The Court Of Public Opinion

Q: What is an autopsy, and why would it help my case?

A: An autopsy is an in-depth examination of a dead person, by a doctor. The doctor who performs the examination is usually a pathologist who looks to find the precise cause of death. They do this by looking at all of the internal organs, including the brain, heart, lungs, liver, kidneys, and spleen. Each area of the body is examined for evidence that contributed or caused that person’s death.

In a case involving claims of wrongful death (where a person or family has claimed that their loved one died because of somone else’s carelessness) having an autopsy is crucial to proving your case. While an autopsy is vital to support such a case, it can also shed light on the possibility that your loved one did not die as a result of wrongdoing.

It’s a double edged sword. The autopsy could help your claim by showing that your loved one died from wrongdoing, or it could show that the treatment or actions that happened before death did not play a role in causing the death.

There are some religions that prohibit autopsies, and in those cases, it becomes extremely difficult to prove, with a reasonable degree of probability, that wrongdoing (such as malpractice) caused their death. In those cases, we must rely on other evidence to support our claim.

I am often called upon by grieving families to ask whether an autopsy should be performed on their loved one. As in life, there are no set answers to this crucial question. Emotions run high following a family death; questions about improper treatment may cloud a family’s judgment; uncertainty about the cause of death may also add to a feeling of helplessness.

The most common case where an autopsy is performed is in a traumatic accident. In murder or homicide cases autopsies are always performed as the police want to know exactly what caused the person’s death. They can usually use this information to track the perpetrator.

In New York, if a person dies suspiciously, or within 24 hours of having had surgery, an autopsy will usually be performed to determine the precise cause of death.

For example, I had a case where a man on dialysis came home one day, and was found later by his family in his bathroom having bled to death. The walls were covered with blood and there were open bandages all over the floor. An autopsy was able to confirm that the man’s shunt (the place where the dialysis needle was put into his arm each session) had gotten infected and progressively larger with each session. Nobody recognized that he was starting to bleed when he left the dialysis center. Unfortunately, when he arrived home, the shunt ruptured and since it was connected to an artery, blood shot out all over the bathroom, creating what looked like a murder scene. It was only through the autopsy that we were able to prove our case successfully.

Autopsies are usually performed by the County Medical Examiner. In the five boroughs of New York City, Brooklyn, Bronx, Queens, Manhattan and Staten Island, autopsies are performed by the New York City Medical Examiner’s Office. In Nassau, it’s the Nassau County Medical Examiner, and in Suffolk, it’s the Suffolk County Medical Examiner.

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I am a Miami Lawyer, practicing Personal Injury, Criminal Law, Immigration, Divorce, etc. and I deal with several clients on a daily baisis. I think that clients are entilte to get the best attorney possible. I think that every client in legal matter, (whether it be Personal Injury, Criminal Law, Immigration, or Divorce) should possess the following basic client rights:as published by the Florida Bar

When I retain a lawyer, I am entitled to one who:

1 WILL be capable of handling my case.

2 WILL represent me zealously and seek any lawful means to present or defend my case.

3 WILL preserve my confidences, secrets or statements which I reveal in the course of our relationship.

4 WILL give me the right to make the ultimate decision on the objectives to be pursued in my case.

5 WILL charge me a reasonable fee and tell me, in advance of being hired and upon my request, the basis of that fee.

6 WILL show me courtesy and consideration at all times.

7 WILL exercise independent professional judgment in my behalf, free from compromising influences.

8 WILL inform me periodically about the status of my case and, at my request, give me copies of documents prepared.

9 WILL exhibit the highest degree of ethical conduct.

10 WILL refer me to other legal counsel, if he or she cannot properly represent me.

again, i welcome questions regarding florida personal injury cases. As mentioned before, I am a Miami Lawyer, practicing Personal Injury, Criminal Law, Immigration, Divorce, etc. and I deal with several clients on a daily baisis.

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The following crossed my desk recently. The author gave me permission to share her story:

Please alert people to something we’re experiencing right now - having to clean up the mess of someone not naming more than one person as beneficiary on a life insurance policy. We are having an impossible time trying to get the funeral expenses paid for my sister and my mother. They died within four days of each other, and they left each other as beneficiary of their life insurance policies.

‘If the person listed as a beneficiary dies, the insurance benefit goes into their estate.

‘The problem is, neither of them had a will, either.

(Aside: This means that both estates, the mother’s and the daughter’s, will have to be probated by the Court, and the Court will decide who gets what. The process can be lengthy, and it can be expensive. The family might not see the funeral money for a while.)

Also, please alert people to be sure that the person they choose to be their medical decision maker - the person who has Medical Power of Attorney - is willing to do what they would want done. Review the mental capacity of the appointed person regularly.

