Does Having an Attorney Determine Whether You Win or Lose Your Social Security Disability Case?

Did you know you can increase your odds of winning your Social Security (SSA) Disability case by more than 50% if you are represented by an attorney? Simply put, that's a dramatic difference and one that every Social Security disability applicant should heed.

Congressional and SSA's own statistics confirm this statement is true. The statistic came to light in November 2001, during Congressional testimony provided by Congressman Robert T. Matsui of California. During the hearing Congressman Matsui provided the following testimony:

"Professional representation is a valuable-and indeed vital-service. The disability determination process is complex. Claimants without professional representation appear to be far less likely to receive the benefits to which they are entitled. For example, in 2000, 64% of claimants represented by an attorney, but only 40% of those without one, were awarded benefits at the hearing level."[1]

At the same hearing, Congressman E. Clay Shaw, Jr. of Florida provided the following testimony:

"As many of you know, filing for Social Security benefits-especially disability benefits-is so complicated that many claimants must hire attorneys to guide them through the process." [2]

Please understand I am not suggesting that you must have an attorney in order to win your disability case. People can and do win their cases on their own. In fact, SSA does not require you to have an attorney, you can represent yourself; but why on earth would you? Congressional and SSA's own statistics show dramatic differences in the outcomes of cases depending on whether an attorney is involved.

I have debated for years on whether to write an article on why one should hire a disability attorney. I did not want the article to be viewed as self-serving for either myself or my profession. I am aware of the unfortunate stature attorneys hold in our society, some of which is deserved. I always enjoy the look in a person's eyes when they learn I am an attorney; it is clear they are searching their mind to share the latest attorney joke...and most are very funny!

However, the testimony of Congressmen Matsui and Shaw confirms what SSA and many disability attorneys have known for years. With such a compelling statistic, it is my hope this article is viewed as educational, rather than self-serving.

So you know the difference a disability attorney can make in your case...what can do you do about it? For those of you who are now considering hiring an attorney, let me provide you with some basic information to assist you in your decision.

1. You only pay an Attorney's fee if you win your Case!

The number one question on people's minds is, "How can I afford an attorney when I am not working?" The answer is simple...you only pay the attorney a fee if you win your case. You do not pay an attorney upfront. Generally, every disability attorney will represent you on a contingency fee basis. Simply put, this means you do not pay an attorney's fee unless you win your case. Thus, everyone seeking disability benefits can afford an attorney. The question you should be asking yourself is "can I afford not to be represented by an attorney?"

2. General information regarding the attorney's fees

The SSA and federal law set the attorney's fees in disability cases. The standard fee agreement most attorneys use states the attorney's fee is contingent upon winning your case. The fee is 25% of all past due benefits for you and your family, up to a maximum of $5,300, or whichever is less. Some attorneys may use a fee agreement which provides for a maximum fee of $7,000.

It is worth noting that on February 1, 2002, SSA increased the maximum standard fee amount to $5,300 from $4,000. This is the first time the fee has been increased since 1990 and simply represented a cost of living adjustment.

Thus, the attorney's fees are usually only a fraction of the benefits you receive; depending on the amount of your past due benefits, it can be a very small fraction.

3. What is my case worth if I win?

The answer to this question depends on a number of factors including...how long you have been disabled, when or if you will ever return to work, the amount of your monthly benefit and whether you have eligible dependents.

For example, if you are 45 years old, your monthly benefit amount is $1,000, and you do not return to work before age 65; your case can easily be worth $250,000! This amount does not include the value of the Medicare or Medicaid insurance you will be eligible for after being found disabled. As many of you know, the price of medical insurance in middle age, with pre-existing medical conditions, can be staggering and not affordable. This of course assumes that an insurance company is willing to insure you.

4. Why you increase your odds of winning your case if you hire a Disability Attorney

There are many reasons hiring an attorney can significantly increase the odds of winning your case. One significant reason is that disability attorneys understand the complicated laws and regulations that determine success or failure. Two questions I always ask potential clients are, "Do you know what you need to prove in order to win your case?" and "If you do not know, how are you going to go about proving it?

You should hire an attorney who specializes in Social Security disability law. Furthermore, I believe it is important to hire an attorney who has expertise in representing people with your type of diagnosis. It is important that your attorney believes in your case and that they can win it. I suggest you ask the attorney how much experience they have with your type of diagnosis and how often do they win? Any disability attorney should be willing to provide you with this information.

5. What an Attorney should do to increase the odds of winning your case

From the beginning, the attorney should set forth a strategy that you both of you should follow to win your case. It is critical to understand what is necessary to prove your case and how you will go about winning it. The sooner you know this, the sooner you can take steps to execute the strategy and thereby increase your odds of winning. Thus, you should consult with and hire an attorney either when you file your claim or as soon thereafter as possible.

Based on my experience in representing clients nationwide (remember Social Security is federal law and not state specific); literally none of them had a strategy or plan on how to win their case before they hired me. This is important because most of them were simply "doing whatever SSA told them to do" while their claim was being processed. This included seeing SSA's doctors for an examination that often results in a denial of their claim.

It is important to understand that SSA is only obligated to investigate your case and is not charged with approving it. I am not suggesting that SSA denies every claim; I'm simply stating that my experience after having successfully represented many clients whose claims were previously denied by SSA because evidence was not obtained, not reviewed or SSA focused on what it wanted to in order to support a denial.

In conclusion, if you are contemplating filing a claim for SSA Disability benefits, I encourage you to consult with an attorney as soon as possible to help you understand the process. The consultation should not cost you anything except your time. By understanding the process and having a strategy, you will significantly increase your odds of winning your case.

Congressional and Social Security's statistics do not lie - it is penny wise and pound foolish not to hire a disability attorney.

[1] November 16, 2001 CONGRESSIONAL RECORD, Testimony of Honorable Robert T. Matsui of California, regarding the Attorney Fee Payment System Improvement Act 2001.

[2] November 16, 2001 CONGRESSIONAL RECORD, Testimony of Honorable E. Clay Shaw of Florida, regarding the Attorney Fee Payment System Improvement Act 2001.

Scott E. Davis is a social security and long-term disability insurance attorney in Phoenix, Arizona. Mr. Davis represents clients throughout the United States. Although Mr. Davis has experience representing clients with a broad spectrum of physical and/or psychological disorders, the majority of his social security disability practice is devoted to representing individuals with chronic pain and chronic fatigue disorders. In almost every case, a fee is charged only if his client obtains benefits. Mr. Davis invites your questions and inquiries regarding representation via telephone (602) 482-4300, or email: info@scottdavispc.com.

