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The Editor's Corner: Internet Users Should Follow Age-Old Advice:"Caveat Emptor!"

Volume 4, No. 3, Winter 1999

Carol A. Schwab

Abstract

Internet users should follow the age-old advice: "Caveat Emptor," or "Let the Buyer Beware." Whether it is a scam or simply unreliable information, Internet users need to develop Web savvy to separate the reliable from the unreliable. The following editorial provides guidance on how to judge legal services and/or information offered through the web.


Sound advice remains sound advice regardless of how many millenniums it's been around. "Caveat Emptor" or "Let the Buyer Beware" was good advice in medieval times when peasants were warned not to buy a "pig in a poke,"[1] and it's good advice today for Internet users who are beginning to rely upon the Web as a virtual library and a virtual mall. Horror stories abound of how people are being cheated through the Web. For example, did you hear the one about

The Internet offers endless opportunities for victimization, and consumers who purchase goods over the Web are not the only consumers who need to be wary -- consumers who use the Web to obtain information also need to be cautious. The lead article in this issue of FFCI discusses how to judge information about nutrition and health on the Web. I would like to add my two cents about how to judge the quality of legal information available on the Web. Here are some tips.

An example of a Web site that provides legal documents/services is Aging with Dignity. It originates in Florida and was founded in 1996 by Jim Towey, who is represented to be a former associate of the late Mother Teresa. The former First Lady, Rosalyn Carter, is quoted on the site and is represented to be a supporter. The site provides a legal document entitled, "Five Wishes" that combines a living will and health care power of attorney into one document. The document is written in layman's language that is easy to read and understand, and it sells for $5.00. The Web site claims that the document meets the legal requirements in 33 other states, including North Carolina.

I have no idea whether the "Five Wishes" document complies with Florida law and the laws of the other 32 states listed. However, I am certain that it does not meet the requirements of North Carolina law.

Some of the best elder law and estate planning attorneys in North Carolina reviewed "Five Wishes" and determined that it is not in accord with North Carolina law on the living will and health care power of attorney. A few of the discrepancies include the following.

The failure of "Five Wishes" to meet the requirements of North Carolina law threatens the statutory defense provided by law to physicians and other health care providers who rely upon a patient's living will and health care power of attorney. North Carolina law states that "any person, institution or facility against whom criminal or civil liability is asserted because of conduct in compliance with this section may interpose this section as a defense." [Emphasis added.] N.C.G.S. § 90-321. Right to a natural death. [See also, "Any person, institution or facility, including without limitation the health care agent and the attending physician, against whom criminal or civil liability is asserted because of conduct described in this section, may interpose this section as a defense." N.C.G.S. § 32A-24. Reliance on health care power of attorney; defense. (Emphasis added)]

As a result, many members of the medical community in North Carolina are reluctant to honor the "Five Wishes" document because it does not comply with North Carolina law and, consequently, may not provide the statutory defense. By representing that "Five Wishes" is valid in North Carolina, when in fact it does not comply with North Carolina law, Aging with Dignity does a grave disservice to their North Carolina customers by compromising their legal rights.

How are the rights of North Carolinians compromised if they rely upon the "Five Wishes" document? Consider the following scenario. Mrs. Smith is 75 years old, is in an advanced stage of Parkinson's disease, and lives in a nursing home. In the course of a short hospitalization, she has feeding tubes inserted. After she is returned to the nursing home, her family requests that the feeding tubes be removed, and they produce her "Five Wishes" document. Because the document does not comply with North Carolina law, the nursing home insists that the family obtain a court order directing the removal of the feeding tubes. The process takes the family approximately six months, and Mrs. Smith dies within a few days after the tubes are removed. The family refuses to pay the nursing home costs for the six months it took them to obtain the court order. The nursing home sues, and the North Carolina courts hold in favor of the nursing home because the statutory requirements of the living will were not met until immediately prior to the removal of the feeding tubes.[4]

If Mrs. Smith's living will had complied with North Carolina law, she could have saved her family thousands of dollars in attorney's fees and several years of court battles. Her "Five Wishes" document merely served as evidence of her wishes in court. It did not accomplish her goal of directing her health care providers to terminate life support systems under the given circumstances.

The Internet gives access to an unprecedented wealth of information, products, and services. Modern technology is revolutionizing the ways people learn and shop. Savvy consumers will use the Internet to help them make informed choices, whether in buying a car or in learning about their legal rights. Savvy Web consumers will also follow the age-old advice: "Caveat Emptor!"

Editor's Note: At the time this article is posted, the Elder Law Section and the Estate Planning and Fiduciary Law Section of the North Carolina Bar Association are writing Aging with Dignity to request that they remove North Carolina from their list of states in which their document is valid.

Notes

Note 1: This expression deals with the folly of buying something one has not seen. Unscrupulous English peasants would substitute a runt, or even a cat, for a piglet which they carried to market in a sack (poke) slung over their shoulder. The dishonest seller would refuse to open the sack because it would be difficult to catch the piglet if it escaped. Anyone who buys a "pig in a poke" buys something sight unseen. Funk, Charles E. 2107 Curious Word Origins, Sayings & Expressions. Galahad Books, BBS Publishing Corporation, (1993) pp. 105-06. [Return to text.]

Note 2: Save your e-mails -- I am aware that I have a few documents on the Web that need updating. They are on my To Do List, and I have some great excuses for not getting them done. [Return to text.]

Note 3: An exception to this rule would be a document that is an exact duplicate of a legal form provided by statute. North Carolina has statutory forms for a living will and a health care power of attorney, which we duplicate in our educational publications. Providing a modified version of the forms would be the unauthorized practice of law. [Return to text.]

Note 4: For a similar fact scenario, see First Healthcare Corporation v. Rettinger, 342 N.C. 886, reversing 118 N.C. App. 600 (1995). In this case, the nursing home patient had a North Carolina living will, but he signed it before the statutory form was changed to specifically include the withholding or removal of feeding tubes. Thus, the nursing home insisted upon a court order before removing the feeding tubes. [Return to text.]

The opinions expressed in this editorial are the opinions of the author and do not necessarily represent the opinions of FFCI, its Editorial Board members, the North Carolina Cooperative Extension Service, or NC State University.

Author

Carol A. Schwab, Editor of FFCI. Carol has used her law degree and experience in the practice of law to educate the public about their legal rights and responsibilities for the past twelve years. She is currently serving as Chair of the Elder Law Section of the North Carolina Bar Association.

Cite this article:

Schwab, Carol. "Internet Users Should Follow Age-Old Advice: "Caveat Emptor!" (editorial) The Forum for Family and Consumer Issues 4.3 (1999): 15 pars. 31 December 1999.

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