At the beginning of the planning process, three questions need to be answered:
- Who will manage the person with dementia's financial affairs?
- Who will make medical decisions on his or herbehalf?
- Who will be a "back up" in the event that the primary caregiver becomes unable to act?
The two legal instruments commonly used in New York State to implement these decisions are Durable Power of Attorney and Health Care Proxy. In New York State, a Health Care Proxy must be a separate document from a general Power of Attorney. For documents used in other states, families are advised to consult an elder law attorney.
Durable Power of Attorney
This is a legal document that enables an individual with dementia to authorize a trusted person(s) to make legal and financial decisions on his or her behalf. You do not have to appoint a family member although many people do, and you can appoint more than one individual. While there are different types of Powers of Attorney, most people sign a Durable Power of Attorney because it remains in effect after the person with dementia can no longer make financial decisions. A Durable Power of Attorney may help avoid a time-consuming and expensive guardianship proceeding in the future. It is strongly recommended that an attorney draft the Durable Power of Attorney. Forms found in stationary stores may not be sufficient.
Health Care Proxy
A properly signed Health Care Proxy gives caregivers the legal authority to make medical decisions. As soon as possible after diagnosis, a person with dementia should consider their wishes for future treatment and designate a Health Care Proxy. Once appointed, a Health Care Proxy can make medical decisions on another person's behalf, including: choices regarding health care providers, medical treatment, and, in the later stages of the disease, end-of-life decisions. The Health Care Proxy form comes into affect when a physician determines that the person with dementia no longer has the capacity to make medical decisions.
When it comes to decisions about artificial nutrition and hydration (feeding tubes), the Proxy must have specific knowledge of the person's wishes. The Health Care Proxy form should state that artificial hydration and nutrition have been discussed, and that the Proxy is authorized to make those decisions.
The Healthcare Proxy should contain a HIPAA waiver. This is the document that is signed allowing the healthcare provider, doctor, pharmacist, etc. to release medical records to a third party. It is possible that without this language medical professionals may not be able to speak to the agent and share information concerning the patient. Copies of the health care proxy should be given to the agent, the patient's doctor, home health care provider agency, hospital, elder law attorney, geriatric care manager and other family members or close friends.
The Living Will is a good supplement to the Health Care Proxy, allowing a person to declare his or her wishes regarding the use of medical procedures, including those that can delay death. A Living Will is distinct from a Health Care Proxy, which names an agent but does not address specific wishes about end of life issues. The contents of a Living Will should be discussed with personal physicians, family members, and caregivers, and should be accessible if the need arises. While New York State does not have a statute that authorizes the use of Living Wills, they are recognized under case law.
The Family Health Care Decision Act What Patients and Family Members Need to Know
On March 16, 2010, Gov. David A. Paterson signed the New York State Family Health Care Decisions Act, 17 years after it was first introduced in the Legislature. Even though the path during that time was slow and meandering, both the Assembly and Senate finally passed the bill with almost no opposition. In what can charitably be called Albany’s annus horribilus, this achievement is a tribute to the Act’s determined advocates in the Legislature and across the state.
Some people are under the misconception that a will takes the place of Power of Attorney and Health Care Proxy. However, this is not the case. The purpose of a will is to designate how a person's assets will be distributed upon his or her death. It cannot be used to communicate health care preferences or manage a person's finances while they are alive. Wills are important, and can give an individual peace of mind that his/her wishes will be fulfilled after they die. It is recommended that a will be drafted by an attorney experienced with elder law.
It is strongly recommended that a Durable Power of Attorney and Health Care Proxy be in place before the person with dementia becomes incapacitated. However, this is not always possible. When advance arrangements have not been made, it may be necessary for a caregiver to petition for guardianship. This is a legal proceeding in which a judge appoints a guardian to manage the affairs of a person who has been deemed incapacitated. Although guardianship can be expensive and time-consuming, in certain situations it may be unavoidable. Caregivers who need to pursue guardianship are encouraged to call us at (646) 744-2900 for referral to a qualified elder law attorney.
Working with an Elder Law Attorney
It is important for individuals with dementia and their caregivers to obtain legal guidance. Families who are unable to afford an attorney may be referred for free legal services through the Chapter. For a listing of free legal services, please click here.
Those who are financially able are advised to consult an attorney who practices in the area of elder law. Elder law is a specialization focusing on Medicaid planning, trusts, wills, advance directives, guardianship, disability planning and other related legal issues. To locate an elder law attorney on the site of the National Academy of Elder Law Attorneys Inc., please click here.
Names of local elder law attorneys may also be obtained by contacting the our 24-hr helpline at (646) 744-2900 or by emailing us. Important note: A referral is not a recommendation. We cannot guarantee, endorse, or recommend any of the providers listed.
Caregivers should compile important documents pertaining to the person with dementia prior to meeting with an attorney. Your first telephone call to an attorney's office should be an indication of how you will be treated there. You should always speak directly to an attorney, and the goals as well as the fees for the consultation should be clearly outlined.