Advance Directives

Health Care Proxies
Living Wills
Do Not Resuscitate Order
Wills
Probate of Estates
Trusts
Guardianship

Health Care Proxies

New York law does not authorize family members to make medical decisions on behalf of relatives in the absence of a health care proxy. This is based on the fundamental belief that competent adults have the ability to make informed health care decisions for themselves.

• A health care proxy allows the principal (you) to select a health care agent (proxy) to carry out your medical decisions or wishes if and when you are unable to make those decisions or communicate your wishes concerning treatment. The health care proxy can delegate health care decision making to anyone over 18 years old. Two people witness the document, neither of whom is the proxy being named. A person must be competent when signing the health care proxy.

Clearly, you must spend time speaking with a proposed proxy and not assume that the proxy knows what your wishes are, including whether or not you wish to be sustained on artificial food or hydration if you become terminally ill. Many times a close family member or relative is not the most appropriate person; for example, that person may have trouble making difficult health care decisions. A friend may be a more suitable choice for some people. It is also important to explore the possibility that a proposed proxy may have a conflict of interest that could interfere with his/her judgment, thus rendering that person unsuitable as your proxy.

The power to make health care decisions for another person cannot be delegated by a Power of Attorney. While the Power of Attorney is extremely useful as a financial tool, a Health Care Proxy allows your proxy to make all health care decisions on your behalf including the consent or refusal of all medical treatments, from routine methods to life sustaining, once a physician has attested to your incapacity to make those decisions yourself.

A proxy is required to make health care decisions consistent with your wishes — subjective standard. However, if your wishes are not clear, then the law allows for decisions to be made in your "best interests" by an objective standard. One exception is that a proxy may not make decisions regarding artificial hydration and nutrition based on best interests — these wishes must be clearly communicated to the proxy, and the best way to do so is within the health care proxy document.

• Once a health care proxy is signed and witnessed, give copies to your proxy, your treating physicians, clergy, friends, family, or anyone who may be in a position to see that it is utilized when needed. It is not advisable to put it in your safe deposit box or a location which will not be known to your proxy.
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Living Wills

Another useful advance directive is a living will, even though there is no statutory authority for it in New York State. However, written instructions regarding your wishes and preferences for medical treatments will be honored if they meet clear and convincing evidentiary standards.

• A living will can best be described as a statement providing instructions for medical care under particular circumstances. It provides guidance for what kind of health care you want rather than appointing a proxy, to make those decisions. A living will can only be made by a competent adult.

Some of the specific instructions people give in their living wills are their preferences for:

• Antibiotics
• Pain medication
• Cardiac resuscitation
• Mechanical respiration
• Administration of X-rays
• Surgical procedures
• Anesthesia
• Admission and discharge from health care facilities
• Artificial feeding and hydration.

A competent adult has the right to refuse treatment, if there is clear and convincing evidence of that desire, and a court will not substitute its judgment for yours even if family members feel otherwise. However, if those views are not clearly set forth in the living will, the court would most likely rule in favor of sustaining life.

A question frequently arises as to whether a health care proxy and living will should be incorporated into one document or whether they should be prepared as separate documents. There is no right or wrong answer to this. One theory is that the health care proxy should be the principal document and stand alone, utilizing the separately drawn living will if and when family members object to the proxy's decision. Many hospitals find it preferable to have just a healthy care proxy in the file. The other position is that an integrated health care proxy and living will provides one cohesive document for health care decisions and preferences.

A Do Not Resuscitate Order (DNR) allows a surrogate authority to decline cardiopulmonary resuscitation (CPR) in the event of a heart or respiratory failure. This advance directive must be made while a person is competent. Before a surrogate can act though, two physicians must agree that the patient is terminally ill, permanently unconscious, or that resuscitation would be medically futile or an extraordinary burden. When no surrogate is available, a physician is permitted to issue a DNR order. This order applies only in hospitals and nursing homes.

A different form of DNR Order may be needed by patients who are discharged from the hospital or nursing home and are now at home. Emergency personnel are not permitted to follow a hospital DNR Order when responding to a home emergency, and must try CPR.

