An important step in organizing for your future is creating an Advanced Directive. An Advanced Directive allows you to express your wishes regarding medical care prior to a crisis. It’s important to understand that it is only used in situations where your life is in danger or life saving measures are needed to keep you alive.
We’ve asked Wayne R. Carrabus, CPA, Esq. of Futterman, Lanza & Pasculli, LLP, to explain the importance of Advanced Directives. In this post, he’ll also explain the process of granting authority over your medical care to another.
Some of the most challenging cases we come across in our practice are those that include a client who lacks the capacity to handle his or her own financial affairs or medical decision making. What the client did (or did not do) to that point, will dictate what options are available to the client’s family members, who are most often the ones tasked with helping their loved one in these situations.
Many people think that because they are of a certain relation to someone else, they automatically have the right to make decisions for, and act on behalf of, that person if that person becomes incapacitated. However, unless a person formally grants another person the authority to handle their financial affairs or make medical decisions for them, no such authority exists. So how does one person give another person this authority? The answer: Advanced Directives. Advanced Directives include the Power of Attorney and the Health Care Proxy. In New York, both documents are created by statute, or New York law.
Health Care Proxy
The Health Care Proxy allows a person (the Principal) to give another person (the Agent) the authority to make health care decisions on behalf of the Principal when the Principal cannot make such decisions for him or herself. The Principal can only appoint one Agent at a time, and it is advisable for the Principal to appoint a successor Agent in the event the primary Agent cannot fulfil his or her duties. Since the Agent is making important medical decision for the Principal, the Principal should communicate to the Agent how he or she feels with respect to certain medical situations, so the Agent understands the Principal’s wishes and can make informed decisions.
Power of Attorney
The Power of Attorney allows a person (the Principal) to give another person (the Agent) the authority to handle the financial and legal matters of the Principal. The powers granted to the Agent can be as limited or as comprehensive as the Principal desires, or as the circumstances of a particular case requires. Unlike the Health Care Proxy, the Power of Attorney can allow the Agent to act for the Principal before the Principal becomes incapacitated. And a “Durable” Power of Attorney provides for the Agent’s authority to survive the incapacitation of the Principal. With a Power of Attorney, the Agent can appoint one or more primary Agents along with one or more successor Agents. In the case of multiple Agents (primary and/or successor), the Principal can choose whether such Agents can act independently or if they must act together.
Finally, specific powers must be included in the Modifications section of the Power of Attorney if the Principal wishes to provide the Agent with the authority to makes gifts with, or transfers of, the Principal’s assets, to the Agent or someone else.
Like other legal documents, a person needs to possess the requisite capacity to understand and execute the Advanced Directives. If a person lacks such capacity, and no Advanced Directives are in place, family members may need to petition the court and go through an Article 81 guardianship proceeding to obtain the authority necessary to handle the person’s affairs. This type of guardianship proceedings can be expensive and time consuming and add additional stress to the person’s family during an already challenging time.
It is important to understand that even if you have Advanced Directives in place, you should review them as time passes and circumstances change. The laws that govern these documents change from time to time. The Agents named in your documents may need to be modified because of an Agent’s age, capacity, or willingness to serve, or changes to your relationship with the Agent. Because of the potential need for periodic changes, it is essential that you review your Advanced Directives and other legal documents with an experienced Elder Law and Estate Planning Attorney, regularly.
It’s never too early to have advance directives in place. Life is unpredictable and things happen at all ages. You are doing your family and friends a favor when your affairs are in order.
Any questions? You can reach out to Wayne directly at 631-665-9262 or wcarrabus@trustedattorneys.com.
As Financial Organizers, NYFO does not take the place of professionals in the legal, accounting, investment, or social service fields. Our services complement the work of other professionals by facilitating the completion of the day-to-day tasks rather than determining long-term plans. So don’t hesitate to contact us at any time about all matters relating to Financial Organization.
