Category: News Feeds

Sutter Health has reached a tentative settlement agreement in a closely watched antitrust case brought by self-funded employers and later joined by the California Attorney General’s Office. The agreement was announced in San Francisco Superior Court on Wednesday morning, just moments before opening statements were expected to begin.

While representatives for both sides confirmed they had reached a tentative settlement, they would not divulge details of the agreement, which must be approved by the court. Superior Court Judge Anne-Christine Massullo told the jury impaneled for the case that details likely would be made public during approval hearings in February or March.

There were audible cheers from the jury following the announcement that the trial, which was expected to last three months, would not continue. Officials with the attorney general’s office and Sutter Health declined requests for comment.

Sutter stood accused of violating California’s antitrust laws by using its market power to illegally drive up prices. Health care costs in Northern California, where Sutter is dominant, are 20 percent to 30 percent higher than in Southern California, even after adjusting for cost of living, according to a 2018 study from the Nicholas C. Petris Center at the University of California-Berkeley that was cited in the complaint.

The case was a massive undertaking, encompassing years of work and millions of pages of documents, California Attorney General Xavier Becerra said beforehand. If the plaintiffs prevailed, Sutter was expected to face damages of up to $2.7 billion.

The nonprofit giant has 24 hospitals, 34 surgery centers and 5,500 physicians across Northern California, with $13 billion in operating revenue in 2018. The state’s lawsuit alleged Sutter has aggressively bought up hospitals and physician practices throughout the Bay Area and Northern California and exploited that market dominance for profit.

Among other tactics, it accused Sutter of employing an “all-or-none” approach to contracting with insurance companies, demanding that an insurer that wanted to include any one of the Sutter hospitals or clinics in its network must include all of them — even if some of those facilities were more expensive than a competitor.

Sutter Health consistently denied the allegations, saying its large, integrated health system offers tangible benefits for patients, including more seamless, high-quality care and increased access for residents in rural areas. Sutter also disputed that its prices are higher than other major health care providers, saying its internal analyses tell a different story.

The case was expected to have nationwide implications on how hospital systems negotiate prices with insurers. Even with details of the agreement not yet public, attorneys and patient advocates said they expect the settlement to mark a pivotal moment.

David Balto, a former federal regulator who is now an antitrust lawyer in Washington D.C., called the developments “precedent-setting.”

“You have all these metropolitan markets where you have large hospital systems, but Sutter Health in the Bay Area is like the filet mignon of the problem,” Balto said. “The problems in San Francisco are bigger than anywhere else. And you see that in how Sutter has exploited its market power to the nth degree.”

Sutter’s tactics were hard to challenge under antitrust law, Balto added. But “what [Becerra] did was bring together hard facts with top-notch scholarship proving there was an overwhelming problem and that Sutter’s strong-arm tactics were the cause of the problem.”

Anthony Wright, executive director of the advocacy group Health Access California, said he wasn’t privy to the settlement details, but that he expected it to include “some meaningful remedies in terms of adjusting some of the anti-competitive practices and contract provisions that Sutter has advanced over the years.”

“While we await the details of the settlement,” he said, “the lawsuit itself sends a strong signal to hospital chains across the nation and all health care providers planning to adopt predatory prices.”

Jaime King, associate dean and a professor of law at UC Hastings College of the Law, said Sutter’s decision to settle “in some ways is not a surprise. On the eve of trial, we often see big settlements.”

Still, she said, it comes at a cost: “I think it’s a shame we won’t ever get to see the evidence that would have been brought forward in this case about Sutter’s contracting and pricing practices. There are a lot of very large health systems that are charging a lot of money for their services, and this case had the opportunity to give us much more insight into what we’re spending our health care dollars on.”

Sutter continues to face trial on a separate federal antitrust lawsuit.

Photo: artisteer, Getty Images

Every few years there’s one of these stories where some attorney seeks and — improbably — is granted a stay so they can watch their team. Generally speaking, it’s a championship game appearance that requires travel to a neutral site and necessarily puts the lawyer out of pocket on the day of a hearing. What doesn’t generally show up is an attorney seeking a filing extension to watch games on television.

