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Friday, November 01, 2024
E717 VercammenLaw News
Wednesday, October 16, 2024
Edison Seniors Living Wills Presentation December 2, 2024 11am-11:30
Edison Senior Center
December 2, 2024 11am-11:30
2963 Woodbridge Ave,
Edison, NJ 08837
Join the Edison Seniors to attend.
Speaker: Kenneth Vercammen, Esq. Edison, NJ (Author-Wills and Estate Administration by the ABA)
Living Will & Advance Directive for Medical Care
<JWeimer@edisonnj.gov>
Senior Center Supervisor
Township of Edison
2963 Woodbridge Ave, Edison NJ 08837
732-248-7346
A Living Will is your written expression of how you want to be treated in certain medical conditions. Depending on state law, this document may permit you to express whether or not you wish to be given life-sustaining treatments in the event you are terminally ill or injured, to decide in advance whether you wish to be provided food and water via intravenous devices ("tube feeding"), and to give other medical directions that impact the end of life. "Life-sustaining treatment" means the use of available medical machinery and techniques, such as heart-lung machines, ventilators, and other medical equipment and techniques that will sustain and possibly extend your life, but which will not by themselves cure your condition. In addition to terminal illness or injury situations, most states permit you to express your preferences as to treatment using life-sustaining equipment and/or tube feeding for medical conditions that leave you permanently unconscious and without detectable brain activity.
A Living Will applies in situations where the decision to use such treatments may prolong your life for a limited period of time and not obtaining such treatment would result in your death. It does not mean that medical professionals would deny you pain medications and other treatments that would relieve pain or otherwise make you more comfortable. Living Wills do not determine your medical treatment in situations that do not affect your continued life, such as routine medical treatment and non-life-threatening medical conditions. In all states the determination as to whether or not you are in such a medical condition is determined by medical professionals, usually your attending physician and at least one other medical doctor who has examined you and/or reviewed your medical situation. Most states permit you to include other medical directions that you wish your physicians to be aware of regarding the types of treatment you do or do not wish to receive.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
WHY LIVING WILLS
Modern advances in science and medicine have made possible the prolongation of the lives of many seriously ill individuals, without always offering realistic prospects for improvement or cure. For some individuals the possibility of extended life is experienced as meaningful and of benefit. For others, artificial prolongation of life may seem to provide nothing medically necessary or beneficial, serving only to extend suffering and prolong the dying process. States recognize the inherent dignity and value of human life and within this context recognize the fundamental right of individuals to make health care decisions to have life-prolonging medical or surgical means or procedures provided, withheld, or withdrawn.
States recognize the right of competent adults to plan ahead for health care decisions through the execution of advance directives, such as Living Wills and durable powers of attorney, and to have their wishes respected, subject to certain limitations.
PURPOSE OF LIVING WILLS
In order to assure respect for patients previously expressed wishes when the capacity to participate actively in decision making has been lost or impaired; to facilitate and encourage a sound decision making process in which patients, health care representatives, families, physicians, and other health care professionals are active participants; to properly consider patients interests both in self-determination and in well-being; and to provide necessary and appropriate safeguards concerning the termination of life-sustaining treatment for incompetent patients as the law and public policy of this State, the Legislatures have enacted Living Will/ Advance Directives for Health Care Acts.
REQUIREMENTS OF STATUTE
The advance directive for health care (Living Will) requires a writing executed in accordance with the requirements of the state law. It must be either signed and dated in front of an attorney at law or other person authorized to administer oaths, or in the presence of two subscribing adult witnesses. If the two adult witnesses are used, they both must attest that the declarant is of sound mind and not under undue influence. A designated health care representative shall not act as a witness to the execution of the advance directive. Since this is a legal document, it must be executed properly to be valid under the statute.
HEALTH CARE REPRESENTATIVE
The declarant must designate one or more alternative health care representatives. "Health care representative" means the person designated by you under the Living Will for the purpose of making health care decisions on your behalf.
WHEN DOES THE ADVANCE DIRECTIVE BECOME
OPERATIVE
An advance directive becomes operative when (1) it is transmitted to the attending physician or to the health care institution, and (2) it is determined pursuant to the Act that the patient lacks capacity to make a particular health care decision.
