney or a Last Will and Testament, contact us at 205-802-2545.

ZERO TOLERANCE – Spring Break on the Gulf Coast

I recently attended an event at Mountain Brook High School regarding Spring Break 2017.  The event was hosted by “All In Mountain Brook” in cooperation with Mountain Brook Police Chief Ted Cook.  Chief Cook arranged for law enforcement officials from Alabama and Northwest Florida to come to MBHS and speak to parents in an open forum environment.  The law enforcement officials included the Police Chiefs from Gulf Shores, Alabama, and Orange Beach, Alabama, the Deputy Chief and a Lieutenant from the Panama City Police Department, and the Lieutenant and Sergeant from Walton County, Florida, covering Highway 30A (including Grayton Beach, Seaside, Watercolor, Rosemary Beach, Seagrove, etc.).

These officers came to MBHS to address the issues their communities and their law enforcement agencies face with spring break crowds.  These issues include rampant underage drinking, DUIs, drug distribution, possession and use, property crimes, vandalism and wanton destruction of property, sexual assault, rape, and death.  These issues involve junior high, high school, and college kids, “predators and thugs” who come to the beach to prey on, sell drugs to, and steal from the kids, and parents who condone and participate in underage drinking.  Each of these jurisdictions and communities reached the same conclusion on how to address these issues.  ZERO TOLERANCE.

The following information is an outline of how these jurisdictions intend to handle spring break.  This is not meant to be an all-inclusive list, and as the officers all said, “If it’s illegal where you came from, it’s illegal at the beach.”  For more specific and up to date information, you are encouraged to review the websites and Facebook pages of the law enforcement agency in the jurisdiction you plan to visit.

ALL JURISDICTIONS

• In each of these jurisdictions, if you are underage and have alcohol in your possession or in your system, you will go to jail.
• If you do not have a room and try to sleep in your car, you will be awaken and ordered to leave or be arrested for trespass.
• If you violate any of the terms of your lease (alcohol in the unit, open house parties, loud noise or music, destruction of property, too many people, etc.), you will be immediately ejected and lose all of your prepaid rent and deposit.
• Climbing, jumping, and throwing items off balconies is prohibited.
• A first offense Minor in Possession will cost a minimum of over $600 in fines and court costs, but it is a Class A Misdemeanor which carries a fine of up to $1,000 and one year in jail.
• Prisoners (that is, anyone who is arrested) in Orange Beach will be taken to Orange Beach jail, then to Foley and ultimately to the County Jail in Bay Minnette (45 minutes to an hour away) as the number of prisoners increases. Prisoners in Gulf Shores will go to Foley then Bay Minnette.  If it is a felony arrest or if you are arrested by a Baldwin County Deputy Sheriff or Alabama State Trooper (including Alabama Marine Police), you will go to the County Jail in Bay Minnette.  Prisoners in Walton County, Florida, will be taken to DeFuniak Springs (up to an hour and a half away), Oakloosa County (Destin) prisoners will be taken to Crestview (up to an hour away), and Bay County (Panama City) prisoners will be taken to the Bay County Jail which is 30 miles East of Panama City “in the middle of nowhere.”
• You will spend the night in jail if arrested.
• Most of these jurisdictions publish all mug shots and arrests online.
• The judges who hear spring break cases tend to lose their compassion as spring break wears on resulting in higher fines, jail time, and harsher sentences for parents arrested for condoning underage drinking and for repeat offenders.

ORDINANCES AND ISSUES SPECIFIC TO GULF SHORES, ALABAMA

• Gulf Shores has a local ordinance that bans ALL alcohol consumption and/or possession on its beaches by ANYONE, regardless of age from March 1 through April 17. ANYONE caught with alcohol in their possession or in their system will be arrested.
• Gulf Shores has a midnight curfew on all of its public beaches for anyone 18 years old and younger.

ORDINANCES AND ISSUES SPECIFIC TO ORANGE BEACH, ALABAMA

• Orange Beach Police and the Alabama Marine Police will be doing enhanced martin patrols around Perdido Pass, the islands just inside the pass, and the waters around Ono Island. Florida law enforcement will be patrolling neighboring Florida waters.  These patrols will be conducted during both the day and at night.

