Bronx Elder Law

Just as it is important to make a will in order to set forth who will receive your property upon your death, it is also important to plan for how you will manage your affairs as you age. The reality is that as we get older our health often fails and we require an increasing amount of medical care as well as support with everyday living activities such as personal care and finance. Consequently, in addition to making a will, when creating an overall estate plan it is also important to include planning tools that will help ensure that should you become physically incapacitated or mentally incompetent to the point where you cannot communicate your needs or care for yourself, your affairs will be taken care of according to your wishes. The area of law that deals with legal issues related to aging is referred to as elder law and is inextricably related to estate planning. Because of the complexities of elder law as well as estate planning, you should contact a skilled Bronx elder law lawyer experienced with legal issues that are related to aging who will be able to help you understand the documents that you will need to ensure that your long-term personal and financial needs are cared for.

There are several estate documents that contemplate your future personal and financial needs and issues that are more likely to develop as you age. For instance, a living will allows you to state your wishes as to what treatments you would or would not like to receive should you become incapacitated and are also terminally ill. Both a health care proxy and a durable power of attorney for finances allow you to authorize a trusted family member or friend to make decisions related to your health care or your finances if you become incapacitated and cannot take care of these matters for yourself. Without a living will, health care proxy, or durable power of attorney for finances, the court may find it necessary to step in and name a guardian to make decisions for you.

Making a plan in advance for your long term care will make the transition to assisted living, nursing home, or a senior community easier and less of a financial burden. A last will and testament will allow you to pass on your assets to your loved ones in the manner of your choosing.

While many of the concerns that are commonly associated with aging may seem as if they are not applicable to you right now, you should consider planning now even if you are relatively young. Some of the documents are not only useful for those who are older, but for those of any age who experience serious medical concerns. In addition, as an experienced Bronx elder law lawyer will explain, certain types of asset protection plans will not work unless they are put into place years in advance of actually needing the plan.

A devastating illness or serious accident can occur at any time. As we age it is more likely that we may suffer from a debilitating illness or accident from which recovery would be difficult. With a living will you can leave details for health care professionals and family members as to which types of treatment you agree to have should you end up with a condition that leaves you mentally incompetent and from which you will likely not fully recover.

Living wills detail the type of medical treatment and life-prolonging measures you want or do not want. For example, your living will might specify which if any life-sustaining treatment or measures you want such as CPR, mechanical ventilation, dialysis, or tube-feeding. You can specify your preferences regarding organ donation, such as if you would like your organs or tissue donated, or if you want only certain organs or tissue donated. You can even state the purposes for which you permit your organs or tissue to be used: for transplant, research, education or therapy.

A living will is a type of advance health care directive, as is a heath care proxy.

A health care proxy is a legal document in which you appoint an agent to make health care decisions for you or in the event you cannot. It is distinguishable from a living will in that a health care proxy authorizes an individual to make decisions for you while a living will is a set of instructions for another person such as you health care agent or doctor to follow. Under New York’s Public Health law your agent’s authority to make health care decisions begins when your doctor documents in your medical records that you have lost the capacity to make decisions for yourself. N.Y. PBH. Law § 2983. In other words, your health care agent cannot legally make decisions for you simply because you may be very ill, or because you may be unconscious.

You can give your agent general authority to make health care decisions, or you can be very specific about what authority your agent has. In either case your agent is required to make decisions that are consistent with your wishes even if he or she does not agree with them. Examples of the decisions that you can give your agent the authority to make in your health care proxy include making arrangements for hospital, hospice, psychiatric treatment facility, or nursing home, employ or discharge health care personnel, consent or refuse to consent to treatment, care or procedure. You can also give your agent authority to consent to or refuse consent to life-prolonging treatment such as CPR, artificial respiration, IV or tubal nutrition and hydration, or dialysis. However, before your agent can give authorization to cease life-prolonging treatment a second physician must document that you are incapacitated and cannot make decisions for yourself. N.Y. PBH. Law § 2983 (1)(a)

A health care proxy is flexible such that you can give your agent different authority depending on your condition. For example, you can give one instruction to your agent if you are terminally ill, a second instruction if you are temporarily incapacitated but are expected to fully recover, and a third instruction if you have brain damage that makes you unable to recognize people and there is no hope that your condition will improve.

With a health care proxy you can give your agent the authority to donate your organs or tissue. This means that you can allow your agent to authorize the donation of your organs and tissues without limitation, or you can give more limited authority and specify which organs and tissues you want donated and for what reason.

While your agent's decision will typically be considered final, your family or the health care facility can object to your decision and petition the court to intervene. Your proxy's decision will be put on hold until a judge listens to arguments on both sides and makes a decision.

