Archive for December, 2007

 

Veterinary Malpractice

According to a USA Today article, courts are bucking centuries of legal decisions that have defined pets as property.  As is the case described in the article, courts have begun to take veterinary malpractice seriously.

Here in Colorado Veterinarians are regulated by the State Board of Veterinary Medicine. Prior to seeking remedies in a Colorado court though, the Board has the authority to hear the matter and render a decision. Among other issues, the Board may hear matters related to incompetence, negligence, or other malpractice in the practice of veterinary medicine. The Board will likely conduct an investigation and may hold a hearing which could end in disciplinary action, suspension, or revocation of a veterinarian’s license to practice. Note that the statute of limitations on actions brought against veterinarians in Colorado is two years from the time the action accrues.

Typically, what must be proved in a malpractice or related action is that the veterinarian was under a duty of care toward the animal, that the level of care was below the standard normally acceptable by other professionals in that same field, that the substandard care was the reason for the injury, and as a result, the injury to the animal resulted in damage to you, the caretaker.

Pets & Housing Issues

A variety of issues relating to pet ownership arise in the context of a residential lease or community living. No-pet policies may interfere with your right to care for and live with your companion animal. Depending on your particular situation, you may be able to keep your pet despite a no-pet policy or lease provision. On occasion, no-pet provisions may violate public policy or even state or federal law. Did your landlord say you could have a companion animal despite the contrary lease provision? Did the landlord know you had a pet but didn’t do anything about it until now? Is caring for your pet necessary for your mental or physical health? Were you able to have pets when you moved in and now there is a prohibition on having pets upon renewal of your lease? If any of these issues apply to you, there may be a legal remedy which will allow you to keep your home and your best friend.

Pet Trusts

A pet trust is a legally sanctioned arrangement providing for the care and maintenance of one or more specific pet animals in the event of your disability, death or an extended absence. This way, you know your animals will be in good hands even if you can’t be there to take care of your best friend yourself.

The trust has to name a caretaker to take responsibility of your pet and must also name a trustee to manage the trust fund. The fund is money set aside for the caretaker to follow through on your wishes. The trustee, per your specific instructions, can check in periodically with the caretaker to verify your wishes are being carried out. We can help you decide what sort of arrangements will be best for your animal companions.

Pet Custody

You guard and care for your pet just as you would a child. Pets are an important part of your life. When a relationship comes to an end, you may be left struggling with the decision of who will get to keep your pet - they one you both loved and cared for over time. Just as people argue about custody and responsibility of children, people argue over custody of their pets. If a former couple cannot come to a written agreement about visitation or custody, the courts may settle the dispute according to the needs and interest of the animal.

CBS News provided easy-to-understand coverage of Pet Custody in its nightly news. Watch the video >

Companion Animals & Domestic Violence

The maltreatment of animals, usually companion animals, may occur in homes where there is domestic violence, yet there is limited information about the prevalence of such maltreatment. Victims of domestic violence report that animal abuse incidents coincided with acts of violence against family members over 50% of the time, according to Carlisle-Frank & Flanagan, 2006. Various forms of animal abuse occur and have included punching, hitting, choking, drowning, shooting, stabbing and throwing against walls or down stairs.

An act of violence against a family pet or, even threatening an act of violence, is a form of domestic violence and is a violation of Colorado’s criminal code. While the criminal code expressly includes protection of an animal when threats of violence or violent acts toward the animal are used as a method of coercion, control, punishment, intimidation, or revenge, the civil statute is a bit different. The definition of civil protection order can include any provision to protect the victim from imminent danger to life or health.

Animal Welfare

Animal law encompasses all traditional legal practice areas including torts, contracts, criminal law, trusts & estates, family, and property law to name but a few. Although many disputes may involve an animal, a case will involve animal welfare specifically if for example, increased protection for the animal is a component of the case or, if challenging the property status of the animal is sought. Although the roots of animal welfare law are ancient, this type of practice area is still a relatively new subject in today’s court houses. However, this developing area is growing at a rapid pace and becoming more widespread every day perhaps, in part, due to media coverage of animal cruelty incidents or generous gifts made to benefit animal causes. Increasingly, law schools offer animal law courses and legal practitioners are venturing into this field of practice possibly due to the exciting challenge it presents or out of sensitivity toward animals and their plight.

Powers of Attorney

A power of attorney is an authorization to act on someone else’s behalf in a legal or business matter. It can be a useful tool when parents or pet caretakers need to ensure their child or animal companion will be properly taken care of during the parent or pet caretaker’s temporary unavailability. A power of attorney will work hand-in-hand with a pet trust, discussed here.

The person who is giving the power is referred to as the “principal” while the person who accepts responsibility of the power is called the “agent” or “attorney-in-fact”. Among other things, powers of attorney can be revocable, irrevocable, special or general, durable or non-durable. A durable power of attorney will remain in effect upon the principal’s incapacity. A non-durable power of attorney will not be effective upon the principal’s incapacity.

There are many options with respect to powers of attorney and you should fully understand what it is you need before you sign any legal documents.

Guardianship

A guardian is a person that is appointed by the court, for a child, to make important decisions when the parents cannot. The guardian may make decisions related to where the child at    tends school and which doctor the child will see. A guardian will also be able to obtain important records related to the child. The court will determine the scope of the guardian’s roll and set any limitations. The responsibilities of a guardian are great, and any person wishing to serve or wishing to have a guardian appointed, should become fully aware of a guardian’s legal responsibilities and the implications of the guardianship.

If assistance is required as to managing the child’s financial affairs, the guardian may also be appointed to serve as “conservator”. However, if the guardian cannot provide that assistance, a separate conservator may be appointed by the court to look after the child’s assets.

A guardian ad litem is an attorney appointed by the court to represent the child’s best interests.

Dependency & Neglect

The following has been taken, in part, from the Colorado Children’s Code:

A child is neglected or dependent if: A parent or legal custodian has abandoned the child or has mistreated or abused the child or allowed the child to be mistreated or abused without taking lawful means to stop the abuse or mistreatment from happening again; The child lacks proper parental care; The child’s environment is harmful; The parent or legal custodian fails or refuses to provide necessary or proper care, education, medical care, or other necessary care; The child is homeless or without proper care; The child is a run away or otherwise beyond the control of his or her parent or legal custodian; The child tests positive at birth for certain controlled substances; The parent or legal custodian has subjected another child to habitual abuse and that parent or legal custodian has been the respondent in another proceeding where that child was found to be dependent or neglected based on allegations of sexual or physical abuse or the court determined the parent or legal custodian’s abuse or neglect caused the death of another child and the pattern and type of habitual abuse pose a current threat to the child. COLO. REV. STAT. § 19-3-102 (2007). A guardian ad litem is appointed to represent the child’s best interests in all dependency and neglect cases.

Custody Modification

If a decree allocating decision-making has been filed with the court, there is usually a two year wait period before a subsequent modification may be filed. There are certain circumstances where the wait period is not required; for instance, if the court decides continuing the order may be harmful to the child. The prior decree will not be modified unless new facts have arisen or were unknown to the court at that time or, some change in circumstances has occurred making modification is necessary to serve the child’s best interests. The court will not change the prior order unless the above requirements are met or the court finds for instance, the parties agree to the modification.

~ Taken in part from Colorado Revised Statute § 14-10-131 (2007).