ORDINANCES AND ISSUES SPECIFIC TO WALTON COUNTY, FLORIDA

• The Whale’s Tail area is a no alcohol area. If you drink there, you will go to jail.
• Walton County has had difficulties in the Town of Seaside with junior high and high school aged children. The Seaside community is working closely with Walton County on this, and there are some major changes this year.  The Walton County Sheriff’s Department will have its mobile command center in Seaside.
• Seaside will now restrict all of its beach access points with security guards. No children 18 years and younger will be allowed on the beach with backpacks or bags.
• No one under the age of 18 will be allowed on Seaside’s beaches or in Seaside’s public areas (i.e., the amphitheater) after 8:00 pm without their parents. Children are not allowed to “hang out” unattended or unsupervised in Seaside.  This has become a major problem.
• Watercolor also has its own security who will be enforcing its rules. Anyone who refuses to follow its rules will be handled by the Sheriff’s Department.
• Rosemary Beach has a curfew of between 8:00 pm and 9:00 pm (check for specific times during your visit). There are two to three Sheriff’s Deputies in Rosemary Beach at any given time.
• Drugs are a big issue to the Sheriff, and anyone with drugs will go to jail.
• Parents who host, allow, condone or participate in house parties and/or underage drinking will go to jail along with their child(ren).

ORDINANCES AND ISSUES SPECIFIC TO PANAMA CITY, FLORIDA

• Panama City has a local ordinance that bans ALL alcohol consumption and/or possession on the sandy beach by ANYONE, regardless of age through the month of March (this will likely be extended into April). ANYONE caught with alcohol in their possession and/or in their system will be arrested.
• Possession and/or consumption of alcohol in commercial parking lots is also prohibited.
• All alcohol sales (including bars) ends at 2:00 am through the month of March (this will also likely be extended into April).
• Overnight rental of scooters is prohibited.
• Metal shovels and holes deeper than 2 feet are prohibited on Panama City beaches.

ORDINANCES AND ISSUES SPECIFIC TO OAKLOOSA COUNTY, FLORIDA

• Destin and Ft. Walton are in Oakloosa County. While not present at the meeting, the Florida law enforcement officers presented confirmed that Oakloosa County is taking the same Zero Tolerance stance as Walton County.

GENERAL SAFETY CONCERNS AND COMMENTS

The officers reminded everyone that each year, they have to call parents to inform them that their child is deceased.  Most of the time, it is the result of a stupid decision: Leaning over a balcony, going into the Gulf of Mexico during a dangerous rip tide situation or double red flag, drinking and driving, drug overdoses, and so forth.  The officers all asked that as parents we remind our children that “Decisions have consequences,” and bad decisions often have negative or even fatal consequences.  There are bad people who come to spring break solely to prey on high school and college kids.  They break into their cars and steal their valuables; they sell the kids drugs (heroin is especially a concern); they prey on girls to sexually assault them or rape them.  The officers believe that many of these concerns can be addressed by the parents knowing where their children are and what they are doing.

The officers did make it clear that they want people to come for spring break and come during the summer for vacation.  They want families who can enjoy the beautiful Gulf Coast beaches without petty crime, vulgar language and large scale drunken debauchery.  They want to provide their visitors with a friendly and safe place to visit, and they want to ensure the safety of all of their spring break visitors. Read the full story in Village Living here.

We at the Law Offices of Thomas J. Skinner, IV, LLC, are providing this information as a public service, and if you have any questions, please do not hesitate to contact us.  If, unfortunately, you or your child needs the services of a lawyer in lower Alabama or the Florida Panhandle, we will be happy to refer you to one of the several lawyers we know on the Coast. We at the Law Offices of Thomas J. Skinner, IV, LLC, hope you and your family have a safe and enjoyable spring break.

Home For Sale: 2BR, 1BA, 1 Ghost

Can a seller of real property be liable to a purchaser for not disclosing that the property is haunted?

This being October, and October being the month for Halloween, we thought what a better way to combine real estate law and Halloween than to delve into the subject of haunted houses.  Specifically, if one is selling a haunted house, does he or she have to disclose to the buyer that the house is haunted?  Of course, this being a legal question, the answer is “yes” and “no” and, well, “maybe.”

Alabama has some well-known haunted houses thanks to the late Kathryn Tucker Windham and Jeffrey, the ghost that resides in her family’s home in Selma, Alabama.  In 1969, Mrs. Windham wrote her Southern folklore book 13 Alabama Ghosts and Jeffrey.[1]  In her book, she tells the story of 13 haunted mansions, places and events throughout Alabama.  Some of these include the former Rock Hill Castle in Courtland, the Drish House in Tuscaloosa, Carlisle Hall in Marion, the specter in the maze at Old Cahawba, the face in the Pickens County courthouse window in Carrollton, Gaineswood in Demopolis, and the ghost steamer Eliza Battle on the Tombigee River.  Other reportedly haunted sites in Alabama include Sturdivant Hall in Selma and Sloss Furnaces in Birmingham.

