A Health Care Proxy is a document that allows you to appoint an adult person to make a health care decision for you if you are unable to do so. This document also includes instructions as to organ donation. You cannot sign a Health Care Proxy if you lack the mental capacity to do so. What happens if you do not have a Health Care Proxy in place and can no longer sign one?
Family Health Care Decisions Act
The Family Health Care Decisions Act (FHCDA) was enacted in 2010 and allows family members or close friends to act as a “surrogate” or representative in making health care decisions for a patient lacking a Health Care Proxy. The Act is limited to a patient being physically present in a hospital or nursing home. Individual health care providers (i.e.- Primary Care Physicians) are not required to honor decisions made by Surrogate’s under this Act. The decisions may include end-of-life matters which extend to withholding or withdrawing of life-sustaining measures.
- Spouse or domestic partner
- A beneficiary covered under the person’s health insurance or employee benefits
- A dependent
- An adult child
- A parent
- A sibling
- A close friend or relative presenting a signed statement acknowledging recent contact with the patient and familiarity with his or her health, religious, and moral beliefs.
Conflicts may occur if Surrogates within the same class disagree as to medical decisions, life-sustaining treatment, or their understanding of the patient’s, beliefs, moral or religious views.
Article 81 Mental Hygiene Law
A more drastic option beyond this Act is the commencement of an Article 81 Mental Hygiene Law Supreme Court proceeding for the appointment of a Guardian to make health care decisions for an incapacitated person. This process can be lengthy, invasive, and expensive and is often used as a last resort.
Although the Family Health Care Decisions Act is helpful in emergency situations and specific settings, it is not a substitute for a Health Care Proxy. A Health Care Proxy is a simple, cost-effective way to assure that a person of your choice will make an informed medical decision in accordance with your wishes.
A Durable Power of Attorney is a legal document wherein a person (referred to as the Principal) delegates authority related to legal and financial matters to another person or persons (referred to as the agent).
New York Law
New York law does not limit the number of agents you can appoint in this document. The Principal controls whether the agents have the authority to act separately or together. Unless you specifically designate otherwise, the agents must all act together. An advantage of choosing that the agents act together is to provide a safeguard of checks and balances. However, it may also cause delays in decision making based on an agent’s availability or disagreements between the parties.
A more practical approach is to allow the agents to act separately. Even with the ability to act separately, the agents should still openly communicate to avoid duplicating efforts such as paying the same bill twice.
Too Many Cooks in the Kitchen
Although there is no limit on the number of agents you can appoint in your Durable Power of Attorney, the old adage “too many cooks in the kitchen” still applies. Appointing more than two or three persons to serve at one time may prove to be counter-productive.
It is important to consult with an experienced attorney when considering your power of attorney to discuss and outlines the pros and cons of these decisions as they relate to you.
A child’s very first account is likely a custodial account established at a bank, brokerage firm or with a mutual fund company. The goal is to provide for life milestones of the minor such as college or homeownership. Although the Unified Transfer to Minors Act (“UTMA”) provides an inexpensive and expedient arrangement for accumulating wealth on behalf of a minor, there are some drawbacks.
Custodial Account Drawbacks
These accounts are used to hold assets until the minor attains the age of majority in accordance with the State’s rules. In New York, the minor is legally entitled to 100% of the proceeds upon attaining the age of twenty-one (21), unless the donor specifically stipulates age eighteen (18) as the age of majority. Even at age 21, most parents do not trust their children’s decisions to invest or spend the funds prudently.
Once a gift is made to a UTMA account, the account is irrevocable. The funds deposited to the account cannot be returned to the donor who transferred the monies in. However, the custodian has full discretion to utilize the funds in the account for the use and benefit of the minor without a court order.
Financial Aid Concerns
As to tax analysis, custodial accounts are considered an asset of the child and are counted against financial aid. If a minor’s interest income plus dividends total more than $1,900 in one year, then the account will also be subject to the “Kiddie Tax”. A portion of the minor’s UTMA interest income will be taxed at the tax rate of his or her parents or legal guardian instead of the lower tax bracket that the child would have been in.
A Living Trust
A better approach that would eliminate the investment and spending uncertainty of a 21-year-old, is to create an inter-vivos (living) trust for the minor that holds the monies one would otherwise gift to a UTMA account. The trust could have as many beneficiaries as the grantor (donor) desires and provisions as to the use of the trust principal and/or income for the benefit of the minor that is tailored in accordance with the wishes of the grantor creating the trust. Most importantly, the trust could continue until the minor attains a specified, perhaps more mature age (i.e., 35) or even for the life of the person.
As elder law attorneys, we frequently meet with family members frustrated by the cost of long-term health care. Many of our clients wish to remain at home but are misinformed as to their options.
A Pooled Income Trust
A Pooled Income Trust is a great vehicle to facilitate the goals of applying for Community (home care) Medicaid and remaining in your own home. This Trust has no age limitation and no pay-back provision. It is established and managed by not-for-profit associations along with a trust company as trustee. The beneficiary of the Trust is the Medicaid applicant/disabled person. The Trust has numerous beneficiaries (hence the term “pooled trust”) so a sub-account is created specifically for each one. During the lifetime of the beneficiary the contributed funds can be used for his/her sole benefit. Upon the beneficiary’s death, any funds remaining in the trust is paid to the not-for-profit agency to help foster its objectives.