‘My 85 year old Mother couldn’t bring herself to honor my sister’s Living Will that said she wanted to be allowed to go. The doctor wouldn’t write a letter stating Mother wasn’t capable of making these decisions for my sister, who was in a coma.

‘So, my sister was put on life support, even though there was no hope that she would ever awaken or live a productive life. She lingered for months on a ventilator.

‘My family and I wish we had thought about all these things sooner. We are taking a closer look at our own papers now.

She is soooo right.

Life insurance is something we all tend to forget about. When you started that new job, you made out your employer’s insurance beneficiary papers on the first day. Have you thought about them since?

What about your Medical and Financial Powers of Attorney (you do have them, don’t you?). If you’ve designated your spouse on one or both, what happens if you’re in an accident together? Is there a secod person named who can step in?

If you made arrangements for your children when they were babies, are there things you should change now thatthey’re older? Now that several years have gone by, would you still appoint the same people to care for your children in the event of a catastrophe?

Do you have a will? If not, some stranger in a black robe is going to be making decisions for you one day.

What about your parents? If one of them has passed away, has the survivor made the necessary changes to legal documents?

If one parent is in poor health or getting confused, is he or she still the only one legally appointed to make decisions for the other?

This doesn’t really have anything to do with your age. Everyone over the age of 18 should give some thought to these questions, and then take action. Should you do something about it right now, before something goes tragically wrong?

You Betcha!

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One: I hate my children and want them to never speak to each other again after the battle over my estate.

Two: I hate my spouse and want him or her to suffer the agony of attempting to probate my estate without a will.

Three: I think foster care is great and I want my minor children placed there while a court decides which greedy relative will get custody.

Four: My family doesn’t need the money so I want the government to take as much of my estate for taxes as possible.

Five: I have reliable information that I am never going to die.

Of course the above is written tongue in cheek. However the tragedy of the Twin Towers, the battle over freezing Ted Williams body, and now the sniper shootings in the D.C. area are bringing to more Americans a deeper realization of their own mortality and that of their loved ones. The American Bar Association estimates that 70% of Americans do not have a will. The median age of those killed in the terrorist attack on the World Trade Center was 39 and over two thirds of those killed were men. This is the age group least likely to have a will and the court battles will last for many years after the physical scars are erased.

A case in point is the story of a young lady from Atlanta, Georgia. Her parents divorced when she was a baby and her mother died several years later. Her aunt took in the child and worked two jobs so the niece could graduate from college. The young lady was ambitious and bright. After college she excelled in her job and which allowed her to buy a house and a new car. Eventually the aunt became disabled and was taken in and cared for by her niece. One foggy morning a crash on an Atlanta freeway ended the young lady’s life. Without a will her entire estate; home, car and bank account; was awarded by the court to two half-sisters that she had met only briefly at her father’s funeral. The aunt was forced to enter a nursing home. Unfortunately what is fair is not always what is legal. My wife Carolyn is currently involved in a court battle over her mother’s estate. A family member confiscated the will and has refused to provide any information in defiance of a court order. It has been over a year and the estate is still in limbo. Much of the emotional stress and most of the legal bills would have been avoided if an attorney had been in possession of a copy of her will.

Review the five reasons not to have a will and ask yourself which one applies to you. I will also be glad to add any new reasons to the list. One that is not acceptable is that it costs too much.

Nolo’s Willmaker software is available online at a cost of approximately $40.00. Pre-Paid Legal Services http://www.prepaidlegal.com/info/carolynpatterson will prepare a will for you and your spouse without extra charge with a membership and offers reduced rates on trusts and other estate legal issues. An attorney that specializes in estates can be located through your state’s Bar Association. Whatever route you chose, don’t leave your final arrangements to the whim of a judge

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WHAT DOES A WILL DO?

The simplest way to ensure that your funds, property and personal effects will be distributed after your death according to your wishes is to prepare a will. A will is a legal document designating the transfer of your property and assets after you die. Usually, wills can be written by any person over the age of 18 who is mentally capable, commonly stated as being of sound mind and body.

WHO NEEDS A WILL?

Although wills are simple to create, about half of all Americans die without one (or Intestate). Without a will to indicate your wishes, the court steps in and distributes your property according to the laws of your state. Wills are not just for the rich; the amount of property you have is irrelevant. A will ensures that what assets you do have will be given to family members or other beneficiaries you designate. If you have no apparent heirs and die without a will, it’s even possible the state may claim your estate.

Having a will is especially important if you have young children because it gives you the opportunity to designate a guardian for them in the event of your death. Without a will, the court will appoint a guardian for your children who may be someone you do not even know.

WHAT ARE THE ELEMENTS OF A WILL?