The Department of Justice consented to the motion, which Judge Collyer granted. I suppose the sport itself is all about dragging things out unnecessarily, so this is very on brand.

Zoe Tillman captured the relevant language of the motion in a tweet.

The attorney, citing a desire to continue watching the Washington Nationals playoff run with a nine-year-old, wrote that, “The nine-year old and counsel wish to continue to stay up late watching baseball and to attend tomorrow’s game, if it is necessary. Counsel’s attendance at each is required for supervision.” Except the game wasn’t necessary because the Nats swept the series. Get your ass back to work, buddy!

Facetiousness aside, it’s worth taking a second to consider what this motion says about the state of modern litigation. If we’ve reached a point where the standard briefing deadlines can’t accommodate taking four hours from time to time to watch a game, we’ve got more serious problems as a profession. We shouldn’t have to rely on judicial intervention to achieve the bare minimum of work-life balance.

Earlier: Can We Just Make the BCS Title Game a Court Observed Holiday? For the SEC at Least?
Motion to Continue Trial Due to Conflict with the LSU Tigers National Championship Game
Every Alabama Lawyer Should Try the ‘BCS Defense’

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Companies don’t always have steady sources of financing to scale their operations in lockstep with revenue. Sourcing funding outside of traditional avenues can also be mission critical at times.  An IP portfolio can be a hidden source of collateral for a lender who is otherwise on the fence about whether to put forth a loan to a company in need.

The practice of securing IP as loan collateral has origins in the entertainment industry where “celebrity bonds” served as collateral against future royalties for albums.  David Pullman is notable for creating the “Bowie Bond” in 1997 when which he turned music from David Bowie into an asset-backed security using the current and future revenue from 25 of Bowie’s albums. Investors bought into it.  At one point, Moody’s even gave the Bowie Bond a AAA rating.  This model for leveraging intangible assets as collateral is gaining traction as a financing vehicle in other industries as well, says Christian LaForgia, a patent attorney with Banner Witcoff, a boutique law firm specializing in intellectual property.

The best opportunity for this strategy is when the IP rights are generating revenue through licensing, patent assertion or sales, according to Laforgia.  “Using IP as collateral in this sense may allow a company to further invest in building existing revenue streams into larger revenue streams.”

But for some startups, this may be a lost opportunity, says Sam Thacker, a partner with Business Finance solutions, which has secured over $400 million in loans for companies across many industries.  He writes: “It is not likely that a pre-revenue company will be able to obtain a loan against patents, but it is possible for a company generating strong revenues to leverage their patents to eke a little more cash out of a loan request.”  On the other hand, startups with strong backing from well-respected VCs and a deep bench of issued patents may have just what it takes to get into a loan security agreement with a bank willing to take a risk on the success of what could be the next big thing.

What Savvy Lawyers Know

Alongside the benefits of a line of credit, securitizing intellectual property carries huge risks — primarily, defaulting on the loan means jeopardizing precious IP and associated rights to control or monetize it over time.  Proceed with caution and get the help of a patent attorney if there is no specialized expertise available in-house to provide guidance.

1. Determine IP value

There are many different factors used to determine IP value and no standard methodology for calculating it.  For instance, according to the World Intellectual Property Organization (WIPO), just one consideration is the context in which the IP is being valued: is it being valued in the context of being ‘alive and well’ and performing its job, or is it in a context where it is not being used? Similarly, in the case of liquidation, is it a forced liquidation or an orderly disposition of assets? The value will be different in each of these four situations, according to WIPO.

Due to the complexity of IP valuation, most banks don’t have the tools, skills or experience to valuate IP holdings for collateral purposes, says LaForgia.  “Banks will often turn to specialists in IP transactions who can evaluate the creditworthiness of IP as collateral,” he says.

Procuring a patent valuation independently and providing this to the bank can also be beneficial but the costs associated with such a valuation and its potential credibility to a lender may not always flesh out.  Sometimes boards ask that companies undertake a patent valuation and if this is being done anyway, it can be worthwhile to use the finished product for a starting point for a discussion around valuation of IP.

