By Rebekah Addy, Albany Government Law Review
On July 24, 2011, the New York Legislature enacted the Marriage Equality Act, which permits marriage between persons of the same-sex and provides that valid same-sex marriages entered into outside of New York will be recognized and treated the same as in-state marriages. The New York State Bar Association (“NYSBA”) “has long supported the new law” stating that it is a “triumph for equality” granting “important protections and legal rights” to same-sex couples. However, NYSBA president Vincent E. Doyle III also noted that “many areas of the law are unclear” and “there are many open issues about how the law will be applied.” In light of that recognition, NYSBA produced a Marriage Equality FAQ brochure developed by a panel of legal experts, dated July 18, 2011, seeking to help “couples, attorneys and others navigate the new legal landscape.” Continue reading
By Alicia M. Dodge, Albany Government Law Review Class of 2011
Is a $250,000.00 cap on non-economic damages in medical malpractice cases necessary? The answer to this question will vary widely, depending whom you ask. The New York State Bar Association and patient-rights advocacy groups strongly oppose this cap, while hospitals and physicians generally support it. The purpose of an economic damages award, such as loss of earnings, is to make an injured person “whole” again, and can generally be calculated with a fair amount of certainty. On the other hand, an award of non-economic damages, such as pain and suffering or loss of consortium, “cannot be precisely measured in money,” and as such are often viewed as arbitrary rewards. Continue reading
Amanda Cluff, Senior Editor, Albany Government Law Review Member
One of the most prevalent concerns in both elder and healthcare law is the abuse of rights bestowed upon a durable power of attorney. Numerous stories circulate daily regarding elderly persons who have been financially manipulated by individuals designated to this important role. A power of attorney is defined as “a legal document through which a principal authorizes an agent [also known as an attorney in fact] to act on the principal’s behalf.” This power usually terminates once the principal—the person who authorizes the power to an agent—becomes mentally incapacitated, or otherwise unable to exert decision-making abilities.
However, when a durable power of attorney is created, the power of attorney continues to remain effective, even after such incapacity occurs. This sort of power can be beneficial in several respects. First, the durable power of attorney can replace an unfamiliar court-appointed guardian or conservator. In addition, those who are given a durable power of attorney are able to make both personal and property decisions in the best interests of the principal, who lacks capacity to do so. However, the danger of a durable power of attorney is also what makes it beneficial—the durable power of attorney is given virtually unconstrained and very broad authority to handle the principal’s financial affairs. Consequently, this is a power that is difficult to monitor and, therefore, may be subject to various forms of abusive or fraudulent behavior by the agent.