If a patient decides they do not wish to receive health care services and would prefer to die, the healthcare service provider is not allowed to provide health care services to the patient under the principle of personal autonomy. In this case, the patient’s will needs to be taken into consideration even when they are currently unable to express it themselves, for instance when the patient is unconscious.
In the situations where the patient is unable to express their will on their own, many countries have introduced the use of living wills that are also often called advance directives. A living will is a declaration (usually in writing) on what kind of treatment a person wishes or does not wish to receive in a situation in which they are unable to make decisions on their own, for instance, in the case of unconsciousness or dementia. In addition to preparing a living will, people can also provide future health care directives by assigning a substitute decision maker who can express the person’s presumed will in case of the person being unable to express their decision.
The most effective means for ensuring one’s personal autonomy is using a living will, since it is compiled by the person themselves. Although living wills are not common in Estonia, the legislation of the country makes no obstacles for its use. The people of Estonia are also becoming increasingly aware of their rights. People have already turned to notaries with a wish of providing notarial future directives on the provision of health care services or maintenance of their property in the case that they no longer have the capacity to exercise their will themselves.
The article discusses the role of a living will near the end of life and also discusses the issues related to its formation and implementation. The last part of the article briefly addresses the instructions related to maintenance of the patient’s assets in the case of incapacity to exercise the will.
If a patient does decide that he or she does not wish to receive health-care services and would prefer to die, the health‑care service provider is not allowed to provide health-care services to that patient, under the principle of personal autonomy. In this case, the patient’s wishes need to be respected even at such time as the patient is unable to express them – for instance, when he or she is unconscious.
For situations wherein a patient is incapable of expressing his or her intentions, many countries employ an instrument called a patient’s will, also known as a living will or, more generally, a patient’s directive (the German concept is Patientenverfügung) or an advance directive (health-care directive). The term ’patient’s will’ will be used throughout this article. A patient’s will is a declaration (usually in writing) on what kind of treatment a person wishes to receive or not to receive in a situation wherein he or she is unable to make decisions independently – for instance, in the event of unconsciousness or dementia.*6 In addition to preparing a patient’s will, people may provide health-care directives for the future by assigning a substitute decision-maker (a health-care proxy) who can express the assigner’s presumed intentions in a case in which he or she is unable to express the relevant decision.
The most effective means for ensuring one’s personal autonomy is using a patient’s will, since this document is prepared by the person him- or herself. Although patient’s wills are not commonplace in Estonia, the country’s legislation imposes no obstacles to their use. Also, the people of Estonia are becoming increasingly aware of their rights. People have already turned to notaries with a wish of providing notarial directives for the future that address the provision of health-care services or maintenance of their property in the event that they no longer have the capacity to exercise their will themselves.
This article discusses the role of a patient’s will near the end of life and also examines the issues related to its formation and implementation.*7 The last part of the article briefly addresses instructions related to maintenance of the patient’s assets in the case of incapacity to exercise the will.
In some countries, the patient’s will is regulated as a separate legal institution. This is the case, for instance, in the United States of America, Germany, Austria, and France*8 , but it is not in Estonia. Moreover, use of patient’s wills is not common practice in Estonia, most likely on account of lack of awareness about the possibilities for their use. Although Estonian law does not specifically regulate the institution of the patient’s will, the legislation currently in force does allow its use. Specifically, the legal rules on the patient’s will can be derived from the requirements set for contracts for provision of health-care services under the Law of Obligations Act*9 (LOA).
Subsection 766 (3) of the LOA prescribes that a patient may be examined and health-care services provided to him or her only with his or her consent. Hence, if a patient does not consent to a health-care service, such services must generally not be provided. In a situation wherein a patient has the capacity to exercise his or her will, it is normally not difficult to clarify whether the patient wants to receive health-care services or not. However, the patient’s right of self‑determination means that there must be a possibility of refusing health-care services in future, even when one no longer has capacity to exercise one’s will – when one is unconscious, suffering from dementia, or otherwise prevented from expressing personal intentions in this regard. Situations of this type are regulated by §767 (1) of the LOA.
That section of law sets forth that if a patient is unconscious or is incapable of exercising his or her will for any other reason and if either he or she does not have a legal representative or his or her legal representative cannot be reached, the provision of health-care services is permitted without the consent of the patient, where this is in the interests of the patient and corresponds to the intentions expressed by him or her earlier or to his or her presumed intentions and where failure to provide health-care services promptly would put the life of the patient at risk or significantly damage his or her health.
e) while having the capacity to exercise his or her will, the patient expressed in a patient’s will that he or she wishes no health-care services to be provided.
Below, we provide a detailed examination of all the conditions on which application of a patient’s will is predicated.
According to the first criterion, the patient’s will applies only if provision of health-care services would, in itself, be in the patient’s interests. Where a health-care service is already being provided, it must be reassessed at all times whether provision of that service serves the patient’s interest. Provision of a health-care service is in the patient’s interests if it is indicated for the patient and is of good quality*10 ; i.e., it must not be a pointless therapy. If the service is not in the patient’s interests, that health-care service must not be provided to the patient concerned or its provision must be discontinued. In such cases, the patient’s will does not affect the provision of health-care services.
Where a health-care service is in the interests of the patient in its own right, the patient’s will applies only if the patient is in a condition wherein he or she is incapable of exercising his or her will. The patient’s incapacity should be assessed under §767 (1) of the LOA, the substance of which does not overlap with the definition of a person’s incapacity to exercise will with regard to transactions regulated*11 by §13 of the General Part of the Civil Code Act.*12 Under §767 (1) of the LOA, patients have no capacity to exercise their will in any situation wherein they are incapable of expressing their intentions. Consequently, a patient is without the capacity to exercise his or her will when suffering from a mental disorder but also when physically or for any other reason incapable of expressing his or her intentions. If a patient has capacity to exercise his or her will – i.e., is capable of expressing his or her intentions – a patient’s will would not be resorted to (even if one already exists); instead, one must proceed from the intentions directly expressed by the patient in the present. Such intentions may be contrary to those expressed in the patient’s will instrument. In many cases, it may be quite easy to ascertain the patient’s capacity to exercise will. Let us consider the case of a patient who is unconscious. There can be no doubt that an unconscious patient has no capacity to express will. However, there may exist borderline cases wherein determination of capacity can be quite complicated. Determination of medical decision-making capacity may be especially challenging with minors or those whose judgement has been impaired by acute or chronic illness. In addition, a patient may be able to make decisions regarding some aspects of life but not others. Also, such capacity may be volatile: in one moment, a person may be of sound mind and able to make sense of the surroundings while at other times not.*13 In borderline situations, the attending physician is in the best position to decide on the patient’s capacity to express will. To date, there have been no known cases in Estonia in which a court has contradicted a doctor’s decision.
The next consideration is that applicability of a patient’s will can be precluded in some cases if the patient has an existing, available legal representative who, under §766 (4) of the LOA, has the right to decide about the provision of health-care services to the patient. In this context, ’legal representative’ refers to the legal representative of a patient with restricted active legal capacity (i.e., either a minor patient or an adult of restricted active legal capacity), with said representative normally being a parent or guardian of the patient. Since most adults have full active legal capacity, there is usually no need to determine the legal representative in cases of adult patients.*15 However, legal representation status does need to be determined in cases of minors and adults with restricted active legal capacity if the patient is, for reason of that restricted capacity, presumably unable to consider the pros and cons of a health-care service responsibly.*16 If treatment-related decisions would be made for the patient by the legal representative even if the patient were conscious, a patient’s will would not be applicable. It is instead the decision of the legal representative that is to be taken into account when the health-care service provider is making sure that the decision is in the interests of the patient, as specified in §766 (4) of the LOA.
If all the above-mentioned criteria have been met, the patient’s will is applicable. The patient’s will expresses the patient’s intentions with regard to the receipt or non-receipt of health-care services, even in a situation wherein the provision of these services would postpone death. Although, under §767 (1) of the LOA, the intentions expressed earlier by a patient or his or her presumed intentions should be ascertained (with the assistance of his or her immediate family), if there exists a patient’s will, the provisions of that patient’s will – as the intentions expressed earlier directly by the patient – should prevail over the explanations of family. The instrument of the patient’s will is presumed to be a better expression of the patient’s actual intentions, since it was prepared by that person himself or herself and hence does not depend on subjective interpretation by the patient’s immediate family.
It is important to note that under Estonian law, a patient’s will does not allow euthanasia, defined as termination of the life of a suffering patient in terminal condition who wishes for death by a doctor or by way of a doctor’s intervention.*17 Under §113 of the Penal Code*18 , euthanasia is qualified as manslaughter and is punishable as a criminal offence. This means that a patient’s will shall not prescribe that it is the wish of the patient that a health-care provider hasten the patient’s death by taking active steps for this purpose. Even if a person so instructs in his or her patient’s will, the doctor has no right to cater to this request. The patient’s will may, however, instruct that health-care services be relinquished, in which case the doctor has the right and, indeed, obligation to comply with this wish even if it leaves the patient without the possibility of postponing death. This is not considered euthanasia.
With the groundwork laid as to prerequisites for application, we can now embark on more detailed analysis of the patient’s will.
