Manhattan AHCD Lawyer

One of the last things that most of us want to spend time thinking about is the possibility that at some point we may suffer a serious illness or tragic accident that leaves us incapable of making our own health care decisions. However, if a health crisis does occur that results in you being mentally incapacitated, there are steps that you can take in advance to make sure that you retain some measure of control of the situation. With an Advanced Health Care Directive (AHCD) you are able to anticipate the health care decisions and issues that might arise, and make those decisions in advance. 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, in the absence of an AHCD the health care facility or your family may ask the court to intervene. As a result the court may appoint a conservator to take over the decision-making regarding your health care. As a vital part to your overall estate plan it is important for all adults to consider an AHCD, not just older adults. A Manhattan 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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What is an AHCD?

An AHCD is a general term for two documents that instruct others about your medical care should you in some way become incapacitated so that you are unable to make decisions on your own. 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 typically includes a living will and a health care proxy. The purpose of a living will is to leave your wishes regarding end-of-life medical treatment. 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. The other document that an AHCD includes is a health care proxy. With a health care proxy you name another person to make heath care decisions for your if you are incapacitated. The person who you name in your health care proxy is called your agent. The two documents can work together in that your agent uses your instructions in the Living Will to inform the decisions that he or she makes for you. However, the health care proxy may also give specific details about your preferences for medical treatment.

For your AHCD to be effective, it is important that your family members understand your wishes in advance. 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 adult 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 respiration- a method to mechanically replace spontaneous breathing
  • antibiotics
  • cardiopulmonary resuscitation (CPR)
  • dialysis
  • surgery

Medical and care decisions that you can give your agent the power to address for you include:

  • artificial respiration
  • artificial nutrition and hydration
  • CPR
  • antipsychotic medication
  • electric shock therapy
  • antibiotics
  • surgical procedures
  • dialysis
  • organ transplantation
  • blood transfusions
  • medication
  • palliative care

With an AHCD you can also give instructions about the type of health care facilities your prefer. For example, if you only want to be cared for in a particular hospital, you can say so. If you would prefer to pass away at home or in a hospice, you can leave those instructions in your AHCD. You can also leave instructions about whether you would like to have your organs or tissues donated.

What if I do not have an AHCD?

If you do not have an AHCD and you become incapacitated, neither your doctors or your family members will know what type of medical treatment you would want to receive. There would be no one to make decisions for you, and no information upon which to base decisions.

Suppose, for example, that you have multiple medical conditions and that it is very unlikely that you can survive. However, with multiple invasive medical interventions, there is a slim chance that you may pull through and survive a little while longer. If your do pull through, there is an even slimmer chance that you will regain the quality of life that you experienced before becoming ill. Your family does not know what to do. Several of your family members are hoping that you will defy the odds, and that after the medical interventions you will be OK. They hope and wish that you will eventually come home. Without an AHCD your family may decide that you should continue with the treatment, even though it will be very painful and stressful to your already fragile body, and despite the fact that your doctors advise against it. Without an AHCD, this situation could be decided in the following different ways.

  1. Your doctors could do as your family requests.
  2. Your doctors could ask the court to intervene and prevent the treatment that the family requests
  3. A conservator could be appointed to make medical decisions for you.

The drawbacks of each of these outcomes is that your family is put through the emotional stress of having to figure out what to do about your care, your family and your estate may incur legal expenses from having to go to court over your medical care, and ultimately, no one would be certain if the final decision is consistent with your wishes.

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. You would have lifted the burden of making such a difficult decision from your family’s shoulders.

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 similar to a health care proxy in that with a power of attorney you appoint someone to make decisions for you. In the case of a power of attorney for finances, the person who you appoint will have the authority to make financial decisions for you.

A power of attorney is "durable" if it is effective even if you become incapacitated. Typically, a power of attorney is 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 take care of for you include:

  • Pay your everyday expenses such as your utility bills
  • Manage your property
  • Pay income taxes and real estate taxes
  • Manage your bank accounts and brokerage accounts
  • Run your small business for you
  • Manage your retirement accounts
  • Hire professionals on your behalf such as an accountant or attorney
  • Collect your government benefits such as Social Security and Medicare

Last will and testament. Whether or not you are incapacitated a last will and testament is a critical estate planning document. It allows you to set forth what you want to happen with your property once you pass away. 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.

With a will you and decide which of your loved ones will receive your property. You can even decide the manner in which they receive the property. If you chose, you can leave assets to people who are not your family members such as your best friend, or to an institution or organization such as your college. If you pass away without a will, you lose control over who gets your property. 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 autonomy is respected and also to alleviate your loved ones of the burden of making a difficult decisions that they may wonder about forever. To ensure that your living will, health care proxy, and durable power of attorney are each executed consistent with New York law, it is important to be represented by someone with experience. 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.

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