5 Critical errors often made for hiring a way & the Attorney to avoid these errors

Hiring an attorney having little experience

1. People often employ an attorney who has little or no experience in the field of practice in which they are seeking representation. A person who has used an attorney to manage an area of the law may not want to have this same lawyer to handle another area of law. Even if the last representation was excellent, the Attorney may be the wrong choice for a different facet of the law. The practice of law is now more and more specialized and are less numerous and less generalist who can manage multiple practice areas. If you choose a lawyer who concentrates in your particular area that you need help to keep you much greater chance of success. You can increase your chances of success even more if you find a lawyer who concentrates in your domain, but also has had a long record of experience in the particular field. There is no substitute for experience. It may take 3 to 5 years to become competent in a field of practice if the Attorney General is systematically committed in this area. For an attorney that only that one or two cases like yours, there probably never will become competent in this area.

Choose a solicitor only on prices

2 Individuals sometimes choose a solicitor solely on price. Don't let not price is the determining factor in the hiring of a lawyer. It should be one of the many factors, but never the only factor. This shopping mentality Prize could be a very critical error according to the law. A quality attorney can often wind up saving a client a large sum of money by knowing how to correctly handle a case. Save a little money in the initial hiring process can lead to large losses in the long term. The old adage that you get what you pay for is often true.

Now, it's not to say a cheaper Attorney is always less or a cheaper attorney will provide sub by representation. However, I would never hire the Attorney $99.00 simply because it is the least expensive. That counsel may be less experienced. That counsel may be able to lower price because it is less. It may not be ready to answer your questions or to attend the details necessary to make your case go smoothly. Beware of lawyers which announce a very low cost of introduction, and then add on additional services that other lawyers may include in their agreements of package. I would also not hire a lawyer who was an exorbitant amount so. We live in a capitalist society and some lawyers charge the Moon and the stars for their services. The most expensive attorney is not necessarily the best. I would be on the hiring of quality representation that leads to positive results. A respected Attorney would deliver this advantage for a reasonable fee and provide a written contract, describing its services in an understandable form contract.

Neglect to ask critical Questions

3 People ask critical questions at the stage of hiring about the ability of the Attorney of the experience, knowledge and success rate. Be prepared to ask direct questions to the Attorney of the prospective. After all, you are the consumer and you should have a clear picture of counsel that you recruit. The Attorney must be asked how many cases of this nature does it handle and what percentage of its practice is to this region? He personally supervising the case or simply delegate to an associate or legal assistant? It will be available for current issues, either in person or by phone? How many years the Attorney is involved in a particular area and what is its rate of success? It can provide all the names of satisfied customers? The Prosecutor takes legal education training in the specific field? He is a member of agencies, States or national that relate to the particular area? What is its reputation among his peers? He would be able to provide references? Has any published works on the subject or has he prepared material educational useful on the subject that you can consult? These are some of the issues that should be asked at the stage of the initial interview. Your legal situation is of great importance in your life. Take the time to ask the prospective Attorney some uncomfortable questions. The answers will be very telling. You know within minutes whether or not you are meeting with a qualified attorney for you.

Pay in return for lower Service

4. Insufficient for lower quality service. Lawyers are in the business of service. If they do not provide services excellent customer while they are not worth hiring. The client must have access of the Attorney General and to their personnel file information. Some lawyers of premium a high still provide a very poor service. Some lawyers of restricted access by limiting the times, the days and hours of file information that can be obtained. Make sure that you will be treated with respect at all times. And this means having your answers questions or telephone calls returned within a reasonable time. Make sure that the Attorney or law firm you hire values you as a customer and that you are not perceived as just another number. You will receive friendly treatment by the Attorney General and the staff? It is factors you should consider greatly when the choice of a lawyer. When you meet with an attorney for the first time in his Office, to assess counsel service factor and staff. It is a place where you would feel comfortable dealing with weeks or months? What is your gut say with what relates to the services provided?

Do not audit the Attorney of the situation and references

5 Step check status of the Attorney of the Commission of licenses and checking does so, with all references, if they were provided are the final critical error to avoid. You would like to know whether the Attorney you are interested in hiring is listed in rule? And if there had complaints against this Attorney for negligence or worse? It comes to issues which would certainly affect your hiring decision if you were aware of them. In addition, have you checked with one of the references provided? -What did you call each of the names provided to see if they would highly recommend the Attorney? At their cases even remotely similar or the same area of the law than yours? Ask them to notify you at least a weakness of the Attorney of the representation or at least one area that could use improvement. A small effort at the start of your case by way of research can make a difference in your choice of prosecutors in the world.

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Marketing pour les cabinets d'avocats Via procureur-Client Matching Services - un rapport approfondi

In this article we will look in depth at a relatively new wrinkle in marketing for law firms known as "attorney-client matching services". First a little background is in order. The legal services market segment is expected to reach $82.5 billion in 2008 according to Euromonitor International a market intelligence firm. In recent history consumers have been finding attorneys through word-of mouth or through the yellow pages. Often the word-of mouth advice does not deliver people to the best possible solution for their particular needs and the yellow pages is certainly not a great place to select a lawyer I am sure you would agree. Additionally, according to the Pew Internet & American Life over four million consumers and small businesses currently search for legal services via the Internet every month with these numbers expected to rise to over seven million by 2007. I think you can see this is a huge market getting larger. It is imperative that attorneys understand this marketplace if for no other reason your potential clients and clients are moving to the Internet and yellow page advertising is a dying marketing for law firms vehicle. Understanding attorney-client matching services is one new way to tap into this Internet marketplace.

What I will not be talking about here is attorney-listing services. Please don't get confused between attorney-listing services and attorney-client matching services. The two majors in the attorney-listing services arena are Lawyers.com or FindLaw.com that are used by many in marketing for law firms. With attorney marketing one might want to get a minimal listing on one or both of these two major sites. Both do drive a large amount of traffic to their sites for sure (in the millions of visitors per year). If you do get a listing then track your results carefully and see if being in the middle of a pack of listed attorneys actually does produce clients for you. Please don't spend more on them than the basic listing that will run about $150 or so per month, at least until you can document results with the basic listing. Also, don't buy your website through either of them, even if after testing you find good results, for many reasons that can be found under the Internet marketing tab on my website. One last note here, you probably don't want to test most of the lesser attorney-listing competitors like lawinfo.com, lawcore.com or attorneyfind.com is my take, however if you do be sure to track your results. The rest of this article is about attorney-client matching services.

Attorney Marketing Via Five Attorney-Client Matching Players

In the attorney-client matching field there are five competitors for the attorney marketing dollar offering online attorney-client matching services. The first and originator is LegalMatch.com and its newer competitor being CasePost.com as well as a third competitor LegalFish.com. The two big players that offer almost everything in attorney marketing, Lawyers.com and FindLaw.com; have also recently begun to offer a version of attorney-client matching services.

