About Vergari & Associates
The law firm of Vergari & Associates focuses on family issues and estate planning. The firm is conveniently located on Century Blvd., adjacent to the Los Angeles International Airport.
Vergari & Associates and our professional staff strive to build long-term relationships with our clients. We are committed to providing professional services with integrity.
Cozette Vergari, founder of Vergari & Associates, practices estate planning and family law. She and her staff assist clients in the preparation of wills, trusts, advance healthcare directives, deeds, and powers of attorney, as well as probate and family law proceedings throughout the County of Los Angeles court system.
Cozette Vergari received her bachelor's degree from the University of Southern California, graduated 4th in her class from the University of West Los Angeles School of Law, was named outstanding Graduate by the faculty, and completed her internship with a federal court magistrate. After graduation, while starting up her law practice, Cozette worked as an academic counselor and an adjunct professor at her law school.
Committed to the community, Cozette has served in a leadership capacity in many civic organizations including the Board of Trustees of the Westchester Rotary Foundation, the Neighborhood Council Westchester/Playa, the Chamber of Commerce, Airport Marina Counseling Service, and the 1736 Family Crisis Center.
Cozette is a member of the State Bar of California and also is admitted to practice before the United States District Court for the Central District of California. Aside from litigation, she is trained in Mediation, Collaborative Family Law, and receives Court appointments as Minors Counsel.
Kimberly Napolitano, concentrates on the representation of individuals and families in all aspects of estate planning, business succession, asset protection, and the reduction of tax burdens. In addition, Kimberly offers legal counsel to closely-held businesses at each stage of their growth and development, including formation, financing and governance issues. Prior to joining Vergari & Associates, Kimberly most recently spent several years practicing corporate finance and securities law with the international law firm of Milbank, Tweed, Hadley & McCloy.
Kimberly graduated in the top 5% of her class from Loyola Law School, where she was Managing Editor of the Loyola of Los Angeles Law Review. Kimberly graduated magna cum laude from Loyola Marymount University with a B.B.A. in Business Administration and received the Trustee Scholarship for academic excellence.
Kimberly is a member of the State Bar of California and also is admitted to practice before the United States District Court for the Central District of California.
LOS ANGELES DAILY JOURNAL / NOVEMBER 9, 2011
BY JEFFERY S. JACOBSON, JULIE A MILLIGAN AND COZETTE VERGARI
Frank and Jamie McCourt: a cautionary tale of divorce gone wrong
LOS ANGELES LAWYER / DECEMBER 2003
A New Approach to Marital Dissolutions
Collaborative family law seeks to smooth the
transition into the postdivorce period
By Cozette Vergari
As a marriage and family fall apart, the act of stepping into the traditional family law courtroom, with its adversarial orientation, increases the stress and anxiety of separation and divorce. Until recently, mediation has been the main alternative. However, over the last decade, a third approach has gained momentum nationwide and in the last few years has become a successful and viable alternative to litigation in Los Angeles County.
Collaborative family law seeks to ease the pain of divorce through a negotiation process that takes place completely outside the walls of a courtroom. Collaborative divorce is an interdisciplinary approach that gives family law attorneys the opportunity to interact collaboratively with other mental health and financial professionals. These professionals work as a team to provide a safety net for the parties who are involved in a divorce. The team works to minimize conflict and to assist in the restructuring from a one-family unit to a two-family, interactive system.
Collaborative family law sets a stage upon which attorneys for the parties work together, in a cooperative rather than adversarial setting, to assist them during the process of dissolving their marriage. In fact, the parties and the attorneys enter into agreements that commit everyone to the resolution of all marital issues without entering a courtroom.
There is a commitment not to litigate. In collaborative family law, each party to the divorce is represented by legal counsel. Negotiations involve attorneys and mental healthcare professionals as well as accountants and financial planners. The collaborative process considers the needs of the entire family and is designed to resolve all levels of conflict peacefully. The mental healthcare professionals, sometimes referred to as coaches, play a crucial role in this nonlitigious process. They address the emotional fallout that one or both parties face.
Children of the marriage can also directly benefit from the involvement of the coaches. They are committed to helping each side understand and validate the feelings and concerns of the other as well as their own. Each party may select his or her own coach or the parties may agree to have only one coach assist in the collaborative process.
Financial advisers are brought into the collaborative negotiation to educate the parties in the various ramifications of the division of property and assignment of support obligations.Trained in the sensitivities of the collaborative forum, their objective advice helps to foster a more businesslike approach to the division of assets and debts.
