Was one of your new year’s resolutions to do an estate plan? Unfortunately, most resolutions have fallen by the wayside by February. But estate planning is a resolution you should keep.
To be clear, I’m talking about a full estate plan, not just a Last Will and Testament. A basic estate plan typically consists of four documents. One of those is the Will, but there are others commonly known as Advance Directives. That is because they have power in advance of death, i.e., while you are still alive. They are a Power of Attorney, Health Care Proxy, and Living Will. My focus in this article is the Health Care Proxy.
The Health Care Proxy and Living Will are also sometimes referred to as Advance Health Care Directives. They are legal documents in which you state who can make your medical decisions and your preferences with regard to your medical treatment in the event that you are unable to make your own decisions.
Make no mistake, so long as you are competent, you will continue to make your own medical decisions. In New York, that includes refusing any medical treatment, even if that decision may hasten your death. The problems arise when you are not competent to make your own medical decisions.
That’s where the Health Care Proxy comes in. You name someone who will “stand in your shoes” and make those decisions for you. This document will allow the agent to make typical, daily medical decisions, such as changes to your medications or whether to perform (or not perform) medical procedures. The difficulty on the part of the agent is that he or she should be deciding based on what you would have wanted if you were making the decision, not what they would want. Not always an easy thing for a spouse or child.
Because of this, it is imperative that you discuss your health care preferences with your agent. I am not necessarily talking about end of life decisions but other things that may come up. For instance, do you have any problems with having blood transfusions or are you against any type of radiation treatment? Do you prefer to minimize or maximize any pain medications? Are there any doctors or facilities that you do not want to go to? These preferences can also be written directly on the document so all the agents can know about them.
Although you can name only one agent at a time, there can be a pecking order for a number of agents. To go from one to the next, the standard is “unable, unwilling or unavailable.” Generally speaking, that means if the doctor or hospital is not able to locate and contact the first person on the list, they will move to the next person. That person does not have to be incompetent or dead. How fast they move on to the next person often depends on how time-critical the decision is.
Also, there is typically a place on the Health Care Proxy for you to indicate whether you want to be an organ or skin donor. Not checking this off does not preclude your agent from making that decision but, again, it is an indication of your desires.
This document should be kept in a safe place but readily available to the agent if the need arises. A safety deposit box at a bank is therefore not the best place. You may even want the agent to have the original or at least a copy. A doctor or hospital will usually accept a copy but may ask to see the original at some point in time, depending on the severity of the decisions that need to be made.
Martin S. Glass, Esq. is Of Counsel to Campolo, Middleton & McCormick, LLP. His practice focuses on elder law, trusts, estate planning, planned giving, long-term care, special needs planning, and asset preservation. Marty also advises clients on business succession and tax planning issues.
With offices in Ronkonkoma and Bridgehampton, Campolo, Middleton & McCormick, LLP is Suffolk County’s premier full-service business law firm. CMM represents clients in a wide variety of legal matters including corporate, criminal defense, environmental and land use, healthcare, intellectual property and technology, international, labor and employment, liability insurance and insurance coverage, litigation and appeals, mergers and acquisitions, municipal liability and government relations, personal injury, real estate, and wills, trusts, and estates. Learn more at www.cmmllp.com.