Lets begin with LegalMatch that was established in 1999 and is based in San Francisco. LegalMatch uses a double blind matching system. By double blind they mean the consumer does not see identifying information about who the lawyers are and the lawyer does not see identifying information about who the consumers are although all the cards are put on the table for both to see before any contact is made between them. Through an allocation model LegalMatch makes the decision about which lawyers get the consumer's information. Consumers can opt into "priority service" for a fee to talk with a LegalMatch staff attorney about their case and work with that attorney in selecting the attorney for their case. LegalMatch does have partnerships with the Utah State Bar Association, ATLA and NACDL. Membership fees for this marketing for law firms vehicle run from $2,500 to $25,000 per year (they will finance the membership fee if desired) depending on practice area and geographic location of the attorney. For example, a PI attorney in Los Angeles would likely be charged more than a family law attorney in Los Angeles, while the family lawyer in Peoria is likely to pay less than the family law attorney in Los Angeles. Their guarantee consists of extending your membership at no fee until your revenues have exceeded the fee you paid them.

Are There Legal Marketing Ethics Issues with Attorney-Client Matching?

A relevant digression here, since this model is not a lawyer referral program, a pre-paid legal service plan, a joint or cooperative advertising or a directory listing service it is not subject to ethics rules around much of marketing for law firms it has been asserted. Recently the Professional Ethics Committee of the Texas State Bar was looking into these practices and that committee received a seven-page letter (May 26, 2006) from the FTC that was agreed to by a unanimous vote of the FTC commission members that this attorney marketing practice is indeed ethical.

Already the states of North Carolina and South Carolina found the practice ethical. The Rhode Island Supreme Court specifically named in an ethics opinion that online matching services are ethical. Finally, the Utah State Bar (a mandatory bar) has retained LegalMatch as their lawyer referral service clearly indicating their thinking about LegalMatch's ethical nature it seems to me. Naturally you do need to check with your state bar to be sure this is an ethical practice in your state. Now back to the options in the marketplace.

CasePost.com, based in Southern California, was established in 2002 is a second player in this area of marketing for law firms. They operate in a similar fashion as LegalMatch in matching clients with lawyers; however, the directory of attorneys is shown to the consumer immediately. The consumer can decide whether they want to remain anonymous or give their contact information to the attorneys. The consumer is limited to four attorney responses. Thus the consumer determines what attorneys will get their information. In May of 2006 CasePost has made a major expansion as a result of their partnership with HandelOnTheLaw.com that is powered by a successful nationally syndicated radio show on over 120 stations with attorney Bill Handel. This show has been running since 1985. They also have a strategic relationship with LegalZoom.com that began in 2006 that has increased their reach. Like LegalMatch the membership fees for this attorney marketing vehicle are from $2,500 to $25,000 per year (financing is available if desired) depending on practice area and location. Their guarantee to a member is based on a minimum amount of referrals over the year.

LegalFish is a third player in this arena. It entered the marketplace in 2003 and is based in Chicago. It is a bit different than the other two in a few ways. Like the other players the consumer can input their information and post their cases to the site as well give their identifying information or not. In a number of cases LegalFish will contact the posting consumer themselves by telephone or email to delve deeper into the needs of the consumer so they are not totally automated. There is an allocation model used by LegalFish in referring the cases to their members. Another difference is LegalFish charges a monthly fee for this marketing for law firms vehicle ranging from $180 to $750 to members that are non-contingency based practices. For contingency based practices the fee ranges from $1600 to $5000+ monthly only if the client retains the attorney. If LegalFish does not deliver a referral to a member that retains that attorney they don't charge a fee to that attorney for the month (a form of a guarantee). Creating something of a "shared risk" system. Naturally, with this type of shared risk system, long-term success for both parties is based on LegalFish's ability to generate new client opportunities and create demand for legal services, and their member attorneys' ability to convert those referrals to paying clients. Both parties have to "pull their weight". Finally, LegalFish reports they are particularly committed to serving the solo and small firm market with ten employees or less.

The next player in this marketing for law firms arena is Lawyers.com (mentioned earlier in this article about their directory listing or attorney-listing service) with their new Attorney Match Service. If you go to their homepage what stands out on that homepage is their "Find A Lawyer Quick Search". This is their free to the consumer attorney-listing service (this is why you might want to test a listing with them and track results). To get to the Attorney Match Service you have to know to click on "Contact Lawyers" navigation tab or notice it up there at the very top of the Lawyers.com home page. Clicking on that takes you to a page where you input your zip code and the practice area you are seeking, however, it also tells you how many lawyers there are listed that "are interested in receiving your request". You are required to fill in the identifying information with other case information. Once you do that you see the attorneys listed and pick the ones you want to send your request to and wait for their replies. The fee for the attorney member is $495 per year, however, you must have a biographical level listing on lawyers.com to be on the Attorney Match Service and that is $150 and up per month depending on the size of your firm. There is no guarantee for this service.

The final player in this marketing for law firms arena is Thompson's Findlaw.com (mentioned earlier as an attorney-listing service) with their new attorney-matching website http://www.LegalConnection.com. The FindLaw system is similar to the Lawyers.com system with three steps of #1 Select your legal need; #2 Tell us about your case; and #3 Choose the attorney that's right for you. It is different from Lawyers.com's system since they have broken it out of their attorney-listing services completely with its own dedicated website. Their fees generally run from $500 to $1000 per month depending on your practice area and geographic location. They do not have a guarantee. They do report that they do set targets for each geographic area as well as practice combination and then will manage their marketing to get positive results for attorneys.

Well, now we have all the players in this particular niche of marketing for law firms with a lot of information. I think it would be imperative for me to mention one more item. Both Legal Match and CasePost have negative information on the Internet and it needs to be considered. If you go to Google and search just the term LegalMatch and then do the same with CasePost you will be able to find details about the negative information. One location that covers the negative information on LegalMatch with relevant links is at http://en.wikipedia.org/wiki/LegalMatch although that is disputed as not being sufficiently neutral in tone, which is one of Wikipedia's requirements..

Conclusions and Recommendations on Attorney-Client Matching

Let me list my current thoughts/conclusions in this marketing for law firms niche of attorney-client matching services and from there it is up to you to make your decision:

1. This marketing for law firms vehicle clearly has some merit. This approach can deliver business to you that you would not get otherwise and get it to you now. Yes, you can do better and at least arguably cheaper for yourself through the right Internet attorney marketing strategies (see my website). However, it is not going to happen tomorrow and attorney-client matching can happen tomorrow. You can build your own systems while using these systems and then decide if you want to continue their systems or not. They will always probably get some business you would not have gotten otherwise even if you had your own online systems.