2. Craft a sound security agreement

Documenting the transaction in the form of a security agreement is an involved process wherein in the bank gets comfortable with the state of the business.  Much like any other corporate financing transaction, lawyers on both sides of the transaction review diligence, craft disclosures, and progress a draft agreement over the finish line.  The loan security agreement will detail the requirements around the collateral including the maintenance and progression of the IP, unless there is prior written approval of the bank.

This means that failure to pay maintenance fees or trimming out patents without permission can trigger a default on the loan; therefore, it’s important to get in the weeds with the bank about the company’s plans for its portfolio.  Try to get as many carve-outs built into the agreement as possible that mirror the company’s intentions so the legal department will not be unnecessarily burdened or slowed down by soliciting buy-in from the bank down the road.  Once completed, the signed security agreement gets filed with the United States Patent and Trademark Office.  Once the loan is paid back in full, the security agreement release must likewise be filed with the USPTO.

3. Understand your risks

It may be difficult to find a bank willing to accept IP as collateral as banks tend to shy aware from the speculative and volatile nature of IP, and may not be comfortable engaging in this type of loan if they don’t have much experience or expertise in it.  If you do find a willing lender, LaForgia recommends considering these downsides before jumping in:

• Default on the loan could result in a forfeiture of the IP rights, leaving your company with little or no assets.
• It’s a small market with a limited number of lenders/creditors, potentially making this a more expensive alternative to traditional financing options.
• Arriving at a sound valuation is difficult and requires outside expertise.
• You lose control in respect to strategy of the IP that collateralizes the loan. For instance, if you want to cut a patent because it no longer aligns with your business strategy, the lender can object and require payment of expensive maintenance and legal fees to progress the patent.
• There are limited options for liquidating IP assets once they are tied up as collateral.

Fierce competition in many sectors demands creative financing strategies.  If a company has revenue-generating intellectual property or a robust portfolio, it may serve a vital role as bridge funding to a company when other financing avenues are not available or when the timing is not optimal.  But before advancing into IP-back financing, be sure to map out the risks carefully and consider whether the potential loss of the IP, or loss of control over it, is worth the operating money.

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Jennifer DeTrani is General Counsel and EVP of Nisos, a technology-enabled cybersecurity firm.  She co-founded a secure messaging platform, Wickr, where she served as General Counsel for five years.  You can connect with Jennifer on Wickr (dtrain), LinkedIn or by email at dtrain@nisos.com.

The demands of the legal industry are changing, and law schools must adapt to provide students with the skill set legal employers are looking for in new hires.

ATL recently spoke with Judge Gail Prudenti, Dean of the Maurice A. Deane School of Law at Hofstra University and former Chief Administrative Judge of the Courts of New York State, to discuss Hofstra Law’s approach to preparing students for this new legal marketplace.

For a law school dean, your judicial background is atypical. How has it informed your views on educating the next generation of attorneys?

I think my broad-based legal experience has helped me tremendously here at Hofstra Law. In my previous life as a judge, I was dealing with the legislature, other judges, law schools, law firms, and the legal community at large, of which I’ve been a member, I hate to admit, for approximately 40 years. These experiences have given me perspective on where the legal industry is headed and what employers are looking for in new hires.

The industry is going through great change. What do you believe are the most important skills a graduating law student must possess?

The successful lawyers of the future will need to be tech-fluent, business-savvy, and highly skilled in specialty areas. The legal industry is changing rapidly, and there’s an overriding need to be a good businessperson and a good advocate. Attorneys will need to have an area of expertise and develop that area — and in many instances, it has to be interdisciplinary.

Our vision for training our students is an interdisciplinary one. Hofstra Law is fortunate to be part of a vibrant University that offers Schools of Business, Engineering and Medicine, among others. This has allowed us to create unique programs and experiences for our law students in areas that have complex legal issues and a high demand for lawyers.

