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Estate Planning Documents and an Accident

Posted by Christopher Keller | May 13, 2020 | 0 Comments

Keller, Melchiorre & Walsh is dedicated to assisting clients (present, past and future) with their legal needs.  By inviting local attorneys that specialize in other areas of the law to write guest posts for our blog, we are able to provide enhanced value to our clients.  Attorney Kelly Sturmthal graciously agreed to write a blog on "Estate Planing Documents and an Accident."       

Many of our clients have financial questions about themselves or their loved ones when the tragedy of an accident occurs. Here's Kelly's answers to a few questions to give you peace of mind during a difficult time:

If I am hurt and cannot communicate my wishes, how can my loved one file a lawsuit on my behalf?

The document that is valid during a loved one's life is a Durable Power of Attorney. This is a “financial permission slip.” An individual gives authority to someone they trust to act on their behalf with regard to their financial decisions and assets.

Having this document can be helpful during a difficult time. A properly drafted and signed durable power of attorney includes permission to file a lawsuit on your behalf.

  • In Florida, a Durable Power of Attorney is valid upon signing and can be used if a person is incapacitated or not.  
  • This Durable Power of Attorney should clearly state that the appointed person will retain power of attorney upon an incapacity.  

If I do not have a power of attorney and I cannot communicate my wishes, how can my loved one file a personal injury or medical malpractice lawsuit on my behalf?

Legally, the only way a person can act on behalf of an incapacitated person is if they are appointed to be “a guardian” by a court. This appointment is a legal proceeding to appoint a person to make decisions for an individual who is incapable of making those decisions. A medical opinion is typically required as well.

 There are three types of guardianship for an incapacitated person:

  • Guardian of the person: This usually is someone who is appointed to take care of an individual's medical needs.
  • Guardian of the estate/property: This is normally someone who is appointed to take care of an individual's business, financial and legal needs. 
  • Guardian of the general: This is someone who is appointed to take care of both the persona and the estate/property.

Note: If you are appointed as a guardian, you may still need a court's permission to make many important financial or business decisions on behalf of the mentally incapacitated person.

*To avoid a guardianship, we suggest both a Revocable Trust for your real property assets and a Durable Power of Attorney

If I am hurt and someone needs to help me make a decision at the hospital or at my doctor's office, what do I need?

The document that is valid to have access to medical records during a loved one's life is a called a Health Care Surrogate.

  • This is a “health care permission slip” that you give authority to someone you trust to act on your behalf with regard to accessing your HIPPA protected medical records.  
  • This document also allows a medical decision to be made for you, if you are unable to make a medical decision for yourself.  

The document that is valid to make a heart wrenching end of life decision for a loved one, with the guidance of 2 physicians, is called a Living Will.

  • A Living Will is part of one's estate plan. This is a document signed by an individual that states they do not want to be kept alive on a machine if that is the only medical option based on 2 physicians' medical diagnosis.  
  • This document helps your whole family agree with your decision to not be kept alive on a machine during a very difficult time.  

If you have any of these documents, please review them every year to insure that the person you have designated still is the person you want. We suggest you review the names around your birthday or near Valentine's Day.

Also, many attorneys charge a flat rate for these documents so ask about that option. We encourage you to sign these documents when you are well so that if an accident occurs, you and your family can spend all of your time being cared for or caring for your loved ones.

Kelly C. Sturmthal, Esq. is a local estate and business planning attorney with 25+ years of experience. She attended Jupiter High School and continues to be part of our local community. She has a background in finance, business, entrepreneurship, estate planning and business planning. Kelly brings real world, practical experience to address the legal needs of her clients.

She can be reached at 561-352-8488 or via email at [email protected]. Visit her at www.Kellyesq.com or www.DSMlawFL.com

About the Author

Christopher Keller

Christopher J. Keller is an experienced plaintiff's personal injury attorney.  He concentrates his practice in the areas of Wrongful Death, Auto, Truck, Train & Motorcycle Accidents and Premises Liability.  Before founding Keller, Melchiorre & Walsh, PLLC, Mr. Keller practiced personal injury ...

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