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Power of Attorney vs Conservatorship: How Do They Differ and Which is Better?

Conservatorship

There may come a time when you need to care for a loved one who no longer can handle their own personal needs or finances and having to take control of another’s personal affairs and health care options is a serious responsibility.

While both POA and conservatorships make it so you take charge of a person’s life when they need the help, they are not the same and both need to be understood so you can choose the correct choice. This article will go over each option to help you understand how each works.

What is a Power of Attorney?

A Power of Attorney (POA) is a legal instrument that allows a person (known as the Principal) to appoint another person/family member/spouse (known as the Agent or Attorney-in-fact) to make financial decisions for them. There are also Medical Powers of Attorney and Advanced Health Care Directives which appoints a trusted person as the Agent to oversee the Principal’s medical care and make healthcare decisions for them if unable to do so themselves. Power of Attorney can be as singular or as far-reaching and long-lasting as needed by the Agent depending on the documents that are signed.

Power of Attorneys can be modified to allow the Agent flexibility in their responsibilities to the Principal and the Principal can appoint another agent if they so choose. Also, they can be used to create contingencies for when the Principal reaches advanced age or become incapacitated.

There are many different types of Power of Attorney that an individual can execute depending on what the person (Principal) wishes to delegate to their appointed agent.

No matter which sort of Power of Attorney is used, they are there to allow individuals to plan for their future healthcare or financial needs carefully and thoughtfully. The most common types of POA are:

Types of POA

General Power of Attorney

A General Power of Attorney allows the Agent to manage all of the financial affairs until the principal becomes incapacitated or the document is revoked. The Agent may be granted with a variety of different responsibilities and powers to use on behalf of the Principal, such as:

  • Managing bank accounts
  • Selling property
  • Settling claims
  • Managing personal assets
  • Signing checks
  • Filing tax forms
  • Executing financial transactions
  • Operating business interests
  • Purchasing life insurance
  • Hiring professional assistance
  • Making gifts

Durable Power of Attorney

A Durable Power of Attorney, permits your appointed Agent to make legal and business decisions for the principal if they become disabled, incapacitated, or unable to handle their affairs. While nondurable powers are automatically terminated if the individual who made them loses mental capacity, Durable Power of Attorney will remain in effect until legally revoked or until the principal dies.

Special Power of Attorney

A Special Power of Attorney allows the principal to appoint an individual to manage a one-off deal or transaction. With a Special POA, your agent will only be able to only manage the specific transaction for a limited amount of time.

Medical Power of Attorney 

Medical POAs allows the appointed Agent to make healthcare decisions for them if they are incapacitated or unconscious. This allows their wishes regarding medical treatment to be respected even if they cannot give consent due to accident, injury, or illness.

What is a Conservatorship?

A Conservatorship is a legal status where a court/judge appoints a person to manage the financial and personal affairs of a minor or incapacitated/mentally unstable person. In order to initiate a conservatorship, a petition must be filed with the court and during court proceedings, the judge hears evidence as to why the other party believes the individual needs the conservatorship, which is mainly due to them being truly incapacitated unable to make decisions for themselves.

If the judge/court finds the person to be impaired, then the court can grant a general or limited Conservatorship based on the level of incapacitation. For example, if an individual can care for his or herself, but needs assistance with financial matters, this would call for a limited conservatorship.

Conservatorship Guidelines 

A person is deemed “incapacitated” when they are unable to manage property and business affairs because of:

  • Mental illness
  • Mental deficiency
  • Physical illness
  • Illnesses due to age
  • Drug addiction
  • Alcohol addiction
  • Confinement
  • Detention by foreign power
  • Disappearance

Who Can Serve as a Conservator?

The following people are prioritized to becoming the incapacitated individual’s conservator:

  • Conservator appointed in another jurisdiction
  • Person selected by incapacitated person
  • Person designated by incapacitated person’s power of attorney
  • Spouse
  • Adult child
  • Parent
  • Relative with whom ward has lived for the last six months
  • Nominee of person caring for incapacitated person
  • General Conservator or Sheriff

Power of Attorney vs Conservatorship: What’s the Difference?

