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LEGAL ASPECTSLEGAL ASPECTS
AND THE NURSEAND THE NURSE
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MALPRACTICE ANDMALPRACTICE AND
NAGLIGENCE ACTNAGLIGENCE ACTMALPRACTICE
yMeans that you DID something
wrong that you should haveknown was wrong.
yThe failure of a person with
professional training to act inreasonable and prudent manner.
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NEGLIGENCEy means that you failed to do something that
you should have done.
y Is the omission to do something that a
reasonable and prudent person would notdo.
>reasonable and prudent the average
judgment , foresight, intelligence, andskills that would be expected of a person
with similar training and experience.
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SAMPLE QUESTION:
You are a newly hired nurse and you saw a
patient who fell after stepping on a peel
of banana. What would you do?
a. Notify the physician.
b. Make an incident report.
c. Attend to the patient first.
d. Pick up the peel of banana first.
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ELEMENTS OFELEMENTS OF
PROFE
SSIONAL
PROFE
SSIONAL
NEGLIGENCE :NEGLIGENCE :
y The existence of a duty on the part of the
person charged to use due care undercircumstances
y failure to meet the standard of due care
y The foreseeability of harm resulting from
failure to meet the standard
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y The fact that the breach of this standard resulted
in an injury to the plaintiff
y ARTICLE 19
y Civil Code states that one shall act with justice,
give every man his due, observe honesty and goodfaith.
y ARTICLE 20
y states that those who, in the performance of their
obligations through negligence cause any injury to
another, are liable for damages.
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SPECIFICEXAMPLES OFSPECIFICEXAMPLES OF
NEGLIGENCE:NEGLIGENCE:y Failure to report observations to attending physicians
y Failure to exercise the degree of diligence which the
circumstances of the particular case demands
y Mistaken Identity
y wrong Medicine, wrong concentration, wrong route,
wrong dose
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y Defects in the equipment such
as stretchers and wheelchairsmay lead to falls thus injuring the
patients
y Errors due to Family assistance
y Administration of medicine
without a doctors prescription
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DOCTRINE OFDOCTRINE OF RES IPSARES IPSA
LOQUITURLOQUITURy Res Ipsa Loquitur means the thing
speaks for itselfy injury could not happened if someone
was not negligent that no further proof
is required.
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THREECONDITIONS ARETHREECONDITIONS AREREQUIRED TO ESTABLISH AREQUIRED TO ESTABLISH A
DEFENDANTS NEGLIGENCEDEFENDANTS NEGLIGENCE
WITHOUT PROVING SPECEFICWITHOUT PROVING SPECEFIC
CONDUCTCONDUCT
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that the injury was such of nature that
it would not normally occur unless therewas a negligent act on the part of
someone
that the injury was caused by anagency within control of the defendant
that the plaintiff himself did not engage
in any manner that would tend to bringabout the injury
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DOCTRINE OF FORCE MAJEURE
y The term force majeure means an
irresistible force, one that is or inevitable.
y Under the Civil Code of the Philippines,
no person shall be responsible for those
events which cannot be foreseen, orwhich, though foreseen, are inevitable,
except in cases expressly specified by law.
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DOCTRINE OF RESPONDEAT
SUPERIOR
y The term means let the master answer
for the acts of the subordinate.
y Under this doctrine, the liability is
expanded to include the master as well as
the employee and not a shift of liability
from the subordinate to the master.
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Incompetence
yIs the lack of ability, or legal
qualifications and being unfitto discharge the required
duty.
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LIABILITY FOR WORK OF NURSELIABILITY FOR WORK OF NURSE
TRAINEES AND
VOLUTEERSTRAINEES AND
VOLUTEERSy There are thousands of nursing graduateseach year. Ironically, there are not enough
vacancies both in public and private
sectors to accommodate them.
y They flock to hospitals to work as
volunteers or as trainees.
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y These volunteers pay a minimum of P1,000
monthly as training fees.
y They are rotated in the various clinical areas
and under the direct supervision of the nursing
staff in the unit for basic nursing care topatients.
y They train for at least 3 months to 1 year then
apply again as casual or part-time nurses andif lucky, they are taken in as regular staff nurses
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y Opportunities for work abroad often require
experience of at least 1year in hospital, hence
their willingness to volunteer.
y Many hospital take advantage of the situation
though. Instead of hiring replacements for staff
who have resigned, they take in volunteer to save
money.
