Power of Attorney

October 8th, 2022 by admin No comments »

Power of Attorney Taking Effect Regardless of Disability

Every adult has day-to-day affairs to manage,Guest Posting such as paying the bills. Many people are under the impression that, in the event of catastrophic illness or injury, a spouse or child can automatically act for them. Unfortunately, this is often wrong, even when joint ownership situations exist.

The lack of properly prepared and executed power of attorney can cause extreme difficulties when an individual is stricken with severe illness or injury rendering him/her unable to make decisions or manage financial and medical affairs. All states have legal procedures, guardianships or conservatorships, to provide for appointment of a Guardian. These normally require formal proceedings and are expensive in court. This means involvement of lawyers to prepare and file the necessary papers and doctors to provide medical testimony regarding the mental incapacity of the subject of the action. The procedures also require the involvement of a temporary guardian to investigate, even intercede, in surrogate proceedings. This can be slow, costly, and very frustrating.

Advance preparation of the power of attorney can avoid the inconvenience and expense of legal proceedings. This needs to be done while the principal is competent, alert and aware of the consequences of his/her decision. Once a serious problem occurs, it is too late.

A federal regulation known as the Health Insurance Portability and Accountability Act (HIPAA) was recently adopted regarding disclosure of individually identifiable health information. This necessitated the addition of a special release and consent authority to all healthcare providers before medical information will be released to agents and interested persons of the patients. The effects of HIPAA are far reaching, and can render previously executed estate planning documents useless, without properly executed amendments, specifically addressing these issues. As HIPAA affects not only new documents, any previously executed documents are affected as well. Any previously executed Powers of Attorney, Living Wills, Revocable Living Trusts, and certainly all Medical Directives should have HIPAA amendments.

A Power of Attorney is an appointment of another person as one’s agent. A Power of Attorney creates a principal-agent relationship. You, the grantor of the Power of Attorney, are the principal. The person to whom you grant the Power of Attorney is your agent. The agent is normally called an “attorney-in-fact.” The attorney-in-fact does not become the owner of your property, but is merely permitted to deal with it within the terms set out in the Power of Attorney. Since an attorney-in-fact has the power to deal with your property, you, naturally, must be careful to give such a power only to a trustworthy person. You have entrusted to your attorney-in-fact those powers which are stated in your Power of Attorney.

The Power of Attorney if effective upon signing is a “durable power.” This means that if you should become incompetent and be unable physically or mentally to handle your own affairs, the Power of Attorney, nevertheless, will continue to be as good as it was on the day that you signed it. If you become incompetent, the Power of Attorney will terminate only upon 1) a Court’s declaring you to be incompetent or 2) upon your death. The attorney-in-fact may continue to use the Power of Attorney and acts performed under the Power of Attorney will be valid until either of those two events occurs, after which time acts performed by the attorney-in-fact will no longer be valid. Consequently, even if you become incompetent but no Court declares you to be so the Power of Attorney will still be effective.

A Summary of Virginia Medical Malpractice Laws

March 16th, 2022 by admin No comments »

In many respects, Virginia has been more conservative about modifying the common law than its sister states. To the extent modifications have been approved, many restrict rather than expand the rights of the victims of medical negligence. For example, Virginia has adopted three major modifications of medical malpractice law: a damage cap, screening of proposed lawsuits by a medical review panel, and a state fund to compensate victims of birth-related neurological injuries. Much of the legislation specific to medical malpractice can be found in the Medical Malpractice Act, Va. Code Ann. §§ 8.01-581.1 to 8.01-581.20.

Statutes of Limitations

All medical malpractice actions for injury (as opposed to death) must be brought within two years from the date the cause of action accrued. Va. Code Ann. § 8.01-243(A). In § 8.01-230, a cause of action “accrues” at the time of injury: “the cause of action shall be deemed to accrue and the prescribed limitation period shall begin to run from the date the injury is sustained in the case of injury to the person… and not when the resulting damage is discovered.”

This two-year limitation has long been applicable, and strictly enforced, in Virginia. Virginia is one of the minority states that use the “date-of-the-act” rule, which means that the plaintiff must file suit within two years of the date of the injury regardless of how obscure or undiscoverable the injury might have been. Exceptions to the two-year rule are (i) cases involving minors or mentally incompetent people who are in law regarded as unable to know their legal rights and (ii) cases where the injury was fraudulently concealed from the person.

The Virginia Supreme Court rejected the judicial adoption of a discovery rule, Nunnally v. Artis, 254 Va. 247, 492 S.E.2d 126, (1997), but held that “continuing treatment for the same conditions” tolls the statute of limitations until treatment ends. Grubbs v. Rawls, 235 Va. 607, 369 S.E.2d 683 (1988). The court defined “continuous treatment” as not “mere continuity of a general physician-patient relationship; we mean diagnosis and treatment for the same relating illness or injuries, continuing after the alleged act of malpractice.” The court acknowledged, however, the rule would not apply to a single, isolated act of malpractice. Farley v. Goode, 219 Va. 969, 252 S.E.2d 594 (1979). In other words, when an act of malpractice occurred and that physician continued to see the patient over a course of years for an unrelated condition, the rule would not apply.

In foreign object cases (surgical sponges, needles, etc.) and cases of fraud or concealment (i.e., alteration of medical records) the statute is extended to one year from the date the object or injury is discovered or reasonably should have been discovered. However, this extension is subject to a ten-year limit from the time the cause of action accrued. Va. Code Ann. § 8.01-243(C).

In cases in which the health care provider’s negligence caused the patient’s death (Wrongful Death Claims), suit must be filed within two years of death. Va. Code Ann. § 8.01-244(B).