When comparing the difference between power of attorney and conservatorship, keep in mind that a person creates a power of attorney before a person is incapacitated. In contrast, a conservatorship is formed after a person is no longer able to competently make critical financial decisions on his or her own. It is up to the individual situation as to which one is best for that party’s best interest.

Need to Set Up a POA or Conservatorship? We Can Help.

An experienced power of attorney/conservatorship lawyer can help you address legal matters that can affect you or a family member’s quality of life and health. You’ll need an expert to interpret complex Alabama laws and you’ll want the very best to help you plan for your loved ones.

At Brackin & Johnson, our expert attorneys can assist you with planning for long term care and ensuring that your medical and financial needs are met should the time come when you or your family member can no longer care for themselves.
If you’re searching for a skilled attorney specializing in conservatorship, estate planning, living wills, and power of attorney, get in touch with us today to schedule your free initial consultation.

Dram Shop Laws in Alabama Explained

Dram Shop Laws

Many of us have never heard the term “dram shop” before, let alone know anything about the laws attached to it. The term “dram shop” comes from the 18th century and is the old British way of measuring alcohol, which was called a “dram.” Dram shops were the bars, pubs, and taverns that served drams of alcohol.

In the US, each state has its own statutes when it comes to dram shop regulations. This article will go over the dram shop laws in Alabama and how they affect those who get charged, the circumstances therein and other important and helpful information.

Who/What Does a Dram Shop Law Protect?

In Alabama, liquor liability laws, also called dram shop laws, protect individuals who have been injured due to the illegal sale of alcohol. This is called the Dram Shop Act. The purpose of Alabama’s Dram Shop Act (Ala. Code § 6-5-71) is to hold a business accountable if they have overserved or have failed to take the necessary steps to sell alcohol in a safe manner. These laws also allow the individual party to sue the business that was responsible for giving or selling the alcohol that caused harm.

Liability Under Dram Shop Laws

Bars, restaurants and other businesses that sell alcohol may be held liable for serving or providing alcohol to a person who is/appears to be intoxicated and then subsequently injures someone (re: drunk driving accident.) Any business that serves alcohol to a minor may face up to a year in jail and a fine ranging from $100 to $1,000. Alabama’s Dram Shop Act is intended to punish establishments which continue serving alcohol to drunk people with knowledge the individuals are already intoxicated and in turn, stop businesses from doing the same by example, thus saving lives in the process.

Accountability and Victim’s Rights

These specific laws are in place to hold businesses accountable and liable for serving or selling alcohol to minors or intoxicated persons who later cause death, injury, or property damage to another person. These laws save lives, as well as help to keep businesses honest and responsible when serving alcohol. 

Dram shop laws also enable third-party victims of drunken behavior to file civil lawsuits against the business, the wait staff, or the store clerk for selling alcohol to minors or intoxicated persons. The victims may also bring suit against the intoxicated individual who caused harm as well. If you have been injured or otherwise hurt someway by someone breaking the dram shop laws, it is imperative for you to find an attorney so that you can begin the process of taking them to courts and filing a civil suit.

Recovering Damages in A Dram Shop Claim

When a person believes an establishment has served an intoxicated person or minor then who caused injury or the wrongful death of a loved one, they should immediately get in contact with an attorney who has experience with accidents and cases such as these. An attorney will fight to help you recover costs that you paid out of pocket and get you compensation for other damages as well, such as:

  • Medical expenses
  • Lost wages
  • Loss of future earning ability (can’t work/make money)
  • Emotional distress
  • Pain and suffering

Dram Shop Penalties for Driving Drunk 

Criminal charges for drunk drivers are usually part of the charges given when someone violates a dram shop law. In addition to being charged with a DUI (driving under the influence Ala. Code, § 32-5A-191), drunk drivers who cause serious injury to others while driving are also likely to be charged with first degree assault. Depending on the situation, if the drunk driver has also acted recklessly with the car, they can be charged with assault as well.

Have You Been Hurt or Experienced Loss Due to Drunk Driving?

Need a quality attorney to help you navigate a complicated case? Not only do you need a lawyer who understands what you’re going through and has experience you are looking for, you also want a lawyer who will give you the best legal services possible.
At Brackin & Johnson, that’s exactly what we do. For over 35 years, we’ve helped the people of Baldwin County with all of their civil cases, criminal defense, personal injury, road accident, family law, elder law, eviction, and estate planning needs. Contact us today and let us put our expertise to work for you.