Hofstra Law has been a longtime leader in teaching technology. How have you expanded your offerings in this area?

Hofstra Law was one of the first law schools to establish a legal technology institute with our Law, Logic, and Technology Lab. Last year we hosted our first Legal Tech Boot Camp and launched new tech-centered courses, including Introduction to Cybersecurity and Law, Evidence With Trial Technology, Introduction to E-Discovery, Artificial Intelligence and Law, and Introduction to Blockchain and Law.

Our first Legal Tech Boot Camp was offered for our students, and the interest from them was strong. We are now working on a Boot Camp for the wider legal community and practitioners who want to develop either a bit of basic knowledge or more of an expertise in legal technology.

We have also expanded our partnership with the Engineering School, which provides access to its “war room,” so law students can view simulations of potential cybersecurity attacks. We plan to host a cybersecurity summit with the Engineering School in the spring as well.

Can you share with us any other examples of your interdisciplinary approach to practice?

When I got to Hofstra Law, the Gitenstein Institute for Health Law and Policy was already established. And that is run by the brilliant Professor Janet Dolgin, a bioethics expert who teaches at both the Law School and the Medical School.

Healthcare is another area that is great for interdisciplinary practice. At Hofstra Law, we not only have the Medical School, but we have the Graduate School of Nursing, and we’re in a community surrounded by some of the best healthcare providers in the nation.

In June 2018, Hofstra Law and the Gitenstein Institute formed our first medical-legal partnership with Northwell Health. The program includes a crucial element of cross-training so that medical and legal providers better understand each other’s discipline, attorneys understand how they fit into the continuum-of-care paradigm, and clinicians are able to identify potential legal remedies that may be beneficial to the long-term health of their clients and patients.

Aligned with this emphasis on specialization, earlier this year the law school took over the Wilbur F. Breslin Center for Real Estate Studies — tell us about your vision for that program.

The Breslin Center is a response to the need for more attorneys with the skills and training to navigate the challenging and changing real estate market.  We’ve partnered with the Long Island Real Estate Group in offering an intensive, interdisciplinary seminar that exposes law and business students to every aspect of a real estate development project, from concept to construction. The course focuses on land use, finances, and working with municipalities and quasi-governmental agencies, among other issues. The participating law and business students also gain exposure to the myriad employment opportunities within real estate.

For the past few years Hofstra Law has been ranked as a top 50 law school for “gold standard” employment figures — do you attribute your successes to these programs?

I believe that these programs are a part of our placement successes. We want our students to be prepared for job and internship opportunities that arise, whether it be after their 1L, 2L, or 3L year. So having a dedicated Office of Career Services that works one-on-one with every student at each stage of their law school career is critical. This approach, combined with actively engaging employers and having students with standout résumés, has contributed to our placement numbers rising.

Looking ahead, what new projects is Hofstra Law working on?

Last year we hired a full-time clinician to head our Robert W. Entenmann Veterans Law Clinic and expand its services to our community. We want to be able to do more to help veterans obtain healthcare benefits, including cases to obtain Veterans Administration benefits, appeal denials of disability-compensation claims, and request increased compensation.

We are also expanding our trial techniques offerings to include an intensive three-day introductory advocacy experience for our 1Ls that will run alongside our Trial Techniques course in January. Each of the practice areas that I have discussed has an advocacy component. So we combine our unique interdisciplinary offerings with our doctrinal courses and advocacy skills, which I believe is the formula for graduating successful practice-ready lawyers.

I was fired by the President of the United States. People like to ask me about the state of the law and ask about the state of our democratic institutions and what it’s like for the judiciary, for example. I say, well, if you’re you’re a judge and you piss off the president, you keep your life tenure, and if you’re a U.S. attorney and you piss off the president, you get a podcast.

— Preet Bharara, former U.S. attorney for the Southern District of New York, speaking about his podcast, Stay Tuned With Preet, during a TimesTalks event hosted last night, featuring Bharara alongside author John Grisham, who spoke about his upcoming legal thriller, “The Guardians,” which focuses on group of lawyers whose mission is to exonerate the wrongfully convicted.

