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Incompetence and incapacity: They sound similar, but are there differences? And when should each term be used? In Pennsylvania, how they’re used has changed over the years. At one point, “incompetent” wasn’t used legally, but it returned to legal use in 2007. Here’s what you need to know.

Incompetence

In Pennsylvania, incompetence became a standard applied when close family or friends wanted to be able to make certain medical decisions on behalf of someone. For the court to approve, a doctor needed to examine the person and declare them incompetent for medical purposes. That means the doctor didn’t believe the person had the mental capacity to understand what they needed to in order to provide consent for medical treatments. It’s only used in cases where medical decisions are required, but no one was appointed medical power of attorney to step in. This isn’t the end of the line, though; a healthcare representative or even the person diagnosed as incompetent can have the assessment overturned.

Legal Incapacity

Incapacity is similar to incompetence in that it describes a person who can no longer take care of themselves, their health and safety, and daily life and is unable to enter into contractual arrangements knowledgeably. Whereas incompetent is used in medical situations, incapacity is used only in legal matters. For someone to be deemed legally incapacitated, a judge must conduct a hearing in which evidence, medical and otherwise, is presented, and the judge determines whether or not the evidence proves incapacitation. A judgment of incapacity cannot be overturned and can be used in both medical and financial situations.

What Estate Planning Can Do to Help

These types of legal situations arise when someone hasn’t prepared for the future of their estate. Planning and setting up various trusts and powers of attorney can prevent legal hearings and other stressful outcomes. Talk to an experienced estate planning and elder law lawyer about what steps to take.

Let Me Advise You

If you or someone you know needs assistance with estate planning or elder law, call me at 610-718-6368.

How Does a Living Trust Apply in Pennsylvania?

A living trust is a form of estate planning which, unlike things like wills, becomes active while the person is still living. How such trusts work varies from state to state. Here’s what you need to know about living trusts in Pennsylvania.

What Is a Living Trust?

A living trust is a legal document in which a person (the testator) places assets, including bank accounts, property, or other financial assets, into a trust managed by someone else. This could be the testator themselves, or it could be another individual or a corporation such as a bank. Whoever manages the trust is called the trustee.

The trust specifies the trust’s beneficiaries when the testator dies. The testator continues using the assets while alive but has prepared them to be fully transferred after death.

Advantages of a Living Trust

One of the most significant advantages of a living trust is avoiding having the assets go through probate court. Assets that belong to the trust can be distributed to the heirs quickly, as opposed to a will that needs to go through probate court, which can take months or longer and run up significant legal fees.

Another advantage is that a trust is a private transaction. Wills that go through probate become part of the public record. For those who would like to keep their estate details more private, a trust is a way of accomplishing that.

One thing to note: People often erroneously believe that a trust will significantly reduce estate taxes. That’s rarely the case. But Pennsylvania doesn’t have a state estate tax, although it does have a state inheritance tax.

If I Have a Living Trust in Pennsylvania, Do I Still Need a Will?

There are two major reasons you should have a will, even if you have a living trust:

• Guardianship of minor children. Trusts don’t have a mechanism to appoint guardians for orphaned minor children. Only a will accomplishes this. Without a will, the court will assign an orphaned minor a guardian.
• Assets not included in the trust. Any assets not transferred to the trust will not be distributed by the trust. The probate court would handle that.

Let Me Advise You

If you or someone you know wants to investigate setting up a living trust in Pennsylvania, call me at 610-718-6368.

The Importance of Durable Powers of Attorney

There are various aspects to planning an estate, and there are various forms of paperwork to make those aspects viable in the long term. One important document is the power of attorney. There are different types of powers of attorney, but one to consider is the durable power of attorney. Here’s what it does and why it’s valuable.

What Is a Durable Power of Attorney?

A durable power of attorney is how someone (the principal) can appoint someone else (the agent) to act on their behalf and make critical decisions if the principal becomes mentally incapacitated. In this type of power of attorney, the agent can handle decisions regarding business, financial, and legal concerns. The power of attorney details how much responsibility the agent has and how much they’re allowed to handle.

Why Is a Durable Power of Attorney Valuable?

Having a durable power of attorney in place can allow the principal to attend to other matters in their life, knowing they’ve ensured their intentions and wishes have been made known and are in the hands of a responsible person who will oversee them. It also can make the principal’s family members more at ease, knowing they won’t have to make difficult decisions during a time of grief and stress.

Things to Consider When Selecting Someone to Act as Your Durable Power of Attorney

The agent will have a considerable amount of responsibility and authority over the principal’s affairs, so it needs to be someone that can be fully trusted. Family members are often selected, but there are times when that isn’t advised. If there is already conflict among family members, appointing one of them as the agent can lead to increased conflict. Then it might be better to have a non-family member involved.

It’s also essential to define the things the agent has the authority to do. This is where the advice of an experienced estate planning attorney can be valuable, as they could have insights and advice others haven’t thought of. That can help avoid issues down the road.

Let Me Advise You

If you or someone you know would benefit from exploring various aspects of estate planning, including powers of attorney, call me at 610-718-6368.