2. Unfortunately you are only "renting" the methods used to get the business you are being sent and don't "own" the business methods used. If you had the correct Internet marketing for law firms system up you would have a salable asset in those systems and be driving traffic exclusively to you, which is better than this option almost certainly in the long run for most if not all attorneys. Additionally, as a general principle it is not good to be dependent on any one source of referrals as I am sure you know. That said I still think attorney-client matching services are a good option before you have your own Internet marketing systems and/or other marketing systems up. You may even want to continue these services after you have your own systems up. Having your own systems up makes you more secure and now you are at choice about staying with the service or not.

3. Who is this marketing for law firms vehicle for really?

a. Someone who needs more business right now. These systems have a stream of business coming right now and they can send it your way right now. Other attorney marketing systems will take some time to make happen and yield results.

b. Someone who is very, very clear they don't want to be involved in the marketing process and are willing to pay someone else to do it for them even if it costs them more and they are "renting". If that is you, then this is probably a good move for you. That said, you still are going to have to "close" the client they send you via email or on the phone so you are going to be involved in marketing at that level, just less marketing. You are never going to get away from that aspect unless you are an associate who does nothing but technical work in someone else's practice (not that there is anything wrong with that).

c. Someone who is doing some attorney marketing that is not working for them or not working very effectively for them since if you stop what is not working and do this type that is working you may be able to reduce your marketing costs while increasing your revenue stream.

d. Finally, a partner level attorney who has a senior associate that has good people skills that could work this marketing for law firms vehicle and close the referred clients.

4. Who is this type of attorney marketing not for?

a. Someone who won't attend to the referrals from the matching service most if not nearly every working day.

b. Someone who does not have fair to good "closing skills" or "bedside manner" (Note: you can get some coaching from these firms to improve this aspect if needed and/or see my website for more information on this skill set). You are not the only attorney getting the referral from the match firm so you need to "shine" well enough to get hired. There is still an element of competition involved with maybe 3 to 5 other attorneys who got the same referral.

c. Someone in a geographic area that does not generate a lot of referrals in your practice area. Like a rural area or small town or maybe an estate planner in a low-income area. So you see this marketing for law firms vehicle is not for everyone.

5. The negative information on LegalMatch and CasePost is somewhat troubling to me even though much of it is from the past and has been positively addressed. The negative information of the past on LegalMatch appears to have not troubled the Utah Bar, the Association of Trial Lawyers of America and the National Association of Criminal Defense Lawyers. This is reassuring to me.

6. If you were reasonably sure this type of vehicle is for you I would go with LegalMatch first. I am presuming you are willing to work their system diligently and have at least low average "closing" skills (they will work with you to get your closing ratio up if you need some support in that area). Why LegalMatch? They have over 1500 members currently (a good sign I think), over 90 employees and have been in business longer. I figure that gives them an edge in knowledge, results and staying in business over time. Additionally, their "footprint" of bringing business to their members is almost certainly larger since they have more resources to drive business to their site than the others. If for some reason you are uncertain if this type of marketing for law firms is for you then I would go with LegalFish first. Why LegalFish? The LegalFish option would allow you to get into this marketing for law firms arena now with less expense and less risk than LegalMatch or CasePost. Do realize the LegalFish attorney marketing "footprint" is going to be much smaller than either of the other two services so they won't be sending as large a volume of business your way almost certainly. Do be sure you have in your agreement with LegalFish that they will not charge you for the months they do not send you business. If you had a good experience working the referrals from LegalFish, diligently worked the system almost daily, realized a good return on your investment and you wanted to do more then I would look into LegalMatch next. Either starting with LegalMatch or LegalFish, if you find that you really liked this approach to marketing for law firms there is nothing wrong with belonging to two or even three of the services.

7. If you decide to become a member with LegalMatch, Case Post and/or LegalFish do remember your financial arrangement and term of membership are somewhat to greatly negotiable. Do negotiate a win/win agreement for yourself. Naturally, if you can get references of current members to contact from them in your practice area and in a similar type market to yours so much the better before you sign your agreement.

8. I probably would not go with Lawyers.com at this point. Why? First, no guarantee. Next Lawyers.com does not appear to me to be promoting that part of the site enough. Additionally, I am not sure it is worth the cost of the bio and the fee that together will run at least $2,400 for the year. I suspect this money could be better put to use with one of the "big three". Lastly, given the consumer has a list of attorneys that could be large (search on the site for your zip code and practice areas and see how large it is for your area) you are going to be in a crowd I fear. Thus it looks like not much business and it seems no way to impact the consumers' thinking in your direction at the point where they are selecting who to contact. An exception to this thinking is if you already have a bio listing with them (and it is delivering business to you) this add on service might be a useful attorney marketing move given you are only spending $495 more per year. That said keep good records and see if it produces you any business. If not you would stop the service of course.

9. With respect to LegalConnection.com I probably would not go with them at this point. Why? No guarantee. I do see it as an advantage that it is a stand-alone away from the FindLaw.com site. For that reason alone I would favor it over Lawyers.com, however, I don't see LegalConnection.com or Lawyers.com as being in the same class as the "big three" at this point in time.

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Defending Against Abuse of a Power of Attorney

Attorneys will advise you that you should have a power of attorney. A Power of Attorney is an important document that allows someone else to handle your affairs if you have difficulty or are unable to do so. With age and illness, a Power of Attorney often becomes necessary. Usually the person who is given the authority to act will do so with the best of intentions. What happens, however, if the person you trust misuses the Power of Attorney for personal gain or benefit? A Power of Attorney may seem like a simple document, but it can have far-reaching and unintended consequences. A Power of Attorney can be very tempting to the person who has it.

A Power of Attorney is a legal document by which a person (the "Principal") gives someone else (the "Agent" or "Attorney-in-fact") the authority to act on the Principal's behalf. If the Principal becomes ill, incapacitated or otherwise unable to handle her financial affairs, or simply chooses to let someone else do it for her, the person or persons she designated in the Power of Attorney can pay bills, deal with banks, lawyers and other professionals, and do other things that are in the best interest of the Principal.

