In addition to planning for what should happen to your property once you pass away, estate planning includes planning that as a result of age, illness or an accident, one day you may not be able to make decisions for yourself. While you cannot prevent this from happening, by planning in advance you can control your hoe medical treatment and how your finances are handled. An Advanced Health Care Directive (AHCD) is the tool that allows you to memorialize your preferences. If you do not have an AHCD, your family members will be left to struggle with making decisions about both your medical care and your financial affairs. Oftentimes family members do not agree. Furthermore, the court will likely intervene and appoint a conservator to make these decisions for you. As a vital part to your overall estate plan it is important for all adults to consider an AHCD, not just older adults. A Bronx AHCD Lawyer will be able to help you develop the components of an AHCD that will ensure that your wishes are followed should you become incapacitated and unable to speak for yourself.
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An AHCD is a general term for two documents that instruct others about your medical care should you become incapacitated from an accident or illness so that you are unable to communicate and make decisions for yourself. These documents only can be used if your attending physician finds that you are mentally incapacitated. N.Y. PBH. Law § 298. The physician must document in writing in your medical record the extent and nature of your incapacity and its expected duration.
An AHCD includes a living will and a health care proxy. The purpose of a living will is to memorialize your wishes regarding medical treatment for when you are terminal and are not likely to recover. It will not give anyone power to make decisions for you. It will detail your preferences for your medical treatment and care if you are incapacitated and terminally ill. You can also state your moral and religious beliefs that have informed your treatment preferences.
The other document that an AHCD includes is a health care proxy. Some refer to is as a durable power of attorney for healthcare. With a health care proxy you name another person to make heath care decisions for you if you are incapacitated. The person who you name in your health care proxy is called your health care agent. The two documents can work together in that your health care agent should use the information in your living will to inform the decisions that he or she makes for you.
For your AHCD to be effective, it is a good idea to explain your preferences to your loved ones. This means that not only should you have a conversation with the person you select to be your health care agent, but that you also have a conversation with other close family members and friends explaining your wishes. While they may not agree with your choices, at least they will understand that you made those choices and not attempt to thwart them should you become incapacitated. Keep in mind that an AHCD is not an estate planning tool that should be made only by those who are older or who are facing a serious illness. Every person who is at least 18 years old should consider having one since no one can predict when a serious illness or life-threatening accident will happen.What Types of Instructions are in an AHCD?
In creating detailed instructions about your healthcare in your AHCD, you have a significant amount of flexibility. You can leave different instructions based on your prognosis. Your instructions can be general or quite specific. A living will typically deals with end of life decisions while with a health care proxy you empower your agent to deal with a wide range of health care decisions.
Medical issues and treatment options that you can address in your living will include mechanical ventilation, CPR, dialysis, invasive treatments, and surgery. Medical and care decisions that you can give your agent the authority to address for you include mechanical ventilation, artificial nutrition and hydration, electric shock therapy, CPR, antibiotics, surgery, dialysis, organ transplantation, blood transfusions, and palliative care.
With an AHCD you can also give instructions about the type of health care facilities and which medical professionals you prefer. For example, if you only want to be cared for in a particular hospital by a particular doctor, you can say so. If you would prefer to spend your last days at home, you can leave those instructions in your AHCD.What if I do not have an AHCD?
A health care proxy appoints someone you trust and who knows you will as our health care agent to make medical decisions for you when you are unable to do so for yourself. It you do not have a health care proxy, should you become incapacitated your family may end up going to court to petition for you to be placed into a conservatorship. The person the court appoints as your conservator may not be the person that you would choose. In fact, the court may choose someone that you find objectionable. In addition, the court fees and other fees associated with a conservatorship may be a drain on your estate.
If, on the other hand, you had a clear AHCD, by law your doctors would be required to follow the instructions in your living will or the direction of your health care agency based on the details of your health care proxy. In other words, you can be reasonably sure that your wishes will be respected.Do I need any other documents?
Durable power of attorney for finances. When preparing for the possibility that some time in the future you may be incapacitated, in addition to a living will and a health care proxy, you should also consider a durable power of attorney for finances. A power of attorney is a legal document in which you grant legal authority to another person. The person to whom you grant the legal authority to is called your attorney-in-fact, while you are the principal. The power of attorney document defines the powers of your attorney-in-fact and any limits on that authority.
A power of attorney is "durable" if it is effective even after you become legally incapacitated. A power of attorney is usually not durable, unless it specifically says that it is. However, under New York law a power of attorney is automatically a durable. N.Y. GOB. Law §5-1501A. Furthermore, you can design your power of attorney so that it is "springing." A springing power of attorney becomes valid only upon the occurrence of a specified event. N.Y. GOB. Law §5-1501B3(b). For example, you can indicate that the power of attorney will only become effective if your doctor has determined that you are mentally incapacitated. Thus, the person named in your power of attorney will not be able to legally act for you unless the triggering event occurs, even though the power of attorney was executed well in advance.
A durable power of attorney for finances is vital as it will ensure that your bank account is managed, your investments are managed, your bills are paid, and that your financial affairs remain sound even though you are unable to take care of them. Examples of other tasks that you can give someone the authority to handle include paying your bills, managing your real estate, managing your personal property, managing your bank account, investing your money, managing your retirement account, collecting government benefits on your behalf such as Medicare and Social Security, paying your taxes, accessing your safe deposit box, purchasing insurance, making legal claims, and defending lawsuits.
The person you select to be your attorney-in-fact should be a trustworthy adult. Keep in mind that this person will have significant control over your financial affairs with little supervision. You should select someone to whom you feel comfortable entrusting your assets. The person should be will to do the job and have the time available to tend to your affairs. The person should live reasonably close to you so that there will be no delay in transacting business. The person should also have a history of making sound financial decisions.
Also consider designating an alternate attorney-in-fact in case your first choice is unable to serve.
You can revoke a power of attorney any time. To do so let your attorney-in-fact know that you are revoking it. Destroy the original as well as copies. Let your financial institutions and other appropriate people or entities that you have revoked the power of attorney. Revocation of a power of attorney will occur automatically if your attorney-in-fact is unwilling or unable to serve or upon your death.
Last will and testament. A last will and testament is a critical piece to any estate plan. It allows you to set forth what you want to happen with your assets upon your death. Like an AHCD, a will is a way for you to maintain control over an aspect of your life when you cannot actively make decisions. Without a will you will lose control over what happens to your estate. Instead of our estate going to the people you select, your property will be inherited only by relatives that the intestate succession laws of New York say can inherit it. There is a good possibility that the result would be inconsistent with your wishes.
The goal for an advanced health care directive is to give you peace of mind that your wishes are respected and also to relieve your loved ones of the burden of making difficult decisions that they may wonder about forever. To ensure that each document that is part of your advanced health care directive, as well as your other estate planning documents are each executed consistent with New York law, it is important to work with an experienced practitioner. To learn more about the advantages of an advanced health care directive as well as a last will and testament and other estate planning tools, contact Stephen Bilkis and Associates. We will help you develop an overall estate plan that reflects your individual goals. Contact us at 1-800-NY-NY-LAW (1-800-696-9529) to schedule a free, no obligation consultation regarding your estate plan.