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LIABILITY OF NURSES FOR THELIABILITY OF NURSES FOR THE
WORK OF NURSING AIDESWORK OF NURSING AIDESy Nursing aides perform selected nursing
activities under the direct supervision of
nurses.
y They are usually given on-the-job training
by the Training Staff
y Their responsibilities usually pertain to
the routine care of chronically ill patient.
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y Nurses should not delegate their functions to
nursing aides since the Philippine Nursing Act
specifies the scope of nursing practice ofprofessional nurses.
y If a nurse delegates her functions to a nursingaide and the latter commits mistake then the
person responsible is the nurse.
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y Nurses are enjoined to supervise their
subordinates and see to it that they
perform only those which they have beentaught to do and those which they are
capable of doing.
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LIABILITY FOR THE WORK OFLIABILITY FOR THE WORK OF
NURSING STUDENTSNURSING STUDENTSPhilippine Nursing Act of 2002 (R.A.
9173)
y Nursing students do not perform
professional nursing duties.
y They are to be supervised by their clinical
instructors.
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y In order that the errors committed by nursing
students will be avoided and/or minimized, the
following measures should be taken:
1. Nursing students should always be under the
supervision of their Clinical Instructors.
2. They should be given assignments that are at
their level of training, experience, and
competency.3. They should be advised to seek guidance
especially if they are performing a procedure
for the first time
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4. They should be oriented to the policies of the
nursing unit where they are assigned.5. Their performance should be assessed
frequently to determine their strength and
weaknesses.
6. Frequently conferences with the students will
reveal their problems which they may want to
bring to the attention of their instructors or
vice-versa.Discussion of these problems williron out doubts and possible solutions may be
provided.
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y Both C.I. and the staff nurse in the clinical area
where nursing students are assigned shouldcoordinate in assessing the competence of
nursing students before they are allowed to
give care to patients so that the risks of injury
to the same will be avoided.
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MEDICAL ORDERS,DRUGS, AND
MEDICATIONSRepublic Act 6675
y States that only validly registered medical,dental and veterinary practitioners, whether inprivate institution/corporation or in the
government, are authorized to prescribe drugs.
y Prescription made by unauthorized personsconstitute illegal practice of medicine, dentistryor veterinary medicine and is punishable by R.A.2832 or the Medical Act of 1959, R.A. 4419or the Dental Act, and R.A. 382 or theVeterinary Act.
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R.A.5921 or the Pharmacy Act
y
Amended that all prescriptions must containthe following information:
Name of prescriber
Office address
Professional registration number
Professional tax receipt number
Patients/clients name
Age and sex Date of prescription
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INTRAVENOUS THERAPY AND
LEGAL IMPLICATIONSPhilippine Nursing Act of 1991 Section 28
y States that in the administrationof IVinjections,
special trainingshall be required accordingto
protocol established.
y Therefore have to undertake a certified training
course on IV therapy. Nurses should use the IV
Nursing Standards of Practice developed by theAssociation of Nursing Service Administrators
of the Philippines.
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Board of Nursing Resolution No. 8
y States that any R.N. without such training and
who administer IV injections to patients, shall be
held liable, either criminally under Sec. 30 ( c )
Art. VII of the said law or administratively under
Sec. 21 Art. III or both (whatever causing or not
an injury or death to the patient).
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SCOPE OF DUTIES AND
RESPONSIBILITIES IN IV THERAPY
The duties and responsibilities of
nurses in IV therapy include the
following:
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1. Interpretation of the doctors orders for IV
therapy;
2. Performance of venipuncture, insertion of needles,
cannulas except TPN and cutdown;
3. Preparation, administration, monitoring and
termination of IV solution such as additives, IVmedications, and IV push;
4. Administration of blood/blood products as
ordered by physicians;
5. Recognition of solution and medicineincompatibilities;
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6. Maintenance and replacement of sites, tubings,dressings, in accordance with established procedures;
7. Establishment of flow rates of solutions, medicines,blood and blood components;
8. Utilization of thorough knowledge and proficienttechnical ability in the use/care, maintenance, and
evaluation of IV equipment.9. Nursing management of Total Parenteral Nutrition,
out-patient IV care;
10. Maintenance of established infection control and
aseptic nursing interventions; and11. Maintenance of appropriate documentation,
associated with the preparation, administration andtermination of all forms of IV therapy.