A Power of Attorney can be general, meaning that it gives the Attorney-in-fact the authority to do whatever the Principal might do for herself, or limited, meaning that it is limited in scope and/or time. For example, a Power of Attorney may be limited to one specified act or type of act, such as a limited Power of Attorney to attend a real estate closing and sign the closing documents on behalf of a buyer or seller, or it may be limited in time, such as a Power of Attorney that is effective only during the time that someone is out of the country on a trip. A Power of Attorney also may be durable, meaning that it takes effect upon its execution (or a specified date) and continues in effect even if the Principal becomes incapacitated, or springing, meaning that it only takes effect after the Principal is incapacitated (or some other definite future act or circumstance). The problem with a springing Power of Attorney is that it requires a judicial determination of incapacity for the power to take effect. This can take a considerable amount of time - plus the initiation of legal proceedings, the hiring by the Court of an independent person to interview and investigate the circumstances of the alleged incompetent, and a hearing in Court - often exactly at a most trying time when there is a need for prompt or immediate action.

In New Jersey, a Power of Attorney can include provisions with respect to making health care decisions, including the power to consent to any medical care, treatment, service or procedure. A health care power of attorney is different than a "Living Will", which is a written statement of a person's health care and medical wishes, but does not appoint another person to make health care decisions.

A Power of Attorney is a useful and powerful tool. Unfortunately, as with many things, something with a good purpose still can be used for improper purposes. A general Power of Attorney allows the Agent or Attorney-in-fact to do almost anything the Principal could or might do herself. As a result, it can be an invitation to abuse and self-dealing.

The victim of Power of Attorney abuse often may not be aware of what is happening, or even if she is may feel powerless to say or do anything because she is dependent on the abuser for care and companionship. The nature and extent of the abuse may not come to light until after the person has died and someone else is able to obtain access to her banking and other financial records.

Disputes can arise when the Agent or Attorney-in-fact has used the Power of Attorney to transfer the Principal's assets to himself or his family members. This may be done as an estate planning technique, such as making gifts to take advantage of the annual exclusion from gift taxes. On the other hand, it may be done to deprive other family members of a share of the Principal's assets that they otherwise might eventually inherit. For example, a person may wrongfully use a Power of Attorney to withdraw money from the Principal's bank accounts and deposit the money in his or own bank account. We have seen this and been involved in litigation to get the money back.

Under New Jersey law, the traditional rule was that a power of attorney should not be construed to allow the Agent or Attorney-in-fact to give the Principal's assets to himself or others without clear language in the power authorizing such gifts. See Manna v. Pirozzi, 44 N.J. Super. 227 (App. Div. 1957). In 2004 in New Jersey a law was passed stating that a Power of Attorney shall not be construed to authorize the Attorney-in-fact to gratuitously transfer property of the Principal to the Attorney-in-fact or any one else except to the extent that the Power of Attorney expressly and specifically so authorizes. N.J.S.A 46:2B-8.13a. If this happens, the Superior Court, upon application of any heir or other next friend of the Principal, may require the Attorney-in-fact to render an accounting (i.e. an explanation of when and for what the money was used) if there is doubt or concern whether the Attorney-in-fact has acted within the powers delegated by the Power of Attorney for the benefit of the Principal. N.J.S.A. 46:2B-8.13(b).

A Power of Attorney also may be attacked as having been procured by undue influence, or when the Principal already was incompetent and therefore legally unable to execute a Power of Attorney. This type of action is similar to a will contest in which a will is claimed to have been procured by undue influence, or in which it is claimed that the testator was of unsound mind and unable legally to make a will.

Neal Solomon is an estate litigation attorney in the Princeton based law firm of Pellettieri, Rabstein & Altman. He specializes in wills, trusts, estate litigation and can be reached at 609 520-0900 or http://www.pralaw.com

Choose a medical malpractice attorney - how to decide

There is a commercial on the radio which suggests you should not buy a house from a cabdriver who happens to take you past the house. The premise, of course, is that the cabdriver has little or no knowledge of the home or of you. The obvious truth of this simple message extends to almost every facet of our lives. Very few of us would hire someone for something as important as being a babysitter for our children or as relatively mundane as repairing our car without being sure that the person we hire knows what they are doing and has some positive track record that we can rely upon. With that basic premise in mind, I find myself consistently surprised at how often a person will hire an attorney to handle a medical malpractice case (as well as many other types of cases) without knowing who the attorney is; what experience they may have in the field; what their record of success in the field may be; or, where they stand in the eyes of their peers and adversaries.

When a person is injured from medical malpractice, a lawsuit against a doctor or health care provider is usually the furthest thing from his or her mind. Concerns about one's health; one's ability to keep working and providing for a family; and, the ability to regain one's place as a productive member of society are among the far more pressing issues. It is typically not until these concerns have been dealt with or accepted that people even consider whether malpractice might have occurred. Unfortunately, the realization that one's life altering injury may have been preventable often adds to the difficulty of the situation.

It is within this emotionally charged and upsetting context that the search for a medical malpractice attorney typically begins. Of course, most people do not know which attorneys concentrate their practice in a specific area or which attorneys happen to focus their practice on the highly technical and difficult field of medical malpractice. Most attorney advertising suggests that the attorney who paid for the ad is an expert in every area of the law including medical malpractice. With the personal stresses and without any way to separate out which attorneys truly know how to handle a medical malpractice case, many people will hire the wrong lawyer.

A further part of the difficulty an injured person deals with when he or she considers a lawsuit is the perceived role of lawsuits in today's society. Lawsuits are not and should not be about a "quick buck" or holding a company up for a "pay day". The civil justice system is about accountability - about placing blame where it belongs. It is about making sure that those injured are compensated for that which they can never get back. It is about making sure that the individual, regardless of his or her financial or societal status, has the same rights as the rich and powerful. It is about assuring society that we are all equal.

Not every wrong can or should be the basis of a lawsuit. There are, however, many valid reasons to bring a lawsuit. Obviously, the simplest reason is to right a wrong. There is also great benefit to others in our community and our society as a whole in that meritorious lawsuits deter similar conduct. Unfortunately, the role of lawsuits in society has been damaged considerably by media attention of a handful of lawsuits, some of which were portrayed inaccurately to fit an agenda and some of which were portrayed correctly but should never have been brought. The end result is that, for a great number of people, lawsuits are nearly the definition of what is wrong with our society today. Critics of our judicial system depict our courts as out of control, attorneys as greedy and lawsuits as damaging to the economy and society as a whole.

Obviously, these are positions taken to drive an agenda. These critics do not address the accountability and equality a lawsuit can provide. They do not account for the positive societal changes the courts have engendered. They do not account for workplaces and products having been made safer by the effects of a lawsuit. They do not account for the millions of people who have been restored some of the ill-gotten gains fleeced by stockbrokers and corporations. They do not account for the many people who do not need to resort to public assistance for their health needs because a lawsuit has provided sufficient financial resources. In short, they do not account for any of the benefits to society of a lawsuit. Rather, they focus on some examples of ill-conceived or poorly prosecuted cases as representative of our system as a whole.

