Archive for December, 2007

Animal Welfare

Animal Law encompasses all traditional legal practice areas including torts, contracts, criminal law, trusts & estates, family, constitutional, and property law to name but a few. Although many disputes may involve an animal, a case will involve Animal Welfare specifically if the case is focused on the either the animal’s best interest or animals’ best interest, as a whole. 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.

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Child Welfare

Child Welfare includes a variety of issues and case types (Domestic Relations, Dependency & Neglect/PRNP, Juvenile Delinquency, Adoption).  In Gabriela’s current practice, she focuses on domestic relations cases where she serves as a Child and Family Investigator (CFI).  Divorce, separation and disputes regarding allocation of parental responsibilities are stressful events.  In addition to coping with divorce or separation, parents need to be mindful about the impact such family reconfiguration can have on their children.

A CFI is appointed by a judge to assist the court in making the right choices for children, focusing on their best interests.  As a CFI, Gabriela will independently investigate the relevant issues and make recommendations as to parental responsibilities which may include decision-making, parenting time, or relocation.

Regardless of who requests the CFI appointment, the Court may apportion the CFI’s fees and costs to both of the parties, or to one of them.  If either party is indigent, the state of Colorado may pay all or a portion of the fee at the state rate.

The most recent Chief Justice Directive, amended in November 2011, caps the CFI fees at $2000. If the fees are going to be higher than that, the CFI may go back to Court to explain that extraordinary circumstances exist and the additional fee is justified.

 

Dependency & Neglect cases involve the physical, sexual or emotional abuse and neglect of children.  In these cases, a Guardian ad Litem is appointed by the court to perform an independent investigation.  The Department of Human Services is the Petitioner in these cases.  Parents are required to successfully complete a “treatment plan” and the termination of parental rights is a possible outcome.

 

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Death or Injury to Companion Animal

If someone has injured or killed your animal companion, you may be entitled to damages—regardless of whether the animal was injured or killed purposefully or accidentally—so long as the conduct was at least negligent. When an animal is injured or killed, you are generally entitled to compensation for the “market value” of the animal, veterinary bills and possibly punitive damages, mental anguish, and loss of companionship. What compensation is available depends entirely on the facts and circumstances of each case, and differs significantly from state to state.

~ The information above was taken, in part, from the Animal Legal Defense Fund.

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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.

Veterinarians are heroes.  They save the lives of animals, they make their livelihood striving to help injured or sick animals regain their health and they work to keep healthy animals well. Veterinarians in Colorado have also been instrumental in key legislation related to animal anti-cruelty laws. We trust our veterinarian and owe much gratitude to the veterinary profession. When we bring our beloved animals to a veterinarian, we trust they are professional, competent, and of course, practice in accordance with the accepted standard level of care owed to our animals and required by law. A trip to the veterinarian’s office is not unlike a trip to the pediatrician.

Unfortunately, some animals do suffer misdiagnosis, inappropriate treatment, incompetence, and/or care below the acceptable standard during their visit to the veterinarian. When this happens, an attorney can help you determine the best next steps for you to take.

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. If you believe you have a dispute with a public or state entity you are also required to properly notify the designated authority of your intent to sue within 180 days.

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 (often called a letter of certification which you must obtain from another vet or vet specialist), 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.

Legal Update

On July 1, 2007, it became mandatory for Colorado veterinarians to report animal cruelty and animal fighting. The new law states that if a veterinarian suspects that s/he is treating an animal that has been subjected to cruelty or animal fighting, it must be reported to the appropriate authorities. The veterinarian is protected by law if the report is made in good faith.

~CACVT Issue Briefing: Mandatory Reporting, December 2007

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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.

For an in-depth exploration of major legal issues relating to companion animals and housing, see “No Pets Allowed: Housing Issues and Companion ♦Animals” (PDF) by Professor Rebecca J. Huss.

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 – the 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. Read the report >

Companion Animals & Domestic Violence

According to Carlisle-Frank & Flanagan, 2006, victims of domestic violence report that animal abuse incidents coincided with acts of violence against family members over 50% of the time. Meaning, it is common for those who face domestic violence to also witness the abuse of their pets. Tragically, pets are physically abused, intimidated, and sometimes killed as a means of extending the abuse of the human victims. Many professionals find that animal abuse may also be an indicator of other violence in the home. Yet when humans seek safety or legal remedies from domestic violence, those aiding them rarely inquire about companion animals in their home. Sadly, victims of domestic violence are often required to separate from their beloved pets in order to escape the abuse.

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. Depending on the situation, the pets may be included in orders of protection so that they, too, can be safely harbored from the abuser. Protecting both the human and companion animal is of utmost importance.

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.

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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.

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