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TELEPHONE ORDERS
RISKS:
y May be misunderstood or misinterpretedby the receiving nurse.
y Sometimes, message from telephones maysound unclear or garbled.
y Most importantly the handwriting of thenursing physician may be illegible, hissignature is not present and this may laterbe denied in case errors happen or courtlitigations arise.
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CONSENT TO MEDICAL AND
SURGICAL PROCEDURESy Consent is defined as free and rational act that
presupposes knowledge of the thingtowhich
consent is beinggiven by a personwhois legally
capable togive consent.
y Nature of consent. Consent is an
authorization, by a patient or a person
authorized by law to give the consent on thepatients behalf, that changes touching, for
example, from non-consensual to consensual.
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y Informed Consent. Hayt and hayt state that it
is establishedprinciple of law that every human
beingofadult years andsound mind has the right to
determine what shall be done with hisown body.
y Proof of Consent. A written consent should besigned to show that the procedure is the one
consented to and that the person understands
the nature of the procedure, the risk involvedand the possible consequences.
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yWho Must Consent. Ordinarily, the patient isthe one who gives consent in his own behalf.
However, if he is incompetent or physicallyunable and is not an emergency case, consentmust be taken from another who is authorizedto give it in his behalf.
y Consent of Minors. Parents, or someonestanding in their behalf, give the consent to
medical or surgical treatment of a minor.Parental consent is not needed, however, if theminor is married or otherwise emancipated.
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y Refusal to Consent. A patient who is mentally
or legally competent has the right to refuse the
touching of his body or to submit to a medical
or surgical procedure no, matter how
necessary.
y Consent for Sterilization. Sterilization is the
termination of the ability to produce
offsprings.
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MEDICAL RECORDS
y The value is both scientific and legal.
y It saves duplication in future cases and aids in
prompt treatment.
y It supplies rich material for medical and nursingresearch.
y It serves as a legal protection for the hospital,doctor, and nurse by reflecting the disease orcondition of the patient and his management.
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Nurses must remember the rule, ifit was
not charted,it wasnot observed and done.
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CHARTING DONE BY NURSING
STUDENTSy When a nurse or a C.I. countersigns the
charting of a nursing student, he/she has
personal knowledge of information and
that such is accurate and authentic.
y Anyone who countersigns without
verification commits herself to possiblelegal risks.
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LEGAL RISKS FOR DEFECTIVE
EQUIPMENTy One important duty of the nurse is to make
sure that the equipment used in the procedures
and treatments is not defective.
y While the nurse may or may not be responsible
for inspecting the equipment for optimum
functioning, she should see to it that all pieces
of equipment are regularly inspected,maintained and are functioning properly.
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y She should document the times she requested
these to show that she was able to foresee the
improper functioning of equipment which might
cause possible injury to the patients.
y Such equipments include Wheel chairs
Stretchers
Suction machines Anesthesia apparatus
X-ray tables
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INTENTIONAL WRONGS
A nurse may be held liable for
intentional wrongs. Intentional
tortous acts may arise in the
performance of her duties.
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TORTS
y Is a legal wrong, committed against a
person or property independent of a
contract which renders the person who
commits it liable for damages in a civilaction.
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Example of torts are:
Intentional torts
are any intentional acts that are reasonablyforeseeable to cause harm to an individual,
and that do so.
Example:
y
Assault imminent threat.y Battery physical contact without
consent.
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y False Imprisonment or Illegal Detention
Means the unjustifiable detention of a person
without a legal warrant within boundaries fixedby the defendant by an act or violation of dutyintended to result in such confinement.
y Invasion ofRight to Privacy and Breachof Confidentiality
Nurses may become liable for invasion of right
to privacy if they divulge information from apatients chart to improper sources orunauthorized persons.
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Defamation
is tarnishing the reputation of someone; it
has two varieties, slanderand libel.
Slander- Oral communication of falsestatements injurious to a person's
reputation.Libel- A false publication, as in writing,
print, signs, or pictures, that damages aperson's reputation.
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CRIMES, MISDEMEANORS, AND
FELONIESy Crime is defined as an act committed or
omitted in violation of the law.
