Advance Directives | Summer 2016 Newsletter
Carry an Umbrella
Daniel G. Fish, Esq.
Daniel G. Fish is a partner with McLaughlin & Stern, LLP and a past president of the National Academy of Elder Law Attorneys.
**It's important to overcome the resistance to planning in advance.**
Why is it that many people do not take the simple precaution of signing legal documents to protect themselves in the event they become unable to manage their affairs? There is a great deal of reluctance to think about illness and its possible consequences. Rational thinking gives way to anxiety, and anxiety gives way to inaction. This is the same as thinking “If I do not bring an umbrella, then it will not rain.” The best approach is the Boy Scout motto: “Hope for the best and prepare for the worst.” The good news is that the steps to take in this regard are straightforward, easy to implement, and very inexpensive.
Advance directives allow you to name a person to help if you cannot make financial and medical decisions on your own. They must be signed while you are alert and understand them. Some people think that advance directives are only for those who are facing an illness such as Alzheimer’s disease. The truth is that all individuals over the age of 18 should plan for the possibility that they may be disabled (temporarily or permanently) and unable to manage their finances and their health.
Daniel G. Fish is a partner with McLaughlin & Stern, LLP and a past president of the National Academy of Elder Law Attorneys.
Important Documents
POWER OF ATTORNEY
A power of attorney (POA) allows you (the “principal”) to designate one or more persons ("agent(s)" or "attorney(s)-in-fact") to manage your affairs. The authority of the agent(s) is sweeping; only the most trustworthy individual(s) should be selected. If you select multiple agents, you must decide whether to allow each agent to act independently or to require that all of the agents act together. It is also possible to name an agent to serve if one of the originally named agents is unable to serve (called a "successor agent") and to name an agent to act in the future (called the "springing power of attorney"). The principal does not lose the power to act or manage his or her finances by naming an agent(s), you are simply authorizing someone to act with you.
The power of attorney can be limited or general. A limited POA restricts the areas in which the agent(s) can act. The general POA allows the agent(s) to make all financial decisions that the principal could make him- or herself, if he or she was not incapacitated. A durable POA remains in effect even if you lose mental capacity.
Often, financial institutions will refuse to recognize the power of attorney. New York State statute requires financial institutions to accept a properly drawn POA; many financial institutions and government agencies have their own POA form and will not accept the general POA.
LIVING WILL
A living will describes the kind of health care you would desire if you were seriously ill, particularly in situations where heroic measures would be considered. The living will does not appoint an agent, it simply informs your family and health care providers about the type of care that you want at the end of life.
HEALTH CARE PROXY
A health care proxy allows you (the "principal") to appoint an agent to direct medical treatment if you become incapacitated. You can only designate one agent under the health care proxy to avoid confusion, but you can name an alternate agent. The health care proxy takes effect when a physician has determined that the principal cannot make decisions for her- or himself. The standard health care proxy allows the agent to make all medical decisions, with the exception of artificial nutrition and hydration. If you wish your agent to make decisions regarding these matters, you must specify this in the document. After you sign the health care proxy in front of two witnesses, you should submit a copy to each of your health care providers.
GUARDIANSHIP
If no advance directives have been made and you can no longer manage your affairs, it may be necessary to seek a court-appointed guardian. However, as this is a costly and time-consuming option, it is recommended that all adult individuals complete advance directives.