What Is Defined as Personal Injury?

Personal injury sounds self-explanatory, but it encompasses a wide range of injuries for which legal options may exist. Depending on the cause and severity of the injury, there can be potential for lawsuits and compensation to the injured person.

Types of Personal Injuries

Many people think personal injuries are physical in nature, such as a broken leg. But personal injury law defines personal injury as a much broader category. Legally, personal injury encompasses physical harm, emotional harm, or damage to a person’s reputation.

Physical Harm

This is perhaps the most straightforward category to understand. Someone (or some entity or organization) causes another person to be physically injured. Those injuries can range from minor (sprained ankle) to severe (paralysis, brain damage).

There are three categories of physical harm:

• Negligence. This means the injury occurred because proper care wasn’t taken to prevent it, but it likely wasn’t deliberate. That could include someone falling on an icy sidewalk where a homeowner hadn’t tried to remove the ice or salt it to make it safer or someone who is careless when handling a gun.
• Liability. This includes things like defective products that cause injuries. It doesn’t matter if the manufacturer, distributor, or retailer of the product was aware of the defect or not. Once the defect becomes known, they can still be held liable.
• Intentional injury. This category includes deliberate harm, such as battery and assault or false imprisonment.

Emotional Harm

Emotional harm comes into play when someone causes someone else debilitating emotional stress. That can go hand-in-hand with physical injuries, such as false imprisonment, or it can arise from emotional and verbal abuse or invasion of privacy.

Damaged Reputation

Damaged reputations that arise from things like defamation are considered personal injury. Examples include someone making false claims about someone else on social media that cause that person to lose standing in the community.

Let Me Advise You

If you or someone you know needs help exploring legal options for any type of personal injury, call me at 610-718-6368.

When to Get an In-Home Nurse for a Loved One

Many people would prefer not to leave their long-time homes, even as they age and it becomes more difficult for them to care for the home and themselves. But when medical issues crop up, especially chronic or long-term problems, they may be unable to manage their care themselves. One option is to bring in a skilled in-home nurse to care for them. Here’s what to know about timing.

Ongoing Care Is Needed

When someone has a medical condition that requires ongoing treatment, whether short- or long-term, but they’re physically unable to manage it alone, that’s an excellent time to seek out an in-home nurse. This can cover various conditions, including wound or sore management, physical or occupational therapy, or medication administration.

There Are Signs of Self-Neglect

If you’ve noticed the loved one is having trouble caring for themselves, it might be time to bring in a nurse, even if there isn’t a significant medical condition. Signs of self-neglect include decreased quality of cleanliness in the home, weight loss because they’re not cooking or eating what they need, or it’s apparent they haven’t kept themselves or their clothes clean.

Noticeable Memory Issues

Remember that memory degrades with age, so some memory loss is expected. But what could be cause for alarm is if the loved one has trouble following directions, gets lost easily in familiar places, forgets or mixes up medications, or repeats the same questions over and over. More profound memory loss can make it hard for your loved ones to properly care for themselves. An evaluation by a doctor is the first step, and then it might be time to bring in a nurse to keep things on track.

When You Can No Longer Be the Carer

If you’ve been the caregiver yourself, you may experience burnout and exhaustion, not to mention that if you’re not a nurse, you may struggle with some of the medical concerns. Taking care of yourself is as important as caring for your loved one. A skilled nurse can ease the burden and provide a high standard of care. Moreover, it gives your loved one an extra person to socialize with. Many homebound elderly experience loneliness, so adding a new face to the mix can be a day-brightener.

Let Me Advise You

If you or someone you know needs advice about setting up in-home medical care for a loved one, call me at 610-718-6368.

What Does an Elder Law Attorney Do?

As the American population enjoys longer life spans than previous generations, the role of elder law has become important in helping seniors live safely and prepare for the future as much as possible. An elder law attorney has numerous tools at his disposal to help manage various issues, including these:

Estate Planning

Estate planning is not just for the incredibly wealthy. Anyone with some assets, whether financial or real estate, should plan ahead for what happens to those assets after their death. An experienced elder law attorney has the knowledge and insight to make valuable suggestions that can make things easier, both for the person with the assets and for the future heirs. Services include wills, trusts, financial planning, estate tax issues, and powers of attorney.

Medical Planning

No one likes to think of facing medical crises at any point in life but planning ahead for them can make an enormous difference. An elder law attorney can help explain and plan for long-term care options, Medicare, patients’ rights, medical powers of attorney, and living wills or other medical directives (which legally state the patient’s wishes regarding treatments such as intubation and feeding tubes). Having these plans in place can reduce family conflict when a loved one is in crisis because the decisions have already been made. It can also prevent someone from being forced to accept medical treatment they don’t want simply because they can no longer express themselves.

Work With Housing Situations

An elder law attorney helps clients locate suitable assisted living, long-term care, dementia care, and nursing home housing. They also keep clients apprised of their rights in each of these types of facilities and can help manage costs and finances around them.

Let Me Advise You

If you or someone you know needs assistance with elder care issues and estate planning, call me at 610-718-6368.