Treatment decisions pursuant to an advance directive shall not be made and implemented until there has been a reasonable opportunity to establish and where appropriate confirm, a reliable diagnosis for the patient which shall include the attending physicians opinion concerning the nature, cause, extent, and probable duration of the patients incapacity, and shall be made a part of the patients medical records. For additional information or to have a "Living Will" prepared, see your attorney. In addition, be certain your Last Will and testament is up to date.
732-572-0500 Legislative Study Commission Brochure
2. Questions and Answers
3. Terms You Should
4. Understand
1. Introduction:
As Americans, we take it for granted that we are entitled to make decisions about our own health care. Most of the time we make these decisions after talking with our own physician about the advantages and disadvantages of various treatment options. The right of a competent individual to accept or refuse medical treatment is a fundamental right now fully protected by law.
But what happens if serious illness, injury or permanent loss of mental capacity makes us incapable of talking to a doctor and deciding what medical treatments we do or do not want? These situations pose difficult questions to all of us as patients, family members, friends and health care professionals. Who makes these decisions if we can’t make them for ourselves? If we can’t make our preferences known how can we make sure that our wishes will be respected? If disagreements arise among those caring for us about different treatment alternatives how will they be resolved? Is there a way to alleviate the burdens shouldered by family members and loved ones when critical medical decisions must be made?
Living Will:
By using documents known as advance directives for health care, you can answer some of these questions and give yourself the security of knowing that you can continue to have a say in your own treatment. A properly prepared Living Will permits you to plan ahead so you can both make your wishes known and select someone who will see to it that your wishes are followed.
After all, if you are seriously ill or injured and can’t make decisions for yourself someone will have to decide about your medical care. Doesn’t it make sense to
•Have a person you trust make decisions for you,
•Provide instructions about the treatment you do and do not want, or
•Both appoint a person to make decisions and provide them with instructions.
A Few Definitions
• Advance directive-If you want your wishes to guide those responsible for your care you have to plan for what you want in advance. Generally, such planning is more likely to be effective if it’s done in writing. So, by an "advance directive" we mean any written directions you prepare in advance to say what kind of medical care you want in the event you become unable to make decisions for yourself.
2. Instruction directives - Another way to have a say in your future medical care is to provide those responsible for your care with a statement of your medical treatment preferences. By "instruction directive" we mean written directions that spell out in advance what medical treatments you wish to accept or refuse and the circumstances in which you want your wishes implemented. These instructions then serve as a guide to those responsible for your care. Another term some people use for an instruction directive is a "Living Will.”
3. Combined directives - A third way combines features of both the proxy and the instruction directive. You may prefer to give both written instructions, and to designate a health care representative or proxy to see that your instructions are carried out.
2. Questions and Answers
1. Why should I consider writing an advance directive/ Living Will?
Serious injury, illness or mental incapacity may make it impossible for you to make health care decisions for yourself. In these situations, those responsible for your care will have to make decisions for you. Advance directives are legal documents which provide information about your treatment preferences to those caring for you, helping to ensure that your wishes are respected even when you can’t make decisions yourself A clearly written and legally prepared directive helps prevent disagreements among those close to you and alleviates some of the burdens of decision making which are often experienced by family members, friends and health care providers.
2. When does my advance directive take effect?
Your directive takes effect when you no longer have the ability to make decisions about your health care. This judgment is normally made by your attending physician, and any additional physicians who may be required by law to examine you. If there is any doubt about your ability to make such decisions, your doctor will consult with another doctor with training and experience in this area Together they will decide if you are unable to make your own health care decisions.
3. What happens if I regain the ability to make my own decisions?
If you regain your ability to make decisions, then you resume making your own decisions directly. Your directive is in effect only as long as you are unable to make your own decisions.
4. Are there particular treatments I should specifically mention in my directive?
It is a good idea to indicate your specific preferences concerning two specific kinds of life sustaining measures:
1. Artificially provided fluids and nutrition; and
2. Cardiopulmonary resuscitation.
Stating your preferences clearly concerning these two treatments will be of considerable help in avoiding uncertainty, disagreements or confusion about your wishes. The enclosed forms provide a space for you to state specific directions concerning your wishes with respect to these two forms of treatment.
