Rosenbaum & Rosenbaum, P.C. | January 26, 2021 | Wrongful Death
The death of a family member can be overwhelming. In addition to dealing with the emotional trauma caused by losing a loved one, you also need to deal with the legal requirements of settling your loved one’s final affairs.
If you held power of attorney for your loved one, you might assume that you can continue using a power of attorney to settle financial affairs. However, that is not the case. The powers granted by the power of attorney or POA end with death.
Even if you hold a durable power of attorney that would have survived your loved one’s incapacitation, it does not survive the person’s death. Your loved one’s legal affairs and final estate are handled by the personal representative named in the will. If your loved one did not have a will, the probate court appoints a personal representative to manage the estate.
What is a Power of Attorney?
A power of attorney (POA) is a legal document that gives another person the authority to act on your behalf. There are many different types of powers of attorney. Some POAs give broad powers, such as a general durable power of attorney.
Under a general durable power of attorney, you can perform any financial transaction in the person’s name that the person could perform themselves. For example, you can sell or purchase assets, open and close financial accounts, file and settle lawsuits, and manage investments.
A power of attorney can limit the authority it grants the person. A specific power of attorney might give another person the power to close a real estate transaction. Other than performing actions to close the real estate transaction, the power of attorney cannot perform any other transactions in the person’s name.
A healthcare power of attorney gives another person the authority to make healthcare decisions. This type of power of attorney may also be limited, or it may give the person the authority to make any decision, including decisions related to end of life care.
What is a Wrongful Death Claim?
If another party caused your loved one’s death, you might have a wrongful death claim against that party. A wrongful death claim is a civil action against the person who caused your family member’s death. It seeks to hold that person financially liable for the damages caused by the death.
According to New York Consolidated Laws, Estates, Powers, & Trust Code §5-4.1, there are five elements required for a wrongful death claim:
- A person died
- There was reckless or negligent behavior
- A cause of action existed that the deceased person could have filed had the person survived
- One or more people survived the deceased and suffered economic losses because of the death
- Damages exist that the decedent’s estate can recover
The death does not need to be intentional. It could arise from a personal injury accident. Examples of incidents and accidents that can give rise to a wrongful death claim include, but are not limited to:
- Motor vehicle accidents
- Medical malpractice
- Assaults and violence
- Workplace accidents
- Defective products
- Construction accidents
A wrongful death claim cannot bring back a loved one. However, it can hold the party responsible for your family member’s death legally liable. You can also recover compensation for damages that can help your family with expenses as you continue to heal from losing a loved one.
The compensation the estate may receive depends on the facts of the case. However, the estate might recover compensation for loss of future earnings, lost inheritance, burial expenses, medical expenses, funeral costs, and more.
Who Can File a Wrongful Death Claim in New York?
In some states, family members can file a wrongful death claim. The laws might limit who can file the lawsuit. However, wrongful death claims work differently in New York.
The right to file a wrongful death lawsuit lies with the personal representative for the estate. Any money that is recovered by the personal representative is placed in trust for the heirs and beneficiaries of the estate. When the estate settles, the funds are distributed to the decedent’s beneficiaries and heirs.
How Long Does the Estate Have to File a Wrongful Death Claim?
In most cases, the statute of limitations for filing a wrongful death claim in New York is two years from the person’s death. Because there are exceptions to the statute of limitations, it is generally best to consult with a lawyer as soon as possible. Missing the deadline to file a lawsuit results in the loss of legal rights and compensation for the family.