Laurie Israel

New Standing Order about Parent Education Course from the Massachusetts Probate and Family Court

May 12, 2016 by  
Filed under Recent Articles

by Matthew Solomon, Esq.

On April 11, 2016, Chief Justice Angela M. Ordoñez signed Standing Order 2-16, Parent Education Program Attendance. The new Order, which takes effect on May 1, 2016, makes some significant changes to the already existing rule that requires divorcing parents of minor children (children under 18 years old) to attend a Parent Education Program. There are Parenting Programs located in every county of Massachusetts. The Program consists of two 2 ½ hour long classes, which most often begin sometime after 5:00 p.m. (some programs have morning classes). The parties may not attend the same class and each party is responsible for paying $80 for the class fee.

The most important change that the new Order makes is that parties are now required to register with an approved program within thirty days of service of the original divorce complaint. This is a huge change from before, where there was no such time limit requirement of the parties. Prior to Standing Order 2-16, parties were required to attend and provide proof of completion in a program before the court would grant a divorce judgment. This would often mean that divorces were actually delayed because one or both of the parties had not fulfilled this obligation. In other words, this new onus on the parties may help expedite the entire process. A couple of things to note related to the new 30 day requirement: (1) Once a party is registered for a program, she/he must file an Affidavit Confirming Registration at Parent Education Program with the court; and (2) parties have to file their Certificate of Attendance with the Court no later than thirty days after finishing the program.

Similar to before, parties do have the option to petition the court for a waiver so that they do not have to attend a parent education program. This is done by filing a Motion to Waive Attendance at a Parent Education Program. The party must include the reason(s) why they cannot attend a program. The Order states that the court will grant the waiver “upon a demonstrable showing of: chronic and severe violence which negates safe parental communication; language barriers; institutionalization or other unavailability of a party; or where justice otherwise indicates.” The last bit of language does appear to allow for a party to include a reason not specifically listed, such as the party serving in the military or the fact that the child of the parties’ is close to being eighteen years of age.

If the Court decides to deny the Motion to Waive Attendance, it can permit a party to watch a five-hour DVD or online program. The cost to each party for the DVD option is also $80. The multimedia alternative is interactive and will provide the participant with a Certificate at the completion of the viewing. A party who is unable to attend in person a Parent Education Program can file a Motion to Permit Completion of Parent Education Program via DVD. As with the Motion to Waive Attendance, the party must include the reason(s) why they cannot attend and must make a demonstrable showing of such reason. The Order specifically lists the following reasons that can be included in the waiver, “significant health or financial issues, significant geographic and transportation issues, or other significant barriers to in person participation; or where justice otherwise indicates.”

The Order also provides some guidance as to what can and cannot be done procedurally with regard to the scheduling of certain court dates. An uncontested divorce hearing under Chapter 208, section 1A can be scheduled if both parties file separate affidavits that confirm that they have registered in a program and if both parties actually will have completed the program prior to the hearing date. The same holds true for a Pre-Trial Conference – the parenting course must be completed and certificates of completion provided at or before the Pre-Trial Conference. As before, the Court will not hold a Trial until the Court receives the Certificates of Attendance from each party. It appears that former practice by some judges – to permit parties to complete the course after a trial, but not issue judgments until the course is completed is not longer a possibility.

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Laurie Israel

Reforming (alimony) reform – A Chance to Reconsider Applying Effective Dates Retroactively in the event of Retirement and Cohabitation

May 10, 2016 by  
Filed under Recent Articles

by Matthew Solomon, Esq.

In 2011, the Massachusetts legislature passed the Alimony Reform Act (“ARA”). The ARA brought about a number of standards to the then existing alimony system in Massachusetts, which had been decided case-by-case by lower court judges. Because there was a lack of standards, the cases could not be relied upon by attorneys as precedent and divorcing couples often found the courts’ decisions to be inequitable or excessive.