Categories DUI

Why Should I Hire a Lawyer for a DUI Charge?

Lawyer For A Dui Charge

Being pulled over and subsequently arrested for a DUI in Alabama is a serious matter and the more prepared you are for legally, the better you will fare during your court appearance. The state of Alabama has pretty severe consequences for DUI charges, so having someone to defend you and help you navigate your options is incredibly important if you want to get the least consequence possible.

When is a Driver Considered to be Legally Drunk in Alabama?

Let’s go over what the state of Alabama sees as legally intoxicated. Different groups can face different penalties and may have stricter laws attached to their age or profession.

  • Regular, non-commercial drivers aged 21 and over are considered legally drunk when their blood alcohol level is .08 or more.
  • Drivers of commercial vehicles are legally drunk when their blood alcohol level is .04 percent or greater.
  • School bus and day care drivers are legally drunk when their blood alcohol level is greater than .02.
  • Drivers under the age of 21 are legally drunk when their blood alcohol level is .02 or more.

What is Alabama’s Implied Consent Law?

An important law to understand is Alabama’s Implied Consent Law. This states that anyone who is operating a motor vehicle in Alabama has given their “implied consent” to a blood, breath or urine test to determine their blood alcohol concentration (BAC). You do have the right to refuse these tests and if you do, you will face the following consequences:

  • First Refusal comes with a 90-day license suspension
  • Second or subsequent refusal within a ten-year period comes with a one year license suspension.

Reasons to Hire a Lawyer for DUI Charges

Having an attorney on your side could mean less jail time, less fines and more leniency overall in court. Below are the major reasons why you should hire a lawyer if you are facing a potential DUI charge.

Help with Penalties/Convictions

One of the biggest and most obvious reasons to hire a lawyer to help with your DUI case is that they can help get your penalties lessened for your DUI charge. A DUI attorney will do their best to keep the charges against you to a minimum so that you’re not at risk of having a criminal record. You may also be able to serve community service and/or pay other fines in order to keep this information private. These penalties for DUI charges are as follows:

  • First-time offenders face imprisonment for up to one year, a fine of $600 to $2,100, or both. Driver’s license suspension for 90 days. First-time offenders will also be required to attend a DUI or substance abuse program.
  • For a second DUI conviction (within ten years of the first offense) faces imprisonment, which may include hard labor, for up to one year. The imprisonment sentence shall include a mandatory sentence, which is not subject to suspension or probation, of imprisonment in the county or municipal jail for not less than five days or community service for not less than 30 days. The fine ranges from $1,100 to $5,100. The driver’s license revocation period is one year.
  • On a third conviction, the offender faces a prison term, which may include hard labor, of up to one year. The imprisonment sentence shall not be less than 60 days. The fine ranges from $2,100 to $10,100. The driver’s license revocation period is three years.
  • On a fourth or subsequent conviction, the offender faces a felony conviction including a prison term of one year and one day to 10 years. The fine ranges from $4,100 to $10,100. The driver’s license revocation period is five years.

Potential for Dismissal

An arrest or BAC test that did not follow the correct procedures can lead to a dismissal of the charges. Consequently, this winning result prevents the high costs of Alabama DUI fines and legal fees that would otherwise follow a guilty plea or conviction. While dismissal isn’t all too common, if you hire a lawyer for your case, they will do everything in their power to get your case dismissed on these grounds if this happened to you.

Contact a DUI Attorney Today and Get the Help and Respect You Deserve

Were you stopped for suspicion of DUI and subsequently charged? Whether it’s your first or fourth charge, it is incredibly stressful to face criminal charges, and the pressure you feel about hiring the right lawyer can make it even worse. You need a lawyer who understands what you’re going through and will give you the best legal services possible.

At Brackin and Johnson, we understand the criminal justice process, how to work with each District Attorney and Assistant District Attorney, city prosecutor, or judge handling your criminal case, and the possibilities prior to ever entering the courtroom. 
Our experience allows us to better inform our clients of what to expect prior to even entering the courtroom. We believe in integrity, justice, and honor. We know that going through the legal process is not easy and therefore aim to take as much off of your plate as possible. Contact us today, and let us fight for your future.

Categories DUI

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