People of all ages with capacity to exercise will may be interested in a patient’s will, whether ill or in full health. We all might find ourselves in a situation wherein we cannot express our intentions, in consequence of disease or accident. At the same time, we would want our wishes to receive or not receive particular health-care services to be respected. Since such incapacitation entails no longer being able to express our intentions, it would be beneficial for a patient’s will to be available that discloses in advance our wishes related to the receipt or non-receipt of those services.
To get some idea about the benefits of a patient’s will, we should attempt to reconstruct a typical situation wherein the patient has no patient’s will instrument. In a situation in which the patient is without capacity to exercise will and a doctor needs to decide on the provision or non-provision of particular health-care services, the intentions expressed earlier by the patient or his or her presumed intentions should be ascertained with the assistance of the immediate family if there is no patient’s will, as is set forth in §767 (1) of the LOA. According to the law, immediate family means the spouse, parents, children, sisters and brothers of the patient, but other persons who are close to the patient may also be deemed to be immediate family if this can be concluded from the way of life of the patient. However, family members or other persons close to the patient do not necessarily know about the patient’s intentions or even have the patient’s best interests at heart. Also, studies have demonstrated that the family of a patient cannot accurately envisage the wishes of the patient with regard to future treatment.*19 Hence, the family may present a view of the will of the patient that deviates from the patient’s real intentions, mistakenly if not actually intentionally. Likewise, it is extremely difficult to make decisions when, on the one hand, being driven by a desire to maintain the sanctity of life but, on the other hand, wanting to relieve the suffering of a loved one.*20 Moreover, the family members consulted may differ in their views in regard of the patient’s wish to receive health-care services and prolong his or her life. This may lead to bitter feuds among the family, which the incapacitated patient would never want to happen.
In light of all the foregoing, a patient’s will may prove extremely helpful in ascertaining the actual intentions of the patient. The very existence of a patient’s will might prevent friction amongst the family. Likewise, a patient’s will may bring peace of mind to the family because there then is no need to have second thoughts about whether they were able to gauge the presumed intentions of the patient accurately. Additionally, the existence of a patient’s will may make the doctors’ job easier as, if nothing else, they do not have to consider the opinions of the immediate family, which, again, may diverge, and give preference to one person’s views above all the others’.
Under Estonian law, it would have been possible for such a situation to be catered for by expressing in a patient’s will the intent to prohibit use of health-care services – use of a feeding tube. Since the use of a tube for food and water is a form of health-care provision, the physician does not have the obligation or the right to keep the patient alive with a tube unless the patient so wishes. In his or her actions, the physician who is aware of the patient’s wish to discontinue with the health care service, has the right and obligation to discontinue using a tube of this sort even when its use has already begun.
Schiavo was only 26 years old when she went into a persistent vegetative state. This illustrates that accidents may occur with young and healthy people; for example, they can unexpectedly be struck by illness or by a vehicle in a traffic accident. Therefore, although in practice the patient’s will is particularly important for elderly and severely ill people, it can play a role in deciding over the lives of young and apparently healthy people too.
Unlike young and healthy people, older people and those who are seriously ill are more likely to perceive the ending of life more acutely. They are forced to think about what is going to happen to them, what kind of treatment they want, and in what state they want to continue to live. For doctors also, when treating severely ill patients, a question arises early about the patient’s wishes related to further treatment, since they are aware of the possible outcomes. In such a case, it is in the interest of the attending physician to clarify the will of the patient when that person is still capable of making independent decisions. Otherwise, the expected will of the patient will have to be guessed at a later stage, in consultation with the family and others close to the patient – which, as explained above, can be a daunting task.
Although everybody may benefit from a patient’s will, no-one should feel pressured to prepare one. No person is obliged to know in advance whether he or she wants to receive health care in the future when suffering from a difficult health condition. Everyone has the right to leave the burden of identifying his or her will to his or her loved ones as occurs, in accordance with the law, in the absence of a patient’s will. Some people probably find that at such time as they become a patient incapable of making decisions, it would be more their loved ones who are concerned about their condition and further treatment, and they may conclude therefore that those loved ones should be given an opportunity to present the patient’s expected will.
A question may arise as to whether a patient’s will can be legitimately prepared by minors. According to the Declaration of Lisbon on the Rights of the Patient, a minor must be included in the decision to the extent that this is possible in his or her case.*22 If the opinion of a minor is meaningful in conditions wherein he or she can express it directly, his or her right to self-determination should be no less in a situation in which he or she no longer has the ability to express his or her will. However, in practice, it is not possible for a doctor to determine whether a minor who for reason of state of health is unable to express his or her will would be able to reasonably consider the pros and cons in the absence of health disorders. Therefore, a minor’s patient’s will may not be applicable in practice, and the health-care provider may take into account the decision of the legal representative of the minor and assess that decision in light of the patient’s interests under §766 (4) of the LOA. Accordingly, the health-care provider must be guided by the interests of the minor patient.
Alongside bringing the benefits to the individual that are described above, the widespread use of patient’s wills may have a wider impact on the distribution of health-care resources. In situations wherein patients who are incapable of exercising will do not want to receive treatment that prolongs life, their wishes expressed in a patient’s will would enable redistribution of the resources for health care in a manner allowing their use by patients who do wish to receive treatment.
Although, for the reasons outlined above, what is to the patient’s benefit can be beneficial both to the individual and to the health sector in general, the patient’s will is, regrettably, not the solution to all situations. It has been compared with a seat belt, which alleviates some risks but does not guarantee prevention of undesirable consequences in all eventualities. The problems encountered in implementing the patient’s will and their possible solutions are described in more detail in the sixth section of this article.
Although a person may have some idea of the situations he or she would like to avoid by means of a patient’s will, expressing those wishes may seem complicated. The intent of each person and hence each patient’s will is unique. Below, we will explain what to account for when compiling a patient’s will and what we consider good to include in it.
A patient’s will can be approached in any of various ways. For people who want to rule out prolonging their life through the provision of health care, the option most easily understandable by doctors and, hence, the most practicable approach would be to rule out the actions that the patient does not want to be performed. Thus, the patient’s will could state what is desirable as a life-supporting treatment and what is not (e.g., resuscitation, artificial ventilation, dialysis, and/or a nutrition-providing probe).*23 In such a case, the person clearly expresses lack of consent to obtaining a specific form of health care within the meaning of §767 (1) of the LOA. Palliative (that is, pain-reducing) therapy should remain acceptable, in line with the goal under the patient’s will’s of reducing the patient’s suffering. A sample of a patient’s will based on this recommendation is included further on in this section of the paper.
In an alternative, it is possible to indicate in a patient’s will the condition in which the person prefers to die. For example, it may be possible to exclude treatment that would result in the patient losing his or her limbs or render the patient blind. However, one must take into account that it is more difficult to implement such a solution. As a general rule, it is not clear what consequences the health-care provision might entail for the patient, except in cases such as those involving amputation. More importantly, the doctor does not know whether the patient is going to die in the absence of a particular health-care service or whether the patient is going to end up in a situation worse than what the patient wanted to achieve via the patient’s will and accordant health care.
We will now explain which concrete steps should be taken to create a patient’s will. Firstly, it should be made clear what the wishes of the person preparing the will are and the situations in which that person wishes his or her life not to be prolonged. Here, one must imagine the fullest possible range of situations that may arise. For example, one should think about what kind of health care would be desired after a traffic accident or in the event of illness (or exacerbation thereof) and consider what the consequences would be of health-care provision and of failure to provide health care. For this, one needs to consult a health-care professional. If the person preparing the will already has a serious illness, it is important to be aware of the prognosis and the disease’s progression. Failure to take these into account could result in the patient’s will being rendered useless because, most likely, the doctor will then have to decide about the treatment for the existing serious illness in the future. Although a patient’s will may be drawn up without a health-care professional being consulted, this increases the likelihood that a large proportion of the probable situations are not going to be considered and that the patient’s will instrument will not serve its purpose. An additional important step is for the intentions to be discussed with loved ones. Firstly, this helps people to figure out what they want, and, secondly, this consultation gives the loved ones knowledge of the patient’s wishes. When the patient’s will does not come as a surprise to the patient’s loved ones later, there is a lower probability of them trying to interpret the will of the patient in a different manner.
When all possible situations and scenarios have been discussed with help from health-care professionals and relatives, correct wording needs to be found to express the person’s wishes. In some countries, there are standard forms for a patient’s will. These do make it easier to prepare from the patient’s standpoint, but at the same time they do not provide flexibility, and they increase the risk of the true intentions not getting expressed. In Estonia, such standard forms are not used. The benefit of the patient’s will and the chances of respecting the actual wishes of the patient are likely to be greater if the paper is prepared for the specific person concerned.
Just as finding out the person’s wishes is important, so is doctors’ assistance in compiling the patient’s will. Although consultation on patient’s wills has not been common practice for doctors in Estonia thus far, they are the ones who are most able to describe the procedures the patient wishes to avoid in the most accurate medical terms. However, it must be borne in mind that the patient’s will is a document of legal significance whose formulation is new and unfamiliar to doctors. Therefore, it would be understandable if doctors wish to confine themselves to merely consultation that involves thinking through various scenarios and finding the correct medical terminology. In any case, legal assistance in preparing a patient’s will is available by forwarding to the relevant legal practitioner one’s wishes and a description of the possible scenarios and situations discussed with one’s attending physician. It is advisable also for the person, after finalising of the patient’s will, to discuss it again with his or her primary doctor to ensure that it is consistent with possible scenarios.