Fluids and Nutrition. I request that artificially provided fluids and nutrition, such as by feeding tube or intravenous infusion (initial one)
1. ______ shall be withheld or withdrawn as "Life Sustaining Treatment."
Directive as to Medical Treatment. I request that "Life Sustaining Treatment" be withheld or withdrawn from me in each of the following circumstances: (Initial all that apply)
1. ______ If the "life sustaining treatment" is experimental and not a proven therapy, or is likely to be ineffective or futile in prolonging my life, or is likely to merely prolong an imminent dying process;
2. ______ If I am permanently unconscious (total and irreversible loss of consciousness and capacity for interaction with the environment);
3. ______ If I am in a terminal condition (terminal stage of an irreversibly fatal illness, disease, or condition); or
4. ______ If I have a serious irreversible illness or condition, and the likely risks and burdens associated with the medical intervention to be withheld or withdrawn outweigh the likely benefits to me from such intervention.
5. ______ None of the above. I direct that all medically appropriate measures be provided to sustain my life, regardless of my physical or mental condition.
5. What is the advantage of having a health care representative, isn’t it enough to have an instruction directive?
Your doctor and other health care professionals are legally obligated to consider your expressed wishes as stated in your instruction directive or "Living Will.” However, instances may occur in which medical circumstances arise or treatments are proposed that you may not have thought about when you wrote your directive. If this happens your health care representative has the authority to participate in discussions with your health care providers and to make treatment decisions for you in accordance with what he or she knows of your wishes. Your health care representative will also be able to make decisions as your medical condition changes, in accordance with your wishes and best interests.
6. If I decide to appoint a health care representative, who should I trust with this task?
The person you choose to be your health care representative has the legal right to accept or refuse medical treatment (including life-sustaining measures) on your behalf and to assure that your wishes concerning your medical treatment are carried out. You should choose a person who knows you well, and who is familiar with your feelings about different types of medical treatment and the conditions under which you would choose to accept or refuse either a specific treatment or all treatment.
A health care representative must understand that his or her responsibility is to implement your wishes even if your representative or others might disagree with them. So, it is important to select someone in whose judgment you have confidence. People that you might consider asking to be your health care representative include:
• a member of your family or a very close friend, your priest, rabbi, or minister, or
• a trusted health care provider, but your attending physician cannot serve as both your physician and your health care representative.
7. Should I discuss my wishes with my health care representative and others?
Absolutely! Your health care representative is the person who speaks for you when you can’t speak for yourself. It is very important that he or she has a clear sense of your feelings, attitudes and health care preferences. You should also discuss your wishes with your physician, family members and others who will be involved in caring for you.
8. Does my health care representative have the authority to make all health care decisions for me?
It is up to you to say what your health care representative can and cannot decide. You may wish to give him or her broad authority to make all treatment decisions including decisions to forego life-sustaining measures. On the other hand, you may wish to restrict the authority to specific treatments or circumstances. Your representative has to respect these limitations.
9. Is my doctor obligated to talk to my health care representative?
Yes. Your health care representative has the legal authority to make medical decisions on your behalf, in consultation with your doctor. Your doctor is legally obligated to consult with your chosen representative and to respect his or her decision as if it were your decision.
It is generally a good idea for your health care representative to consult with family members or others in making decisions, and if you wish you can direct that he or she do so. It should be understood by everyone, however, that your health care representative is the only person with the legal authority to make decisions about your health care even if others disagree.
11. Can I request all measures be taken to sustain my life?
Yes. You should make this choice clear in your advance directive. Remember, a directive can be used to request medical treatments as well as to refuse unwanted ones.
12. Does my doctor have to carry out my wishes as stated in my instruction directive?
If your treatment preferences are clear your doctor is legally obligated to implement your wishes. unless doing this would violate his or her conscience or accepted medical practice. If your doctor is unwilling to honor your wishes he or she must assist in transferring you to the care of another doctor.
13. Can I make changes in my directive?
Yes. An advance directive can be updated or modified in whole or in part, at any time, by a legally competent individual. You should update your directive whenever you feel it no longer accurately reflects your wishes. It is a good idea to review your directive on a regular basis, perhaps every 5 years. Each time you review the directive, indicate the date on the form itself and have someone witness the changes you make. If you make a lot of changes, you may want to write a new directive. Remember to notify all those important to you of any changes you make.
