Sharon F. Blakeney

In the wake of the legal and moral battles surrounding the life and tragic death of Terri Schiavo, many people have reexamined their estate plan to address end-of-life life issues. As long as you are competent you have almost completely unrestrained freedom to make your own health care decisions. However, an unexpected illness or accident could leave you unable to make those decisions on your own. Then, if you have not previously executed any documents setting forth your wishes regarding medical treatment or appointing someone to make those decisions for you, your health care provider, or in some cases a court, would be charged with the duty to make those decisions.

Most people would prefer to have a family member or close friend follow their own wishes and instructions. This is where a living will, in Texas known as a “directive to physicians,” and a medical power of attorney can become an important part of your estate plan. A living will is a legal document that sets out your intentions in advance regarding what medical treatment you wish to be given or have withheld should you become incapacitated. A medical power of attorney is a legal document that designates a health care agent with the authority to make health care decisions for someone who cannot make those decisions for themselves. In Texas, the directive to physicians and medical power of attorney can be one or two separate documents.

Many hospitals and nursing homes now provide their patients with the standard form promulgated by the Texas Health & Safety Code for directives to physicians. However, these standard forms can be misleading, and commonly the default position of these forms is to withhold life-sustaining medical care, which is often extended to include basic nutrition and hydration. I don’t know about you, I just don’t consider food and water “medical care,” and if a simple IV will keep me alive – then I want it! This default-for-death position taken by most standard directives has resulted in a number of organizations promoting pro-life advance directives, including the Terri Schindler Schiavo Foundation and the “Will to Live” project by the Alliance Defense Fund.

End of life issues such as medical powers of attorney and directives to physicians are highly personal, and I encourage you to talk about these issues now with your loved ones and your attorney. Having an advance directive can save family members a great deal of grief and division by setting out clearly your intentions. Discuss in detail with your attorney your wishes and the legal requirements to secure them, so that you can make an intelligent and informed decision that could literally mean the difference between life and death.

Although Ms. Blakeney is an attorney, nothing in this article is intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction, nor is it intended to create an attorney-client relationship with any reader.

The right to freely and without hindrance vote one’s conscience by secret ballot is one of the hallmarks of modern democracy. It is a right recognized as so precious to our citizens the United States Supreme Court has found that “other rights, even the most basic, are illusory if the right to vote is undermined.” Wesbury v. Sanders, 376 U.S. 1, 17 (1963). So where did this fundamental right come from? Was it the brainchild of the founding fathers? Was it in the Declaration of Independence? Or did it come from somewhere else?

During the colonial period voters cast their vote by viva voce, voice vote, or by a showing of hands. Voting orally or by a showing of hands meant that your vote was known by all and that lack of secrecy naturally led to corruption, bribery, intimidation, fraud and violence. By the late 1700s most states had begun using a paper ballot, with voters preparing their own handwritten ballot at home and then delivering the ballot to the polling place. Seeing opportunity, political parties and candidates soon began preparing brightly colored or specially designed ballots to give to the voters. These ballots could be recognized at a distance and once placed in the hands of a bribed or intimidated voter, the vote buyer could watch until it was placed in the ballot box.

Approaching a polling place in those days to vote was quite literally placing oneself in mortal danger as they were often scenes of battle and even murder. Like the viva voce method, the paper ballot system was fraught with corruption, fraud and abuse, leaving voters helpless pawns in the manipulative hands of the political system. Voter intimidation, especially by employers, was extensively practiced.

So if the right to vote by secret ballot wasn’t built into the Constitution by our founding fathers, where did it come from? The answer, surprisingly, comes from the land of wallabies, koala bears and the Aborigines – Australia. To combat the violence and corruption experienced not only in the United States but worldwide in emerging democracies, an Australian lawyer by the name of Henry Samuel Chapman invented the government-printed ballot slip in 1856 that became known as the “Australian ballot” or “secret ballot.” Chapman’s invention quickly spread from Australia to New Zealand, and then England, Canada, Belgium, and from 1888 to 1892 it made its way through half of the American states. Today the secret ballot is recognized as crucial to maintaining the integrity of the electoral process, and is now used in emerging democracies like Iraq.

Although Ms. Blakeney is an attorney, nothing in this article is intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction, nor is it intended to create an attorney-client relationship with any reader.

If you’re reading this odds are you are either going through a divorce or custody battle, have been through one as a party or as a child, or know someone who has. Although the divorce rate has declined slightly in the last couple of years, family law cases are still the overwhelming majority of cases filed in civil courts each year. According to National Center for Health Statistics data the number of divorces per 1,000 population in 2006 was 3.7, fell to 3.6 in 2007, and dropped again to 3.5 in 2008. In Texas there were 79,469 divorces in 2006, which dropped significantly to 77810 divorces in 2007, and then dipped slightly to 77,649 divorces in 2008. The specific reasons for the decline are unknown, though some speculate that in this difficult economy, “[m]any couples may be rediscovering the long-standing sociological truth that marriage is one of society’s best social insurance plans,” says W. Bradford Wilcox, sociology professor and Director of the National Marriage Project at the University of Virginia.

To anyone who has suffered through a divorce or custody battle, some reasons to avoid them are obvious. The time, expense, and emotional stress involved is draining. However, whether by choice or against your will, you may find yourself in family court. Having more than ten years of experience in family law, both as an attorney and a single mother, I’ve learned a thing or two about how to survive the battle with your integrity, your pocketbook, and your mind intact. The most important thing to know is you should never brave it alone in family court. Some people try to save a few bucks by skipping the lawyer and representing themselves in divorce or custody litigation. That is a serious mistake. While family courts are among the lowest in terms of judicial hierarchy, in many ways they are the most powerful because of the tremendous numbers of families and amounts of private money they control. Other than facing a criminal prosecution, most citizens are never forced to surrender such a large amount of their civil liberties to a governmental entity outside of family court. For example, the standing restraining order that goes into effect immediately upon the filing of a divorce or any other suit affecting the parent-child relationship in the 198th & 216th Judicial District Courts include restrictions upon a citizen’s right to free speech, parental rights, right control their own money, property, travel with their children and make changes to retirement or insurance plans. Those restrictions can be made permanent in a final order, which means the court’s control over a citizen’s civil liberties doesn’t always end when a divorce is final, even if there are no children involved.

Additionally, a “bad” final decree of divorce or order can have permanent damaging effects. Without the benefit of counsel to explain the legal meaning of language contained in a final order, a party can unknowingly waive important rights, enter an agreement that fails to accomplish their goals, or agree to something they never intended to approve. Once signed by a judge and made permanent, it can difficult and sometimes impossible to modify an order that deprives a party of valuable property rights or liberty interests regarding their children. Family court is not a valley to walk through alone. Even if you have to borrow money from family, a bank, or a retirement account, make sure you hire an attorney to represent you in family court. You’ll be glad you did.