Another important consideration is that updating the patient’s will may be necessary, given that both the wishes of the subject and the medical treatment options may change. Therefore, the patient’s will should be reviewed regularly (once a year or even more often), also in light of any disease prognosis and the treatment options. Ideally, the relevant doctor could check whether the patient has a patient’s will in place whenever the prognosis and treatment options change and initiate discussion of whether the change in circumstances could lead to a change in the wishes expressed in the patient’s will.
The following is a sample of a patient’s will. The option presented rules out certain treatments that the patient does not want to receive. The model below is definitely not a standard form suitable for all people. Again, each patient’s will is individual-specific, and the instrument must be prepared in accordance with the intent and health of the particular individual in question.
This declaration of intention has been made by ____________________, personal identification code ________________.
Pursuant to §766 (3) of the Law of Obligations Act, a patient may be examined and health care provided to him only with his consent. If the patient is unconscious or for any other reason is unable to express his will and does not have a legal representative, under §767 (1) of the Law of Obligations Act the provision of health‑care services is permitted without the consent of the patient if their provision corresponds to his previously expressed will.
I hereby inform that, in a situation where I am not able to express my will, I allow only palliative care to be provided to me, for improvement of the quality of life of a patient who is facing a life-threatening illness and of the patient’s family. The purpose of palliative care is to identify, assess, and treat pain and other physical symptoms of the disease and alleviate psychosocial and mental suffering as early as possible.
• administration of drugs that have a purpose other than pain relief (such as antiviral or antibiotic therapy).
If the above-mentioned treatments or other non-palliative treatments are applied to me in a situation in which I have not been able to express my will (for example, in a situation wherein the health-care provider is not aware of this declaration of intention), I would like to see an immediate end to these therapies – i.e., the discontinuation of treatment that is against my intent.
I am aware that this declaration of intention will leave me without medical service that meets the general medical standard and may end with my premature death. I want to avoid hospitalisation if possible, and I want to die in my home.
For health-care professionals to be confident in respecting this declaration of intent, I have asked my notary to verify my active legal capacity and my capacity to exercise will, and I will proactively forward this document to the following health-care providers: [names of the health care providers to be inserted]. I have also made my wishes known to loved ones, and they have promised to respect these.
Estonian legislation does not imply that the patient’s will should be in a certain form. Nor does Estonian legislation specify its validity. In contrast, in some countries there are certain procedural requirements in place for the patient’s will, to protect the interests of both the maker and the implementer. A patient’s will is an important – in fact, actually vital – document. Therefore, it must be taken into account too that the patient’s will, which determines the life of a person, may be falsified. Also, people may be compelled to sign the document under the pressure of a threat. In addition, someone may personally write a patient’s will while having no capacity to exercise will and that is not in accordance with his or her actual intentions. In order to protect patients and give the health-care provider the necessary assurance, it is important to set formal requirements for the patient’s will.
In consideration of the fact that there are no formal requirements for a patient’s will in Estonia, we will present the formal requirements and related problems of patients in other countries.
In France, the patient’s will is to be documented in writing and must feature the date of its making and the signature of the maker.*25 Last year, the law introduced a model for a patient’s will, allowing individuals to express their wishes. The existence of sample forms notwithstanding, the use of standard forms is not compulsory for the patient’s will in France. If a person is able to declare his or her wishes but is unable to write and sign the document, witnesses must be involved. In this case, a third party may sign the document, provided that two witnesses certify that the document is a free and informed declaration of will by the maker of the patient’s will. The testimony of witnesses must be attached to the patient’s will, and the names of these witnesses and their legal capacity must be indicated. Since last year, patient’s wills in France have been deemed entered into for an indefinite term, and they no longer need to be renewed, unless the maker wants to make changes.
Austria too has written requirements pertaining to binding patient’s wills (the ’Patientsenförung’). In Austria, a binding patient’s will must clearly indicate its date, and a lawyer, a notary, or a representative of the institute representing patients’ interests must be present at its compilation. As a general rule, the document must be updated every five years.*26 A patient’s will must be prepared in writing also in Germany.*27 Dutch legislation does not regulate patient’s wills, but, in practice, notaries prepare them as notarial deeds and the general set of rules for a letter of authorisation has been taken as a basis, from the Civil Code*28 .
The foregoing discussion illustrates the fact that the patient’s will’s formal requirement fulfils two objectives. Firstly, the formal requirement reduces the risk that, instead of the subject named, someone else prepares the patient’s will, doing so against the subject’s intent. Secondly, the formal requirement reduces the risk of a person preparing a patient’s will while in a condition in which he or she is unable to express his or her true intentions. The fact that a person formulates a patient’s will in complete consciousness in line with his or her will is important, given that the patient’s will is intended to protect the patient’s personal autonomy. To hedge against the risks associated with the patient’s will, it is advisable to impose a formal requirement in Estonia. In this connection, the notarial authentication requirement should be preferred, in consideration of the fact that it addresses both of these risks.
– the notary archives the original of the notarial deed in his office and allows access to it and obtaining copies of it*30 .
Thus, the purpose of a notarised authentication requirement for the declaration of intention can be a dual one: to protect both parties from ill-considered actions and to provide them with consultation. The notarised authentication requirement also serves as proof. Nowadays, inclusion of a notary is not justified in terms of taking evidence alone. A significantly more important task of verification is the warning or discretionary function in case of risky expressions of will.*31 A patient’s will is undoubtedly one of the important transactions in this sense. Subjecting this to compulsory notarial authentication protects the person from ’rushing things’ and supports careful consideration. Of all the formal requirements, notarial authentication is the one that best serves the function of warning. In the sense of legal certainty for the document, a notary’s obligation to identify the subject (see §10 of the Notarisation Act) and to establish the subject’s active legal capacity and capacity to exercise will (see §11 of the same act) is equally important.
On account of the above-mentioned factors, notarial formalisation of a patient’s will should be preferred also in respect of the current laws, although the legislation currently foresees no such requirement. If the patient’s will is not in a form that involves notarial assurances, health-care professionals do not truly dare rely on it, principally because they have no certainty that it is a will made by a particular person and that said person also was resolute in making that declaration.
Although a patient’s will has an important role in relation to a person’s right of self-determination and simplifying the life of the patient’s loved ones, it may not always lead to expected outcomes.
In order to reduce the risk that the patient’s will does not represent the person’s true will, several descriptions of the various scenarios should be used, to make sure that the person really intends to refuse particular health-care services. Since consulting patients in preparation of patient’s wills is unfamiliar territory for Estonian health-care workers, training on this subject should be organised. Such training is necessary also so that the health-care workers know how to check whether the patient has a patient’s will and how to proceed in cases wherein one exists.
If a patient’s will exists and contains the true, correctly expressed intentions of the patient, it could still be ignored, if its location is unknown and the health-care professional does not receive it in time. There are no mechanisms in place in Estonia addressing how to deliver information on the presence of a patient’s will and its contents to health-care workers efficiently. This means that, for example, paramedics or doctors in an emergency room might provide health care to a patient and find out only later that there is a patient’s will, according to which the patient never wished to receive such treatment. Also in intensive care, paternalism – that is, decision-making at the discretion of the doctor – often is inevitable because the physicians usually need to act rapidly and since frequently they possess no background information. Therefore, there is always a possibility of a refusal of treatment being ignored and a patient being hospitalised against his or her will and placed in intensive care.*34 Therefore, it should be taken into consideration that in situations wherein quick action is vital, doctors will not devote precious time to determining whether the patient may have a document somewhere that articulates a refusal of treatment.
For the patient’s will to reach a health-care provider to whom it is targeted, the person should make the document as widely available to health-care providers as possible. To this end, the subject needs to send a notarially authenticated patient’s will at least to the family doctor, the largest hospitals in the area, ambulance-service providers, and the E-Health Foundation. The patient definitely should request verification of receipt of the letter, of understanding its contents, and of taking it into account.
Such a solution is relatively inconvenient for both the person preparing the patient’s will and its potential implementers. To make the use and implementation of a patient’s will easier in the future, creating better-functioning technical solutions seems to be clearly in order. For example, one of the possibilities would be to create a register of patient’s wills from which information is sent to health-care professionals automatically, via the e-health system, on whether a given patient has a patient’s will and, if so, on the preferences that are expressed in that document.
When preparing instructions for their future, people need to think through the various decisions and protective measures related to maintenance of property and organisation of other matters in scenarios wherein a person has lost his or her capacity to exercise will.
In many countries, specific long-term letters of authorisation are used for organisation of matters associated with personal belongings and property, called lasting power of attorney (in German, Vorsorgevollmacht). These are prepared specifically against loss of capacity to exercise will. In practice, they may also contain instructions on how the person wishes to be treated medically. Use of lasting powers of attorney is especially widespread in the common law countries. Estonian law does not regulate powers of attorney of this nature. Authorisation agreements in general are regulated by Chapter 35 of the Law of Obligations Act and the institution of representation in §8 of the General Part of the Civil Code Act. Since a power of attorney is a transactional right of representation that can be tied to specific conditions, it could be claimed that Estonian legislation would enable preparation of a lasting power of attorney. In practice, however, such powers of attorney are not commonplace.
