When Hoey & Farina published Straight Track - "Emergency Response Checklist", we suggested that as a part of your discussion with your family as to what to do if you were seriously injured at work on the railroad, you consider executing a Durable Power of Attorney.
This generated a lot of questions, as well as requests for a "form" to fill out. Today, we will try to answer some of those questions and explain why there is no "fill in the blanks" form we can send you.
THE "DURABLE" DIFFERENCE
So, what is the difference between a Power of Attorney and a Durable Power of Attorney? The short answer is that the Durable Power of Attorney is effective for the period of time after your work injury during which you are unable to make informed decisions for yourself. A simple Power of Attorney is not.
The maker of a simple Power of Attorney can revoke that power at any time. The power also ends automatically with the death or incapacity of the maker. Incapacity is defined as a condition that would prevent a person from making a power. So, a person who is unconscious, in a coma or under a mental disability cannot execute (make) a Power of Attorney. Obviously, such a person would not have the legal capacity to revoke one either. Therefore, because by its very nature, the power is revocable if you lose the capacity to revoke, it is deemed at law to be revoked when you lose that capacity.
On the other hand, a Durable Power of Attorney continues to be effective even after the maker loses capacity. That is why you should have one. If you are unconscious or under the influence of pain medication or have sustained fatal injuries, you need someone with unquestionable authority to act on your behalf to protect your and your family's interests.
THE NEED FOR SPEED
In the event of serious injury or wrongful death, it is usually necessary to file a lawsuit immediately to preserve evidence and protect the interests of the injured railroader and his family. By filing a lawsuit, we are able to obtain a court order allowing us to inspect the area and possible defective equipment involved in the injury before the railroad is allowed to repair or alter anything. If you are unable to sign a contract of representation with us, we would then need the authority of someone acting on your behalf to sign the contract before we could file a lawsuit. Because a railroad can challenge the right of the person who signed the contract to retain us, it is important that you have designated that person by a Durable Power of Attorney, then the right of that person to retain us cannot be challenged.
STATE REQUIREMENTS FOR A DURABLE POWER OF ATTORNEY
Straight Track is sent to readers in various states. States have different requirements for executing a valid power. For instance, some states require that a Durable Power of Attorney be filed in the courthouse in the county of the residence of the maker. Also, you may want to give the person to whom power is given additional authority such as the power to make medical decisions regarding treatment, including life support issues, or to execute bank or real estate documents. Therefore, we recommend that you contact your family lawyer, someone who has perhaps already helped you with a Will, for assistance in preparing and executing a valid power under the law of your state. Be sure to instruct him to include the following authorization:
To retain the Law Firm of Hoey & Farina as my attorneys in the event that I sustain injuries while at work as a railroad employee.
YOUR SPOUSE MAY NOT ALREADY HAVE POWER
Some of you will say, "My spouse can take care of all this without me signing a Durable Power of Attorney." That may or may not be true depending on where you live. Again, requirements for a Durable Power of Attorney vary from state to state. Some states require that a spouse or other person must first qualify as your personal representative before that person can legally sign a contract to file a suit. "Probate" powers can take months to establish. By that time, the evidence of how you sustained your work injury will be lost. For these reasons, and particularly if you are not married, it is even more important for you to have a Durable Power of Attorney, and empower someone to act with authority on your behalf.
PROTECTING YOURSELF AND YOUR FAMILY
Establishing someone to act with authority on your behalf is just one thing you can do to protect yourself and your family. Please visit our website to read Straight Track - Emergency Response Checklist concerning this particular subject, and to read the other issues of Straight Track. Keeping yourself informed is another way of helping protect yourself and your family. As always, if you have any questions, please contact Hoey & Farina via phone at 1-888-425-1212 or via email at email@example.com.