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

At what point will Rudy Giuliani have deteriorated to such an extent that we’ll have to stop laughing at him out of basic decency? Is America’s Mayor so demented that we must now tut-tut and furrow our brows with concern? Let’s go with not yet! And thank goodness, because we could all use a laugh in times like these.

This week, facing news that he is either the subject or the target of a grand jury investigation by his old office at the Southern District of New York, Rudy Giuliani, the world’s worst client, fired his lawyer.

It’s “silly to have a lawyer when I don’t need one,” Giuliani told The New York Daily News, just hours after announcing his decision to defy a congressional subpoena. “If they decide to do an enforcement, I’ll need someone to go to court with, and we’ll figure that out at the time.”

UH HUH. Well, as long as he’s confident that Adam Schiff won’t “do an enforcement” like he did to Don McGahn, then Rudy’s in the clear.

Giuliani’s two clients cum business associates were just arrested trying to leave the country and charged with multiple campaign finance violations. He’s smack in the middle of the massive impeachment scandal engulfing the White House, State Department, DOJ, and Energy Department. And CNN reports that a grand jury is looking at his finances while counterintelligence agents are all the way up in his business trying to determine “whether a foreign influence operation was trying to take advantage of Giuliani’s business ties in Ukraine and with wealthy foreigners to make inroads with the White House.”

Could be that Rudy will “need someone to go to court with” after all. Seems like a distinct possibility!

So it’s frankly insane that he parted ways with his law school classmate Jon A. Sale of Nelson Mullins after getting him to tap out this postcard to Congress saying Rudy can’t come to their impeachment party because he’s too busy applying brown Sharpie to his eight remaining hairs.

What in the world is this nonsense?

Sale is a highly experienced white-collar defense attorney who assisted Archibald Cox and Leon Jaworski before serving as U.S. Attorney for the Southern District of Florida. Which makes this two-paragraph note incorporating White House Counsel Pat Cipollone’s letter, vaguely alluding to privilege, and then gettin’ outta Dodge all the weirder.

For his part, Sale insists he wasn’t fired — the representation just came to a natural end when Rudy decided not to appear before Congress.

Rudy agrees that the parting was amicable, saying, “We’re still close friends. He’s still an adviser.” And anyway, he’s not worried about defying a congressional subpoena because, “It’s not authorized what they’re doing in secret. It’s an abomination of due process. I can’t imagine a court would tolerate what they’ve done.”

Paging Don McGahn …

Shine on you crazy-but-probably-not-to-a-clinical-extent-yet diamond. And don’t forget to bring that iPad with the million point font next time you want to go on Hannity and share all your privileged texts.

Rudy Giuliani says he won’t comply in ‘abomination’ impeachment inquiry, parts ways with his lawyer ‘for now’ [New York Daily News]
Federal investigation of Rudy Giuliani includes counterintelligence probe [CNN]

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Elizabeth Dye lives in Baltimore where she writes about law and politics.

With the goal of narrowing a growing justice gap in the state, an Arizona task force has called for fundamental changes in the regulation of legal services, including eliminating the ban on nonlawyer ownership of legal practices, loosening restrictions on lawyer advertising, and expanding the ability of nonlawyers to directly deliver legal advice and assistance.

But a dissenting member of the task force took issue with key recommendations, arguing that the solution to the access-to-justice problem is not to create “new industries that will continue to consume the public’s money,” but rather to create a court system that is “simpler and more efficient” for the average citizen.

In calling for elimination of the ban on non-lawyer ownership, the Arizona recommendations are similar to those made recently by a task force in Utah, where the Supreme Court approved the recommendations and ordered that steps be taken to implement a new regulatory structure to oversee alternative legal services providers.

Related: LawNext Episode 55: Utah’s Bold Experiment to Reimagine Legal Services.

A California task force has also called for such changes.

In its report issued Oct. 4, the Arizona Task Force on the Delivery of Legal Services made a series of recommendations intended to address the state’s gap in access to justice. The most significant would be elimination of the professional-conduct rules that prohibit lawyers and nonlawyers from co-owning businesses that engage in the practice of law.