Lasting powers of attorney are known in Germany also. According to the second sentence of Paragraph 1896 (2) of the German Civil Code (BGB), guardianship is not required if the matters at issue for the adult can be taken care of by a person so authorised as well as by the guardian. German notaries use standards of regular powers of attorney in drawing up such documents, but lasting powers of attorney are supplemented: some additional characteristics are applied in accordance with the wishes and needs of the principal.*36 A provision similar to the relevant terms in German law can be found in the Estonian Family Law Act*37 , §203 (2) of which states that a guardian shall be appointed only for the performance of the functions for which guardianship is required. Guardianship is not required when the interests of an adult can be protected by granting of powers of attorney or by other measures. The version of the Family Law Act that entered into force in 2010 views imposing guardianship as an extreme intervention and sees appointing a guardian as a last resort. Hence, it should be the task mostly of notaries to develop a practical framework for lasting powers of attorney in Estonia.
One can state as a conclusion that there are hidden within Estonian law some currently unused measures that enable patients to exercise their right to self-determination, give peace of mind to their loved ones, and facilitate the work of health‑care professionals in determining the will of a patient.
At the same time, the comparison between the patient’s will instrument and a seat belt could be considered fitting: although a patient’s will reduces the risks of receiving unwanted health-care services, it does not provide protection in every situation. To ensure nonetheless that a patient’s will may bring the outcomes desired by the subject in as many situations as possible, the patient’s will should be compiled in a well-weighed and correct manner. It should be taken into account also that so long as there remain no technical solutions for delivering the document to health-care providers, it is the person preparing the patient’s will who needs to ensure that the document reaches as many health‑care providers as possible who if unaware of it might provide unwanted health care to the patient.
In addition to a patient’s will, other instructions for the future should be contemplated. In practice, it may be important for people to provide instructions on how their assets should be managed as a contingency against a situation wherein they have lost the capacity to express their will. Another tool that should be considered is adoption of lasting powers of attorney as are commonly employed in other countries.
*1 A. Soosaar. Meditsiinieetika [’Medical Ethics’]. 2nd, revised and supplemented edition. Tartu Ülikooli Kirjastus 2016 (in Estonian), p. 203.
*2 J.R. Williams. Medical Ethics Manual. 3rd ed. World Medical Association 2015, pp. 60, 61.
*3 A. Soosaar (see Note 1), p. 205.
*4 J.R. Williams (see Note 2), p. 60.
*5 A. Soosaar (see Note 1), p. 204.
*6 J.R. Williams (see Note 2), p. 120.
*7 The authors would like to thank Dr Alar Irs and Dr Raul Adlas for their invaluable contribution to this article.
*8 R. Frimston et al. (eds). The International Protection of Adults. Oxford University Press 2015, pp. 335, 373, 381–382, 415–419.
*9 RT I 2001, 81, 487; RT I, 31.12.2016, 7.
*10 Võlaõigusseadus III. Kommenteeritud väljaanne [’Law of Obligations III: Commented Edition’] (compiled by P. Varul et al.). Juura 2009 (in Estonian), parts 8 and 10, §767 (1) Comment 3.2; A. Nõmper, J. Sootak. Meditsiiniõigus [’Medical Law’]. Juura 2007 (in Estonian), p. 70.
*11 RT I 2002, 35, 216; RT I, 12.3.2015, 106.
*12 Võlaõigusseadus III (see Note 10), §767 (1), Comment 3.1.
*13 J.R. Williams (see Note 2), pp. 49–50.
*14 CLCSCd 3-1-1-63-00, 30.5.2000, para. 7.2.
*15 Võlaõigusseadus III (see Note 10), §766, Comment 3.6.
*17 A. Soosaar (see Note 1), p. 220.
*18 RT I 2001, 61, 364; RT I, 26.6.2017, 8.
*19 I. Bruus et al. Ravi ja hoolduse planeerimine nn patsienditestamendi koostamise teel [’Planning treatment and maintenance by preparing a patient’s will’]. – Eesti Arst 94 (2015) / 2 (in Estonian), p. 93; C. Westphal, T. Wavra. Acute and critical care choices guide to advance directives. American Association of Critical-Care Nurses 2005. Available online via Link (most recently accessed on 24.7.2017).
*20 K. Elmet. Eutanaasia. Arsti pilk [’Euthanasia: A doctor’s perspective’]. 2010. Available, in Estonian, at Link (most recently accessed on 1.8.2018).
*21 A. Soosaar (see Note 1), pp. 218–219.
*22 WMA Declaration of Lisbon on the Rights of the Patient, p. 5. Available at Link (most recently accessed on 1.8.2018); J.R. Williams (see Note 2), p. 50.
*23 I. Bruus et al. (see Note 19), p. 91; Communicate your health care wishes. California Advance Health Care Directive Kit. Permanente Medical Group, Kaiser Permanente 2005. Available at Link (most recently accessed on 24.7.2017).
*24 I. Bruus et al. (see Note 19) , pp. 91–95; D. Hinders. Advance directives: Limitations to completion. – The American Journal of Hospice & Palliative Care 29 (2012) / 4, pp. 286–289. – DOI: Link .
*25 Code de la santé publique [’The Public Health Code’], Art. L1111-11. Available, in French, at Link (most recently accessed on 7.8.2018).
*26 Patientenverfügungs-Gesetz – PatVG [’The Living Will Act]. Available, in German, at Link (most recently accessed on 1.8.2018).
*27 According to the first sentence of Section 1901 (1) of the German Civil Code (see the Bürgerliches Gesetzbuch, BGB).
*28 Dutch Civil Code, Book 3: Property law in general. Available at Link (most recently accessed on 1.8.2018).
*29 E. Andresen. Notari koht ja roll Eesti õigussüsteemis [’The place and role of a notary in the Estonian legal system’]. – Eesti Notariaadi X aastapäev. Notarite Koda 2003 (in Estonian), p. 10.
*30 RKTKo 3-2-1-141-14, 28.1.2015, para. 32.
*31 W. Waldner. Tõestamisõigus notariaalpraktikas [’Notarisation Law in Notaries’ Practice’]. Juura 2008 (in Estonian), p. 19.
*32 A. Fagerlin, C.E. Schneider. Enough: The Failure of the Living Will. Hastings Center Report, March–April 2004, p. 33.
*33 B.B. Ott. Advance Directives, pp. 514, 517; ibid., p. 33.
*34 A. Lehtmets, K. Elmet. Surmast arsti pilgu läbi [’On death through the eyes of a doctor’]. Viitna 2013. Available, in Estonian, at Link (most recently accessed on 1.8.2018).
*35 Laki edunvalvontavaltuutuksesta [’The Act on Lasting Power of Attorney’], §6. Available, in Finnish, at Link (most recently accessed on 1.8.2018).
*36 C. Schall. Le portail des procurations préventives du C.N.U.E.: la voie vers un avenir plus autodéterminé en Europe [’Title in English goes here’]. – Mobilité et Protection des Personnes Vulnérables en Europe: Connaissance et Reconnaissance des Instruments [’Title of Book in English Goes Here’]. Société de Legislation Comparée 2014 (in French), p. 50.
*37 RT I 2009, 60, 395; RT I, 9.5.2017, 28.


text:
Janette is an experienced litigator with over 25 years of experience handling complex commercial disputes. She has experience with breach of contract claims, fraud and misrepresentation cases, breach of fiduciary duty, business torts, Consumer Protection Act claims, employment disputes, class action litigation, construction defect claims, product liability cases, insurance coverage and bad faith litigation, and state and federal bid protests. Janette also has experience challenging Federal natural resource agency decisions, NEPA compliance and litigation, consulting on the Endangered Species Act, the National Historic Preservation Act and the Oil Pollution Control Act. Janette is resolution focused. She works closely with her clients to determine their ultimate business goals and objectives and tailors her dispute resolution approach to efficiently and effectively meet those goals and objectives.
Before joining Lewis Bess Williams & Weese, P.C., Janette was a long-time partner at Davis Graham & Stubbs, LLP, a large Colorado based firm. Prior to that Janette was a long-time partner in the San Francisco, California office of the national firm Robins Kaplan, LLP.
● MC Oil and Gas, LLC v. Ultra Petroleum, Inc., et al. 2015 WL 5126268 (D. Utah, 2015). Successfully defended a request for preliminary injunction requiring the production and delivery of oil on behalf of oil producer client in breach of contract claim by reseller.
● Mariani v. Titeflex Corporation, 2014 WL 3402514 (D.Colo. 2014). Won a complete dismissal on behalf of the manufacture of corrugated stainless steel tubing in product liability class action.
● Ratnayake v. Farmers Ins. Exchange, 2015 WL 875432 (D. Nev. 2015), Miller v. Farmers Ins. Group, 2012 WL 8017244 (E.D.Ok. 2012), Benzing v. Farmers Ins. Exchange, 179 P.3d 103, Colo. S.C. 206 P.3d 812 (Colo. 2009). Successfully defeated class certification efforts in class actions alleging various claims related to the marketing and sale of personal lines insurance coverage.