Take a moment to consider who drives these agendas: insurance companies; big business; negligent doctors and others. We must consider, before we accept their agenda, whether they have our best interests at heart or whether their agenda is designed to avoid accountability and increase profits. There are many questions a person must ask themselves before they even consider whether to bring a lawsuit. The most important of those questions, however, is why, over the course of centuries, wars have been waged and governments toppled by people demanding the equality and justice guaranteed by our courts?

A lawsuit is not appropriate in every instance but the decision to pursue this right should be an individual decision about what, under the circumstances, is right for an injured person and his or her family. The doctor whose mistake puts a child in a wheelchair for life or a young wife and mother in an early grave does not have to live with the family he or she has destroyed. The CEO whose decision to increase profit through the use of a toxic additive does not have to live in the town poisoned by that product. The insurance company accountant who refuses to pay for treatment to a seriously ill person who payed for that coverage does not have to watch the person die because they did not receive the treatment. These individuals do not have to live with the ramifications of their decisions and actions and their agenda to avoid responsibility should not drive the injured person's decision to bring a lawsuit or not.

Additionally, those injured by medical negligence often consider the personal and societal impact occasioned by prosecuting a suit. Not infrequently, the injured party or their family personally likes the physician suspecting of doing them harm. Even more frequently, a person injured by a medical professional is made to feel that a lawsuit against that doctor will cause the doctor to leave practice or move to another state. These feelings are generated by a well orchestrated and well financed campaign by the medical lobby. The clearly intended purpose of their message is to prevent lawsuits through guilt and fear.

It has been well documented that, not only does New York have one of the highest population of doctors in the country, but more than 50% of malpractice is caused by less than 5% of our doctors. Unfortunately, in most instances, it is the doctors who make up the 5% that orchestrate the media and political spin of the medical lobby. Rather than focusing their attention on improving the quality of care or increasing medical reimbursement rates by HMO's and the government, which would benefit all doctors and, in large part, all of society, their attention is focused on stopping those most seriously injured from seeking redress in court. Not surprisingly, such an impact only serves to aid those doctors who commit malpractice and, by and large, damages society.

Once again, the decision to bring a lawsuit must be made on an individual basis. The fact that a physician, while maybe not a friend, was kindly or soft spoken as they committed an act of malpractice may be a driving factor in an individual decision. The ultimate question for the individual making the decision on whether to pursue a case against a doctor with a nice personality or demeanor is whether the wrong which was committed, although clearly unintended, is one which we would want repeated. The medical profession, by and large, does not discipline negligence. As such, the only opportunity to prevent a physician from continuing an unsafe practice or procedure is through the courts. Whether one is making this decision for oneself, a parent or a child, the issue is less about who we like and more about whether we would be comfortable knowing that someone else's child or loved one has become injured because we allowed a tailored, politically driven, highly financed and, ultimately false story about doctors leaving the state deter us from the societal good of preventing bad medicine.

Having made the decision to pursue a potential lawsuit, an injured party must consider which attorney will prosecute the case on their behalf. As discussed above, choosing the right attorney should involve determining the person best suited to winning the lawsuit. Too often, the decision is made on the wrong criteria. The doctors, hospitals, insurance companies and corporate wrongdoers who have caused the injury in the first place have spent considerable time and effort to convince those injured through their negligence that all attorneys can handle any case with the same relative level of skill. They know that a lack of understanding, experience or knowledge by the attorney representing a person injured by negligence, even early in an investigation, can severely damage the ability of that attorney to successfully resolve even the most meritorious case. The standing of attorneys in society, which is generally self-inflicted, has led us to a place where an injured person frequently hires the first attorney they see; a relative; a friend; or, the guy who advertises on the television and radio. While some may be qualified to handle a malpractice case, the reality is that most will not. Needless to say, the generally poor results generated when an unqualified attorney handles a complex malpractice case, exacerbates the poor standing of attorneys in society and the willingness of litigants to feel that any attorney will do. The reality is that not all attorneys are capable of handling medical malpractice cases which are, by their very nature, complicated and difficult.

When making a decision as to who will represent you, your child or your loved one, the decision needs to be based on the same criteria you would rely upon for any other difficult decision. Does the attorney have experience with this type of case? How has this attorney and his or her firm performed on other malpractice cases? What is the standing of the attorney in the community as a whole and in the smaller community of malpractice attorneys? What does the attorneys peers say about him or her? What does the attorneys adversaries say about him or her? How do you interact with the attorney? Is he or she someone you feel you can trust? Does the attorney understand the intricacies of medicine and the law as it surrounds your case? Were you directed to this attorney by someone with your best interests at heart or by an advertisement or person with their own agenda or profit motive? In short, is this person the very best person in the field to properly, professionally and successfully prosecute this case for you, your child, your parent or other loved one?

The insurance companies and corporate America have carefully vetted the attorneys who want to work for them defending the lawsuits brought by people injured by their negligence. They only hire the very best attorneys with the skills to be successful, the knowledge of their subject and the experience to maximize the results for their clients. Before you hire an attorney to represent you in a complex case, you should do the same. It can be overwhelming and it can be difficult to work through the various candidates. However, the decision as to which attorney to hire is too important to leave to chance.

Micheal E. Duffy is the Managing Partner of the Law Firm Duffy, Duffy & Burdo Esqs. http://www.ddandb.com

Mr. Duffy is currently the Vice-President of the New York State Academy of Trial Lawyers, a bar association dedicated to restoring the dignity and honor of the legal profession. He has previously served as the President of the Long Island Affiliate of the New York State Trial Lawyers Association, as well as having served as a member of the Board of Directors of that organization. He is an active member of the American Association for Justice; the Long Island Trial Lawyers Association; the Nassau-Suffolk Trial Lawyers Association; the Suffolk Country Bar Association; and The American Trial Lawyers Association.

Associate Attorney Employment Agreement

Most law firms that are made up of more than one person are set up as a hierarchy with Partners at the top and varying levels of Associate Attorneys below them. Partners are generally the owners of the business and Associates are employees. The Associates are often given the opportunity to work their way up the ladder to become Partners and share in the profits of the firm instead of just receiving wages.

It is important to have a written agreement or contract between the Associates and the Firm that spells out everyone's duties and obligations as well as the conditions under which they may advance. The following is a draft contract between an Associate and a law firm that can be customized to meet the needs of a law firm hiring an Associate Attorney.

This AGREEMENT made of this 21st day of March, 2011, between the Law Offices of at Smith, herein referred to as the "Firm" and Joe Blow, hereinafter referred to as the "Attorney."

