Brooklyn Advanced Health Care Directive Lawyer

While it may be difficult for you to contemplate being so injured or ill you cannot make decisions for yourself, unfortunately it may happen. While it commonly happens later in life as older people tend to be more susceptible to dementia, mentally incapacitating illnesses and injuries also happen to young people. Whether the possibility of you ending up mentally incapacitated is likely or not, it is a good idea to plan for it-- just in case. An Advanced Health Care Directive (AHCD) is a set of legal documents that together appoint another person to have the authority to make health care decisions for you and that set forth your instructions as to your preferences for your health care should you become incapacitated and are unable to communicate with your physicians or family members. Because the directions that you include in an AHCD can have a significant impact on the course of your life it is important to consult an experienced Brooklyn Advanced Health Care Directive Lawyer who will work closely with you to draft an AHCD that is consistent with your goals and beliefs.

What documents are included in an advanced health care directive?

An AHCD is a set of documents that gives instructions for doctors, nurses, other healthcare workers, and family members as to what type of medical treatment and care you want to receive should you in some way become mentally incapacitated so that you are unable to make decisions on your own. The two documents that are part of an advanced health care directive in New York are a living will and a health care proxy.

What is a living will?

A living will a written document in which you state your preferences regarding the treatment you want to receive if you are incapacitated from a terminal illness. Examples of issues that can be addressed in a living will include:

  • Transfusions of blood and blood products
  • CPR
  • Diagnostic tests
  • Dialysis
  • Administration of drugs
  • Mechanical respiration
  • Artificial nutrition and hydration
  • Surgery

A living will can only 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.

What is a health care proxy?

A health care proxy is a specific type of power of attorney. With a power of attorney you give another person, called your agent, the legal authority to make decisions for you. In the case of a health care proxy, your health care agent would have the authority to make health care decisions for you in the event you are unable to do so yourself. In addition to appointing someone to be your health care agent, with your health care proxy you can also leave instructions regarding your treatment as well as other health care related issues. For example you can leave instructions as to what should be done if you are incapacitated by a terminal illness such as a severe brain injury. You can also state if your feelings on nursing home or hospice care. In your health care proxy you can even state whether or not you would like your organs to be donated. If other health care issues arise that are not specifically addressed in your health care proxy or living will, then your health care agent would have the authority to make those decisions.

What if I do not have an AHCD?

If you do not have an AHCD then your doctors and other health care professionals will not know your wishes. Your family members may disagree on your treatment and the issue may end up being settled in court.

This is what happened in the Florida case of Terri Schiavo. At the age of 27 Schiavo suffered cardiac arrest that resulted in brain damage. Although Schiavo did not have a written living will her husband asserted that she had expressed that she would not want her life prolonged by artificial means. Her parents disagreed and opposed removing Schiavo from life support. After a battle between her husband and her parents that lasted over 7 years and that played out in the media, the court finally ruled in favor of Schiavo's husband and life support removed. If Schiavo had a written living will, there would not have been uncertainty about her wishes, and the family battle over her treatment would likely not have occurred.

Thus, in the absence of clear, written instructions by you, if there is disagreement among family members or between family and your doctors, the court may have to step in an appoint a conservator to make decisions about your health care. The result could be that not only are your wishes not followed, as they may be unknown, but the assets in your estate may be drained as they may be used to pay for extended medical care, or fees related to a conservatorship.

What else should I do to plan for my future?

In addition to an AHCD, a comprehensive estate plan should at a minimum also have a will. Depending on your personal and financial goals, there are other documents and strategies to consider for your overall estate plan.

  • Will. A will, also known as a last will and testament, is an estate planning document in which you as the testator specify who is to receive your property once you pass away and also names an executor who will be responsible for managing your estate. With a will you can also name a guardian for your minor children. In New York, in order to be valid you must be at least 18 years old and you must be of "sound mind and memory." You also must sign the will at the end and at least 2 people who are not also beneficiaries must sign the will. There are several different types of wills including a joint will, reciprocal wills, holographic wills and nuncupative wills. The specific type of will that should make depends on factors such as your goals and your circumstances at the time of execution.
  • Trust. A trust is an arrangement under which your designate a trustee to manage property that you transfer to the trust for the benefit of beneficiaries whom you designated. There are many kinds of trusts, some created during your lifetime, know as living trusts. Others are created by your will, known as testamentary trusts. There are several different types of trusts such as special needs trusts, education trusts, minor trusts, and spendthrift trusts. Some types of trusts allow your estate to avoid probate and will minimize estate tax liability.
  • Durable power of attorney for finances. A durable power of attorney for finances is similar to a health care proxy. However, instead of appointing someone to serve as your health care agent, you would appoint someone to serve as your agent with respect to financial issues. This is an important tool to have as it may be vital if you ever become incapacitated and unable to take care of your financial business such as paying your mortgage, utilities, and health insurance.
What is the next step I should take to create a living will and health care proxy?

A living will and a health care proxy should be drafted with care and executed according to the requirements of the State of New York. If you are ready to create these documents contact the experienced staff at Stephen Bilkis & Associates, PLLC. We have years of experience working closely with clients to draft living wills, health care proxies, durable powers of attorney, wills and other estate planning documents. 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. We serve individuals throughout the following locations:

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