The call comes at 2 a.m. There’s been an accident on the Brooklyn-Queens Expressway. Your spouse is in the hospital, unresponsive. In an instant, the world shrinks to a series of urgent, impossible questions. Who has the authority to speak with doctors? Who can access bank accounts to pay the mortgage tomorrow? Who will manage the business? Too often, I see families in my Manhattan office grappling with these questions after a tragedy, only to discover the most critical decisions were never made.
A car accident is not just about insurance claims and police reports. For a family, its aftermath is a severe test of preparedness. The legal and financial chaos following an unexpected incapacity or death can be as devastating as the event itself. An estate plan ceases to be an abstract legal exercise—it becomes a family’s most important contingency plan.
The First 72 Hours: Who Has Authority?
When someone is seriously injured and cannot communicate, the law does not automatically grant authority to their next of kin. A spouse cannot simply walk into a bank and gain access to their partner’s individual accounts. An adult child cannot unilaterally direct a parent’s medical care. Legal authority must be established, and without prior planning, the process is public, expensive, and slow.
This is the role of two foundational documents: a Health Care Proxy and a Durable Power of Attorney. A Health Care Proxy designates an agent to make medical decisions on your behalf if you are unable to. A Durable Power of Attorney appoints an agent to manage your financial affairs. With these documents in place, your chosen agent—someone you trust implicitly—can step in immediately. They can speak with doctors, manage assets, and pay bills. They maintain stability for your family during a period of profound instability.
Without them, the only path forward is a court proceeding. The family must petition a judge to have a guardian appointed. This process, governed by Article 81 of New York’s Mental Hygiene Law, is an ordeal. It involves filing a lawsuit, notifying family members, and having a court-appointed evaluator investigate your personal and financial life. The court, not the family, ultimately decides who is in control. It is a painful process that a thoughtful estate plan completely avoids.
When the Unthinkable Happens
If an accident is fatal, the focus shifts from managing incapacity to administering an estate. Here again, proactive planning is the difference between an orderly transition and a protracted court battle. The person with the legal standing to file a wrongful death lawsuit is the personal representative of the decedent’s estate.
Who is that person? If you have a Will, it is the Executor you named—someone you selected for their judgment and integrity. Your Will directs the Surrogate’s Court to grant them authority. If you die without a Will (intestate), the court appoints an Administrator based on a rigid statutory hierarchy. It may be a family member you never would have chosen for such a critical fiduciary duty.
The Executor or Administrator is responsible for marshalling your assets, paying your final debts, and distributing what remains to your beneficiaries. They are also the one who hires the personal injury attorney and makes key decisions in any subsequent litigation. Choosing your Executor is one of the most important acts of stewardship you can undertake. It ensures someone you trust is at the helm, acting in your family’s best interests when they are at their most vulnerable.
Stewardship of the Settlement
A wrongful death lawsuit can result in a significant financial settlement or judgment. While no amount of money can replace a loved one, these funds are often essential for the family’s long-term security. But receiving a large, lump-sum payment can present its own challenges, especially if the beneficiaries are minor children or young adults.
A well-drafted Will or Revocable Trust is indispensable here. Instead of leaving assets outright to your children, you can direct that the funds be held in a trust for their benefit. You name a Trustee—a person or institution you trust—to manage and invest the money. You set the terms for how the funds can be used, such as for education, health, and support. You also decide at what age, or ages, your children will receive the principal.
This structure provides generational protection. It shields the inheritance from a young beneficiary’s immaturity, from their potential creditors, and even from a future divorce. It is the ultimate expression of prudent planning—ensuring that the resources intended to provide for your family’s future are managed with wisdom and care for years to come.
A car accident is a random event. The chaos that follows for your family does not have to be. A deliberately constructed estate plan is your family’s instruction manual for a crisis, providing clarity and authority when they are needed most.
If this possibility concerns you, a good first step is to understand where your current plan stands. We reserve time each week to provide a complimentary review of a family’s existing Power of Attorney and Health Care Proxy, helping identify potential gaps before they become urgent problems.