● Kim v. Grover C. Coors Trust, et al., — P.3d—, 2007 WL 686912 (Colo. App. 2007). Successfully defended claims against majority/controlling shareholders and officers in class action lawsuit alleging breach of fiduciary duty in the sale of convertible preferred securities.
● Chase v. Farmers Ins. Exchange, 129 P.3d 1011 (Colo. App. 2004). Obtained a summary judgment on behalf of employer in wage and hour class action for overtime compensation claim by claims adjusters.
● Ryan v. CARL Corp., 23 F. Supp.2d 1146 (N.D. Cal. 1998). Achieved favorable post-class certification settlement for authors of articles published in collective works in copyright infringement class action suit against document retrieval and delivery business that reproduced and sold collective work articles without paying royalties.

matches: v. v. v. v. v. v. v. v.


text:
The sudden death of Wisconsin Governor-Elect Orland S. Loomis on December 7, 1942 shocked the state; no place more than his home town of Mauston. Carl F. Hanneman wrote the article below for The Wisconsin State Journal on Tuesday, December 8, 1942.
MAUSTON — A few weeks ago, all Mauston rejoiced as Orland S. Loomis, known as “Spike” to the entire city, was elected governor of Wisconsin.
There was an impromptu celebration, and the townspeople gathered to cheer the man who had spent his life in the community except when he was serving the state at Madison and his country in France.
Today Mauston was as deep in sorrow and grief as it was in the heights as the November election returns came rolling in.
For the man who was a friend to everyone in Mauston had died suddenly, and the whole city was quiet with tragedy.
“A few weeks ago the people of Mauston rejoiced and let Mr. Loomis know how proud we all were of him. As we did them rejoice, we now mourn.
“The Sunday following his election Mr. and Mrs. Loomis worshipped with us. I then bade them Godspeed in their new home and work.
“As a young pastor I have welcomed his kindly interest in my and this church. I am thankful to have had the counsel and friendship of this Christian character,” Mr. Krein said.
Carl Hanneman took this photo for The Wisconsin State Journal the night Orland S. Loomis was elected governor of Wisconsin.
Mayor Raymond W. Barnwell characterized the death “as a shock such as a community like this seldom has. It strikes every citizen as though they have lost one of their own family, and the universal sense of grief is evidence of what ‘Spike’ really mean to everyone here,” the mayor said.
Lifelong friends of the governor-elect included Dr. J.S. Hess Jr. and J.H. Ensch, American Legion official. Dr. Hess said “we can appreciate the great loss for our community and the entire state of Wisconsin,” while Ensch, who “noticed him through school, college, social, law and political days,” reported the entire community grief-stricken.
“We in Mauston who have profited by his counsel and example fully appreciate the loss to the commonwealth,” said Robert Temple, editor of the Juneau County Chronicle.
In 1946, my grandfather wrote a charming article for the Wisconsin State Journal about the English wife of a U.S. soldier who came to Mauston, Wis., to find a fully furnished home waiting for her.
“In pondering Mr. Churchill’s suggestions that America and Britain should think about setting up house together in the political sphere, it is not entirely impertinent to think of the tens of thousands of British girls and American boys who have had the same idea in the domestic realm.
They and their relatives must be more than a little tired of the jokes on this topic and while it is true that an international marriage has special problems, it must be remembered that two out of every 10 all-British marriages are now providing work for the matrimonial courts, divorce courts or solicitors’ offices, and there is no evidence that the proportion of unsuccessful British-American marriages is as high as that.
The great majority which turn out most happily do not usually make news, so we are pleased to mention the happy welcome which was given to Mrs. Charles Grinolds (nee Margaret Eley), only daughter of Mr. and Mrs. V. Eley of Ashwell, when she arrived at her new home at Mauston, Wisconsin, U.S.A.
With her husband, former Staff Sgt. C. Grinolds, and Charles Victor Jr., who was born after his father left England last July, Mrs. Grinolds arrived at her new hometown at 4 a.m. but found crowds and (Wisconsin State Journal) photographers awaiting to welcome her, a repeat performance of what had already happened at Chicago.
It was at Chicago that Margaret had a big surprise. While she was following the military policeman assigned to her at the railroad station, a civilian came up and took the baby from her arms. She was frightened at first, but then realized that the young man was no stranger. It was her husband, whom she had not expected would meet her at Chicago and whom she had never before seen in civilian clothes.
Bigger surprises were to come.
‘Thrilled with a surprise house new and completely furnished, Mrs. Grinolds found it furnished even to pictures and books, and in the basement were 187 quarts of fruit, 30 quarts of canned chicken and other canned goods. On the table in a modernistic kitchen was a large angel food cake with the inscription ‘Welcome,’ while the percolator was sputtering its tune upon a recently installed new electric range.
MAUSTON — A completely furnished five-room modern bungalow is waiting in Mauston for Mrs. Helen Margaret Grinolds as a surprise for the English war bride, wife of Staff Sgt. Charles Grinolds, Mauston.
Mrs. Grinolds was among the hundreds of war brides scheduled to arrive in New York last weekend on the Santa Paula, and was to come directly to Mauston with their son, Charles Victor, who was born July 29, 1945, after his father left England for home.
She was to arrive in Mauston late today.
Sgt. Grinolds entered service in February 1942 and left for England in September 1942. He was stationed in England for 33 months and returned home in July 1945. He was discharged that September.
My original post had details on Charles, his military history and his untimely death in 1950. But with the help of Mr. Reed and some additional digging, we can put more details to this heartwarming love story.
Charles Dockstader Grinolds died on Sunday, July 30, 1950 at his Mauston home of a heart ailment. He was just 36. By that time, he and Margaret had three sons: Charles Victor, who had celebrated his 5th birthday the day before his father’s death; Anthony Basil, 3; and Stephen McClellan, 1. After suffering such a devastating loss, Mrs. Grinolds took her sons and returned to England and the support of her family. They came back to the United States in August 1951 aboard the ship Queen Mary.
Mrs. Grinolds married William Osborne in Mauston on March 30, 1952. The couple moved to Colorado Springs, Colorado in 1965. She died September 5, 1972 in Colorado Springs.
The three sons of Charles and Margaret Grinolds all had military careers like their father. Charles V. Grinolds served in the U.S. Air Force in Vietnam, the Persian Gulf War and in Iraq. He died on June 10, 2006. Stephen M. Grinolds served in the U.S. Marine Corps in Vietnam from 1967-1972. He died on December 23, 2005. Anthony B. Grinolds served in the U.S. Air Force in England. He lives in San Antonio, Texas.
The feature story below was written by my grandfather, Carl F. Hanneman, and published in The Wisconsin State Journal on February 21, 1946. It relates the tale of a U.S. army medic, his British bride and baby, who were separated from him for more than six months at the end of World War II. Below the story I provide some more detail on Charles D. Grinolds and his World War II service.
MAUSTON — Thrilled with a surprise house, new and completely furnished, Mrs. Charles Grinolds, Ashwell, England, has joined her husband here and introduced him to his son, Charles Victor, who was born after his staff sergeant father left England last July.
The Wisconsin State Journal story featured the happily reunited Grinolds family.
When Mrs. Grinolds entered her new home at 4 a.m. Tuesday she found it furnished even to pictures and books, but in the basement were 187 quarts of fruit, 30 quarts of canned chicken, and other canned goods.
On the table in the modernistic kitchen was a large angel food cake with the inscription, “Welcome,” while the percolator was sputtering its tune upon a recently installed new electric range.
It all climaxed a separation which began early last July, when Grinolds left England just before his son was born. The long wait ended happily , too, for Charles Victor, Jr., was no worse off from the long, tedious journey, and laughed and cooed in his father’s arms as father and son inspected the comforts of their five-room bungalow.
The mother, the former Margaret Eley, although totally exhausted, prepared the baby’s formula before tucking him into his new little bed.
Charles, Margaret and baby Charles Victor Grinolds enter their new home at Mauston in 1946.
The couple was married in St. Mary’s church in Ashwell, the first Anglo-American wedding in the community during the war. The father served overseas for 33 months, then had to leave before his son was born.
Mrs. Grinolds left England on the American “Santa Paula,” formerly a hospital ship, and was on the water 11 days, arriving in New York last weekend four days overdue because of storms. She was confined to her quarters by seasickness for three days, but the baby appeared to enjoy the trip.
The sight of land, any land, was a great thrill after the rough voyage during which seas rolled over the decks. Upon leaving the ship in New York, the war brides and babies were taken on a sightseeing tour to acquaint the new Americans with their adopted land.
Grinolds, recently discharged, was waiting anxiously in a Chicago railroad station when his family arrived. His wife, who was not expecting her husband in Chicago and had never seen him in civilian clothes, was following a military police assigned to her and became frightened when her husband came up from behind and took the baby from her arms.
Richard Dockstader Grinolds was drafted into the U.S. Army in February 1942 at Fort Sheridan, Illinois. He became a staff sergeant in the Army Air Force and was stationed in England with the 324th Bomb Squadron, 91st Bomb Group. His specialty was medical technician. He was featured several times in U.S. Army news photos; twice carrying wounded and once for a feature on a rash of illnesses among troops in England. The 91st Bomb Group was home to the famous “Memphis Belle” B17 Flying Fortress.