So what do I do when I want to sell my haunted house?  Do I have to disclose that the house is haunted?  The legal issue is whether the property has been “stigmatized” and is a “psychologically impacted” property.  Typically, this involves property where a murder, suicide or other unusual death occurred or where a prior owner suffered from an illness such as HIV/AIDS.

California opened the door to this issue in the case of Reed v. King.[2]  In Reed, an elderly woman purchased a home that had been the site of a gruesome murder of a mother and her four children ten years earlier.  The murder was not disclosed, and the purchaser discovered the home’s history after moving in.  She sued for fraud and rescission of the contract.  The appellate court found that murder is so disturbing that buyers may be unable to reside in a home where it has occurred, and the court went on to note that murder is not such a common occurrence so as to impose a duty of inquiry upon a buyer.  The court further held that if the seller has information only accessible to the seller which has a significant and measurable effect on market value and the seller is aware of this effect, the duty to disclose does not turn on the character of the information (physical, stigmatic, or otherwise).  The court remanded the case for the trial court to conduct a hearing on these issues.

Now, this opinion wasn’t very popular around the country, and numerous states moved to prohibit these types of lawsuits.  Legislatures in Colorado, Connecticut, Georgia, Illinois, Louisiana, Maryland, Missouri, Nevada, North Carolina, Oklahoma, Oregon, Rhode Island, South Carolina, Tennessee, Utah, Wisconsin and even California passed statutes declaring that no cause of action arises for failure to disclose a murder, suicide or other occurrence (including illnesses) which have no effect on a property’s physical condition.[3]  The statute in Massachusetts goes so far as to include “real property [that] has been the site of an alleged parapsychological or supernatural phenomenon.” [4]

The most famous haunted house case is the New York case of Stambovsky v. Ackley.[5]  In Stambovsky, the buyer of a home sued the seller for not disclosing that the home was “widely reputed to be possessed by poltergeists.”  Because the presence of the “spectral apparitions” was discussed by the seller in the national publication Reader’s Digest, twice in the local press, and the home was included in a walking tour of the town as “a riverfront Victorian (with ghost),” the court in the most famous line from its opinion held that the “defendant is estopped to deny their [referring to the ghosts’] existence and, as a matter of law, the house is haunted.”[6]  The opinion is worth reading just for all the ghost, spirit, and other “phantasmal” idioms and puns used by Justice Rubin.

So, what happened?  New York law required the application of the doctrine of caveat emptor – “let the buyer beware” – which required the buyer to act prudently to assess the physical condition of the premises, but the court choose to distinguish the facts of the case from the existing law and allow rescission of the purchase contract.  The court’s rationale was that the seller “deliberately fostered the public belief that her home was possessed,” and she was taking “unfair advantage of the buyer’s innocence” on a topic which he was unlikely to even inquire about.

Closer to home, Alabama is also a caveat emptor state regarding the sale of “used” residential real estate and raw land (there is an exception in Alabama to the rule for “new” homes).[7] However, Alabama does not have a statute addressing “psychologically impacted” property, and there do not appear to be any Alabama cases addressing the sale of a home in which a murder or suicide occurred or a home which is otherwise occupied by a poltergeist, ghost or a haint.[8]  In Alabama, disclosure of material defects in a “used” residential home is only required when the defect affects the health, safety or welfare of the purchaser.[9]

So, in Alabama does the presence of a ghost fall into a category that requires disclosure to a potential purchaser?  Maybe or maybe not.  Depending on the factual circumstances, it could likely be argued both ways.  Therefore, the best solution is to call the Law Offices of Thomas J. Skinner, IV, LLC, and let us help you with this supernatural question.

[1] Kathryn Tucker Windham, 13 Alabama Ghosts and Jeffrey, Strode Publishers, 1969.

[2] Reed v. King, 193 Cal. Rptr. 130 (1983).

[3] Daniel M. Warner, Caveat Spiritus:  A Jurisprudential Reflection Upon the Law of Haunted Houses and Ghosts, 28 Val.U.L.Rev. 207 (1993) (Unlike the other states, California did not completely prohibit these actions but limited their time and scope).

[4] M.G.L. Ch.93 §114.

[5] Stambovsky v. Ackley, 169 A.D.2d 254 (1991).

[6] To be clear, the court made this finding “as a matter of law,” not as “a matter of fact.”  The court did not actually adjudicate whether or not there are such things as ghosts or other such supernatural phenomenon.

[7] See, e.g., Clay Kilgore Const., Inc. v. Buchalter/Grant, LLC, 949 So.2d 893 (Ala. 2006).

[8] A “haint” is a Southern colloquial term for a ghost. Hence, a “Haint Blue” porch ceiling in the South.

[9] See, e.g., Fennell Realty Co., Inc. v. Martin, 529 So.2d 1003 (Ala. 1988).