The prohibition on partnering with nonlawyers “was not rooted in protecting the public but in economic protectionism,” said the report, which went on to say that there is no evidence that such partnerships harm the public.

“The legal profession cannot continue to pretend that lawyers operate in a vacuum, surrounded and aided only by other lawyers or that lawyers practice law in a hierarchy in which only lawyers should be owners,” the report said. “Nonlawyers are instrumental in helping lawyers deliver legal services, and they bring valuable skills to the table.”

In calling for elimination of the ban on nonlawyer ownership, the task force stopped short of making a recommendation on how such entities should be regulated. While Utah is beginning work to create a new regulatory body to oversee nontraditional legal services providers, the Arizona task force said it did not have time to explore in detail the advisability of such regulation. Rather, it recommended that the state should explore that concept going forward.

The task force also called for development of a tier of nonlawyer legal service providers, or “limited license legal practitioners,” who would be qualified by education, training and examination to provide limited legal services, including representation in court and administrative proceedings.

These would be similar to Washington state’s limited license legal technicians and Utah’s licensed paralegal practitioners.

The task force did not recommend specific details of how such a program would be structured. Rather it recommended that the Arizona Supreme Court appoint a steering committee to establish the appropriate parameters. However, the task force recommended that one of the first focus areas for LLLPs should be family law, “as this is where the greatest need lies.”

Other Recommendations

Other recommendations included:

• Loosen rules governing lawyer advertising, including by eliminating the prohibition against giving anything of value for referring a potential client – a rule that has limited lawyers’ participation in for-profit referral services. “There is no quantifiable data evidencing that for-profit referral services or even paying for referrals confuses or harms consumers,” the report said.
• Promote wider use of unbundled legal services through education and information. Although Arizona has permitted unbundled legal services since 2003, lack of understanding by both lawyers and the public limit their availability, the report found. To counter this, the courts and the bar should promote use of these services through education and public-information programs.
• Clarify when law students and recent law school graduates may practice law and what services they may provide.
• Clarify rules regarding the unauthorized practice of law.
• Formally institute the Licensed Legal Advocate Pilot developed by the Innovation for Justice Program at the University of Arizona James E. Rogers College of Law, to create a new tier of legal service provider that would provide services to domestic violence survivors.
• Initiate a document preparer program, proposed by the Arizona Foundation for Legal Services and Education, which would allow lay advocates to prepare legal documents for victims of domestic violence receiving services the foundation’s Domestic Violence Legal Assistance Program.
• Expand Arizona’s Legal Document Preparers program in various ways, including by allowing them to speak in court when addressed by a judge.
• Encourage courts to establish programs by which nonlawyers located within a court are available to provide legal information directly to self-represented litigants.

One Member Dissents

In an opposition statement that accompanied the report, task force member Peter B. Swann, chief judge of the Arizona Court of Appeals, Division I, took issue with the recommendations to allow nonlawyer ownership and to create a program of LLLTs.

While agreeing with the overall premise that legal services are too expensive and that most citizens are priced out of the ability to secure meaningful justice through the courts, Judge Swann said that the task force failed to examine the barriers inherent in the system – “understaffing, which contributes to delay and cost, and bloated, one-size-fits-all procedural rules that are designed for the most complex cases.”

“The recommendations then take an odd turn: rather than examining the reasons that the system is so difficult and expensive to navigate, the Task Force’s first recommendation is to cast aside ethical rules in an effort to make the practice of law more profitable,” Judge Swann wrote. “Such a proposal would make Arizona unique in the nation, and a leader in the race to the bottom of legal ethics.”

Judge Swann was particularly critical of the task force’s reliance in making several of its recommendations on the so-called Henderson report — the Legal Market Landscape Report written in July 2018 by William D. Henderson, professor at Indiana University Maurer School of Law, for the State Bar of California.

Related: LawNext Episode 9: Bill Henderson on Changing the Non-Lawyer Ownership Rules.