A DNR order serves a limited but important purpose, and includes mouth-to-mouth resuscitation, external chest compression, breathing tubes, injections into the heart, open chest heart massage and electric shock. In the event of an emergency when there is no DNR order in place, one is presumed to consent to CPR unless the medical futility exception applies. DNR Orders, with proper consent, are not only valid, but a refusal to honor it has been held to be an unwarranted intrusion into a person’s freedom from a painful, and perhaps futile procedure at the end of life.

Any estate plan should encompass a last will and testament (will) as the main device by which property is distributed at the time of death, the time a will becomes operative. A person who dies with a will is said to die testate. A person who dies without a will dies intestate.

For a valid will in New York, the statute requires that a person be at least 18 years of age and of sound mind and memory. The capacity required for making a valid will is less than that required for many other legal documents. Specifically, you must be able to recall, without prompting, the natural objects of your bounty, the nature and extent of your property and that you are making a will. A will also must be duly signed at the end by the testator and witnessed by two people who can claim that the testator signed of his or her own free will. In the event of a will contest, a court will look into claims of undue influence on the testator, fraud, and testamentary incapacity.

Wills have to go through probate, a proceeding in which the Surrogate Court will determine the validity of the will and allow for the orderly transfer of assets. This can take some time and there are costs associated with probate of an estate. Some assets, however, may pass directly to your heirs without the need for probate, e.g. proceeds of life insurance, joint bank accounts, certain trusts. You must be careful as to how assets are owned, and how the beneficiaries are named in order to insure that assets can be distributed outside the will.

A will may be revoked by another will, executed with the same formalities required of the original will, or by a physical act of the testator such as ripping or destroying the original will. Some people are of the mistaken belief that simply crossing out provisions they no longer like has the effect of revoking the specific provision; this has no legal effect, and the original provision would remain valid. Moreover, when a second will is later revoked it does not automatically revive the earlier revoked will.

Oftentimes, the testator desires one or two changes or additions to a previously valid will and prepares a codicil, or supplement to that original will. As long as it is executed with requisite formalities, the codicil may state that it is in effect republishing the original will other than the provisions altered by codicil. This can be confusing so the best approach is generally to have a new will prepared and executed so that your wishes are all in one legally binding will.

If you would like to make specific bequests, you should provide detailed instructions in your will. For example, if a sum of money is bequeathed from a specific bank account, and that account is closed by the date of death, that property may be considered lost or “adeemed”, even though that may not be what you believed would happen. Or, if shares of stock are bequeathed, and the stock later becomes technically another stock due to a merger or acquisition, that bequest may require a court proceeding for clarification. Of course, it is sometimes difficult to plan for each and every possibility, but every effort should be made to implement your wishes.

Another important feature in most wills is the appointment of fiduciaries, those charged with having the duty to act for another’s benefit in connection with the specific undertaking, e.g. executor, guardian, trustee, etc. You should appoint people you trust. In addition, you must be sure that the proposed fiduciary has the necessary skills for the task. For example, a trustee should have the ability to manage or invest the estate or trust properly and without any personal interests which could conflict with his or her duty. New York law contains specific requirements for fiduciaries with respect to managing money of others, sometimes called a “prudent investor” standard. Also, you may appoint one person or entity as a trustee and another as guardian of your children.

Once executed, the will could be kept with your attorney, in a safe deposit box, or filed with Surrogate Court. It is also a good idea to keep a list of your assets on a separate piece of paper, and let your executor know where it is to minimize the burden of gathering all of that information upon your death.

Bear in mind that wills often do need to be modified. This is especially true when there is any significant change in your family makeup including new marriages, divorces, grandchildren, and illness or death of one of your beneficiaries, or any major change in your financial circumstances.

Probate is defined as the court proceeding where the estate of a person who has died testate (leaving a will) is processed and distribution is allowed. Two major purposes are served when a will is probated:
• The estate can be administered by the executor.
• The will is accepted for its genuineness.

Once a will is admitted for probate, the court issues “letters of testamentary” as evidence that the executor has the authority to act. The executor can then collect and inventory the assets, pay debts and taxes and administrative expenses of the estate, and then distribute the assets of the decedent in accordance with the will.

