While many think that estate planning is restricted to preparing a will and planning to avoid probate, there are considerations. If you have a health problem that results in you losing your ability to communicate, and prior to this health crisis you left unambiguous instructions concerning your medical treatment, under the law those instructions must be followed. To ensure that your instructions and intentions are honored, there are specific estate planning tools that you should use to memorialize your wishes. For financial issues, the best tools to use are a trust and a financial power of attorney. These documents will help protect your assets and will also make sure your affairs are managed properly at a time when you are unable to manage them yourself. For health care issues, creating an advance health care directive (AHCD) that details your medical treatment preferences will ensure that the appropriate people understand your wishes. An advance health care directive can have a significant and in some cases irreversible affect on your future. In order to make sure that your wishes are understood and followed it must be properly written and executed according to the requirements of New York law. To make sure that your AHCD is properly drafted and executed, it is important that you contact an experienced Nassau County advance health care directive lawyer at the Law Offices of Stephen Bilkis & Associates who will educate you not only on the specifics of how advance health care directives work, but who will also help you develop an estate plan that includes other important components such as a last will and testament.
Advance health care directivesThe term advance health care directive refers to a document or a set of documents that directs and instructs family, friends, health care professionals, any other appropriate individuals about how you want your medical care handled should you become mentally incapacitated such that you are unable to communicate your preferences. An AHCD becomes effective only under the specific circumstances described in the AHCD and defined by New York law. An AHCD generally includes a living will and a health care proxy.
Health care proxy. A heath care proxy is essentially the document that New York uses for a durable power of attorney health care. A power of attorney is a document in which you as the principal give another person, your agent, the authority to act for you. While powers of attorney generally become void when a person becomes incapacitated a durable power of attorney does not. In the case of a health care proxy, you name a health care agent to make health care related decisions for you in the event if you are incapacitated and cannot speak for yourself. While a spouse is most often named as a health care agent, you can name whomever you want including your adult child, parent, or friend. Regardless of whom you name, that person should know you well, and you should inform the person in advance of your intention to name him or her as your health care agent.
As a Nassau County advance health care directive lawyer will explain, under New York Public Health Law § 2981, your health care agent’s authority to make health care decisions for you does begin until your attending physician determines with a reasonable degree of medical certainty that you have lost the capacity to make decisions for yourself. Before your health care agent can make a decision to withdraw or withhold life sustaining treatment, a second physician must confirm your attending physician’s decision.
Living will. A living will is another advance health directive. It is a document in which you leave written instructions that explain your health care preferences, particularly related to end-of-life care. Your living will and other documents that make up your advance health care directives are generally given to your family members and your doctors. Your doctors will only look to the instructions in your living will if you are so ill that you are unable to make your own decisions.
In your living will your instructions can be general or they can be very specific. Examples of types of treatments that you may address in a living will as part of your advance health care directive include CPR, use of a respirator, blood transfusions, diagnosis tests, dialysis, drugs, and surgery. If you are unsure about the amount of detail to include in your living will, discuss your concerns with an experienced Nassau County advance health care directive lawyer.
Other types of advance health care directives. In addition to a health care proxy and a living will, other types of advance health care directives include Do Not Resuscitate (DNR) orders and Medical Orders for Life Sustaining Treatment (MOLST) forms. A DNR order is a written document that instructs doctors and other medical professionals not to perform CPR in the event your heart stops beating or you stop breathing. A DNR would prohibit a doctor, nurse, paramedic, EMT, or other medical professionals from performing mouth-to-mouth resuscitation, electric shock, external chest compression, insertion of tube to open your airway, injection of medication into your heart, or open chest in order to prevent you from dying.
A MOLST form allows your doctors to record your preferences regarding treatment on one form as a physician order. It can include your goals and preferences regarding resuscitation instructions when the patient has no pulse and/or is not breathing, treatment guidelines, future hospitalization and transfer, artificially administered fluids and nutrition, antibiotics, and other instructions about treatments not listed on the form.
Without an AHCDIf you fail to execute an AHCD your family may not know your wishes, or your family may not have proof of your wishes. This may make decision-making difficult as caring family members may disagree on the treatment you should receive. As advance health care directive attorneys serving clients in Nassau County, we are aware of cases in which the doctors refuse to follow what family members agree are the wishes of the patient in the absence of an AHCD. In extreme cases the matter may end up in the hands of the court and a judge will create a conservatorship. If this happens, under Article 81 of New York’s Mental Hygiene Law, someone appointed by the court will be given the power to make health care decisions for you while you are incapacitated. This person is called a guardian. A guardianship may result in your wishes not being followed as the guardian may not know what they are. Furthermore, the appointment of a guardian may be a drain on your estate as a guardian is paid from the assets of your estate.
It is important to understand that an AHCD is essential to an estate plan for everybody—not just people who are older or who are ill. Every adult should consider having one no one knows when a serious illness will strike or life-threatening accident will happen.
Contact the Law Offices of Stephen Bilkis & AssociatesThere are many complex and emotional issues to consider when making an advance health care Before you execute your advance health care directives, it is important that you understand the medical impact as well as the quality of life consequences of the possible treatments available should you suffer a serious illness or accident. An experienced Nassau County advance health care directive lawyer will understand both the legal issues related to living wills, health care proxies, and other advance directives, as well as the medical issues related to end of life conditions. To learn more about the advantages of an advance health care directive as well as other estate documents, contact the Law Offices of Stephen Bilkis & Associates. We will help you develop an overall estate plan that reflects your individual goals. Contact us at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County and Westchester County.