Powers of Attorney:
Health Care, Wills, Trusts, et al.
We can help prepare a Power of Attorney for Health Care, a Power of Attorney for Property or an Estate Plan for you or your family.
Power of Attorney for Healthcare
A Power of Attorney for Healthcare names an “agent,” often your spouse or child, who will be able to make healthcare decisions for you if you become unable to do so. As long as you are able to, you can continue to make those decisions yourself.
Through a Power of Attorney for Health Care, you can give direction to your “agent” regarding end-of-life decisions. For example, if you had an advanced pneumonia, you may wish to be temporarily placed on a ventilator to help you breath until your pneumonia clears up. However, you may not want to be placed on a ventilator or extended life support if you had an incurable, end-stage disease.
You can also authorize your agent to have a post-mortem or autopsy to confirm the cause of your death. With mesothelioma, lung cancer and asbestosis, an autopsy is one way to secure important evidence to prove that asbestos caused the disease.
A Power of Attorney for Healthcare is viewed by many as a better option than a “Living Will.” With a Power of Attorney for Healthcare, your agent is making the decisions and interacting with doctors. Healthcare professionals usually want to speak with a person, as opposed to interpreting the words of a Living Will. This is a primary reason why physicians and hospitals prefer a Power of Attorney for Healthcare. Typically, 4 or 5 duplicate originals of the Power of Attorney for Healthcare are signed. Originals can then be given directly to your healthcare providers, with a signed original kept by you and your agent.
Power of Attorney for Property
A Power of Attorney for Property permits a person whom you designate to act on your behalf . . . basically to sign your name to financial documents or documents that relate to your property.
With a Power of Attorney for Property, your agent could sell your car in your name or otherwise transfer the title of property that you hold. The Power of Attorney for Property can take effect when you become disabled, but many times takes effect at the time it is signed. You may, but are not required to, name the same agent for Healthcare and Property.
If you do not have a Power of Attorney for Property, it can become difficult for your family to take care of your financial affairs, including the paying of your bills or legal claims when you are unable to take care of those things yourself.
Wills and Trusts
A Will is considered to be one of the most important parts of an estate plan. A Will directs how property held in an individual’s name will be transferred after your death. If an individual’s estate is large, tax planning may become an important consideration of an estate plan.
Not all of an individual’s assets are necessarily transferred through a Will. For example, a home that you might hold with your spouse in joint tenancy usually will pass directly to the surviving spouse. Many times life insurance policies or pension benefits name direct beneficiaries who will be paid contractually upon your death.
Again, a Will is designed to transfer property held in your own name.
Sometimes it is beneficial to set up a Trust if an individual’s estate exceeds a certain dollar amount or if there are “special needs” anticipated for surviving family members.
For example, a Trust may be a tool that can be beneficially used for a handicapped or disabled minor child.
Proceeds of a Lawsuit Continue After the Death of an Injured Worker:
If a person dies as a result of someone’s negligence, certain proceeds from the lawsuit would be allocated between a “Survival Action” and a “Wrongful Death Action.” Proceeds allocated to the Survival Action are part of an individual’s estate and are distributed under a Will. Compensation under the Survival Action is for pain and suffering, disability and disfigurement, lost wages, and medical expenses.
In contrast, proceeds allocated to the Wrongful Death Action are distributed directly to a person’s heirs, which include a surviving spouse and children. Compensation under the Wrongful Death Action is for the loss of a spouse or the loss of a father.
A person’s Will does not control the distribution of proceeds under the Wrongful Death Action, but an individual can give non-binding direction in his Will to his heirs or a court.
If the family members or persons taking under a Will cannot agree to the allocation between the Survival Action and the Wrongful Death Action, the court can conduct a hearing to determine how the proceeds should be allocated. Absent an agreement, the parties may have to have a court make a determination or allocation. In that case, the parties not agreeing may need separate attorneys to represent their individual interests.
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