Conspiracy to commit a crimey Exists when 2 or more persons agree to
commit felony and decide to do it.
y Persons who commit felonies are eitherprincipals, accomplices or accessories.
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Principals
y Are those who take a direct part in the execution of the act;who directly force or induce others to commit it; or who
cooperate in the commission of the offense by another actwithout which it would not have been accomplished.
Accomplices
y Are those persons who, not being principals, cooperate in the
execution of the offense by previous or simultaneous act.
Accessories
y Are those who, having knowledge of the commission of thecrime, either as principals or accomplices, take part subsequent
to its commission by profiting themselves of assisting theoffender to profit the effects of the crime by concealing ordestroying the body of the crime or assisting in the escape ofthe principal.
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Criminal Negligence may be classified into:
recklessimprudence when a person does an
act or fails to do it voluntarily but without
malice, from which material damage results
immediately.
simple imprudence means that the person
or nurse did not use precaution and the damagewas not immediate or the impeding danger was
not evident or manofest.
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Criminal Intent is the state of mind of a person et thetime the criminal act is committed, that is, he/she knowsthat an act is not lawful and still decided to do it anyway.
Classes of Felonies. Felonies are classified according tothe degree ofthe actsofexecutionwhich produces thefelony into:
Consummated when all the elements necessary forits execution and accomplishment are present.
Frustrated when the offender performs all the actsor execution which will produce the felony as aconsequence but which nevertheless, do not produce itby reason of causes independent of the will of theperpetrator.
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Attempt to commit a felony when the
offender commences the commission of the
same directly by overt (open or manifest) acts,
and does not perform all the acts or executionwhich shall produce the felony, by reason of
some cause or accident other than his own
spontaneous desistance.
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Felonies are also classified to the degree ofpunishment:
Grave Felonies
y Capital punishment (death), or
y 6 years and 1 day to life imprisonment, or
y Fine not exceeding P6,000.00
LessGrave Felonies
y Imprisonment ranging from 1 month and 1 day to 6years, or
y A fine not exceeding P6,000.00 but not less thanP200.00
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Light Felonies
yArresto menor(imprisonment for 1 day to 30
days, or
y A fine not exceeding P200.00.
y punishable only when they have been
consummated, with the exception of those
committed against a person or property.
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CIRCUMSTANCES AFFECTING
CRIMINAL LIABILITYJustifying Circumstancesy When a person acts in defense of his own
rights provided that:
a. There is an unlawful aggression on the part ofthe offended or injured party;
b. There is reasonable necessity for the meansemployed by the person defendinghimself/herself to prevent such aggression;and
c. There is lack of sufficient provocation on thepart of the person defending himself.
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Exempting Circumstances
y The following persons under the circumstances
stated are expressly exempted by law from criminalliability for the crime they may have committed:
a. An imbecile or an insane person, unless the latter has
acted during a lucid interval.
b. A person under 9 years of age.
c. A person over 9 years and under 15 years unless
he/she acted with discernmentd. Any person who acts under the impulse of an
uncontrollable fear of an equal or greater injury.
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Mitigating Circumstances
y Are those which do not constitute justification orexcuse of the offense in question, but which, in
fairness and mercy, may consider as extenuating orreducing the degree of moral culpability.
a. When the offender has no intention to commit so
grave a wrong as the one committed.b. When the offender is under 18 or over 70 years old.
c. When sufficient provocation or threat on the part oifthe offended party immediately precedes the act.
d. When the offender voluntarily surrendershimself/herself.
e. When the offender is physically and mentally disabled.
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Aggravating Circumstances
y Are those attending the commission of the
crime and which increase the criminal liability ofthe offender or make his guilt more severe.
Alternative Circumstances
y Are those which must be taken into
considerations as aggravating or mitigating
according to the nature and effects of the crimeand other conditions attending its commission.
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Moral Turpitude
y Is an act of baseness, vileness or depravity in
social or private duties which a man owes to his
fellow man or to society in general, an actcontrary to the accepted and customary rule of
right and duty between men.
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Murder
y Unlawful killing of a human being with intent to
kill.
Homicide
y The killing of a human being by another. It may
be committed without criminal intent, by ay
person who kills another, other than his father,
mother, or child or any of his ascendants, or hisspouse, without any of the circumstances above
being present.