Grinolds lost his father, McClellan Grinolds, in 1918, when the boy was just 4. He and his brother were raised by their mother, the former Ruby Elizabeth Dockstader. The Grinolds and Dockstaders were both pioneer Juneau County families. The Hanneman family lived just around the corner from Dockstader Street, named for pioneer Benjamin Dockstader.
Staff Sgt. Charles D. Grinolds (far right) helps carry Staff Sgt. Marion M. Walshe to an ambulance after the bombardier was injured on a mission over Europe.
The baby featured in the story above, Charles Victor Grinolds, was born in England on July 29, 1945, as his father was headed back to the United States. He was one of four children born to the couple. Sadly, Charles D. Grinolds died on July 30, 1950. He was just 36. He is buried at Oakwood Cemetery in Mauston. The firstborn son grew up to have a distinguished military career, serving in the U.S. Air Force in Vietnam, the Persian Gulf War and the Iraq War. He died on June 10, 2006 in Modesto, California. He was the father of six children.
From very little on, my grandmother, Ruby Viola Hanneman, had a beauty that radiated in the many photographs taken of her. Her grandchildren no doubt recall the housecoat-type of outfits she often wore around the house. But make no mistake, Ruby was a fashion icon in her day. Our photo gallery bears ample testimony.
My grandparents were anything but wealthy. They worked hard to provide a middle-class home to their three children, Donn, David (my Dad) and Lavonne. Grandpa Carl F. Hanneman was a pharmacist at the Hess clinic and hospital. As we detailed in another post, he wrote to the attorney general of Wisconsin for help in upgrading his pharmacist license so he could better care for his family.
Regardless of the family’s financial circumstances, the Hanneman children were always dressed in nice clothing. Carl had nice suits for work and Sunday Mass. If you met Ruby at a family event, you might think she descended from royalty. Actually, there was a longstanding family yarn that said the Treutel family from which Ruby came was from a royal line in Europe. I’m still researching that one. Nevertheless, Ruby was always sharply dressed. The main photo above shows her in a Life Magazine pose during a 1950s trip out West. Classic stuff.
Far be it for me to offer detailed commentary on women’s fashion, but I am struck by Ruby’s fashion sense as shown in the photo gallery below. Dresses, hats, gloves, shoes and coats, nicely coordinated. This was evident at different events, from weddings to the common Sunday visit to family and extended family in the Wisconsin Rapids area. So many decades later, these photos are a real treat, although also reminders of the hole in our lives left by the absence of loved ones like Dad (1933-2007) and Grandma Ruby (1904-1977).
Ruby E. Hanneman has her great-grandmother’s keen sense of fashion.
I am quite tickled that my youngest daughter, not coincidentally named Ruby, is also very interested in fashion and interior decorating, just like her great grandma. I marvel at her discussions of colors, styles and fabrics — things I know little about. One thing is for sure: Ruby V. Hanneman is no doubt pleased to look down and see Ruby E. Hanneman, a young lady after her own heart.
Taken in the late 1950s on a trip to Arizona, this photo of Ruby Hanneman is worthy of Life Magazine.
Ruby V. Hanneman during a visit to La Crosse, Wis., in the 1950s.
Ruby Hanneman and daughter Lavonne at Viterbo College in the late 1950s.
Ruby Hanneman and daughter Lavonne before a statue of the Blessed Virgin Mary on the campus of Viterbo College.
Ruby Hanneman (left) with sister-in-law Irma and brother-in-law Wilbert G. Hanneman.
Ruby Treutel with her mother, Mary Treutel, taken in 1924 at Vesper, Wis.
Ruby ( far right) with husband Carl (far left) at a dinner event in the 1940s.
Ruby Treutel on a pier at Lake Michigan.
Ruby Hanneman (center) with daughter-in-law Mary K. Hanneman and daughter Lavonne.
Ruby V. Hanneman with daughter-in-law Mary K. Hanneman.
Ruby Hanneman seated next to the family home in Mauston, Wisconsin.
Ruby Hanneman and young daughter Lavonne at home in Mauston in the mid-1940s.
Ruby Hanneman with son David and daughter Lavonne (next to the rope) at Bayfield, Wisconsin.
Carl and Ruby Hanneman (left) at a Knights of Columbus event in the early 1940s.
Ruby Treutel (in back) with brother Marvin and sisters Elaine and Nina.
Ruby Hannemanin the cat-eye shades at a Mulqueen family wedding at Cudahy, Wisconsin.
Ruby Hanneman at Vesper, Wisconsin in the late 1920s.
Ruby Treutel and younger sister Elaine at Solomon Juneau Park in Milwaukee in 1924.
Ruby V. Hanneman, circa 1950.
Carl and Ruby Hanneman on their 25th wedding anniversary in July 1950.
Ruby and Lavonne Hanneman at home in Mauston.
Ruby (Treutel) Hanneman on her wedding day, July 14, 1925.

matches: V. V. V. V. V. V.


text:
NORENE ROGERS et al., Plaintiffs and Appellants, v. CHARLES F. ALVAS et al., Defendants and Respondents.
Thomas E. Lowman and Burriss, Lowman & Rice for Plaintiffs and Appellants.
Steven P. Cohn, Eric F. Hartman and Lariviere & Dickerson for Defendants and Respondents.
Plaintiffs appeal from a summary judgment for defendants in a personal injury action alleging defendants' liability as retail liquor dealers [160 Cal. App. 3d 999] in furnishing alcoholic beverages to a sober minor, who subsequently operated a motor vehicle while intoxicated and caused plaintiffs' injuries.
For purposes of these proceedings defendants have not disputed plaintiffs' factual allegations, and the matter has been presented as involving only the single legal issue of statutory immunity.
[1a] We conclude that licensed alcoholic beverage dealers who provide alcoholic beverages to sober minors are statutorily immune from claims by third parties injured as a result of the intoxication of those minors and uphold the judgment.
Sometime during the evening hours of January 12, 1979, defendants sold Timothy D., a then sober minor, a half gallon bottle of whiskey. Timothy then met with three other minor friends, and they all commenced drinking the whiskey. At some point past midnight Timothy obtained the keys to one of his companions' automobiles. In an intoxicated condition, Timothy drove the vehicle through the plaintiffs' house and struck plaintiff Norene Rogers, causing the injuries for which plaintiffs seek damages.
Defendants contend that Business and Professions Code sections 25602, fn. 1 25602.1 fn. 2 and Civil Code section 1714, fn. 3 as enacted and amended by the [160 Cal. App. 3d 1000] Legislature in 1978, establish a statutory scheme of total immunity for licensed alcoholic beverage dealers against plaintiffs' claims.
In 1978, the Legislature amended Business and Professions Code section 25602 by adding subdivision (b) and (c) (fn. 1, ante) and Civil Code section 1714 by adding subdivisions (b) and (c) (fn. 3, ante), and added section 25602.1 to the Business and Professions Code (fn. 2, ante). Defendants rely upon these amendments and the decision of our Supreme Court inCory v. Shierloh (1981) 29 Cal. 3d 430 [174 Cal. Rptr. 500, 629 P.2d 8] to support their position that plaintiffs have no cause of action against them.
Thereafter, in Burke v. Superior Court (1982) 129 Cal. App. 3d 570 [181 Cal. Rptr. 149], a divided Court of Appeal ruling on a factual situation virtually identical with the instant case imposed liability on a licensed vendor who sold alcohol to a sober minor, who then injured a third party. The Burke court held that neither Cory nor the 1978 amendments insulated a liquor dealer from such liability as a matter of law. Plaintiffs urge us to follow Burke's reasoning, but we respectfully decline.
 The primary rule of statutory construction is to determine legislative intent. (Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal. 3d 222, 231 [160 Cal. App. 3d 1002] [110 Cal. Rptr. 144, 514 P.2d 1224].) [1b] In this instance the Legislature has specifically declared its intent in Business and Professions Code section 25602, subdivision (c) (fn. 1, ante), and again in Civil Code section 1714, subdivision (b) (fn. 3, ante). In addition, the history of the 1978 amendments as they moved through the legislative process confirms our view that licensed vendors of alcoholic beverages have no liability under circumstances such as those at hand.
Thereafter the bill was amended June 15, 1977, January 9, 1978, January 19, 1978, August 14, 1978, August 23, 1978. The August 23 amended version provided, inter alia, that nonlicensees would have no liability for the sale or furnishing of alcoholic beverages, but maintained limited liability for licensed vendors. Senate Bill No. 1175 underwent one final revision in a conference committee on August 31, 1978. The final version, which was signed into law by the Governor, deleted all proposed amendments to Business and Professions Code section 25602, among which were provisions imposing liability on licensed vendors. It added, inter alia, section 25602.1 (fn. 2, ante) which, in turn, referred to section 25602 as amended by another bill, Senate Bill No. 1645.