Among other things, the legislature revised the ways which alimony can be terminated by inserting a durational limit formula and by including attaining full retirement age for social security, cohabitation for a period of three months. . The inclusion of retirement and cohabitation language in the ARA was extremely significant in that it provided clear standards that would be applied by courts to alimony obligations, and thus allowed divorcing couples a chance to come to terms short of litigation. The hope was that the ARA could help remedy some of the confusion and issues involved with these types of alimony orders.

The ARA, as with any law, is subject to the interpretation of the courts. In other words, the language of the ARA means very little until it is actually applied to a real case with real-life facts, and a court issues a ruling applying the new law based on the facts of the case.

In January 2015, the Supreme Judicial Court (SJC) issued three decisions that laid out a consistent interpretation of the ARA that surprised and confused lawyers, mediators, and even the authors of the ARA itself. In the three cases Doktor v Doktor, Chin v Merriot, Rodman v Rodman, the SJC stated unequivocally that the retirement provision of the ARA was only to be applied to cases where the judgment from the court occurred after the date that the ARA went into effect (March 12, 2012). It its ruling, the SJC relied heavily on the effective date sections of the ARA, which seem fairly clear about what cases are subject to the new act. About three months after the SJC decisions, the Appeals Court weighed in with its own opinion of the forward-looking nature of the ARA when it noted in a footnote in an unpublished opinion that the durational limits were the only exception to prospective application of the ARA (See, Cole v Cole, No. 14-P-466). See House Bill 3617 ARA, section 49 and 4(b), which provides that a pre-existing alimony order that exceeds the durational limits of Chapter 208, section 49 shall be deemed a material change of circumstance that warrants modification of the duration (not the amount) of a preexisting alimony judgment.

The overall reaction from the legal community to the three SJC rulings was generally one of disbelief and frustration. The feeling was it was patently imbalanced and inequitable that a person whose judgment of divorce was finalized one day before the passing of the ARA would not be eligible for the same alimony and modifications as a person whose divorce judgment was finalized one day later. There was also opposition to the SJC’s reading of the intent of the ARA. Several people noted that the SJC’s decisions contradicted the objective of the ARA and what the ARA was drafted to achieve. As a practical matter for attorneys, the three SJC rulings directly impacted the likelihood of success of pending alimony modification cases and the manner in which advice was given the clients with potential alimony modification suits. In fact, some attorneys have put alimony cases in limbo, waiting to see if there is any change in the law or even a ruling from a court that over-turns or modifies the SJC decisions.

Just recently there has been some significant movement with regard to challenging the SJC’s interpretation of the ARA. On February 19, 2016, House Bill No. 4034i* was filed to, in the words of Steve Hitner of the Alimony Task Reform, “fix the misinterpretation of the Alimony Reform Act of 2011 by the SJC.” (See massalimonyreform.org). The Bill is specifically designed to clarify the intention of the ARA with regard to retirement and cohabitation so that any case that brought on these issues will be modifiable regardless of the date of the divorce judgment. Stay tuned for more updates.

*As of the writing of this article Bill No. 4034 was amended by House Bill No. 4110, dated March 21, 2016. On April 19, 2016 the House ordered a third reading of the Bill. On May 10, 2016 the Bill was sent to be placed on the House Calendar.

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Laurie Israel

MOLST: Honoring Patient’s Life-Sustaining Treatment Preferences

February 22, 2016 by  
Filed under Recent Articles

by Matthew Solomon, Esq.

In 2012, Massachusetts introduced a new medical form called the Medical Order for Life Saving Treatment (MOLST) form. The driving force behind MOLST, and the broader National Physicians Order for Life Sustaining Treatment (POLST), came from a need for end-of-life planning based on conversations between patients, their loved ones, and medical providers.

The concept was to improve the quality of patient care and reduce medical errors by creating a system that identifies seriously ill patients’ wishes regarding medical treatment, and communicates and respects these wishes through portable medical orders. See National POLST website, http://www.polst.org

The MOLST form stays with the patient, so the form would be available at the location of the patient if he or she is picked up by emergency medical transportation or receive emergency care in his home or elsewhere, if the form is on his or her person.

