In the common law, a will or testament is a document by which a person (the testator) regulates the rights of others over his or her property or family after death. Any person over the age of 18 can draft his own will without the aid of an attorney. Although there is no legal requirement that a will be drawn up by a lawyer, there are many pitfalls into which home-made wills may fall, and it is highly desirable that any will is the subject of legal advice before drafting or execution. The person who makes a will is not available to explain him or herself, or to correct any technical deficiency or error in expression, when it comes into effect on that person’s death, and so there is no room for mistake. If you die without a Will, you have died in testate. Your property must go through the probate process in order to have the legal title to the property transferred to your heirs at law. Your heirs at law are defined by applicable state statutes. The law of the state where you live controls the distribution of your personal property. As such, your desires may not be fulfilled. At Santillán Law, P.C., we can assist you in preparing your will in order that your last wish(es) be followed.
A living will is one type of advance health directive, or advance health care directive. It is often accompanied by a specific type of power of attorney or health care proxy. The living will usually covers specific directives as to the course of treatment that is to be taken by caregivers, or, in particular, in some cases forbidding treatment and sometimes also food and water, should the principal be unable to give informed consent (“individual health care instruction”) due to incapacity. The living will should be accompanied by a power of attorney for health care which appoints an individual (a proxy) to direct health care decisions should the principal be unable to do so.
At Santillán Law, P.C., we can assist you in preparing your living will in the event that an emergency arises and you are unable to make medical decisions and/or desire that certain wishes be followed.
The importance of the living will became apparent during the early part of 2005, with the case of Terri Schiavo. No matter where one falls on each side of the Schiavo controversy, many have highlighted Schiavo’s case to make the point that people should make living wills regardless of age or current health status, pointing to the fact that even younger people can face terminal illness or have an accident. For example, Schiavo suffered her brain injury when she was only in her mid-20s. Expressing one’s wishes verbally is not enough. We, at Santillán Law, P.C., believe that an individual’s wishes should be formally documented. Legal experts agree that the entire court battle could have been avoided if Schiavo had properly documented her wishes prior to her collapse. Do not make the same mistake. Allow us to help.
Powers of Attorney
What’s a Power of Attorney?
A Power of Attorney is a legal instrument that is used to delegate legal authority to another. The person who signs(executes)a Power of Attorney is called the Principal. The power of Attorney gives legal authority to another person(called an Agent or Attorney-in-Fact) to make property, financial and other legal decisions for the Principal.
A Principal can give an Agent broad legal authority, or very limited authority. The Power of Attorney is frequently used to help in the event of a Principal’s illness or disability, or in legal transactions where the principal cannot be present to sign necessary legal documents.
Are There different types of powers of attorney?
Yes. There are “Nondurable ,” “Durable,” and “Springing” Power of Attorney. A “Nondurable” Power of Attorney takes effect immediately. It remains in effect until it is revoked by the Principal, or until the Principal becomes mentally incompetent or dies.
A “Nondurable” Power of Attorney is often used for a specific transaction, like the closing on the sale of residence, or the handling of the Principal’s financial affairs while the Principal is traveling outside of the country.
A “Durable” Power of Attorney enables the Agent to act for the Principal even after the Principal is not mentally competent or physically able to make decisions. The “Durable” Power of Attorney may be used immediately, and is effective until it is revoked by the Principal, or until the Principal’s death.
A “Springing” Power of Attorney becomes effective at a future time. That is, it “springs up” upon the happenings of a specific event chosen by the Power of Attorney. Often that event is the illness or disability of the Principal.
The “Springing” Power of Attorney will frequently provide that the Principal’s physician will determine whether the Principal is competent to handle his or her financial affairs. A “Springing” Power of Attorney remains in effect until the Principal’s death, or until revoked by a court.
Pennsylvania has recognized the durable power of attorney for quite some time. However, all written powers of attorney in Pennsylvania are now presumed to be durable unless you specifically provide otherwise. While the durable power of attorney has always been a relatively easy way to deal with a potential disability, it does have its drawbacks. The chief problem is that there is no guarantee that third parties, such as banks or brokers, will honor the power of attorney. This is especially the case if there has been a long passage of time since the power of attorney was signed. Fortunately, the current Pennsylvania law addresses this problem.
Pennsylvania law now states that if you rely on a power of attorney in good faith, you will not incur any liability if you follow the instructions of the person given the powers. Likewise, unless you have “reasonable cause” to ignore the instructions, you can be liable for damages if you fail to comply with the instructions of a person acting under a power of attorney. With these changes, powers of attorney should now be accepted with little hesitation and, therefore, be even better disability planning tools.
At Santillán Law, P.C., we can assist you in preparing your power of attorney in the event that you require another individual to act on your behalf.
When a death occurs, assisting a personal representative requires knowledge, as well as compassion and an understanding of the goals of the family. We pride ourselves in being accessible and available to the personal representative who often may feel overwhelmed by the magnitude of the responsibilities. Through experience in estate and trust matters, we have proven to able counselors assisting the family members with carrying out the planning of the decedent.
Estate and Probate Administration requires achieving the goals of the decedent and satisfying the requirements of state and federal government as well as the probate court. Because of our firm’s experience and knowledge of the sometimes complex process, we can efficiently and competently handle the burden of the filing deadlines and schedules and the effective administration of the decedent’s estate throughout the probate process.
At Santillan Law Firm, P.C. we can assist you with Wills, Estate Administration and Estate & Financial Planning ‑ CALL Attorney Felicia E. Santillan today at 724-770-1040 or Contact us online