NOTE: Free essay sample provided on this page should be used for references or sample purposes only. The sample essay is available to anyone, so any direct quoting without mentioning the source will be considered plagiarism by schools, colleges and universities that use plagiarism detection software. To get a completely brand-new, plagiarism-free essay, please use our essay writing service.
One click instant price quote
This thesis discusses the issue of the many states that have established legal rules that makes one's spouse the legal guardian; unless the guardian spouse is declared unfit in some way. It presents a broad based discourse on the issue to establish the thesis statement and then goes on to determine whether this irrefutable legal preference violates any constitutional mandates. Comparison of Statutory Irrefutable Preferences The family law canon almost always identifies any inequalities in family law as rooted in past rather than present practices. It overstates the changes that have occurred in family law over time and understates the distinctions that family law currently draws between families.
This construction of the family law canon has permitted legal authorities debating and instituting family law policies that might injure historically subordinated groups to deny that there are existing and continuing inequalities in family law, and to argue that family law no longer needs to be concerned about the status and position of historically subordinated people. Yet there is substantial evidence, now excluded from the family law canon that establishes the persistence of many forms of inequality within family law. Challenging the family law canon's construction reveals that it is not a convincing argument in a family law debate to insist that family law already supports social equality thoroughly and completely. Social equality is an important goal for family law, but declaring its accomplishment is significantly premature. Instead, a crucial question in any family law discussion has to be whether the specific policy at issue is consistent with equality concerns or not. At least thirty-three states recognize some form of the doctrine of necessaries.
Under this doctrine, spouses are prohibited from suing each other directly for support, but are obligated to pay each other's debts, if the debts are for necessary expenses. The doctrine determines significant rights and responsibilities associated with marriage and deny marital partners the right to change them. The states enforcing the doctrine of necessaries decide which debts count as necessaries, they set how much liability each spouse will bear for the other spouse's debts, and they impose liability for a spouse's debts even if the marital partners never agreed to share debts, never informed third parties that they would assume each other's debts, and explicitly declared that they would not be responsible for each other's debts. Medical caregivers for medically dependent persons, parents of minors, guardians of persons who are incompetent, and those providing medical services for persons who are indigent are required by state and federal law and regulations to provide life-sustaining care for those in their charge (Coleson 1996).
Working within this conventional idiom, women reformers argued that dower offended the fundamental social and legal tenets that the family existed as a sacred, private space shielded from the invasive reach of the state. (Michelle 2004) Thus, while the sex-equality critique of dower attacked the most basic ideological and doctrinal elements of coverture's, this second strand of attack actually fortified the basic structure of the private family and its traditional relationship to the state by denouncing dower's invasion of the private family home after a husband's death as destructive of the core of women's gender-specific place within the family. Within the woman's rights movement's critique of dower, therefore, a vision of sex equality coexisted with a vision of the home as women's protected sphere and the proper site of their entitled dependency. Women's rights activists combined equality arguments and privacy arguments in ways that ignored their conflicting underlying premises. Viewing the spousal relationship as a domestic partnership rather than as an organic entity allows courts to promote the liberal values of individual autonomy and governmental neutrality. Under this contractual view of marriage, individuals may design the terms of their own relationships without governmental interference. Although the state may still impose certain limited duties on spouses, in many important ways individuals are now free to negotiate the terms of their own marital relationships.
The issue of women and their legal rights in a marital arrangement has presented a great many quandaries in resulted in spouse guardianship court battles. It is an issue with age old sociological baggage. Under certain circumstances the marital couple could be represented by either spouse alone. Husbands do this more frequently than do wives, but the fact that wives did do it at all suggests that customary law did admit their capacity in the matter of marital, let alone their own, property. Wives, in fact, are known to have represented the marital unit quite successfully without their spouses.
It is, in fact, axiomatic that throughout the Middle Ages, women represented the family unit when the male spouse was absent. Husbands and wives could each also act specifically on the other's behalf. In matters of property, the absence of stated legal constraints on women's activities is not matched by any corresponding inactivity on their part. One cannot, therefore, claim that a system of guardianship was so routine as to require no articulation. There is no question that women were not as involved in documented property management as were men, but one can in no way conclude from this that they lacked the capacity for such involvement.
There exist any number of conceivable reasons for this, though the sources can shed no light here; women may have lacked the inclination, they may have been too busy doing something else, or it may have been easier, in a public forum that was, after all, dominated by male authority figures, to leave it to the males. What cannot be doubted is that they were experienced. The issue is in any case a qualitative one, involving customary and legal capacity to manage one's own property. Women clearly had this capacity; while quantitative data on the relative extent to which they exercised it may well tell us something about routine patterns of day-to-day social interaction, they have no bearing at all on the issue of women's legal status.
There is an important exception to the principle of freedom to dispose of property by will. In general, a married person cannot give away all of his or her property by will, leaving nothing for a spouse. Marriage is seen as an economic partnership. While spouses are alive, they have a duty to support each other, a right to share property and income on divorce, and, in some cases, the right to share property owned by the other. The obligations of the economic partnership are not extinguished upon the death of a spouse. Like the doctrines discussed earlier of dower and courtesy at common law, the modern law has the concept of an elective share in the property of a deceased spouse.
If, for example, a husband's will leaves all of his property to his children by a prior marriage, his mistress, and the S. P. C. A. , his widow has a statutory right to claim a portion of the estate despite the will. Although the jurisdictions vary somewhat, a typical statute entitles the widow to take one-third of his estate despite a contrary disposition in the will. A more recent type of statute, following the model Conclusion If an individual has not executed a living will, is terminally ill, and is also comatose or incompetent, a written agreement to withhold or withdraw life-prolonging procedures can be made between the attending physician and certain individuals in the following order of priority: a guardian, a person designated by the terminally ill patient, a spouse, an adult child or, if more than one, by the majority of adult children, the parents, or the nearest living relative.
Most states also follow a presumption of spousal guardianship when a married person becomes mentally incapacitated, and ignore unmarried partners for this purpose. Some states, such as Florida, have Durable Family Power of Attorney statutes that allow the appointment of a spouse, parent, adult child, sibling, niece, or nephew. The aim of such legislation is to help incompetent individuals by allowing family members to handle their affairs and avoiding the necessity of the appointment of a legal guardian. Therefore we can safely conclude that this irrefutable legal preference does not violate any constitutional mandates passed as decree on this issue. It is a proxy scenario which has proven to work very well, assigning ones's post as the legal guardian is well within the mandates of marital statutes.
Resources Michelle S. Jacobs. "Requiring battered women die: murder liability for mothers under failure to protect statutes. " Journal of Criminal Law and Criminology. Issue: 2. 2004. 579 - 660. Coleson, Richard E. "A critique of family members as proxy decision makers without legal limits. " Issues in Law & Medicine; 9 / 22 / 1996.
Free research essays on topics related to: social equality, family members, terminally ill, spouse, family law
Research essay sample on Terminally Ill Family Law
