This is Part II of a two part overview of the most popular estate planning documents. Part I focused on Wills and Trusts and is available Here.
Advance Directives- Health Care Proxy, Living Will, DNRs, HIPAA Authorization
A Health Care Proxy is a document that allows you to name an individual to make medical decisions on your behalf. This is a flexible document, as you can choose the times when it goes into effect, and what types of treatments the proxy can choose from. You can also include certain instructions about your care that your proxy must follow. Health care providers must follow your proxy’s decisions as if they were your own. When choosing a proxy, make sure to choose someone who you trust to be calm in an emotional situation, to whom you have communicated your wishes, and who you trust to choose a course of treatment you’d agree with. Also make sure to appoint at least one backup agent in case your appointed proxy is unavailable.
Connected to the healthcare proxy document is a HIPAA Authorization. The HIPAA authorization is a privacy consent form that allows your health care proxy to access your medical records. This is very important because without this information your proxy will be unable to make an informed decision on your care. It also allows the people who you have named to help you with your financial and medical matters deal with insurance matters on your behalf.
Many estate plans combine a Living Will with a health care proxy form to give specific instructions with regards to your medical care. Generally, a living will allows you to give your wishes about care at the end-of-life. Often living wills will include your instruction on what you want done in terms of life support systems, experimental procedures, organ donation or any other medical procedure you have strong feelings about. In NY, there is no statute that governs living wills, but NY courts consider living wills valid as long as they provide “clear and convincing” evidence of your wishes.
A Do Not Resuscitate Order (DNR) instructs medical professionals not to perform CPR. A hospital DNR order applies when you are in a health care facility, you can also get a Non-Hospital DNR that applies when you are at home.
A Medical Orders for Life-Sustaining Treatment (MOLST) Form is also available in NY and allows doctors to record your preferences regarding CPR, mechanical intervention, and other life sustaining treatments. A patient uses a MOLST form for their current wishes where a living will is for future wishes.
Advance Directive Documents are Most Beneficial For:
-Anyone who wants to make sure they have a say in their medical care
-Anyone who doesn’t want to force family members to have to come to an agreement on their medical care.
-People with strong religious beliefs on certain medical treatments.
-Young people, particularly those with dangerous jobs. Most young people do not have advance directives, but repercussions of end-of-life decisions for people in this group can possibly stretch on for many years.
-Sick or elderly people
What Happens if You Don’t Have Advance Directives:
-Medical professionals will speak to your family and give them options for your care. Your family members will discuss the options and will try to agree on what they want or what you would want. Advance directives allow hospitals to avoid liability for following your wishes. If you do not want treatment, it is very important to have an advance directive, as it is very unlikely that care will be withheld without these documents.
Financial Power of Attorney
A Financial Power of Attorney (POA) allows you to name someone to handle your financial affairs should you become incapacitated. As with most estate planning documents, this is a flexible document that you can customize to your specific situation. The two main types of financial POA are durable and springing. A durable financial POA becomes effective at a time of your choosing, and continues until you revoke it or you die. A springing financial POA goes into effect immediately when your doctor determines your disability or incapacity. You can customize your financial POA to only cover specific assets or specific financial transactions. You must establish your financial POA while you still have your legal capacity. A power of attorney is also valuable to some people as it gives the person of your choice the ability to help you with other matters such as your tax returns, insurance claims, and other legal matters.
What Happens if You Don’t Have a Financial POA:
If you don’t have a power of attorney in place, your family, in order to handle your financial affairs while you are incapacitated, may need to apply to a court to have a guardian or conservator appointed. Guardianship proceeding can be expensive, often costing thousands of dollars, and are time-consuming.
This is only an overview of some of the more popular estate planning documents that are available. A commonality between all of these documents is their flexibility. You have the ability to work with your estate planning attorney to create a custom plan that reflects your current situation and wishes for the future. There are two main scenarios that these documents are used to plan for: death and incapacity. These are both difficult situations to think about. As a result, many people put off making decisions on getting estate planning documents. In this case however, not making a decision is itself a decision. These documents exist either to make it easier for your loved ones to take care of your affairs and health care while you are incapacitated or to allow you to maximize the amount of assets that you are able to transfer to whoever you choose after your death. If you do not invest in this planning, you do not get these benefits. These documents can only go so far however. It is equally important for you to talk to your loved ones and your doctors and to let them know about your thoughts and wishes. If you communicate what you want, it dramatically increases the probability that should the worst happen, the people in position to make decisions for you will make the decision that is right for you.