14. Can I revoke my directive at any time?
Yes. You can revoke your directive at any time, regardless of your physical or mental condition. This can be done in writing, orally, or by any action, which indicates that you no longer want the directive to be in effect.
15. Who should have copies of my advance directive?
A copy should be given to the person that you have named as your health care representative, as well as to your family, your doctor, and others who are important to you. If you enter a hospital, nursing home, or hospice, a copy of your advance directive should be provided so that it can be made part of your medical records. The back cover of this brochure contains a wallet size card you can complete and carry with you to tell others that you have an advance directive.
16. Can I use my advance directive to make an organ donation upon my death?
Yes. You may state your wishes regarding organ donation. Also you may want to place an organ donor card in your wallet to alert medical personnel. Any card will do. If you decide to make a gift of your organs upon your death please complete the card and carry it with you at all times. For further information regarding organ donation you should contact either an organ procurement agency or your local hospital.
1. Artificially provided fluids and nutrition:
The provision of food and water to seriously ill patients who are unable or unwilling to eat. Depending on the method used, such as insertion of a feeding tube or an intravenous line, and the condition of the patient, techniques may involve minor surgery, continuous supervision by medical (and sometimes surgical) personnel, risk of injury or infection, and side effects.
2. C a r d i o p u l m o n a r y Resuscitation (CPR):
A treatment administered by health care professionals when a person’s heartbeat and breathing stops. CPR may restore functioning if administered properly and in a timely fashion and may include the use of mechanical devices and/or drugs.
3. Life-sustaining measures:
Any medical procedure, device, artificially provided fluids and nutrition, drugs, surgery, or therapy that uses mechanical or other artificial means to sustain, restore or supplant a vital bodily function. thereby prolonging the life of a patient.
4. Decision making capacity:
A patient’s ability to understand the benefits and risks of a proposed medical treatment and its alternatives and to reach an informed decision.
5. Health care representative or health care proxy:
In the event an individual loses decision-making capacity, a health care representative or proxy is a person who has been legally designated to make decisions on his or her behalf. A health care representative is appointed through the execution of a proxy directive (a durable power of attorney for health care).
6. Terminal condition:
The terminal stage of an irreversibly fatal illness, disease, or condition. While determination of a specific "life expectancy" is not required for a diagnosis of a "terminal condition a prognosis of a life expectancy of one year or less, with or without the provision of life-sustaining treatment, is generally considered terminal.
7. P e r m a n e n t unconsciousness:
A medical condition defined as total and irreversible loss of consciousness. The term "permanently unconscious" includes the conditions persistent vegetative state and irreversible coma Patients in this condition cannot interact with their surroundings or others in any way and do not experience pleasure or pain.
8. Persistent vegetative state:
A condition of permanent unconsciousness in which the patient loses all capacity for interaction with their environment or other people. It is usually caused by an injury to the brain. It is normally not regarded as a terminal condition and with the aid of medical care and artificial fluids and nutrition patients can survive for many years.
9. Incurable and irreversible chronic diseases:
Disabling diseases such as Alzheimer’s disease, organic brain syndrome or other diseases, which get progressively worse over time, eventually resulting in death. Depending on the disease, the patient may also experience partial or complete loss of physical and mental abilities. Because the rate at which these diseases advance may be slow, such diseases are not considered terminal in their early stages.
Death due to total and irreversible loss of all functions of the entire brain, including the brain stem. The criteria of whole brain death must be used to accurately determine death in individuals who have suffered massive or total brain damage but whose heart and lungs are kept functioning by machines. Brain dead individuals are not vegetative or in a coma. but are, in fact, dead.
11. Attending physician:
The doctor directly responsible for your medical treatment. He or she may or may not be your regular family physician. Depending on your health care needs the attending physician may consult with others in order to diagnose and treat your medical condition, but he or she remains directly responsible for your care.
• General
• Completing an Advance Directive
• Instruction Directives
• Proxy Directives
1. Can my healthcare representative make decisions for me if I am still able to make my own decisions?
Answer: No, your healthcare representative can only make decisions for you if your physician has evaluated you and determined that you are unable to understand your diagnosis, treatment options or the possible benefits and harms of the treatment options.
