By Nancy Burner, Esq.
When helping a parent or other adult loved one handle their affairs, we never think of the legal ramifications. As caregivers we just do what needs to be done.
It starts out naturally enough — handling bills, writing out checks, paying property taxes, making doctor’s appointments. It is only when an impediment at the bank or hospital arises that caregivers realize that family members do not actually have the legal authority to handle these matters. Unfortunately, at that point your loved one may not have the mental capacity to give that power.
Every caregiver should make sure that three simple but crucial documents are in place: a Health Care Proxy, Living Will, and Power of Attorney. In fact, everyone should draft these “Advance Directives” while they are healthy. These simple but mighty documents can avoid a myriad of issues: guardianship hearings, asset depletion, and interfamily conflict.
A Health Care Proxy allows you to designate someone to make medical decisions for you if you are unable to do so for yourself. In most states, including New York, only one person at a time can fulfill this role in order to give healthcare providers clear direction. However, you can name multiple alternative proxies to act in case their predecessor is unwilling or unable to act.
The New York State Family Healthcare Decision Act allows close family members to make such decisions but only if the person is in a nursing facility of hospital. Many times, caregivers need to make medical decisions outside of this context – even as to making appointments and deciding on routine medical procedures. Moreover, the statutory priority of decision makers (guardian then spouse then adult child then parent) is not always in line with the choice of proxy you may have chosen. Without a valid health care proxy, a “personal needs guardian” would have to be appointed by the court through a guardianship proceeding. Such proceedings can be expensive and intrusive.
A Living Will sets forth your end of life choices. Without evidence of your preferences, an agent under a health care proxy cannot make end of life decisions on your behalf. The agent must provide clear and convincing evidence of whether you would want cardiac resuscitation, mechanical respiration, artificial nutrition and hydration, antibiotics, blood, kidney dialysis, surgery or invasive diagnostic tests.
Without documentation of your preferences, family members may end up in court arguing whether you would have wanted to be kept alive if your quality of life is so poor. A video, a letter, or a social media post could meet the “clear and convincing” burden.
A Power of Attorney is what gives caregivers the legal authority to take care of your financial affairs, such as writing checks and selling real estate. In New York, the Durable Power of Attorney allows someone, the “principal”, to name an agent to step into one’s shoes financially and act in the principal’s best interest. This is a powerful document that extends into incapacity and should only be granted to someone you trust completely.
Although in NYS the statutory power of attorney can be downloaded for free, it does not include necessary modifications that an estate planning attorney would include. For example, these modifications are crucial for Medicaid planning and asset protection. Having a valid Power of Attorney avoids the necessity of an Article 81 guardianship proceeding to appoint a “property needs guardian.”
These simple Advance Directives should be a part of a checklist for everyone – caregiver and loved one. These are the type of legal documents that seem unimportant until you actually need them.
Nancy Burner, Esq. practices elder law and estate planning from her East Setauket office. Visit www.burnerlaw.com.