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Abortion
y The expulsion of the product of conception before age
of viability.
Infanticide
y Is the killing of a child less than 3 days of age.
Parricide
y Is a crime committed by one who kills his/her father,
mother, or child whether legitimate or illegitimate, or
any of his/her ascendants or descendants or his/her
spouse.
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Robbery
y The taking of personal property of another
person from him or in his presence constitutesrobbery.
Controlled Substancey Republic Act 6425 known as the Dangerous
Drugs Act of 1972 covers the administration
and regulation of the manufacture, distribution,and dispensing of controlled drugs.
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PLAINTIFF (Civil Case)
The injured partyEquivalent to Complainant (CriminalCase)
DEFFENDANT (Civil Case)The professional who was alleged to have
caused the injury.
Equivalent to Respondent (CriminalCase)
TYPES OF LAWS ANDTYPES OF LAWS AND
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TYPES OF LAWS ANDTYPES OF LAWS AND
COU
RTSC
OU
RTSCRIMINAL CASESy The individual faces charges generally
filed by the state or federal attorney
general for crimes committed against
an individual or society.
Ex. Murder, Homicide, Theft, Robbery
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CIVIL CASESy One individual sues other for money to
compensate for a perceived loss.
Ex. Defamation, Trespassing, Public andPrivate Nuisance
ADMINISTRATIVE CASESy An individual is sued by a state or federal
government agency assigned the
responsibility of implementinggovernmental programs.
Ex. TaxEvasion
GROUNDS FOR THEGROUNDS FOR THE
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GROUNDS FOR THEGROUNDS FOR THE
REVOCATION OF LICENSEREVOCATION OF LICENSE
y ImpersonatingAnotherLicensed
Practitioner(Miss-representation)
yProviding a False Copy ofLicenseyFalsifying Patient Records
yUnprofessional Conduct
yPatientAbuse and NeglectyViolating Probation
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WILLSWILLS
A legally
enforceable declaration directing the
disposal of
a decedent's property. also
called testament.
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HandwrittenWills
Power of Attorney
allows a person to give legal permission to anotherperson or organization to act on his or her behalf in a
variety of legal and financial situations.
Complete Will ALast Will and Testament is an important part of
every individual's estate plan. This will is appropriate
for a variety of individuals. The easy interview
process will allow you to state your intentions for your
estate after your death, including who will receive
your property and who will carry out your wishes.
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yLivingWill
A living will is a legal document
that a person uses to make
known his or her wishes
regarding life prolonging medicaltreatments.
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CONTRACTSCONTRACTS-A binding agreement between two or more parties for
performing, or refraining from performing, somespecified act(s) in exchange for lawful consideration.
Express Contracts
y In this type of contract, the parties to the contract statethe terms and conditions either by word of mouth or inwriting, at the time of forming the contract.
Implied Contracts
y Contracts implied in factand contracts implied in lawareboth a part of implied contracts. But a real impliedcontract consists of certain obligations that arise from amutual agreement and intention of promise, which is notexpressed verbally.
Executed Contracts
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An executed contract is termed as anagreement in which no other transaction is
left out to be executed by either party.
Bilateral and Unilateral Contracts If two entities exchange a mutual and
reciprocal promise that implicates theexecution of an act, an obligation or atransaction or forbearance from executionof an act or an obligation, with respect to
every party involved in the contract, istermed as bilateral contract in thelanguage of law.
A unilateral contract is a promise made by
only one party.
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Aleatory Contracts
yAmutual agreement which comesinto effect only in case of anoccurrence of an uncertain event or anatural calamity, is termed as an
aleatory contract.
Unconscionable Contracts
yUnconscionable contracts are thosethat are unfair and unduly one-wayfavors of the party who stand at a
superior end of the bargaining power.
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Adhesion Contracts
yAdhesion contracts are the ones thatare drafted by a party who has a
larger advantage in bargaining. This
means that the party who has abargaining advantage leaves the
other party with no other option than
to either accept the contract or toreject it.
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Void and Voidable Contracts
yAvoid contractimplies that theinvolved parties are not liable to any
legal obligations or rights, meaning
that the parties are not legally boundwith reference to that contract.
yAvoidable contract, on the other
hand, is an agreement between anytwo or more parties, that has a legal
binding.