Traditional family law litigation reinforces antagonism between spouses, which adversely affects the children, who become victims without recourse. The litigious process between divorcing parents often overlooks representation of the minor children altogether. It fails to address the coparenting of minor children under a split parenting system. In contrast, this new movement seeks to assist the family in the transition into the postdivorce period. The collaborative process better effectuates resolution, through cooperative restructured parenting, than the adversarial atmosphere in family law litigation.Until recently, mediation was the most common alternative to litigious divorce. Collaborative family law takes mediation a step further because both parties’ attorneys act as mediators. Although each attorney is the legal adviser to only one party, the approach from both attorneys is not to attack or bully the opposing party but rather to assist both parties in understanding the law. Moreover, both attorneys work to create a nonthreatening, safe environment for both parties.
At first glance, one may think that the involvement of so many professionals would increase the expense of divorce. On the contrary, this negotiation setting—typically meetings involving four to eight persons— can actually facilitate a more expeditious resolution without the voluminous paper blitzes and costly time spent in a courtroom war. Thus, the collaborative process can actually reduce the overall cost of the divorce.
The first seed of collaborative family law was planted in Minneapolis, Minnesota, in 1990 by Stuart Webb. Collaborative family law has since grown into a nationwide movement, with lawyers in at least 35 states engaging in this type of legal representation. Delegates from several regions throughout the country recently met in Chicago to develop a national approach to the education of both professionals and the public in this new approach to divorce.
The president of A Better Divorce, an organization in the South Bay area committed to the advancement of the practice of collaborative family law, attended the conference as the representative of Southern California. Practitioners wanting to learn more can contact that organization or two others in Los Angeles County, Los Angeles Collaborative Family Law Association and the Coalition for Collaborative Divorce in the San Fernando Valley, which are also committed to the same purpose.
Collaborative family law professionals commit to a teamwork approach that excludes the courtroom. The parties can still feel secure that their individual interests are being represented legally, financially, and emotionally, while avoiding the damages that are typically wrought by the adversarial approach of litigation.
LOS ANGELES LAWYER / NOVEMBER 2007
Providing Spouses with the Power to Make Healthcare Decisions
By Cozette Vergari
THE RIGHT TO MAKE HEALTHCARE DECISIONS is a protected individual right held solely by the patient. Recently, federal law and state law expanded the scope of exclusivity of this right to the privacy realm by limiting the sharing of patient information and records. Thus a patient's spouse, domestic partner, and other family members face increasing obstacles when they seek information from the patient's records-even though some healthcare providers, perhaps motivated by compassion, are disregarding the legal restrictions.
Nevertheless, spouses, in particular, should be very clear about their ability to make healthcare decisions on behalf of their partners. Spouses often assume that when their husband or wife becomes incapacitated and unable to make medical decisions, they have an automatic right to step into the shoes of their spouses. A patient's incapacity-his or her inability to inderstand the nature and consequences of a decision or communicate a decision-may be temporary or permanent. Under either cicumstances, the patient's spouse is not statutorily authorized to be first in line to assume the power to make healthcare decisions for the incapacitated patient.
Indeed, the Probate Code statutes applicable to medical decisions grant no such power to spouses. The code only places a spouse inside the category or class of "family members," with no priority expressly stated for the spouse. Though many healthcare facilities and providers may create a hierarchy within the class of family members and place the spouse at the top, there is no exclusive legal right for a spouse to make healthcare decisions for his or her incapacitated spouse.
It is well-established in case law that marital status alone does not create agency between the spouses. Nevertheless, spouses are ﬁduciaries under the law and owe a duty to one another. Still, this duty is not accompanied by a spouse’s authority to act as an agent in making healthcare decisions on behalf of his or her spouse.
Since a spouse has no express successor right to a patient’s right to make his or her own medical decisions, all family members have equal standing in the choice of treatment. A family member may challenge a spouse’s choices as not being in the best interest of the patient. It is even possible that a family member other than the one challenging the spouse may be given the right to make healthcare decisions on behalf of the patient. To further complicate matters, when a patient becomes incapacitated and a spouse’s decisions are challenged by a family member, or family members cannot reach a unanimous decision, or the choices made by the spouse or family members are not deemed by healthcare providers to be in the best interest of the patient, the healthcare providers may ultimately make those decisions. The power may not only shift away from the patient’s spouse but also from the patient’s entire family.
In an emergency, these issues too often lead to a crisis. All parties are frequently unprepared. A spouse facing an unanticipated need to make serious medical decisions for his or her spouse faces an overwhelming burden. The chaotic atmosphere can lead to the healthcare providers assuming the power to make the necessary decisions. By con trast, a patient facing a scheduled surgery has the time not only to consider the issue of future healthcare decisions but also to choose to relinquish decision-making power, should the need arise, through a written or oral assignment to an agent or surrogate. It is an option that many clients should consider long before any medical care is required or contemplated.
