Excellent legal representation requires a diverse skill set.
Why does a personal injury firm also handle estate work? The simple answer is that proper representation of the family of someone who is wrongfully killed requires a thorough understanding of estate law. The first step in administering an estate is the formal appointment by the court of a “personal representative.” That is simply the more modern and generic term for someone appointed by the court to act on behalf of the decedent (the deceased individual). If a person dies with a Will, that person will have appointed an Executor (male) or Executrix (female) in their Will. If a person dies without a Will, an administrator is appointed. They are all considered “personal representatives.”
From a personal injury lawyer’s point of view, the most important types of actions involving a deceased person are “wrongful death” and “survival” actions. A survival action is simply a claim which a deceased person “owned” at their death. This is not limited to injury claims; it could be a simple claim for money owed. It is still called a survival action because the claim lives beyond—or survives—the death.
Over the years, we have, sadly, encountered a number of situations in which a client in a personal injury case has died from causes unrelated to their injury. Despite our client’s passing, we are still able to pursue the claim. In order to do so, a personal representative must be appointed.
Matters become much more complicated with serious injuries resulting in death. In these situations, the decedent likely has both a survival and a wrongful death action. In simple terms, the survival action is for damages for conscious pain and suffering incurred prior to death as well as certain economic losses caused by the death. A wrongful death action is quite different in that it actually belongs to certain heirs who were dependent upon the deceased for support, or had a reasonable expectation of support in the future. If pursued in a timely fashion, the personal representative has the authority to pursue the wrongful death action as well as the survival action, but must do so for the benefit of the wrongful death beneficiaries.
One of the most important aspects of concluding a combination wrongful death and survival action is allocating the damages between them. Damages recovered in a survival action become a part of the estate and may be subject to inheritance taxes. It is therefore important to properly allocate damages in death cases so as to pay no more inheritance tax than is required by law.
Of course, most estates fortunately do not involve a wrongful death claim. We are able to represent clients who are the personal representative in these more typical estate cases. In a wrongful death situation, we will also work with a family attorney who is taking care of estate matters but who may be inexperienced or otherwise unable to pursue the death claim.
The law in this area can vary significantly from state to state. This discussion is limited to Pennsylvania law.
If you are named as the personal representative in the Will of the decedent, or you are the next of kin to a person who died without a Will, call our office to schedule a meeting with an attorney. We will be happy to discuss your situation whether there is a wrongful death claim or not.
Do I need a Power of Attorney?
A Power of Attorney is a legal document that authorizes someone else to act on your behalf. The person granting the authority is the “Principal” and the person (or persons) to whom the authority is granted is the “Agent” or “Attorney-in-Fact.” It is grammatically incorrect to say “I am Power of Attorney for John Doe.” The Power of Attorney is the document itself.
A Power of Attorney may be limited to a specific purpose such as enabling someone to sign a deed or a car title on your behalf. It may also be a very broad Power of Attorney allowing your Agent to literally take any action that you could do yourself, such as signing checks and making medical decisions. In Pennsylvania, however, there are a number of specific actions that can only be performed by the Agent if expressly set forth in the Power of Attorney. One example is the giving of gifts.
It is extremely important that you have the utmost trust and confidence in anyone that you appoint as your Agent. When you appoint an Agent, they are said to be in a “fiduciary” capacity. This means that they are in a position of trust and are required to act on your behalf. However, there still exists a great potential for abuse. The careful selection of your Attorney-in-Fact is of the highest importance. In Pennsylvania, a Power of Attorney is not valid unless the Agent signs an acknowledgment of their responsibilities. Commonly spouses will appoint each other as their agent, and perhaps a trusted adult child as an alternate.
One of the most important features that we usually include in a Power of Attorney is language that makes it a “Durable Power of Attorney.” The general rule in Pennsylvania is that the authority granted by a Power of Attorney expires upon the death or legal incompetence of the Principal. A Durable Power of Attorney is still valid even if the Principal becomes legally incompetent—that is, incapable of making their own decisions. While the authority granted by any Power of Attorney still ceases upon death of the Principal, the Durable Power of Attorney has the added benefit of enabling the Agent to act on behalf of a Principal that has become mentally disabled or incapacitated. This can avoid the often significant expense of asking the court to appoint a Guardian.
Do you need a Power of Attorney? In an ideal world, everyone should have one. We have always advised clients that, in general terms, the older you get the more important it becomes to have one. We have had instances where a person had a stroke, leaving them incompetent. With a Power of Attorney in place, no court guardianship was necessary. We have also seen instances where, without a Power of Attorney in place, an expensive Guardianship became necessary. Of course even a young person is at risk of a serious injury that can render them incapable of managing their affairs. A Power of Attorney is a relatively low-cost legal service that everyone should consider.
If you’re interested in learning more about a Power of Attorney and whether or not it could be beneficial to your circumstances, call our office to schedule a meeting with an attorney.
What to do if you are hurt at work
One of our clients injured his wrist at work. The insurance company’s doctor agreed that he needed surgery, but said it was due to an old injury. Fortunately for the client, he made an incident report for what he thought was a minor injury to the same wrist a year earlier. As a result of making that report, we were able to establish that the surgery was indeed work-related and our client received his workers’ compensation benefits. Even minor injuries may turn out to be more serious and should be documented.
Although by law, in Pennsylvania, you have 120 days to make an incident report, it is best to do it as soon as possible after a work injury to protect yourself and avoid suspicion by the workman’s comp insurance company. Some employers also have policies requiring work injuries to be reported within a certain time limit. While filing a late report of injury does not affect an employee’s right to workers’ compensation (as long as it is within the 120 days), it may subject the employee to other administrative forms of discipline.
Document your report
Although Pennsylvania Workers’ Compensation law does not require a written incident report, a written report is best because it is easier to prove that the injury was reported. Many employers have their own injury report form to complete. You should retain or request a copy of the report so you can prove that you reported the injury.
At Bernard Stuczynski & Barnett, we are often asked about employers who refuse to accept an injury report. In this case, it is important to submit a written report to the employer and prove that you did so. According to Workers’ Compensation Law, all Pennsylvania employers must post the name and contact information of their workers’ compensation insurer.
Is it too late to make a report?
What if you did not report an injury within the 120 days and you are now having problems? All is not lost! There may be facts that legally placed your employer on notice. Also, in some types of injuries, such as repetitive motion injuries, (carpal tunnel syndrome being the most common example), the date of injury is considered the last day of work. Since each day of work is considered a new injury, you may not be too late, but you need to have your questions addressed.
At Bernard Stuczynski & Barnett, we are available to help you with these issues. There is no fee about musically to discuss your claim and we can make sure it is reported properly. Contact our office for a free consultation at (814) 452-6232.