Power of Attorney and Health Care Proxy
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Two recent Blogs we posted discussed important considerations when signing a Health Care Proxy and Power of Attorney:
Health Care Proxy — Importance of Filling in the Optional Section
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 if you lose the ability to make decisions for yourself.
New York State provides a standard form in the law. This standard form is widely used by attorneys, physicians and hospitals.
There is an optional section on the form with blank lines for additional instructions. We have found that most new clients who come to our office either don’t have a Health Care Proxy or have one with the optional section for additional instructions left blank.
Under New York law, your Health Care Proxy agent does not have the authority to make health care decisions for you about artificial nutrition and hydration (nourishment and water provided by feeding tube and intravenous line) unless you have made your wishes known to your agent.
As a practical matter, most hospitals and physicians will be very reluctant to follow an agent’s instructions without the necessary proof of your wishes. Therefore, it is critical that you make your wishes known in this optional section of your Health Care Proxy.
The Koldin Law Center, P.C. prepares Health Care Proxies for clients that always include specific instructions on your wishes regarding removal of life support, artificial nutrition and hydration. Unless the client instructs us otherwise, the Health Care Proxy we prepare also makes clear that you desire whatever treatment necessary for your comfort and to alleviate pain.
Power of Attorney — Importance of Gift Rider
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 business decisions on your behalf. If you become incapacitated in the future and have not signed a Power of Attorney, a Guardianship proceeding may become necessary.
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 a “gift rider.” 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 rider.
Most family attorneys likely only view the gift rider for the purpose of making gifts and may have concluded that most of their clients don’t need this power. Elder Law Attorneys, such as the Koldin Law Center, P.C., recognize the critical importance of this gift rider.
If someone enters a nursing home and faces the loss of his/her entire life savings, the gift rider allows 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. Without such a gift rider, it could become difficult, if not impossible, to protect assets.
In addition, if there is no gift rider, a spouse will be unable to access funds from an incapacitated spouse’s IRA or 401(k). Many people believe that if they are the beneficiary of their spouse’s retirement account, they may access it themselves at any time. However, without a properly drafted Power of Attorney with the appropriate gifting language, the healthy spouse may not be able to access any accounts that are solely in the ill spouse’s name. The only alternative at that point would be to file a guardianship proceeding which can be costly and time consuming.
The Koldin Law Center, P.C. has prepared an enhanced Power of Attorney with a gift rider that provides additional powers we feel are important if a catastrophic illness occurs.
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.
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