What you generally need to make a will:

1) Your name and place of residence;

2) Names and addresses of spouse, children and other beneficiaries, such as charities or friends;

3) Alternate beneficiaries, in the event a beneficiary dies before you do;

4) Name and address of an Executor/ Executrix to manage your estate;

5) Name and address of an alternative Executor/Executrix, in the event your first choice is unable or unwilling to act;

6) Name and address of a guardian for your minor children;

7) Name and address of an alternative guardian, in the event your first choice is unable or unwilling to act;

The age you wish your minor children to have control of their inheritance;

9) Any burial requests you may have (cremation, where you want to be buried, etc.);

10) Your signature;

11) Two Witnesses’ signatures; and

12) Notarization.

Two of the most important items included in your will are naming a guardian for minor children and naming an Executor/ Executrix.

WHAT IS A GUARDIAN?

In most cases, a surviving parent assumes the role of sole guardian. However, it’s important to name a guardian for minor children in your will in case neither you nor your spouse is able and willing to act. The guardian you choose should be over 18 and willing to assume the responsibility. Talk to the person ahead of time about what you are asking. You can name a couple as co-guardians, but that may not be advisable. It’s always possible the guardians may choose to go their separate ways at some later date, and, if so, a custody battle could ensue. If you do not name a guardian to care for your children, a judge will appoint one, and it may not be someone you would have chosen.

WHAT IS A EXECUTOR/EXECUTRIX AND WHAT DO THEY DO?

An Executor/Executrix is the person who oversees the distribution of your assets in accordance with your will. Most people choose their spouse, an adult child, a relative, or a friend to fulfill this duty.

If no Executor/Executrix is named in a will, a Probate Judge will appoint one. Probate refers to the legal procedure for the orderly distribution of property in a person’s estate. The Executor/Executrix files the will in probate court, where a Judge decides if the will is valid. If it is found to be valid, assets are distributed according to the will. If the will is found to be invalid, assets are distributed in accordance with state laws.

Responsibilities usually undertaken by an Executor/Executrix include:

–Paying valid creditors;

–Paying taxes;

–Notifying Social Security and other agencies and companies of your death;

–Canceling credit cards, magazine subscriptions, etc.; and

–Distributing assets according to the will.

WHAT ABOUT UPDATING MY WILL?

You’ll probably need to update your will several times during the course of your life. For example, a change in marital status, the birth of a child or a move to a new state should all prompt a review of your will. You can update your will by amending it by way of a Codicil or by drawing up a new one. Generally, people choose to issue a new will that supersedes the old document. Be sure to destroy the old will after you sign a new one.

WHAT ABOUT ESTATE TAXES?

The property included in your will may be subject to taxation. In planning your will, take into account the following:

—Federal estate taxes will generally be due if the net taxable estate is worth more than $1,000,000. This amount is scheduled to gradually increase from $1,000,000 in 2002/2003 to $3,500,000 in 2009 so that it will eventually shield $3,500,000 in gift or estate transfers from tax per taxpayer. Estates in excess of the exempt amount can be taxed at a rate from 37% to 50% (the top percentage is scheduled to gradually decrease to 45% in 2009). Also, note that these estate tax changes are scheduled to be repealed in 2010. If not extended, the tax law will revert to the estate and gift tax provisions in affect in 2001. Consult a tax or financial professional to determine a plan that is right for you and your family.

—State death or inheritance taxes

—Federal income taxes

—State income taxes

You may be able to minimize your estate tax by establishing a trust or giving gifts during your lifetime. You can also cover the cost of estate taxes by purchasing a life insurance policy intended to pay taxes. Talk to your life insurance agent to find out more about how this works.

WHERE SHOULD I KEEP MY WILL?

Once your will is written, store it in a safe place that is accessible to others after your death. I suggest that you keep it in a fire proof box that you can purchase at any office supply store. I do not suggest that you keep your will in a safe deposit box because many states will seal your safe deposit box upon your death. Make sure a close friend or relative knows where to find your will.

WHAT IS A LIVING WILL?

A living will is not a part of your will. It is a separate document that lets your family members know what type of care you do or don’t want to receive should you become terminally ill or permanently unconscious. It becomes effective only when you cannot express your wishes yourself. Discuss your wishes as reflected in your living will with family members, and be sure all your doctors have a signed copy.

WHAT IS A POWER OF ATTORNEY FOR HEALTH CARE (HEALTH CARE PROXY)?

A power of attorney for health care (health care proxy) is not a part of your will. It is a separate document that authorizes someone you name to act in accordance with your medical intentions. It becomes effective only when you cannot express your wishes yourself. You should make sure that all your doctors have a signed copy.

WHAT IS A FINANCIAL DURABLE POWER OF ATTORNEY?

A financial durable power of attorney is not a part of your will. It is a separate document that authorizes someone you name to act in accordance with your financial intentions. It becomes effective only when you cannot express your wishes yourself. You should make sure that all your financial professionals (stockbrokers, accountants, financial planners) and banks have a signed copy.

