Westchester County AHCD Lawyer

An important part of estate planning is making plans for your care and treatment in the event that at some point in the future you become incapacitated and are unable to speak for yourself. For example, a terrible accident may leave you in a coma or a serious illness may leave you unresponsive. While it is difficult to think about such possibilities, it is important to plan for such possibilities. An Advance Health Care Directive (AHCD) is an effect way to make certain that you receive the care and treatment you would have requested if you were able. In the absence of an AHCD, your family members will be left to figure out what the best way to care for you as well as how to deal with your financial affairs. While most family members will want to do what is best for you, family members do not always agree on what that means. As an important part to your overall estate plan it is vital for all adults to consider an AHCD, not just older adults. A Westchester County AHCD Lawyer will explain to you how an AHCD will help ensure that your wishes are followed should you become incapacitated and cannot speak for yourself, and will work closely with your to draft an AHCD that clearly expresses your wishes.

What is an AHCD?

An AHCD is a document that gives instructions for doctors, nurses, other healthcare workers, and family members as to what type of medical care you want to receive should you in some way become incapacitated so that you are unable to make decisions on your own. It only becomes effective under the circumstances set forth in the AHCD.

With an AHCD you can appoint an health care agent. This type of AHCD is also referred to as a "durable power of attorney for heath care," "health care proxy," or an "attorney-in-fact." Your attorney-in-fact will have the legal authority to make decisions for you that are related to your health care when you cannot speak for yourself. You can appoint anyone to be your attorney-in-fact. Oftentimes the person selected to fill the role of your attorney-in-fact is someone who knows you well such as a spouse, child, parent, or close friend. You should let them know that you are making him or her your attorney-in-fact and have open discussions as to what your preferences are under various scenarios. For example, you should let your attorney-in-fact know what to do if you end up in a vegetative state.

With an advanced health care directive you can also create what is commonly known as a living will. A living will is not the same as a will in which you indicate who should receive your property upon your death. With a living instead of giving someone the power to make decisions for you, you provide specific instructions as to what should be done if you become incapacitated.

What Types of Instructions are in an AHCD?

In creating detailed instructions about your medical care and personal care in your advanced health care directive you have a significant amount of flexibility. You can provide different instructions based on your diagnosis. In a living will you can also address financial issues. Your instructions can be general or quite specific. Here are some issues and questions to consider addressing in your AHCD:

  • Naming the person you want to make medical decisions for you if you are unable
  • Naming the person you want to make financial decisions for you if you are unable
  • State whether or not you want to be resuscitated if your breathing or heart stops
  • Specify the types of medical treatments and care you are willing to have
  • Specify the types of medical treatments and care you oppose
  • If your condition is terminal, specify if you prefer to remain hospitalized or if you prefer to go home or to some other type of facility
  • Specify what type of health care and long term care insurance you have
  • If it is determined that you are likely to fully recover and enjoy a high quality of life, specify whether or not you prefer to have certain specified life-prolonging treatments.
  • If it is determined that you are not likely to again enjoy a high of quality of life, specify if your prefer to have certain specified life-prolonging treatments
  • If it is determined that your condition is terminal, specify which treatments you prefer to have to relieve pain and make sure you are comfortable
  • State what should be done if you fall into a vegetative state
  • State whether you want your organs donated

As part of your AHCD, if you appoint an attorney-in-fact to make decisions for you, you can be very specific as to your preferences, or you can give your attorney-in-fact discretion to make decisions on your behalf. For example, you can give your attorney-in-fact the authority to consent or refuse consent to certain types of care, treatment, medications, or procedures. You can also give your attorney-in-fact the authority to select your healthcare providers, the power to become your guardian, and the authority to donate your organs.

What if I do not have an AHCD?

No matter how well your family members know you, if you do not have an AHCD you cannot be assured that they will make decisions for your healthcare that are consistent with your values and goals. Furthermore, your loved ones may disagree on your treatment, causing further pain among your family members at an already stressful time. In fact if there are no instructions the court may step in and create conservatorships. The designated conservator will have the authority to make both financial and healthcare decisions for you while you. The conservator may be a family member, of may be stranger who is a professional conservator. 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 in jeopardy as they may be used to pay for extended medical care, or fees related to a conservatorship.

For your advanced health care directive to be effective, it is important that your close 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 attorney-in-fact, but that you also have a conversation with other close family members and friends. While they may not agree with your choices, at least they will understand that you made those choices. In addition, 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 as a serious illness or life-threatening accident could happen at any time.

What else should I do to plan for my future?

An important part of estate planning is planning for the possibility that one day you may be mentally incapacitated. However, estate planning involves other important documents and strategies.

  • 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." 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.
  • Asset Protection. Another aspect of estate planning is asset protection. The purpose of asset protection is to protect your assets from creditors in a manner that will not leave you susceptible to fraudulent transfer liability. While the law does not allow you to create an asset protection plan to dodge current creditors, it is acceptable and wise to create an asset protection plan to protect your assets from future creditors.

As with all of your estate planning documents, you should periodically revisit your AHCD to make sure that it continues to be consistent with your wishes. You can revoke or change your AHCD at any time. A new AHCD will automatically override any previous ones. To learn more about the advantages of an AHCD as well as other estate planning tools such as a will or a trust, contact Stephen Bilkis & Associates, PLLC. 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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