Well, it’s a new year and everyone has made their New Year resolutions. Hopefully one of those resolutions is to do an estate plan. Unfortunately, historically the percentage of resolutions that are actually carried out is fairly low. This is a resolution that I hope everyone keeps.
Just so I’m 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, a Health Care Proxy, and a Living Will.
I’d like to start with the Health Care Proxy in this month’s article and deal with the others in subsequent months. However, please note that, I am not advocating that you should wait until I complete the series to see an estate planning attorney and do your plan.
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 even 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 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 or have treat you? These preferences can also be written directly on the document so all the agents can know about them.
Although you can only name 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 one on the list, they will move to the next person. That person doesn’t have to be incompetent or dead. It often depends on how time critical the decision is as to how fast they move to the next person.
Also, typically on the Health Care Proxy document is a place for you to indicate that 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 for this. 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.