AHCDs, Surrogacy, and Conservatorship
Spouses who seek to ensure their ability to make healthcare decisions for one another can make their wishes known in an Advance Health Care Directive (AHCD), a form of protection provided under the Probate Code. AHCDs have replaced the Durable Power of Attorney for Health Care, the former statutory device for this purpose. While AHCD forms may be obtained from healthcare providers and online sources, estate planning attorneys may prepare AHCDs as well, tailoring each directive to ﬁt the circumstances of individual clients. An AHCD is often included in an estate-planning package with other estate documents such as a trust or a will.
Spouses can use an AHCD to express their carefully considered choices about future medical treatment and end-of-life issues. These choices may be modiﬁed from time to time with an updated AHCD. Among the topics that may be addressed in an AHCD include organ donation, the decision to allow or forbid an autopsy, pain management, and the use of life-sustaining equipment, among others. With an AHCD, a patient who becomes incapacitated temporarily or permanently will still be able to communicate his or her wishes through this writing, which can be legally relied upon by the patient’s designated agent and the healthcare providers.
The AHCD is the means by which a spouse can assert the authority, granted by his or her spouse, to make healthcare decisions on behalf of his or her incapacitated spouse. If the spouse is named as the sole agent in the AHCD, the spouse holds the exclusive right to assume this authority. If the spouse is named as a co-agent, the spouse will work with the other designated co-agent or agents in making the necessary decisions on behalf of the patient. In some cases, individuals do not want to name a spouse as an agent and will designate someone else. There are many reasons why this may be an individual’s choice. If there is no spouse, the individual will appoint whomever he or she deems appropriate.
The agent or co-agents must follow the patient’s directives. These decisions have been expressed in writing by the patient, who has given his or her agents the power to make sure the patient’s wishes are honored by the healthcare providers in the event the patient is incapacitated. No agent may ignore the expressed intent of the patient.
Another way a spouse can gain exclusive authority to make healthcare decisions on behalf of a husband or wife is through the patient’s oral appointment of surrogacy that is communicated to the healthcare providers. Absent an AHCD—the existence of which is often queried by a healthcare provider or facility during the patient intake or admissions process so that the document, if it exists, can be placed in the patient’s records—a patient may orally communicate his or her choice of a surrogate to act on behalf of the patient. This oral appointment, along with the patient’s speciﬁc medical wishes regarding treatment, should be noted in the patient’s records by the healthcare provider. The patient may name a spouse to act as the surrogate who will assume the healthcare decision-making power if the patient becomes incapacitated. The medical wishes of the patient, as recorded by the healthcare provider, must be followed and implemented under the authority of the surrogate spouse. The patient may name anyone as a surrogate to act on his or her behalf.
A surrogate, however, might not have the same expansive authority as an agent named in an AHCD. The patient may not have expressed his or her wishes regarding the full range of circumstances that could emerge during a period of incapacity. A decision by the surrogate that lacks a foundation of evidence of the patient’s intent may be disregarded by healthcare providers who deem the decision to not be in the best interests of the patient. An AHCD provides ﬁrmer ground for the spouse acting on behalf of his or her incapacitated spouse. A spouse acting as the patient’s agent under an AHCD has the power to implement the patient’s wishes, which have been expressly stated in a writing. This writing constitutes clear and convincing evdence of the patient’s intent.
A spouse appointed as a surrogate may be absolutely certain of what the patient’s philosophical or spiritual choices would be regarding treatment. However, in the absence of specific evidence of intent in the patient’s medical file, the surrogate is powerless. This is true not only when the patient does not address an issue in the oral communication of surrogacy but also when the oral communication is not properly recorded by the healthcare provider.
The least desirable option available for obtaining the right to make medical decisions on behalf of one’s spouse is a petition to the court for a conservatorship. A spouse or other interested party may request to be appointed as a conservator of the patient. This appointment is subject to objections from other parties. Through proper notice, the patient’s due process rights must be considered, along with those of extended family members. The court may decide to appoint an independent legal representative for the potential conservatee and may also choose to limit the scope of the conservator’s authority. This process can be untimely, cumbersome, and expensive. Conservatorship is a highly scrutinized area of the law and requires expertise.
The execution of an AHCD can avoid the need for a conservatorship. However, if the need for an appointment of a conservator arises, even when an AHCD exists, the good news is that the nomination of a conservator by the patient usually is embodied in the AHCD. Therefore, if a petition to the court is necessary, there will be no controversy regarding the appointee. The AHCD is clear and convincing evidence of the individual’s intent and choice of conservator.