Recitals

The Firm is a Sole Proprietorship, operating as a business rendering legal services. If, during the term of this contract, the Firm changes to another form of business organization, this contract will continue to be binding on both the Firm, under it's new formation, and on the Attorney.

The Attorney is licensed to practice law in the State of Texas.

The Firm and the Attorney desire to have the attorney practice law as an employee of the Firm.

It is agreed by and between the parties as follows:

Section 1. Employment and Duties.

Employment. The Firm employs the Attorney and the Attorney accepts employment as an attorney in accordance with the terms of this Agreement.

Full Time. The Attorney shall devote full working time and attention on the practice of the law for the Firm and the Attorney shall not, without the written consent of the Firm, directly or indirectly rendered services of a professional nature to or for any person or firm except as an employee of the Firm.

Duties and Assignments. The Firm shall determine the duties to be performed by the Attorney and the means and the manner by which those duties shall be performed. The Firm shall determine the assignment of the clients to the Attorney and the Attorney shall perform services for such clients assigned. The Firm determine the rates at which the Attorney's work shall be billed.

Section 2. Compensation

Salary. For all services rendered by the Attorney under this Agreement, the Firm shall pay the Attorney and annual salary of $58,000, payable weekly or as may otherwise be mutually agreed. The salary may be changed by mutual agreement of the parties at any time.

Bonus. In the addition to the salary specified in 2.1., the Attorney may receive a bonus. The bonus, if any, will be in such amounts as the Firm may determine in its absolute discretion.

Additional Compensation. In addition to the salary and bonus specified in items 2.1 and 2.2, the Attorney will be eligible to receive a percentage of the Firm's portion of Personal Injury cases. The Attorney will receive 10% of the Firm's payment from a Personal Injury case, when the Attorney has performed as the primary attorney on that case. Additionally, the Attorney will receive 10% of the Firm's payment from a Personal Injury case, when the Attorney personally brought the case to the Firm.

Section 3. Partnership. It is the policy of the Firm to employ as attorneys persons who will be given the opportunity to become partners in the Firm. The Firm after a certain number of years will make the determination as to whether the Attorney will be admitted to partnership. The Firm expects to make this determination with respect to this Attorney, no earlier than July 1, 2005, and no later than July 1, 2007.

Section 4. Facilities.

Office. The Firm shall furnish the Attorney with office space, staff assistance, and such other facilities and services as are reasonably necessary to the performance of the Attorney's duties.

Liability Insurance. The Firm shall maintain professional liability insurance covering the acts and omissions of the Attorney in performance of the Attorney's professional duties.

Travel. The Attorney may be required to travel on business for the Firm, and shall be reimbursed for all reasonable and necessary expenses incurred, provided, however, that a detailed account of such expense is provided to the Firm.

Professional Societies. The Firm shall pay the Attorney's dues for memberships in The State Bar of Texas and the American Bar Association.

Education. The Firm shall pay the reasonable amount of expenses incurred by the Attorney to maintain or improve the Attorney's professional skills. The Attorney agrees to submit to the Firm such documentation as may be necessary to substantiate such expenses

Section 5. Additional Benefits.

Medical Insurance. The Firm agrees to provide medical coverage for the Attorney, the Attorney's spouse and dependents under a group accident and health insurance policy, the terms and benefits of which shall be determined by the Firm. The Attorney is currently covered under her spouse's policy and does not require such coverage currently. That Attorney will notify the Firm at such time that she needs this benefit.

Vacation. The Attorney shall be entitled to three weeks vacation time each year however, the Attorney's vacation will be scheduled at such time as will least interfere with the business of the Firm. The Attorney is further entitled to time off on all holidays normally celebrated in accordance with the Firms stated policy.

Life Insurance. The Firm may provide group life insurance coverage, in amounts which shall be determined by the Firm.

Retirement Plan. The Attorney shall participate in any Firm qualified retirement plan according to the terms of said plan as amended from time to time.

Disability. In the event the Attorney is unable to perform his or her regular duties as a result of personal disability the Firm will pay the Attorney's salary during such disability for a total of ninety (90) days in any 24 month period.

Section 6. Operations.

Records and Files. All records, documents, and files concerning clients of the Firm shall belong to and remain the property of the Firm. On termination of employment, the Attorney shall not be entitled to keep or reproduce the Firms' records, documents or files relation to any client unless the client shall specifically request that its files be transmitted to the Attorney.

Fees. All fees and compensation received or realized as a result of the rendition of professional legal services by the Attorney shall belong to and be paid to the Firm. Any fee or honoraria received by the Attorney for professional services or other professional activities performed by the Attorney shall belong to the Firm.

Section 7. Term.

One Year, Automatic Extension. The term of this Agreement shall begin on the date hereof and continue for a period of one year and shall be automatically extended from year to year unless terminated in accordance with this section.

Events of Termination. This Agreement shall be terminated upon the happening of any of the following events:

The death of the Attorney.

The determination of the Firm that the Attorney has become disabled.

Dismissal for cause of the Attorney as hereinafter provided.

Occurrence of the effective date of termination, notice of which has been given in by either party to the other, so long as there are at least sixty (60) days between giving of the notice and the effective date of termination.

The mutual written agreement of the Attorney and the Firm to termination.

Termination on Disability. The Firm may determine that the Attorney has become disabled for purposes of the Agreement in the event that the Attorney shall fail, because of illness or incapacity, to render for ninety (90) days or more in any two-year period, services of the character contemplated by the Agreement, and thereunder shall be deemed to have been terminated as of the end of the calendar month in which such determination was made.

Causes for Dismissal. The Firm may dismiss the Attorney for cause in the event it determines there has been continued neglect by the Attorney if his or her duties, or willful misconduct on the part of the Attorney, including buy not limited to a finding of probable cause by the Bar for investigation a complaint filed with its discipline system or the filing of criminal charges against the Attorney, which would make retention of the Attorney by the Firm prejudicial to the Firm's best interest.

Section 8. Miscellaneous.

Notices. All notices under this Agreement shall be mailed to the parties hereto at the following respective addresses:

Attorney:____________

Firm: ____________

A change in the mailing address of any party may be effected by serving written notice of such change and of such new address upon the other party.

Invalidity. The invalidity or unenforcibility of any provision or provisions of this Agreement shall not affect the other provisions, and this Agreement shall be construed in all respects as id any invalid or unenforceable provisions were omitted.

Arbitration. All disputes, differences and controversies arising out of, under, or in connection with this Agreement shall be settled and finally determined by Arbitration under the then existing Rules of the American Arbitration Association.

The parties have executed this Agreement as of the date and year first above written.