On May 2, 1978, Senator Ayala introduced Senate Bill No. 1645, dealing with the same subject matter. It also sought to amend Business and Professions [160 Cal. App. 3d 1003] Code section 25602, as well as Civil Code section 1714. However, unlike Senate Bill No. 1175 which merely imposed certain restrictions and limitations upon recovery against licensed alcoholic beverage providers, Senate Bill No. 1645 sought to eliminate all such liability. It was amended once on May 17, 1978, to include reference to the Coulter decision in both statutes, to add subdivision (c) to Civil Code section 1714 in order to extend immunity to social hosts, to broaden the immunity under Business and Professions Code section 25602, subdivision (b), to actions by "any injured person or the estate of such person" instead of just "a third person" and, finally, to provide in subdivision (c) of section 25602, a legislative declaration of how the statute shall be interpreted in lieu of the originally proposed amendment expressing legislative intent. This version was enacted into law.
[4b] While we share the Cory court's concern about the nature and wisdom of the 1978 amendments, we also agree that those are decisions well within the province of the Legislature.
Low, P. J., and King, J., concurred.
FN 1. Business and Professions Code section 25602 states: "(a) Every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any habitual or common drunkard or to any obviously intoxicated person is guilty of a misdemeanor. [¶] (b) No person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage pursuant to subdivision (a) of this section shall be civilly liable to any injured person or the estate of such person for injuries inflicted on that person as a result of intoxication by the consumer of such alcoholic beverage. [¶] (c) The Legislature hereby declares that this section shall be interpreted so that the holdings in cases such asVesely v. Sager (5 Cal.3d 153),Bernhard v. Harrah's Club (16 Cal.3d 313) andCoulter v. Superior Court (21 Cal.3d 144) be abrogated in favor of prior judicial interpretation finding the consumption of alcoholic beverages rather than the serving of alcoholic beverages as the proximate cause of injuries inflicted upon another by an intoxicated person."
FN 2. Business and Professions Code section 25602.1 states: "Nothwithstanding subdivision (b) of Section 25602, a cause of action may be brought by or on behalf of any person who has suffered injury or death against any person licensed pursuant to Section 23300 who sells, furnishes, gives or causes to be sold, furnished or given away any alcoholic beverage to any obviously intoxicated minor where the furnishing, sale or giving of such beverage to the minor is the proximate cause of the personal injury or death sustained by such person."
FN 3. Civil Code section 1714 states: "(a) Every one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want or ordinary care, brought the injury upon himself. The extent of liability in such cases is defined by the Title on Compensatory Relief. [¶] (b) It is the intent of the Legislature to abrogate the holdings in cases such asVesely v. Sager (5 Cal.3d 153),Bernhard v. Harrah's Club (16 Cal.3d 313) andCoulter v. Superior Court (21 Cal.3d 144) and to reinstate the prior judicial interpretation of this section as it relates to proximate cause for injuries incurred as a result of furnishing alcoholic beverages to an intoxicated person, namely that the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication, but rather the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person. [¶] (c) No social host who furnishes alcoholic beverages to any person shall be held legally accountable for damages suffered by such person, or for injury to the person or property of, or death of, any third person, resulting from the consumption of such beverages."
FN 4. At that time, Business and Professions Code section 25602 read: "Every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any habitual or common drunkard or to any obviously intoxicated person is guilty of a misdemeanor."

matches: v. v. v. v. v. v. v. v. v. v.


Defendant Zack Zafer Dyab pleaded guilty in 2010 to conspiracy to commit wire fraud and money laundering in connection with a mortgage-fraud scheme. The amount of restitution owed by Dyab was left open in the plea agreement. Prior to sentencing, the Court concluded, after full consideration of arguments presented by both Dyab and the government, that Dyab owed about $6.4 million in connection with 26 properties. Judgment was entered accordingly. See ECF No. 166.
In 2014, the government requested two changes to the restitution portion of the criminal judgment. See ECF No. 222. First, the government asked that certain of the payees be changed to reflect sales on the secondary market of the mortgages at issue. Second, the government asked that approximately $1.37 million of Dyab's restitution obligation be made joint and several with Barbara Puro, a defendant from a related criminal matter. The Court granted the request without conducting a hearing or otherwise seeking input from Dyab. See ECF No. 224. Neither the total amount of restitution owed by Dyab nor his payment schedule was altered in the amended judgment.
About a year later, Dyab filed a motion pursuant to 28 U.S.C. § 2255 contending, among other things, that his due process rights were violated when the restitution order was amended without an opportunity to be heard. See ECF No. 237. The Court concluded that the restitution challenges were not cognizable under § 2255. See ECF No. 242. The Eighth Circuit agreed. “Because a dispute about restitution does not involve a claim of a right to be released from custody, a prisoner cannot challenge the restitution portion of his sentence under § 2255.” Dyab v. United States, 855 F.3d 919, 922 (8th Cir. 2017).
The Eighth Circuit did, however, leave the door open for challenging the amendment of the restitution portion of the criminal judgment through the All Writs Act, 28 U.S.C. § 1651. Id. Dyab now returns requesting that the Court “re-open the restitution portion of my judgment” and correct allegedly incorrect information in that amended judgment. See ECF No. 274 at 7. Dyab also requests that counsel be appointed to represent him in the prosecution of his motion. See ECF No. 275.
Both requests are denied. As an initial matter, the Court stresses the minuteness of the changes affected by the amended judgment. Not one penny was added to Dyab's restitution obligations. No new factual findings were incorporated. And the Court had already clarified at sentencing that any restitution amounts owed by Dyab would be “due joint and severally with your co-defendant or, if there's another one, co-defendants.” ECF No. 174 at 11.
This is important for three reasons. First, in order to establish (as he alleges) that his due process rights were violated, Dyab “must show that he has been deprived of a constitutionally protected life, liberty or property interest.” Mulvenon v. Greenwood, 643 F.3d 653, 657 (8th Cir. 2011) (quotation omitted). It is difficult to see how any protected interest of Dyab's could have been affected through the amendment of the judgment. Dyab remains responsible for the exact same amount that he did at the time the original sentencing judgment was entered, and he must meet those obligations under the exact same conditions as previously imposed.
Second, and relatedly, “most due process claims require [a] specific showing of prejudice.” Ford v. Fortenberry, 39 F.3d 1184, at *1 (8th Cir. 1994) (unpublished table disposition) (citing Estes v. Texas, 381 U.S. 532, 542-43 (1965)). Dyab cannot possibly have been prejudiced by the amendments made to the sentencing judgment; indeed, he may benefit, insofar as a portion of his restitution obligations are now shared jointly and severally with Puro. The remaining changes to the sentencing judgment affect only where the money owed by Dyab must go after it is first paid to the Court, a matter of no legitimate concern to Dyab. See Fuchs v. United States, No. 13C50099, 2014 WL 1652151, at *8 (N.D. Ill. Apr. 24, 2014); cf. United States v. Grimes, 173 F.3d 634, 639 (7th Cir. 1999).
Third, Dyab's motion is as much a cat's paw intended to challenge the original restitution judgment as it is an attempt to challenge the amended restitution judgment. For example, Dyab contends in his reply brief that his motion “is based, at least in part, on the incoreect [sic] formula that was used to determine actual loss.” ECF No. 284 at 2. But Dyab had an opportunity to contest the overall loss calculations on direct appeal. He declined. “By failing to file a direct appeal, [Dyab] waived his opportunity to challenge the restitution component of his sentence, as imposed.” United States v. Williams, No. 04-CR-0254 (ADM/AJB), 2007 WL 1424663, at *1 (D. Minn. May 10, 2007) (collecting cases). Insofar as the All Writs Act avails Dyab of an exception to that rule, it can only apply, if at all, with respect to the portions of the judgment that were amended, as any arguments relating to other aspects of the judgment could have been raised on direct appeal at the time the original judgment was entered. And as explained above, the amended portions of the sentencing judgment did not prejudice Dyab in any respect.
Dyab has not and cannot establish a violation of his due process rights through the amendment of the sentencing judgment in this matter. His motion for relief is therefore denied. Because further prosecution of Dyab's motion would be futile, Dyab's motion for appointment of counsel is likewise denied.


Sadly, another bicycle rider has been killed by a driver, this time in Roland Park. An article regarding this most recent matter can be found here.
I have handled two high-profile bicycle death cases in Maryland in the last few years, and both of them were tragic. The first involved a bicyclist who was run over by a commercial vehicle in Baltimore City. An article regarding that case can be found here. That case also involved a hit and run, though the driver in that case never came back to the scene.
The second involved a Johns Hopkins student who was run over by an elderly woman. An article regarding that case can be found here.
The law firm of Silverman, Thompson, Slutkin & White takes on a limited number of plaintiff’s personal injury cases each month. We limit our intake so we can provide the highest quality representation to each of our clients. To better equip our clients with an understanding of the process, we have broken down the phases of what to expect of our attorney-client relationship.
General information regarding the incident will be obtained when you are first interviewed. Certain other material relating to things you should not do will be furnished to you. You will be asked to sign authorization forms which will allow us to obtain necessary information. We will schedule a follow-up appointment for you to meet with the attorney handling your case shortly after you retain Silverman Thompson Slutkin and White.
Another Maryland Cyclist Killed by Turning Truck!
In a case eerily similar to the John Yates case, the Baltimore Sun is reporting that a Carrol County Cyclist was killed on Tuesday. Apparently John Martin Jr., 51, of New Windsor was riding his bike on Shepherds Mill road when a tractor-trailer driven by Anthony Edward Woodie made a right turn onto Route 75-directly in front of Mr. Martin.