2. Can having an advance directive affect my life insurance, health insurance or the benefits I receive from a governmental benefits program?
Answer: No.
3. Can my life insurance company, health insurance company, physician, hospital, nursing home or any other healthcare facility require me to have an advance directive?
Answer: No.
4. Does New Jersey recognize an advance directive that is valid in another state?
Answer: Yes.
5. What is the definition of "life-sustaining treatment"?
Answer: Life sustaining treatment is any medical device or procedure that increases your life expectancy by restoring or taking over a vital bodily function. The medical device or procedure can be a drug, ventilator (breathing machine), surgery, therapy or artificially provided fluids and nutrition.
6. What is the definition of “permanently unconscious"?
Answer: Permanently unconscious means you have permanently lost the ability to interact with your environment and are completely unaware of your surroundings.
7. What is the definition of "terminal condition"?
Answer: Terminal condition means the final stage of a fatal illness, disease or condition. To be in a terminal condition you do not have to be diagnosed as having less than a certain amount of time to live (e.g., six months or less).
8. What happens if I regain the ability to make my own decisions?
Answer: In that case, your physician must obtain your consent for all treatment. Once you have the ability to make healthcare decisions your healthcare representative will no longer have the authority to make decisions for you.
9. Who should have a copy of my advance directive?
Answer: You should give a copy to your primary healthcare representative, alternate healthcare representative(s), family members and physicians. If you are treated at a hospital or enter a nursing home you should also provide a copy when you are admitted.
SOURCE http://www.state.nj.us/.../advancedirective/ad/forums-faqs/
1. Do I need a lawyer to complete an advance directive?
Answer: No, you can complete an advance directive on your own.
2. Does my advance directive have to be notarized?
Answer: No.
3. Do I need a witness when I sign my advance directive?
Answer: You can choose to get your advance directive notarized, in which case you don't need additional witnesses. Or you can choose to sign and date your advance directive in front of two adult witnesses who must also sign and date the document.
4. What does it mean for someone to sign my advance directive as a witness?
Answer: As a witness the person is stating that you voluntarily signed your advance directive.
5. Is there anyone who cannot sign my advance directive as a witness?
Answer: Yes, the person who you appoint as your healthcare representative cannot be a witness.
6. Can I change my advance directive?
Answer: Yes, you can change your advance directive any time you want by completing a new one. You need to sign and date your new advance directive and have two witnesses sign and date it.
7. Can I cancel my advance directive?
Answer: Yes, you can cancel your advance directive any time you want. To cancel it you need to tell your physician, family, healthcare representative, nurse, social worker or a reliable witness that you want to cancel your advance directive. You can tell them verbally or send them a letter.
1. Can I have an instruction directive without having a proxy directive?
Answer: Yes.
2. In what circumstance can I have life-sustaining treatment withheld or withdrawn?
Answer: Your instruction directive can state you want life-sustaining treatment withheld or withdrawn in any of the following situations: 1) you are permanently unconscious, 2) you are in a terminal condition, 3) the life-sustaining treatment would likely only prolong an imminent death, 4) the life-sustaining treatment would likely be ineffective or 5) you have a serious irreversible condition and the life-sustaining treatment would likely be more harmful than beneficial.
3. Why is it important to have an instruction directive?
Answer: You may become unable to make your own healthcare decisions because of a serious injury, illness or disease. By having an instruction directive your family and physician will know the situations in which you would want or not want to have life-sustaining treatment. And by including a statement about your beliefs, values and general preferences for care and treatment, your physician and family will know what you would want in situations that are not specifically covered by your instruction directive. An instruction directive will also prevent conflicts among your family, physician or other healthcare providers that can occur when a patient's treatment preferences are unknown.
1. Can my healthcare representative make decisions for me if I am still able to make my own decisions?
Answer: No, your healthcare representative can only make decisions for you if your physician has evaluated you and determined that you are unable to understand your diagnosis, treatment options or the possible benefits and harms of the treatment options.
2. Can I have a proxy directive without having an instruction directive?
Answer: Yes.
