Advanced Directives: Health Care Proxies, Living Wills and Powers of Attorney

by David Goldfarb

Every effective estate plan should address your end-of-life care as well as what happens after your death. Specifically, your plan should designate individuals who can make decisions on your behalf should you become incapacitated and unable to do so. Such incapacitation can be temporary, such as a coma after an accident, or long-lasting, such as in the event of a degenerative cognitive disorder.

Advanced Directives may designate someone to make decisions if you are unable to and they may also give some direction to the persons who will be making those decisions.  Even if you are close to the individuals who are designated to manage your medical and financial affairs, they may be unsure of your exact wishes in certain situations. It is, therefore, important to discuss your wishes with your proxies or agents who will be making the decisions and possibly provide them some written directions.

Medical Directives

In New York, a person can delegate the authority to make health care decisions to an agent by executing a health care proxy, which may be used inside and outside of hospital settings. The proxy may include instructions about medical treatment under particular circumstances. The agent’s authority is activated only if the person loses the capacity to make health care decisions as determined in writing by a physician. An agent has broad authority to make decisions based on the known wishes of the person or according to a best interests standard. However, the agent may only refuse or terminate artificial nutrition or hydration if the person’s wishes are reasonably known.

We recommend not including specific instructions about medical treatment in the health care proxy, because you do not want someone second guessing the agent about what was intended.  Instead a person can execute a separate “living will” in which he or she sets forth his wishes and that document can be given only to the agent.  The “living will” instructs the person acting as your health care proxy as to what types of medical treatment you do or do not want in different situations. This document can address basic medical care as well as major end-of-life decisions.

A decision not to attempt cardiopulmonary resuscitation in the event of heart or respiratory failure (called a DNR order) may be made in advance by a person with decision making capacity. Alternatively, the decision may be made by a surrogate, according to a priority list in the Family Health Care Decisions Act, including a health care proxy. Before a surrogate can act, two physicians must determine that the patient is currently in a terminal condition, permanently unconscious, or resuscitation would be medically futile or impose an extraordinary burden. If there is no surrogate available, a physician may issue a DNR order.

Financial Directives

In addition to a health care proxy, your estate plan should designate someone to serve as your power of attorney and be in charge of all of your legal and financial affairs, which can include business decisions, taxes, investments, everyday expenses, and more.  A financial directive will set out what this agent can and cannot do. For example, you may want your agent under a power of attorney to be able to access all financial accounts and receive and pay money on your behalf, but not have the power to gift your assets to themselves or others.

The New York power of attorney law is quite complex and provides a Statutory Short Form and a Statutory Gifts Rider.  In order to be valid, the form must be in a certain type size and include the exact wording of both a Caution to the Principal and Instructions for the Agent.  If you use the exact wording of the entire Statutory Short Form, then a third party including a bank or financial institution must accept the power of attorney. However the ability to enforce acceptance is limited.

An Experienced New York Elder Law Attorney Can Help You Develop Effective Advanced Directives

There are many different issues that should be addressed in both medical and financial advanced directives so that your interests are fully protected. These documents also provide important guidance and assistance for your health care proxy and agent under a power of attorney so that they are fully aware of your wishes. At the law office of Goldfarb Abrandt & Salzman LLP, our New York estate planning lawyers can help with every aspect of your comprehensive estate plan – including clear and inclusive advanced directives. For more information about our senior law services, please call 212-387-8400 or contact us online today.