Tuesday, Feb. 12, 2018 -- There has been a great deal of controversy over the past several years regarding decisions to “pull the plug” on terminally ill patients. It can be unsettling to think about our own inability to care for ourselves, handle our own finances, or make our own health care decisions. No one likes to think about it, but many of us will someday be in that very position. Who will make those decisions for us – perhaps a family member, an emergency room physician, or a nursing home administrator? Luckily, the law provides several ways that we can make plans and give directions for our own future well-being in case we are unable to make those decisions in the future.
Many of my clients ask me to help them plan for their future health care needs and find ways to protect their assets in case they someday need expensive care and treatment (sometimes called “long term care planning” or “Medicaid planning”). These services often include drafting a variety of documents, including a Last Will and Testament, one or more Trusts, a Medicaid application, a Power of Attorney form, a Living Will, and a Health Care Proxy. This article will focus on the last three documents – the power of attorney form, the living will and the health care proxy, which are sometimes referred to as “advance directives.”
An advance directive is just as it sounds. It is a document containing a person’s directions for his or her future health care and treatment, which is prepared before the person becomes incapacitated or unable to communicate. Advance directives give many people peace of mind, as a way to maintain their dignity when they are someday no longer able to care for themselves or express their wishes.
The good news is that the law in New York is very protective of peoples’ wishes after they become incapacitated. For example, under New York’s Public Health Law (PBH), health care providers are generally required to carry out the decisions of a patient or an agent acting under a patient’s health care proxy, with only a few limited exceptions (PBH § 2984). In fact, the law explicitly directs health care providers to place a copy of a patient’s health care proxy in the patient’s medical record (PBH § 2984(1)).
Let’s explore some options that we can use to protect our dignity and ensure our safety.
- Power of Attorney. A power of attorney is a document in which a person designates a trusted person (or more than one person) to act as his or her “agent” or “attorney-in-fact” to handle his or her finances, personal property and/or real estate matters. The person granting the powers can choose to give the agent only certain specific powers such as writing checks from a single bank account or selling a particular piece of property. On the other hand, the agent can be given broad discretion to handle virtually all of the person’s financial decisions. Most people usually choose a trusted spouse, adult child, close relative, or close friend to act as his or her agent. While it can be unsettling to give someone else access to your bank accounts and other financial information, the law provides a safety net. Agents are required to keep written records of the transactions they make. If an agent is suspected of abusing his or her powers, a court can hold the agent accountable for his or her actions. Also, it is important to remember that while people can use a power of attorney to give their agent broad powers to handle virtually every aspect of their lives, a power of attorney cannot confer the power to make health care decisions. Only a valid health care proxy can give someone that power, and we will explore that document below.
- Statutory Gifts Rider. At any age, it is important to consider what will happen to our financial assets in the future. As we get older, it becomes even more crucial to find ways to protect our assets so that we can pass as much of our hard-earned money and possessions on to our children, grandchildren, and other loved ones. A statutory gifts rider is a document that accompanies the power of attorney form. In a general sense, it gives your agent under your power of attorney the right to make certain gifts with your money. If you are concerned about the cost of expensive medical care or nursing home care in the future, as many people are, the agent's power to make gifts on your behalf opens up a wide variety of important asset protection strategies that you or your agent would not otherwise have. An experienced attorney can draft a statutory gifts rider that is custom-tailored to your particular needs, wishes and goals.
- Living Will. A living will is a document in which a person can provide his or her specific wishes for future medical care. Many people’s living wills contain the direction not to administer “life support” such as life-sustaining medications, mechanical respiration, cardiac resuscitation, artificial nutrition, or “heroic measures,” if there is no reasonable expectation that the patient will recover. Other times, and increasingly common in recent years, a living will may express the exact opposite desire – to receive any and all forms of life-sustaining treatment if the person has any chance of survival. Sometimes a patient’s wishes are somewhere in between, and the living will can specify that only certain types of life-sustaining treatment, but not others, should be administered under certain circumstances. You should consult an experienced attorney who can ensure that your living will accurately portrays your wishes so that you can maintain your dignity even if you are someday unable to communicate.
- Health Care Proxy. Another commonly used advance directive is the health care proxy. In a health care proxy, a person gives one or more people the power to make medical decisions if he or she is someday unable to communicate or is otherwise incapacitated. The person who is given the authority to make the patient’s health care decisions is called the patient’s “agent.” As with the power of attorney, most people usually choose a trusted spouse, adult child, close relative, or close friend to act as his or her agent under their health care proxy. Unlike a living will, the health care proxy does not need to express the patient’s specific wishes. Instead, health care proxies often simply state that the agent knows the patient’s wishes, and grants the agent full authority and power to make medical decisions if the patient cannot make those decisions for him or herself.
You should speak with an experienced attorney who can review your financial profile, plan for your future medical needs, and help you carry out your strategy to protect yourself and your finances throughout the golden years, and beyond.