Early indications are that Woodie is considered by police to be at fault for failing to yield to the cyclist while turning. This law firm is currently in litigation on behalf of the estate of John Yates who was killed in Baltimore City by a turning truck that also failed to yield to the cyclist.
As a result of our representation of the Yates and as advocates for cyclist’s rights, we are proud to have played a part in the Maryland General Assembly recently passing a new law helping to clarify the rights of cyclists on the roadways. Our sympathies go out to the entire Martin family.
The Baltimore Sun is reporting that 42 year old Lawrence Bensky, a married father of two was tragically killed on Wednesday while riding his pedacylce on Falls Road in Baltimore County. Mr. Bensky was riding on the roads shoulder when, 64 year old Faith Frenzel drifted off the road onto the shoulder striking Mr. Bensky and his riding companion, Joel Wyman. Mr. Bensky was killed in the accident, and Mr. Wyman is in serious condition. The Baltimore County police are currently investigating the accident and anticipate filing charges against Ms. Frenzel in the near future.
Under Maryland law, a motorist who negligently injures a pedestrian or cylist is liable for those injuries. An experienced Maryland accident attorney can make sure victims and their familes are represented and protect their rights and claims under the law.
Maryland recognizes the defense of contributory negligence as a complete bar to a plaintiff’s recovery. In order to succeed in asserting this defense, the driver of a vehicle that strikes a cyclist would have to show that the bicyclist deviated from the standard of ordinary care. Usually questions of contributory negligence in Maryland are resolved by the jury. To justify withdrawal of a case from the jury on grounds of contributory negligence, “the evidence must show an act so decisively negligent as to leave no room for difference of opinion thereon by reasonable minds.” Heffner, 196 Md. At 473, 77 A.2d at 131.
Factors a jury might consider in deciding whether a bicyclist exercised reasonable care may include precautions that a reasonable bicyclist would have taken under similar circumstances. Though not codified by Maryland law, published safety guidelines may be relevant to an examination of whether a bicyclist exercised ordinary care. The League of American Bicyclists suggests that bicyclists wear reflective or brightly colored clothing and that they yield to traffic in the same destination lane.
In Maryland, an assertion of the defense of assumption of the risk requires a showing that (1) the plaintiff had knowledge of the risk of the danger, (2) the plaintiff appreciated that risk, and (3) the plaintiff voluntarily confronted the risk of danger. Piquette v. Stevens, 128 Md. App. 590, 739 A.2d 905 (1999). Whether a plaintiff has assumed the risk is generally a question for the jury, unless it is clear that the plaintiff must have understood the danger, and then it is determined by the court. Id. at 599. In Piquette v. Stevens, the Court of Special Appeals reversed a determination by the trial court that a bicyclist had assumed the risk of colliding with a motor vehicle by failing to come to a complete stop at a stop sign. Id. at 600. The bicyclist was aware of an approaching vehicle, but chose to roll through a stop sign and turn to the right. Id. at 600. The court reasoned that “it was not clear that [the bicyclist], certainly a person of normal intelligence, would have anticipated the risk of danger.” Id.
–	Bicyclists must ride as close to the right side of the road as practicable, except when turning left, passing, or traveling on a one way street. Md. Transp. Art. §21-1202 –	Operation of a bicycle in violation of a statute does not constitute negligence per se unless the violation is the proximate cause of injury. Miles v. State.
–	Drivers may assume that other drivers will obey the rules of the road and need not anticipate that others will violate the law. Dean v. Redmiles.
–	Drivers of motor vehicles owe a duty to exercise due care to avoid colliding with any bicycle ridden by a person. Md. Transp. Art. §21-1209.
–	Drivers must exercise greater vigilance when approaching an intersection. Heffner v. Admiral Taxi Service, Inc.
–	Drivers approaching a circular green signal, when turning right or left, shall yield right of way to any other vehicle lawfully within the intersection when the signal is shown. Md. Transp. Art. §21-202.
–	A person may not turn a vehicle from a direct course on a roadway unless the movement can be made with reasonable safety. Md. Transp. Art. §21-604(b).
–	One who operates a motor vehicle on a public highway must anticipate the presence of others thereon and must exercise constant vigilance to avoid injuring them. Peoples Drug Stores v. Windham –	A motorist may not, if any other vehicle might be affected by the movement, turn a vehicle without giving a proper signal. Md. Transp. Art. §21-604(c).
–	A signal of an intention to turn must be given continuously during at least the last 100 feet traveled by a vehicle before turning. Md. Transp. Art. §21-604(d).
–	A driver shall make a right turn as closely as practicable to the right –hand curb of the roadway. Md. Transp. Art. §21-601(a). This requirement is intended to provide further indication of an intent to turn so that the motorist will not be passed on the right. Norris v. Wolfensberger –	Vehicles of greater than average size do not enjoy any additional rights. Drivers of trucks, having knowledge of their increased width and length, owe a duty to other drivers on the roadway to take these elements into consideration in the operation of their vehicles. York Manor Express Co. v. State for use of Hawk.
The Maryland Transportation Article codifies the “Rules of the Road” for all vehicles traveling on Maryland roadways. All drivers of vehicles in Maryland must observe the rules of the road. Md. Transp. Art. §21-102. They may also assume that others will obey the rules of the road and need not anticipate that others will violate the law. Dean v. Redmiles, 208 Md. 137, 374 A.2d 329 (1977). Pursuant to Md. Transp. Art. §21-1202, the operator of a bicycle on a public street possesses all the rights and duties of the driver of a vehicle. These general duties include the duty to operate a bicycle, or any vehicle, with ordinary care under the circumstances. Kaffl v. Moran, 233 Md. 473, 477-478, 197 A.2d 240, 242 (1964). In addition, there are unique rules of the road that apply particularly to the operation of bicycles. Drivers of motor vehicles owe a duty to bicyclists to exercise due care to avoid colliding with any bicycle being ridden by a person. Md. Transp. Art. §21-1209. Bicycle operators must to ride as close to the right side of the road as practicable, except when turning left, traveling on a one way street, or passing a slower moving vehicle. Md. Transp. Art. §21-1205. Operation of a bicycle in violation of a statute does not constitute negligence as a matter of law, unless the violation is the proximate cause of injury. Miles v. State, 174 Md. 292, 198 A. 724 (1938).
Operators of any type of vehicle on Maryland roadways owe a duty to exercise due care under the circumstances. Moran, 233 Md. 473 at 477-478, 197 A.2d 240 at 242 . While ordinary care is generally required, the Court of Appeals has held that “vigilance must vary according to the danger naturally anticipated from the operation of the vehicle.” Heffner v. Admiral Taxi Service, Inc., 196 Md. 465, 471, 77 A.2d 127, 129 (1950). It is universally understood by travelers on the roadway that intersections create an increased potential for collisions. In anticipation of this known danger, a higher degree of caution is appropriate. The Court opined that “a motorist, when approaching a street intersection, must exercise much greater vigilance than when he is driving between intersections.” Id.
The Maryland Transportation Article also includes provisions that pertain to specific traffic maneuvers. Regarding turns, “a person may not, if any other vehicle might be affected by the movement, turn a vehicle until he gives an appropriate signal in the manner required.” Md. Transp. Art. §21-604(c). A signal of an intention to turn must be given continuously during at least the last 100 feet traveled by a vehicle before turning. Md. Transp. Art. §21-604(d). In addition to signaling, “if the driver of a vehicle intends to turn right at any intersection, he shall approach the intersection and make the right turn as close as practicable to the right-hand curb or edge of the roadway.” Md. Transp. Art. §21-601(a). The requirement that drivers of motor vehicles drive close to the edge of the roadway when approaching a right turn is intended to provide further indication to following drivers of an impending turn, so that the turning motorist will not be passed by following vehicles on the side toward which an indication of turning has been given. Norris v. Wolfensberger, 248 Md. 635, 237 A.2d 757 (1968).
In addition to the duty to properly signal an intended turn, drivers owe a duty not to make a turn from a direct course until such turn can be made with reasonable safety. Md. Transp. Art. §21-604(b). Before turning, drivers must keep a proper lookout. As noted by the Court of Appeals, “[o]ne who operates a motor vehicle on a public highway must anticipate the presence of others thereon and must exercise constant vigilance to avoid injuring them…” Peoples Drug Stores v. Windham, 178 Md. 172, 185, 12 A.2d 532, 538 (1940). A well established rule is that when a witness says he looked but did not see an object which he must have seen if he did look, such testimony is unworthy of consideration. Cogswell v. Frazier, 183 Md. 654, 660, 39 A.2d 815, 818 (1944).


§ 865-1 Agreement with SPCA authorized.
§ 865-2 Payment for services.
§ 865-3 Term of agreement.
§ 865-4 Registry of animal bite incidents.
§ 865-5 Filing of animal bite incident reports.
§ 865-11 Authority to construct.
§ 865-12 Rating program established.
§ 865-13 Purpose of program.
§ 865-17 Posting of rating.
§ 865-18 Revocation of rating.
§ 865-21 Terms of office; officers.
Animals — See Ch. 299.
Animal shelters and kennels — See Ch. 302.