Deciding who you will name as your health care agent is an important decision, and you should consider only those who your trust and who are mature and responsible. New York law requires that your health care agent be at least 18 years old. The person cannot be your doctor unless your doctor is also your relative. The person cannot be an employee of the facility where you are admitted unless they are also a relative or unless you appointed them before you were admitted. N.Y. PBH. Law § 2981. Other than that, you have great flexibility in your selection. People usually chose their spouse, significant other, adult child, sibling, or a close friend. The person you select should be trustworthy and should know you well. The person should be someone who you know will respect your decisions even if that person does not agree with your decisions. You should discuss it with the person who you plan to name as your agent before you execute the health care proxy to make sure the person you select is comfortable being your agent and to make sure he or she understands your preferences. It is also a good idea to name a second person as your successor agent in case the person who is your first choice is unable to serve as your agent.

Another important consideration is where your agent lives. If you become seriously ill, your agent may need to make immediate decisions for you and may have to continue to make decisions over an extended period of time. This may require him or her to have the ability to make frequent visits to the health care facility. For this reason despite being otherwise the best choice, a person who lives thousands of miles away may not be appropriate to fill the role.

For a health care proxy to be valid you must sign it in the presence of 2 witnesses who also must sign it. Your agent and your successor agent are disqualified from serving as a witness. N.Y. PBH. Law § 2981

A durable power of attorney is similar to a health care proxy in that with it you give another person the authority to act for you while you are incapacitated. Instead of making health care decisions the person you name in the power of attorney, referred to as your agent or attorney-in-fact, will have authority to make financial decisions for you.

It is up to you to decide what authority to give your attorney-in-fact. For financial decisions, you can be very specific as to what authority you chose to give your attorney-in-fact. For example, with a power of attorney for financial matters, you can grant someone the authority to buy or sell real estate, manage your property, manage your brokerage account, pursue claims, manage your bank account, run your small business, buy insurance for you, manage your retirement benefits or military benefits, provide financial support to your spouse and children, or pay your taxes.

A guardianship is a legal arrangement where someone is appointed to manage the affairs of another person due to physical or mental limitations. If a court determines based on a functional assessment that you are unable to take care of your finances or independently perform activities of everyday living, the court may place you in a conservatorship and appointment someone to take care of your affairs for you.

New York policy requires that should a guardianship be required, the court will look first to close family members to fill the role of guardian, such as your spouse, adult children and siblings. After considering close relatives and other family members, if the court concludes that there are no relatives suitable to fill the role as guardian the court will appoint a non-relative such as a public guardian or a professional guardian.

The guardianship will remain in place as long as the court determines that you need someone to handle your affairs. If your medical condition improves enough so that you are able to resume taking care of your affairs, the court will end the guardianship. NY MHY Law § 81.36. Otherwise, the guardianship will remain in place until you pass away.

Another important matter to consider is your long-term care. Even if you never become so mentally incapacitated that you require another person to take care of your finances or make health care decisions for you, your health may fail to the extent that you may no longer able to live on your own. You may need to move into an assisted living facility, a nursing home, a senior community, a memory care facility, or a hospice. Your condition may result in your residing in such a place for several years. These facilities have substantial fees, while government aid is available to pay such fees, such aid is need based. Even if you do not have a great deal of assets, you will likely have to deplete those assets before the government will take over paying for your expenses. As a result you will have little money left to use as you choose. However, as an experienced Bronx elder law lawyer will explain, with careful planning using asset protection tools such as a revocable trust you will be able to receive the care that you need without spending all of your assets.

A last will and testament is the most common estate planning document. It is used to leave your loved ones your property after you pass away. The main advantage of making a will is that a will allows you to control what will happen to your property after your death. You can decide to leave your property to specific family members, or you can leave it to close friends. You can even decide to disinherit someone and include in your will your reasons for doing so. Furthermore, as an experienced elder law attorney in the Bronx will explain, you can control how a beneficiary receives the property. If you have a child who is disabled, with a will you can leave his or her inheritance in a special needs trust. If you want to leave a gift to an institution such as your college or a museum, you can do that. If you have a pet whose care you want to ensure, you can leave the pet so someone you can depend on and set up a pet trust for its care.

If you do not leave a will, instead of the people who you want to receive your property receiving it, people who you do not like or perhaps do not even know may receive your property. Under New York's laws of intestate succession only certain blood relatives in a specific order for priority will be able to receive your property. This could mean that your brother who you have not seen in years could end up receiving a share of your estate. Or the uncle who never liked you may end up receiving all of your property. Another unintended consequence of you not leaving a will is that if you have children who are still minors when you pass away, they may end up being raised by someone who you would not have chosen. If you do not name a guardian in your will the court will name a guardian. The court will first seek a relative who is qualified and willing to serve. If no qualified relative is available, the court may appoint a public guardian.

To learn more about planning for issues that may develop as you age, contact the experienced staff at the Law Offices of Stephen Bilkis & Associates. We will help you create essential estate planning documents such as a heath care proxy, durable power of attorney, living will, and last will and testament. We have years of experience helping clients develop comprehensive estate plans that are consistent with their individual goals. Contact an experienced elder law attorney serving the Bronx at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Bronx, Staten Island, Queens, Nassau County, Brooklyn, Long Island, Manhattan, Suffolk County, and Westchester County.