3. What authority does my healthcare representative have to make decisions for me?
Answer: Except for any restrictions you have placed on their authority, your healthcare representative has the right to make all healthcare decisions for you, including the right to refuse medical treatment. They also have the right to review your medical records and receive from your physician all information about your condition, prognosis and treatment options as is necessary for them to make an informed decision.
4. Who can I appoint as my healthcare representative?
Answer: You can appoint your spouse/domestic partner, parent, adult child, family member, friend, religious/spiritual advisor or any other adult.
5. Are there any restrictions on who I can appoint as my healthcare representative?
Answer: Yes, you cannot appoint the following individuals as your healthcare representative: 1) your attending physician or 2) the operator, administrator or employees of a healthcare institution in which you are a patient or resident, unless they are related to you. A physician who is an operator, administrator or employee of a healthcare institution in which you are a patient or resident can be your healthcare representative only if they are not your attending physician.
6. Can I appoint more than one person as my primary healthcare representative?
Answer: No.
7. Can I appoint someone as an alternate healthcare representative in case my primary healthcare representative is unavailable, unable or unwilling to serve as my healthcare representative?
Answer: Yes, you can appoint one or more individuals as an alternate healthcare representative listed in order of priority. In the event the primary healthcare representative becomes available they would take over for the alternate.
8. Can I put requirements on how my healthcare representative makes decisions?
Answer: Yes, you can require your healthcare representative to consult with the alternate healthcare representatives, specific family members, friends or anyone else you want. You can also state specific criteria upon which your healthcare representative has to base their decisions.
9. Can I limit the decision-making authority of my healthcare representative?
Answer: Yes, for example you can state that your healthcare representative cannot authorize life-sustaining treatment if it would conflict with the preferences you stated in your instruction directive.
10. Can my healthcare representative be required to pay for my medical treatment?
Answer: No, your healthcare representative cannot be required by a physician, other healthcare provider or any healthcare facility to pay for your treatment, including treatment they have authorized.
11. Why is it important to have a proxy directive?
Answer: You may become unable to make your own healthcare decisions because of a serious injury, illness or disease. If you cannot make your own healthcare decisions someone will have to make them for you and without a proxy directive your physician will not know who you want that person to be. Having a proxy directive will help ensure your preferences are respected because only the person you have appointed will be able to make healthcare decisions on your behalf. Also, having a proxy directive will help prevent conflicts among your family members who may disagree on who should have the authority to make these decisions. Even if you have an instruction directive, it is important to have a proxy directive because there are many circumstances in which treatment decisions will have to be made that are not covered by your instruction directive.
12. Is my physician required to get consent from my healthcare representative for treatment?
Answer: Yes, your physician is required to obtain informed consent for your treatment (except in emergencies), and must respect their decisions just as if the decisions were coming directly from you.
13. Who should I appoint as my healthcare representative?
Answer: You should choose someone who knows your values, beliefs and preferences well enough to know what treatment decisions you would want them to make for various medical conditions. The person should be someone with good judgment and who will be a strong advocate on your behalf. They should also be someone you believe will respect your wishes even if they disagree with them, especially when it comes to your preferences about the use of life-sustaining treatment.
Source: http://www.state.nj.us/.../advancedirective/ad/forums-faqs/
Kenneth A. Vercammen is an Edison, Middlesex County, NJ trial attorney who has published 125 articles in national and New Jersey publications on Probate and litigation topics. He is author of the American Bar Association’s book “Wills and Estate Administration”. He often lectures to trial lawyers of the American Bar Association, New Jersey State Bar Association and Middlesex County Bar Association. He is Chair of the American Bar Association Estate Planning & Probate Committee. He is also Editor of the ABA Elder Law Committee Newsletter
He is a highly regarded lecturer on litigation issues for the American Bar Association, ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published by New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the New Jersey Municipal Court Law Review. Mr. Vercammen is a recipient of the NJSBA- YLD Service to the Bar Award.
In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey several times each week on many personal injury matters, Municipal Court trials, and contested Probate hearings.
KENNETH VERCAMMEN & ASSOCIATES, PC
Attorney at Law
2053 Woodbridge Ave.
Edison, NJ 08817
732-572-0500
Wednesday, September 18, 2024
E713 VercammenLaw News
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