When we talk about estate planning, most of us think about what happens after death. But equally as important is estate planning for incapacity – when a person loses the ability to make decisions for him or herself. Notably, end of life documents such as a will do not help under these circumstances. Incapacity can be either permanent or temporary, and may result from being in a coma, dementia, stroke, and other conditions. This week, we will be discussing estate planning for incapacity, specifically as it relates to health care proxies.
A health care proxy is a legal document wherein you appoint someone to make medical decisions on your behalf in the event you become incapacitated. This “someone” is known as an agent, should be someone you trust, and could be a relative or a friend. A health care proxy form is easily obtainable, and a New York State issued form can be found here: https://www.health.ny.gov/publications/1430.pdf. Simply print it out, read the instructions, complete the form, and sign it in the presence of two witnesses. It is not required that an attorney draft your health care proxy.
Before settling on an agent, it is imperative that you discuss with him or her your wishes about health care and medical treatment. Not only will this make your agent more comfortable making decisions on your behalf, it would also bring to light any difference in opinions you and your agent might have. Discussing those differences now will ensure that you resolve them, or if no resolution is reached, to choose another agent. By way of example, your religion may reject specific medical treatments on theological grounds. Appointing an agent who is adverse to your religious beliefs is not in your best interest. At the minimum, your agent ought to be willing to follow your instructions regardless of his or her own personal beliefs. Once you have made a decision on who your agent and alternate agent will be, it is time to complete your health care proxy.
There are a few things to keep in mind. It is always advisable to choose an alternate agent in the event your primary agent is “unable, unwilling or unavailable to act.” This is your backup plan. Make sure to include an address and telephone number for your agent, as well as your alternate agent. Next, please note that failure to complete the organ and/or tissue donation section of the form is not a de facto refusal to donate – your agent could consent to a donation on your behalf if this portion of the form is left blank. Another thing to keep in mind is that the two witnesses must see you sign the document, and the witnesses cannot be your agent or alternate agent.
People often ask when a health care proxy becomes effective, and the answer is when you become incapacitated, as determined by a physician. Another inquiry is whether a health care proxy can be revocable? Absolutely. It may be revoked if your agent is no longer available, or when your wishes are no longer aligned with your agent’s, or simply because you change your mind. You may revoke a health care proxy by executing a new one. The caveat is that you must be competent (not incapacitated) when the new form is signed.
In the event a person does not have a health care proxy in place after becoming incapacitated, the New York Family Health Care Decisions Act (“FHCDA”) governs. It was signed into law in March 16, 2010 by Governor David Paterson and allows family members and others to make health care decisions on behalf of a person who can no longer speak for themselves. The FHCDA prioritizes a list of persons who may act as a surrogate: a court-appointed guardian, a spouse or domestic partner, a child older than 18, a parent, a sibling or a close adult friend or relative familiar with the patient’s personal, religious and moral views regarding health care. Suffice it to say, that the person the law designates as a surrogate in the absence of a valid health care proxy may not be the same person you would have appointed as your agent. In addition, not having a health care proxy in place increases the chances of having a court-appointed guardian take over your affairs, especially where there is acrimony among family members.
In conclusion, my hope is that you have a better understanding of what a health care proxy is and how it could be of benefit to you. Be proactive, and do not leave to chance what you can take control of today. Join me next week for a discussion on financial advance directives.
I can be reached at firstname.lastname@example.org. Lola Waterman, Esq.