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** This article has been revised from its original version which was published on August 4, 2016.
Part 1: Health Care Proxy, Living Will, and Power of Attorney
If someone becomes incapacitated or can’t communicate their wishes, who makes decisions on their behalf? How do decisions get made? What gives someone the legal authority to make decisions?
If you plan ahead, you can create a power of attorney, healthcare proxy, and living will to protect yourself and your wishes if you lose the capacity to make decisions. Start by speaking with one of our elder law attorneys in New York.
New York Power of Attorney
A New York power of attorney names an agent to take care of your financial and legal affairs. Depending on how the power is defined, a trusted person can handle everything from paying bills and picking up mail to taking care of investments and selling real estate. They could do everything you can do except vote on your behalf or create your will.
A health care proxy names an agent who can take care of your health care needs and make medical decisions on your behalf. And a living will provides instructions regarding your end-of-life care decisions. Together they create advance directives. If you don’t have advance directives and are already incapacitated, your loved ones must navigate a potentially stressful, time-consuming, and costly process to get someone appointed to make these decisions.
Protecting Yourself or Your Aging Parents
Incapacity concerns often come up in elder law. Our elder law attorneys see older folks suffering from dementia or another medical ailment that prevents them from being able to make decisions on their own behalf. Sometimes they’re physically incapable of handling their financial or legal affairs. Our goal is to work with individuals early, when they still have the capacity to make their own decisions, and plan ahead.
If you don’t plan ahead, you could lose control over who is chosen as your agent to make important healthcare and financial decisions. Decisions made may be inconsistent with your wishes, and assets you have worked so hard to accrue could be lost. Additionally, your inability to plan ahead could cause turmoil among your family members. For example, your children could fight over important healthcare decisions, leaving you in a situation where you’re dying as they struggle to come to terms. You may have an 18-year-old adult child who’s not emotionally equipped to make a life-and-death decision for their parent. It’s much easier to name a person to be your healthcare proxy ahead of time.
The Responsibility of Your Power of Attorney
Both the power of attorney agent and healthcare proxy must act in your best interest. They have to make decisions for you according to the wishes you make known. That’s why we advise our clients to speak with potential agents and let them know what to do in a given situation, sharing philosophies on medical care and beliefs so that they can honor them. If you don’t share your wishes about medical care, the agent may have to make a judgment call. It adds stress to the agent’s life, and sometimes they make decisions you wouldn’t want.
Typically, if someone doesn’t create advance directives and becomes incapacitated, a guardianship court appoints a guardian. In the second half of this series, we’ll talk about guardianship in greater detail.
Contact the Russo Law Group P.C. to discuss your situation and concerns about incapacitation. Russo Law Group, P.C., has experienced elder law attorneys in New York to create powers of attorney and advance directives to avoid the need for guardianship. We invite you to take advantage of our comprehensive website as well as our free seminars and webinars to learn more about how Russo Law Group, P.C. may offer you and your family peace of mind.