PLAN AHEAD

The end of your life is something you probably don’t want to dwell on, but thinking about what will happen to your loved ones and your assets and personal possessions is important. Making sure you’ve done all you can to make their lives easier will give you peace of mind. And once your will is drafted, you won’t have to think about it again unless something significant in your life changes.

About The Author

Sheri R. Abrams is an Attorney in Fairfax, VA. Her practice is limited to the areas of Social Security Disability Law and the preparation of wills, living wills, health and financial powers of attorney. Ms. Abrams is a graduate of Boston University’s School of Management and the George Washington University School of Law. Ms. Abrams is rated AV by Martindale-Hubbell. More information can be found at http://www.sheriabrams.com

sheri@sheriabrams.com

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Wrongful death refers to a lawsuit which alleges that the victim was killed as a consequence of negligence or misdeed of another. Usually, wrongful death occurs as a result of personal injury accidents, medical malpractice, auto accidents, workplace accidents, dangerous or defective products, mesothelioma and other accidents. When the proximate cause of the wrongful death of the decedent roots from reckless, careless or negligent acts of another, his actions are often subject to personal injury and/or wrongful death suits.

The loss of a family member causes great pain, turmoil, as well as inconceivable loss of the family. In the stage of grieving, it is hard or impossible to function in everyday life and carry on, let alone think about making a wrongful death claim. This stage leaves the decedents family feeling powerless with so many questions unanswered. When you are ready to receive settlement or filing a wrongful death suit, an experienced wrongful death lawyer can be of great help. Though a wrongful death claim cannot replace your loss but it is as close to justice.

If you have lost a loved one due to the negligence of a person or a company, you may have the right to receive compensation from an insurance company or from the person or company responsible for said death. Surviving family members are strongly encouraged to immediately consult with a wrongful death lawyer to safeguard the critical evidence of the fatal accident and to avoid being estopped to institute a claim.

The immediate aftermath of a wrongful death is to hire the services of the right lawyer. Hiring an experienced wrongful death lawyer is a critical decision that may significantly affect the lives of the decedents family. Wrongful death lawyers appreciate the complexity in legal issues as well as the powerful emotional trauma absorbed in a wrongful death claim. Experienced wrongful death lawyers will vigilantly represent the rights of the victim while assisting the family members in a dependable and considerate manner by providing information regarding the practical and legal aspects of personal injury law and wrongful death claims including survivor actions, Social Security Disability and Windows Benefits.

To be able to show evidences that a wrongful death happened, an investigation in connection with the death shall be conducted. It is necessary that the wrongful death lawyer have the necessary resources to acquire records and reports as well as thorough information for successful case results. Clients should feel confident about their legal action. With the help of a diligent wrongful death lawyer, the process in recovering the reasonable compensation will be smoother.

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Do you know anyone who has been hit by a reckless driver or a careless motorist, shot dead due to mistaken identity, killed due to medical malpractice, etc.? These are examples of wrongful death cases. Generally, these cases are caused by another persons negligence, carelessness, malpractice or inaction. Even though the death is unintentional, it is still the responsibility of the defendant to provide just compensation for the survivors or victims of wrongful death cases.

Prior to a wrongful death incident, you can file wrongful death lawsuits if you are a relative of the wrongful death victims. Winning these civil lawsuits can recover payment for damages to the victims lives. The compensation may cover medical and funeral costs, lost wages including future earnings, lost benefits, lost inheritance, pain and suffering, mental anguish, loss of support or companionship, general damages, and punitive damages. However, the last compensation may not be awarded without additional evidence of malicious intent.

Simply, the immediate family members such as the parents, spouses and children of the deceased can file the wrongful death lawsuits on their loved ones’ behalf because they are almost always eligible to file a claim. Minors may need an adult guardian to take a wrongful death lawsuit to court. Moreover, other family members including the stepparents, grandparents and dependents may also be permitted to file suit in some states.

If you realize you have a valid wrongful death claim, you must first consult one of the experienced wrongful death lawyers in your area. Doing so is very important because a wrongful death lawyer can help you gather evidence, understand the law, complete necessary paperwork, and build a convincing lawsuit against the defendant. In addition, to have an attorney can also help lessen the pain, stress and suffering you may be experiencing due to the incident.

The law states that there is a certain amount of time allotted that a person who has lost a loved one due to wrongful death has to initiate a lawsuit. Family members are usually allowed between one and three years from the time of death to file a claim. If they fail to do so, their claims may be shelved forever. Therefore, if you have lost a loved one because of wrongful death, speak to a personal injury attorney for details regarding the reliability of your case now. After all, your loved ones deserve justice for their untimely death and you too for your misery.

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