Nonspousal Healthcare Authority
Everyone possesses the precious right to relinquish authority for his or her healthcare decisions, when incapacity arises, to a trusted family member, domestic partner, or friend, as well as a spouse. To do so requires express evidence of intent. The Probate Code generally protects the class of family members, but with no speciﬁcity. Domestic partners, if registered with the California secretary of state, are given status equivalent to that of a spouse under the Probate Code and the Family Code. Unregistered domestic partners and friends have no standing under state statutes.
Many middle-aged adults are caring for and assisting their elderly parents. An adult child might presume that he or she has the right to make medical decisions on behalf of the elderly parent when that parent lacks the capacity to do so. Under statutory law, however, no power for this purpose is granted speciﬁcally to the adult child. The adult child is only one in a class of family members. All family members have equal standing in the healthcare decisions involving the parent, unless the adult child has been authorized to make decisions on behalf of the patient through an AHCD, surrogacy, or a conservatorship.
Many couples choose to cohabit and not marry. Moreover, same-sex couples are unable to create a legal marital relationship, though they may gain marital rights if they register as same-sex domestic partners. Opposite-sex couples also may resister a domestic partnership if one or both of the partners are over the age of 62.
No matter how parties ultimately weigh the pros and the cons of establishing a legal domestic partnership, an AHCD provides a role for a domestic partner, whether registered or unregistered, in making medical decisions on behalf of his or her incapacitated partner. Further, for opposite-sex unmarried couples, an AHCD can establish their rights to make healthcare decisions for one another even as they choose to abstain from the legal entanglements of marriage.
Another relationship to consider is the parent seeking the authority to make medical decisions for an adult child. A parent is part of the class of family members, in which no one family member has any more power, under statutory law, than another. Further, many of the issues regarding a spouse’s limitations—absent the status of agent (under an AHCD), surrogate, or conservator—will also apply to the parent of an adult child if the adult child is incapacitated.
Once a child attains the age of 18, the right to make personal medical decisions becomes an exclusive right of that adult child. Even if the child is still attending high school, he or she gains this exclusive right at 18, and a parent does not automatically possess sole decision-making power when, for example, the child becomes unconscious due to injuries sustained in an automobile accident. Parents too often presume that the power to make medical decisions for their adult children is their right.
Absent an AHCD, parents fall into the class of family members with no more legal standing than another adult family member. Many hospitals create a hierarchy of decision makers and are likely to place the parents of unmarried young adults at the top of the list. However, there are no guarantees under statutory law. Even if the healthcare providers are listening to the parents, should they deem the parents’ decision to be not in the best interests of the patient, they are not obligated to implement the parents’ choices without an AHCD.
Generally, the most efficient way for an individual to protect his or her intent regarding healthcare in the event of incapacity is the execution of an AHCD. A well-constructed AHCD expresses medical choices clearly, appoints an agent or co-agents, appoints alternate agents, and nominates a conservator if needed. In this document, a person is able to direct and instruct his or her agent, who is not only authorized but obligated to carry out the person’s directives. The agent is empowered to speak—and the healthcare providers must listen.
One last consideration are the restrictions mandated by two laws: the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) and California’s Patient Access to Medical Records Act. The major goal of these laws is to ensure the protection of an individual patient’s health information while balancing the need to provide quality healthcare. The violation of these statutes could result in substantial ﬁnes for a healthcare provider or facility.
While the laws have resulted in their intended effect of providing more protection for patient privacy, they have also led to more limited accessibility by a patient’s family members to the patient’s medical records. These records are strictly protected from disclosure to anyone other than the patient. To overcome this obstacle, a patient may execute a written authorization for use and disclosure of his or her information, enabling the patient’s agent to obtain needed information. This written authorization should accompany an AHCD. Estate-planning attorneys should make sure they execute the necessary instrument when they draft an AHCD.
With the execution of an AHCD and an With the execution of an AHCD and an neys will help to empower a spouse, a domestic partner, or other family members to make medical decisions on behalf of an incapacitated loved one. The story of Terri Schiavo, which gained national media attention, was a grim illustration of what can happen to a family without a patient’s expressly written intentions regarding medical treatment. For nearly 16 years, Schiavo existed in a vegetative state while her parents and her spouse battled in court over her end-of-life care. Had Schiavo executed a document like an AHCD, this long nightmare could have been avoided. An AHCD will speak for the patient and will enable the designated agent to carry out the patient’s express wishes.