“The fact that a professor has ‘called out’ ethical rules is, to my mind, no more persuasive than the fact that a substantial part of the population has ‘called out’ lawyers as greedy crooks. Both beliefs are no doubt sincere – I submit that neither is correct.”

The task force was chaired by Ann A. Scott Timmer, vice chief justice of the Arizona Supreme Court, and its members included judges, court administrators, lawyers, academics, and members of the public.

This week, we celebrated my daughter’s ninth birthday. Like many parents, I love retelling her birth story.  Amongst the details of her long-awaited cesarean birth is of course a lesson in trusts and estates.

In the preoperative room, nervously waiting for my  second child’s arrival, a nurse dutifully asked me if I had a health care proxy. It was like music to my ears. She was speaking my language. And out of my tote bag, under the newborn take-home outfit, the big-brother gift, and my hospital pajamas, I pulled out a health care proxy. In triplicate. I would like to think that the nurse was impressed, however, I think she was a bit taken aback by my preparedness and assertiveness in offering her an advanced directive. In triplicate.

It is not uncommon for individuals to be asked to sign a health care proxy when they are admitted into a hospital. Unfortunately these are not the best conditions under which one should be contemplating such a serious document. A health care proxy nominates an agent to make medical decisions in the event the patient is unable to make decisions for herself. A health care proxy can come into use under many circumstances. Someone may become temporarily incapacitated and may need an agent to make decisions regarding operations, procedures, or even discharge plans. Nerves, fear, and pain may cloud one’s thinking when executing a health care proxy prior to a medical procedure or worse in the midst of a health crisis. It should therefore be reviewed and executed during a period of calm when a hospitalization is not impending.

The birthing floor is generally thought of as the happiest place in a hospital. This does not obviate the need, however, for a parent to establish a health care proxy. Unfortunately, complications may occur during and following childbirth.  A power of attorney should also be executed so that in the event of incapacity, an agent can have access to the principal’s finances in order to pay bills, marshal monies, and apply for benefits.

All adults, regardless of whether they have children or not,  should execute a last will and testament. For parents, this is especially important because the document nominates a guardian to raise minor children in the event of death. The last will and testament may also nominate a trustee to manage the minor’s monies. A trustee may manage the assets during a child’s infancy, but also through adulthood, if a testator wishes.

Sometimes first-time parents will contact me during their pregnancy to inquire as to the execution of a last will and testament, prior to birthing their baby. Obviously, I appreciate this kind of zeal, however, there are certain considerations one may wish to review before appointing a guardian under their last wills and testaments. At a minimum, however, the discussion should begin.

In choosing a guardian, one must select an individual whom you trust to raise your child safely.  While you can choose someone who generally shares your values, you must recognize that it is impossible to find a guardian who will raise your child exactly as you would. Also, the last will and testament does not indicate bedtimes and food choices and school choices. It is often stated that testators cannot control from the grave. They also cannot raise their children.

As an expectant parent, it is prudent to start the conversation as to who the best guardian is in the event of tragedy. It is also important to understand that familial and friend relationships can change once a baby is born and that might affect your choice of a guardian. Family dynamics are affected by life events such as births and deaths. A distant sister may become a doting aunt upon the birth of a niece. Conversely, a grandparent may disappoint in terms of his generosity of time and resources.

From a legal perspective, a last will and testament can include both present and future children. In the event there are no children born when you execute, as long as the document is drafted correctly, one can make directions as to raising the future children. Similarly, if you execute a last will and have future children, there is generally no need to redo the last will based on the new family member, assuming the last will is drafted to include afterborn children. Having the last wills, health care proxies, and powers of attorney already intact will surely make your hospital bag a lot lighter the second time around.

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Cori A. Robinson is a solo practitioner having founded Cori A. Robinson PLLC, a New York and New Jersey law firm, in 2017. For more than a decade Cori has focused her law practice on trusts and estates and elder law including estate and Medicaid planning, probate and administration, estate litigation, and guardianships. She can be reached at cori@robinsonestatelaw.com.