What do you want your doctors to do if you are in a terrible accident and end up in a coma? What do you want to happen if you are being kept alive only by a feeding tube and a mechanical ventilator? Thinking of yourself being incapacitated in such a manner is painful and making end of life decisions is difficult. However, if you do not think about the possibility of being incapacitated and unable to speak for yourself, if it does happen no one will know what to do. The best way to make sure that your wishes are known and carried out should you be incapacitated by a serious illness or devastating accident is to create a living will. When you create a living will you will document your wishes regarding your health care that your doctors will be obligated to follow in the event you are incapacitated. While you cannot predict when or if you will end up in an incapacitated condition, with the help of an experienced Westchester County Living Will Lawyer you can create a living will that provides instructions just in case circumstances occur that render you incapable of making decisions related to your medical care.
An advanced health care directive (AHCD) is a general term to describe estate planning documents that are used to let your family, friends and medical professionals know your preferences in the event that you become incapacitated and cannot speak for yourself. In New York the documents that are typically part of an AHCD include a living will and a health care proxy.
Living Will. A living will is a legal document in which you state your preferences regarding your medical care in the event you become incapacitated and are unable to speak for yourself. Typically, a living addresses end of life medical issues and treatment such as the type of life-sustaining measures you want or do not want. For example, your living will might specify whether or not you want cardiac resuscitation, mechanical respiration, artificial nutrition or hydration, or antibiotics.
You can also give details as to what types of medications or treatment you would want to relieve pain. A living will is also a good place to state your preferences regarding organ donation. You can specify that you do not want your organs, tissue, or other body parts donated for any reason, or that you do want them donated. Or you can be more specific and state that you want them donated for purposes of transplant, research, education or therapy.
In order to be properly executed and valid, you must sign and date your living will and have two witnesses sign it as well. Once you have executed your living will it is a good idea to give a copy of it to close family and friends, the person who you have named as your attorney-in-fact, your doctor, and anyone else who might be involved in your medical care. In addition, it is also a good idea to discuss with them your preferences. You can change your living will at any time by executing a new one.
Health Care ProxyA health care proxy is legal document in which you nominate another person, referred to as your health care agent, to make health care related decisions for you or act for you in the event you cannot. In other words, a health care proxy is a power of attorney specifically for health care decisions.
Your agent will be required to follow the instructions that you left in your living will or in the health care proxy itself as to which treatments you would or would not prefer to receive. In the event that there is a medical decision that is not specifically addressed in your health care proxy or living will, your health care agent is the person who will have the legal authority to make the decision related to that medical issue.
Like a living will, a durable power of attorney is part of an AHCD. The difference is that a health care proxy allows you to name someone to make decisions about your health care if you can no longer speak for yourself. On the other hand a living will allows you to state your wishes about health care in the event that you can no longer speak for yourself.
Consequences of Not Having a Living WillShould you become incapacitated without having executed a living will or a health care proxy then there may not be knowledge or a consensus among your family and friends as to what your preferences are. Furthermore, your medical team may not know how you want them to proceed. This may cause a delay in medical treatment as well as additional stress among family members during an already difficult and emotional time. Ultimately the state may end up stepping in and appointing a conservator for you.
A conservator, as referred to as an adult guardian, is someone who is appointed by the court to make decisions for a person who does not have the mental capacity to do so. A conservator who is given authority to make decisions about your health care is referred to as a conservator of the person while a conservator who is given authority to make decision about your finances is referred to as a conservator of the estate. A court may appoint different people to fill these two roles, or one person to fill both roles. New York policy is to first consider relatives to fill the role as conservator. The preference is for the spouse, then adult children, then adult siblings, and then other relatives. If the court determines that there is no relative willing or able to serve as a conservator, then the court will appoint a public or professional conservator. Ultimately, in deciding whom to appoint as conservator, the court will do what is in your best interests.
Ending up with a court appointed conservator is not likely your preference. Having a living will in place will likely avoid this scenario. However, there are some positive aspects to a conservatorship. For example, because conservators are supervised by the court, it is less likely that your estate's assets will be mismanaged due to negligence or willfulness. Conservators are required to regularly submit reports to the court and must obtain permission before making major decisions, such as selling real estate or terminating life-support.
A court appointed conservatorship may, however, end up being somewhat of a drain on your estate. Conservators are paid a reasonable fee for his or her services. In addition the conservator will be reimbursed for expenses. The conservator's fees and expenses will be paid from the estates of your estate.
A conservatorship will end when the court issues an order ending the conservatorship because you pass away or your condition improves such that you no longer need a conservator.
Other Important Estate Planning DocumentsFinancial Durable Power of Attorney. In addition to making sure that you have a living will and health care proxy you should also make sure that you have documents in place to protect your finances in the event you become mentally incapacitated. With a power of attorney for finances your attorney-in-fact will be able to take care of things such as pay your everyday bills, manager your real estate, pay your taxes, manage your bank accounts, manager your investments, run your small business, and collection your Social Security and Medicare benefit payments. Otherwise your finances could be jeopardized or a conservator over your estate will be appointed to handle your finances.
Revocable Living Trust. A revocable living trust is an estate planning tool that allows you to transfer assets to a trust over which you have control. While an important reason to establish a living trust is to avoid probate, another important reason is to avoid a conservatorship. When you make a living trust you name yourself as the trustee. However, you should also name successor trustee or a disability trustee, who would take over trustee duties should you become incapacitated. Thus, if your finances are handled through your trust and you become incapacitated, your successor trustee will automatically have the authority to handle your financial matters. A conservator for your finances will not have to be appointed by the court.
Will. Even if you have created a trust, your estate plan would not be complete without a will. A will provides all of the details of who will inherit your property, when and how they will inherit it, and who will be put in charge of settling your final affairs. If you created a living trust, the bulk of your property may be passed to your beneficiaries through the trust. However, there is inevitably property that for a variety of reasons may be left out of your trust. Some of that property may end up passing to your beneficiaries through your will. Thus, a will is an essential part of any estate plan. Without a will, any property left in your state that does is not in a trust or does not for any other reason pass outside of a will, will end up going to your statute heirs via New York's rules of intestate succession.
Making a living will is an important step in the estate planning process. However, a living will is but one part of a plan that should also include other documents such as a will, trust, and durable power of attorney. To ensure that your estate plan includes all documents that are necessary for your specific planning goals, and to ensure that they are property drafted and executed, it is vital that you work with someone with experience. The staff at Stephen Bilkis & Associates, PLLC is experienced in drafting living wills, last will and testaments, trusts as well as other estate planning documents. We will help you develop a living will as part of your overall estate plan that reflects your individual goals. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your estate plan.