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Comparing Health Care Proxy with Power of Attorney

This edition of the Koldin Law Center E-Newsletter is part of a series about frequently asked questions comparing legal documents, legal roles, and government benefits.

All prior newsletters are saved on our website. You can read them by clicking here.

We receive many questions from clients and readers of our newsletter asking about the differences between various legal documents, legal roles, and government benefits. In this newsletter we compare the difference between a Health Care Proxy and a Power of Attorney.

Health Care Proxy

A detailed discussion about Health Care Proxies is in the previous newsletter in this series. A Health Care Proxy is a legal document in New York State which allows you to appoint someone to make health care decisions on your behalf, including end of life decisions, if you lose the ability to make decisions for yourself.

Your agent appointed in your Health Care Proxy does not have the authority to handle your finances.

Power of Attorney

A Power of Attorney is an important legal document where you give your agent(s) (person you appoint to serve on your behalf) the legal authority to handle your finances and make other decisions on your behalf.

Your agent appointed in your Power of Attorney does not have the authority to make medical decisions for you.

Does Your Power of Attorney Include Gifting Powers?

New York law provides a standard form commonly known as the “statutory short form.” The “statutory form” has the basic powers. Most general practice attorneys provide their clients with this basic statutory form.

The law then allows for substantial modification of the basic form, including adding language to allow for gifting. We have found that most new clients who come to our office either don’t have a Power of Attorney at all or have one prepared by their family attorney without any gift language.

Without gifting powers, the healthy spouse might be unable to access the ill spouse’s bank accounts, investment accounts, or retirement accounts. This could cause substantial financial hardship for the healthy spouse. Without gifting powers, the healthy spouse might be forced to pursue court guardianship proceedings which can be an expensive and lengthy process.

If someone enters a nursing home and faces the loss of his/her entire life savings, language to allow the agent under the Power of Attorney to transfer assets and take other steps to protect assets from being lost towards the cost of care and to qualify the person for Medicaid coverage is crucial. Without such gifting language, it could become difficult, if not impossible, to protect assets.

Example: Tom and Mary Jones meet with an Elder Law attorney. They are 65 years old. They have never met with an attorney before. They have 2 children ages 35 and 40. As part of their estate planning, they signed Powers of Attorney and a Health Care Proxy. Ten years later, when they are 75 years old, Tom has dementia and is no longer competent.

Since Tom appointed Mary as his Power of Attorney, Mary has the authority to act on Tom’s behalf to access his financial institution accounts.

Also, if the Power of Attorney contains important additional powers such as the power to make gifts, Mary will be able to transfer funds from Tom’s accounts to herself to pay for her living expenses.

Since Tom appointed Mary as his health care agent under his Health Care Proxy, she will be able to make medical decisions for him. If the Health Care Proxy contains the necessary language, Mary will also have the authority to remove life support, feeding tubes and hydration.

Another advantage of a Power of Attorney and Health Care Proxy is that it allows you to appoint alternate agents to serve.

Also, Tom can spell out what authority his agent(s) and alternate agent(s) are being granted in the Power of Attorney and Health Care Proxy.

The Koldin Law Center, P.C. has prepared an enhanced Power of Attorney that includes a thoroughly completed modifications section that provides additional broad gifting powers we feel are important if a catastrophic illness occurs and to allow continued support for the healthy spouse.

For more information on Health Care Proxies, please visit our website by clicking here.

For more information on Powers of Attorney, please visit our website by clicking here.

At the Koldin Law Center, P.C., located in East Syracuse, New York, we have over 50 years of experience helping individuals plan for immediate crisis and long term care.

The Koldin Law Center, P.C. limits its practice to the specific field of Elder Law which includes estate planning and Medicaid law.

Our attorneys are available to discuss your estate planning options, including the advantages and disadvantages of Revocable Trusts and Irrevocable Trusts, along with other estate planning considerations including a Will, Power of Attorney, and Health Care Proxy.

When the Koldin Law Center, P.C. handles a Medicaid case, we not only handle the entire application process, but we also review asset protection options with our clients. We review with our clients who are already in a Nursing Home options to protect some or all of their assets beyond merely establishing Medicaid eligibility.

We do not charge a fee for the initial consultation. We welcome your children, family attorney, accountant, and/or financial planner to be present at the initial consultation.

There is something you can do.

Our Attorneys Are Available To Speak To Your Organization

Our Attorneys speak to groups throughout New York State as a public service. If you would like to arrange for one of our Attorneys to speak to your group, please contact our office.

We Appreciate Your Referrals

We have been told by many clients who are in a crisis that they wish they had known about our firm much sooner. We are proud of the many families we have helped in times of crisis.

We are also proud of the many families we helped avoid financial crisis by doing estate planning in advance.

We all share the responsibility for making our family and friends aware of the planning options available to them.

Your referral to the Koldin Law Center could make a major difference in the lives of your family and friends if they are someday faced with a long term illness.

Remember that the Koldin Law Center offers many services for clients of all ages. Our services range from basic estate planning such as a simple will to complex estate planning including asset preservation planning.


E - Newsletter

Practice Areas

Basic Estate Planning

Trust Planning

Medicaid Planning And MedicaidApplications

Planning For Individuals With Disabilities

Probate And EstateAdministration