In, Massachusetts, MOLST consists of a standardized process and form. The stated goals of the MA MOLST Program are to:

(1) Encourage discussions between clinicians and their patients nearing the end of life about treatment options and patients’ preferences for care; and

(2) Provide clinicians and their patients with a mechanism for translating patients’ preferences into portable signed medical orders (the MOLST form) which travel with the patient and can be honored across health care settings.

An important aspect of MOLST is that enables doctors, nurse practitioners and/or physician assistants to collaborate with the patient, the patient’s health care agent and (to the extent permitted by law), the patients’ guardian, to complete the MOLST form. The MOLST form, once completed and signed by the patient, is an actionable medical order.

The MOLST form consists of two pages, which are designed to be valid independently. Both pages require signatures from both the patient (or the patients’ Health Care Agent/Guardian/Parent or Guardian of a minor) and the Physician, Nurse Practitioner, or Physician Assistant for it be valid. Each page pertains to medical orders for specific medical treatments:

(1) Page 1 contains three treatment options:

(i) Cardiopulmonary Resuscitation: in the case of cardiac or pulmonary arrest (either “Do Not Resuscitate” or “Attempt Resuscitation”;

(ii) Ventilation: for a patient in respiratory distress (either “Do Not Intubate and Ventilate” or “Intubate and Ventilate” and either “Do Not Use Non-Invasive Ventilation (e.g. CPAP) or “Use Non-Invasive Ventilation (e.g. CPAP)), and

(iii) Transfer to Hospital: (either “Do Not Transfer to Hospital (unless needed for comfort) or “Transfer to Hospital”).

(2) Page 2 identifies five additional medically-indicated treatments that may be offered in a clinical setting and also documents whether the treatment has either been discussed or that the patient is undecided:

(i) Intubation and Ventilation: refers back to Page 1 and includes an option to choose short term;

(ii) Non-Invasive Ventilation: Includes the same options as for Intubation and Ventilation;

(iii) Dialysis: choices include “No Dialysis”, “Use dialysis”, and “Use dialysis, but short term only”;

(iv) Artificial Nutrition: Same options as for Dialysis; and

(v) Artificial Hydration: Same options as for Dialysis.

Page 2 is designed to assist further discussion between if and when new clinicians become involved in the patients’ care.

It should be noted the MOLST form is very different than a Health Care Proxy. The two most important distinctions between the two documents are that (1) the Health Care Proxy is a legal document while the MOLST form is a medical document, and (2) the Health Care Proxy becomes effective only if the person is declared to lack the capacity to make his/her own medical decision while the MOLST form goes into effect immediately upon signing. Thus, it is still recommended that people have both forms executed in order to hopefully cover every situation or setting.

Several important questions remain with regard to MOLST forms:

1. Will the form be honored in other states?
According to molst-ma.org, the MOLST form may or may not be honored in other states. Thus, there is no certainty that the form will be honored outside of Massachusetts, so it shouldn’t be solely relied on as a definitive and fool-proof medical order.

2. What happens if a person has a Comfort Care/Do Not Resuscitate Form (“CC/DNR”) as well as a MOLST form?
The Massachusetts CC/DNR form continues to be valid. The CC/DNR form can still be used to show that a valid DNR order exists, and should be honored by EMTs. MOLST forms can also be used in place of a CC/DNR form. If a patient has both forms, the most recent of the two orders should be honored.

3. Can a spouse or relative sign the MOLST form if the patient has lost capacity?
The only person that can sign the MOLST form for a patient who is over the age of 18 and has lost capacity is the patient’s designated health care agent.

4. Will EMTs or Emergency Room medical personnel really abide by them and let someone die?
That’s the big question that remains unanswered. EMTs do have the obligation to honor MOLST forms. The Massachusetts Department of Public Health’s Office of Emergency Medical Services (“OEMS”) has jurisdiction over emergency medical services and instructs that MOLST forms must be honored by EMS personnel. EMS personnel are told to call Medical Control (which acts as a link between EMS providers and physicians) if they are in the field and have a question about a MOLST form or the form’s instructions. EMS personnel are also instructed that a patient may, at any time, ask for treatment that has been previously refused on the MOLST form.

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