By:____________________________________________________

Chris McHam is the lead attorney for McHam Law, a Round Rock, Texas based law firm focusing on family law, criminal defense, probate matters and civil litigation in Travis County, Williamson County, Hays County and Bell County

For more information on this and other legal topics:

http://www.mchamlaw.com

Why You Need a Durable Power of Attorney Now!

Planning for unfortunate events such as serious illness or injury is rarely on anyone's list of favorite pastimes. Sometimes, though, enduring the small discomfort that may accompany preparing for the unexpected will avoid untold anguish on the part of your family and friends. This is certainly the case with the Durable Power of Attorney, an often simple document that becomes so very important if sickness or injury renders you unable to take care of your own affairs.

Power of Attorney Defined

A Power of Attorney is a document in which you (as the "Principal") allow someone else (the "Agent" or "Attorney-in-fact") to act legally on your behalf. The Power of Attorney may be limited to very specific actions that the Agent is authorized to take on your behalf. On the other hand it may give the Agent very broad powers. In either event, the Agent you appoint in the Power of Attorney should be someone that you trust without reservation. That could be a family member, an advisor, a trustworthy friend or a bank or similar institution.

The "Durable" Power of Attorney

The significance of having a "Durable" Power of Attorney is best understood if you know what can happen with the plain old garden variety of Power of Attorney.

If you sign a Power of Attorney that is not "durable," the document remains effective only while you are alive and competent to handle your own affairs. If you become incompetent or die, the Power of Attorney is automatically revoked by law and your Agent is no longer able to act on your behalf. This prevents a Power of Attorney from becoming irrevocable inadvertently, and, until recent times, it was the only way a Power of Attorney could be prepared.

The non-durable Power of Attorney has limited usefulness for family and estate planning purposes, though, because the Power of Attorney is often most needed when you have become incapacitated! That is when you really need someone else that is able to make legal decisions or take other actions on your behalf.

All fifty states now permit the use of a "durable" Power of Attorney that is not revoked simply because the Principal becomes incapacitated or mentally incompetent. This makes the Durable Power of Attorney a far more reliable document, particularly for family and estate planning purposes, since you may now authorize your Agent to act on your behalf even after illness, injury or other cause has rendered you unable to manage your own affairs. Even with a Durable Power of Attorney, however, the Principal's death causes an immediate revocation of the document and termination of the powers that are given to the Agent.

A Matter of Convenience

The Durable Power of Attorney is often used as a matter of convenience.

Suppose, for example, you have your home listed for sale. You have also planned a long awaited trip to visit Aunt Trixie in Deadwood, South Dakota, and you are concerned that an interested buyer may come along while you are on the road. A Durable Power of Attorney would be handy here to appoint someone you trust to act in your absence to negotiate the sale and sign any documents that are needed to make the deal binding.

The Durable Power of Attorney could be prepared so that it is effective only until the date you plan to return from your trip, and it might describe specific terms that your Agent must include in the sale, such as the minimum sale price that is acceptable to you.

A Matter of Protecting Loved Ones

What happens if, from illness, injury or another cause, you become physically or mentally incapacitated to the point that you are no longer able to handle your own legal affairs?

Let's suppose again that while you are incapacitated it becomes necessary to mortgage your home to pay your medical bills. Who will sign the mortgage? Even if your home is jointly owned with your spouse, he cannot obtain a mortgage without your signature.

In those circumstances it would be necessary to request the local probate court to appoint a guardian for you that has the power to handle your legal affairs. In many states, this type of guardian is referred to as a "conservator". Included in the conservator's powers might be the power to borrow money and sign a mortgage on your behalf making it possible to obtain the funds needed to pay the medical bills.

However, you may have heard that it is advantageous to avoid probate whenever possible, particularly if there is a good alternative available. The delay and expense associated with probate proceedings and the fact that they are conducted in the probate court, a public forum, make that good advice in most circumstances. And there is a better alternative than probate, but it requires you to act before the incapacity arises - you need to sign a Durable Power of Attorney.

When used in this estate planning context, the Durable Power of Attorney is generally worded very broadly to give your Agent the power to step into your legal shoes in almost any circumstance. In effect, you tell your Agent "You can do anything I can do."

Now, if you have prepared the Durable Power of Attorney and then become incapacitated, no one has to go through a probate proceeding to appoint a guardian or conservator to act for you - you have already given your Agent the power to do so. As you can see, the Durable Power of Attorney can save precious time and expense in critical situations and avoid having your personal affairs become the subject of a public proceeding.

Appointing a Successor Agent

It is often a good idea to appoint one or more successor Agents. The Agent you appoint in your Durable Power of Attorney may die or for some other reason become unable or unwilling to act as your Agent. In that case, you may be left without someone to act for you when you most need that assistance.

Appointing successors to your first choice of Agent helps insure that someone is always available to handle your affairs. Of course, each successor that you appoint should be someone that has your complete trust.

Revoking a Power of Attorney

As long as you are competent, you have the power to revoke your Durable Power of Attorney. To do so, send written notice to your Agent notifying him or her that the document has been revoked. Once the Agent has notice of your revocation, the Agent may take no further action under the Durable Power of Attorney. However, your revocation will not undo any permissible actions that the Agent has taken prior to being notified that the Power of Attorney has been terminated.

You must also notify third parties with whom your Agent has been dealing that the Durable Power of Attorney has been revoked. For example, if the Agent has been dealing with a stockbroker, you must notify the stockbroker as soon as possible. Do this in writing, as well, and do it immediately. Third parties who do not receive notice of the revocation are entitled to, and probably will, continue to rely on the Durable Power of Attorney.

Making the Durable Power of Attorney Effective upon Incapacity.

It is possible to have a Durable Power of Attorney that only becomes effective if and when you become incapacitated. This document is referred as a "springing" Durable Power of Attorney because it "springs to life" on the occurrence of a future event - your incapacity. The document should include a detailed definition of "disability" to make clear the circumstances in which your Agent may act on your behalf.

Knowing that your Agent is unable to exercise his or her powers until you are actually unable to do so yourself may make using the Durable Power of Attorney more comfortable for you. Unfortunately, even with a good definition of incapacity in the springing Durable Power of Attorney, your Agent may find that third parties are simply not willing to make the judgment that you are indeed disabled. If they are wrong, they may be held liable to you for any damages that you sustain as a result of the error in judgment. You may therefore find the springing document cannot be relied upon in all circumstances.

Don't Procrastinate!

Estate planning is easy to put off. But don't! Advance planning, such as executing a Durable Power of Attorney, may make a horrible circumstance for you and your family just a bit more bearable.

John Pollock is an attorney that specializes in estate planning. He is also the webmaster of [http://www.forms-free-4-all.com], a website offering free legal forms with easy to understand explanations of the relevant law.