Community Medicaid has income limitations. For the year 2019, an applicant is permitted to retain $879.00 per month of his/her own income. Due to rising living expenses, the imposition of this limitation can make it impossible to remain in your own home. Without the Pooled Income Trust, any overage of income must be paid to the care agency rendering services as a contribution toward the cost of care. However, by simply participating in a Pooled Income Trust, the applicant may send any excess income to the pooled trust company along with qualifying expenses to preserve that income. Some examples of qualifying expenses are rent, mortgage payments, real estate taxes, utilities, clothing, and private pay care services.
For example – Mrs. Smith is 80 years old and was diagnosed with dementia. Her income is comprised of social security retirement benefits and a pension in the aggregate sum of $2,400 per month. She wishes to remain at home but has increased medical needs. She relies on the entirety of her income to pay her household bills and daily expenses. By applying for Community Medicaid, she will receive in-home health care services, but she is only permitted to keep $879.00 of her monthly income. She can “join” a Pooled Income Trust and by contributing her overage of $1,521.00 each month ($2,400 – $879 = $1,521) along with invoices for her personal needs and household expenses up to the total amount (less a typically nominal fee paid monthly to the trustee). Now Mrs. Smith can receive the care she needs at home without compromising the balance of her income.
Although the Trust companies charge administrative fees associated with enrollment, generally, the benefits far exceed the costs.
NYS Approved Pooled Income Trust Companies
For a full list of NYS approved Pooled Income Trust Companies, please visit http://www.wnylc.com/health/entry/4/.
A POLST is a Physician Orders for Life-Sustaining Treatment. In the state of New York, it is more commonly referred to as a MOLST (a Medical Order for Life-Sustaining Treatment). The document is a bright pink form that specifically details a person’s wishes regarding end of life care. It is signed by both the patient and his or her treating physician or a nurse practitioner. The patient specifically states preferences of care which is converted into an actionable plan. The plan is then integrated into his/her medical record.
About the MOLST Program
The MOLST program began in the year 2001. It was started as a community-driven initiative in Rochester County to improve end‑of-life care. The program collaborated with the New York State Department of Health (“NYSDOH”) in 2004. The NYSDOH then approved the use of MOLST in all health care facilities and for use in all counties in 2005.
About the Document
This document is generally presented by a health care professional upon a diagnosis of terminal illness to residents residing in a long-term care facility or to seriously ill or frail individuals. It is a legally binding instrument. A health care agent, surrogate or guardian may also sign the form on behalf of the patient or disabled person, or a parent may sign for a minor child.
The form has sections to specifically address the following:
- Resuscitation, when there is no pulse or the patient is not breathing;
- Intubation and mechanical ventilation;
- Treatment guidelines for oxygen and airway obstruction;
- Future hospitalization and transfer;
- Antibiotics and medication;
- Fluid administration (including a trial period); and
- Other instructions for starting and stopping treatment such as dialysis or transfusions.
Confusion often exists as to whether a MOLST replaces the need for advance directives such as a Health Care Proxy or Living Will. To clarify, a MOLST is not an advance directive for future care. Instead, it is a treatment plan based on your current health and prognosis. This document works together to supplement your advance directives but it is not at all a substitute. Advance directives are safeguards that all adults (regardless of health condition) should have. A Health Care Proxy allows your designated agent to sign a MOLST on your behalf if you are unable to do so at that time.
It should be noted that Emergency Medical Service (EMS) can only withhold the resuscitation of a patient in his or her home based on a MOLST order. Any directives regarding the withholding of life-sustaining treatment in a Living Will is only valid in a health care facility such as a hospital or nursing home.
Common MOLST Uses
Although there is no “terminally ill” requirement for the execution of a MOLST, it is most commonly used in end-of-life situations and signed in a medical facility. You can request the form from your health care provider or order it directly from the following link: https://www.health.ny.gov/publications/4208/pdf/4208_order_form.pdf.
A divorce can be one of the most stressful and difficult times in your life. Once the process is officially over, it is common to want to forget about all the paperwork and finances and take a much-needed break from the chaos.
However, it is prudent to immediately review your planning documents and take the following steps:
- Update your Advance Directives (i.e., – Power of Attorney and Health Care Proxy to remove your ex-spouse as agent). A divorce decree does not invalidate these documents or automatically remove your spouse from acting as your agent.
- Update your Last Will & Testament and Trusts to remove your ex-spouse as a beneficiary and/or fiduciary.
- Update your beneficiary designations on your life insurance contracts, bank/financial accounts and annuity contracts (subject to any limitations set forth in your divorce decree).
- Remove your ex-spouse as an insured from any insurance policies such as homeowner’s, car insurance and umbrella policies.
- Cancel joint credit cards.
- Change the passwords on your home alarm, computers and online banking log-ins.
- If a name change is incorporated into your Decree, obtain new identification documents from social security administration and update your driver’s license with the Department of Motor Vehicles.
Then, look forward to a new beginning!