Where there are issues as to the capacity of the person leaving a will, undue influence, the required notice to interested parties, the proper execution of the will, or other issues affecting the validity of the will, the proceeding may become a contested matter and thus delay probate. That is why careful deliberation is required before a will is prepared and executed in an effort to minimize any potential contest.

New York does have a more streamlined procedure for accommodating the administration of smaller estates, currently consisting of personal property having a gross value of $20,000 or less. This is not applicable to any interest in real property however. The person petitioning the court files an affidavit listing the beneficiaries and fiduciaries, a copy of the death certificate and will, and is then granted a certificate showing his or her authority as Voluntary Administrator.

Although probate is not generally a very expensive or difficult process in the absence of a will contest, it does still require some delay and expense. Some people complain that probate eliminates privacy because notice is required and accountings must be filed. However, you can view those same objections in a positive light in that proper notice to parties and complete inventories and accountings ensure fairness in the proceedings.

Assets not subject to probate include:
• Assets held in trust where the trust agreement directs to whom the assets are distributable at death,
• Assets in joint tenancy with the right of survivorship,
• Life insurance proceeds that are distributable to named beneficiaries.

Placing property in these various forms involves important decisions in addition to deciding to avoid probate. For example, the cost of preparing a living trust may outweigh the benefit obtained by avoiding probate. There is an advantage in setting joint ownership since there is no need to consult an attorney; yet, joint ownership can present problems in the event of a divorce, sale of the property or if you want to place it in trust and cannot get the consent of the other owner. With respect to life insurance, that too is often seen as an effective way of avoiding probate. Problems can arise when the insured retains any ownership rights, such as the right to change beneficiaries since because the proceeds would be included in the insured’s gross estate and subject to estate tax. In addition, making children beneficiaries of life insurance proceeds has caused concerns because minors may not be competent to manage a large sum of money.

The conclusion is that a sensible estate plan has to consider many aspects of your goals, family make-up, health, finances and overall circumstances. No one plan is right for every person, but making an advance plan is the only way to assure that your wishes are honored. Consult an attorney experienced in estate planning.

A trust is simply a transfer of assets by a "grantor" (also referred to as a "trustor," "donor," or "settlor") to a person called a "trustee" for the benefit of another person, called the "beneficiary." Technically, the trustee holds legal title to the property and the beneficiary holds beneficial title. Sometimes there is more than one beneficiary, where one may be entitled to use the property or income from it for life, while another receives the use of income after the death of the first beneficiary. Any valid trust must clearly identify the grantor, the beneficiaries and the trustee, although it is possible for all three to be the same individuals.

Trusts can be established during your life (inter vivos) or through your will (testamentary). Inter vivos trusts exist immediately upon creation once assets are transferred into it. A testamentary trust, however, does not come into existence until the testator (the person who makes the will) has died without revoking his or her will and providing there is enough money to fund the trust at that time. Both are ways in which you can direct that funds be managed and distributed according to specific wishes. The capacity needed to execute a trust is higher than that needed for a will, since there must be an understanding that assets be entrusted to another person and then distributed to a third party.

Living trusts have emerged as useful estate planning tools. There are several kinds and they are often classified as revocable or irrevocable. Basically, in a revocable trust you have the right to modify or revoke it during your lifetime. Because you are able to exercise that control, it is deemed taxable in your estate. Irrevocable trusts are often used to help qualify for Medicaid or protect assets from creditors, but much caution is needed to avoid what may be considered a fraudulent transfer. And you must determine whether establishing a trust which cannot be changed is sensible. You should consult an experienced elder law attorney before setting up either kind of trust.

An advantage of a trust is that an estate can be managed in the event of incapacity. For example, an elderly person, whose risk of incapacity increases with age, may want to set up a living trust so that his/her assets may be administered in the event of incapacity. Avoiding a guardianship proceeding is a great advantage of a revocable living trust. Other arguments in favor of these trusts are the avoidance of probate and the assurance of greater privacy. Although the use of a living trust may reduce the costs of settling the estate, there are often higher costs associated with the creation of the trust.

The creation of a trust requires careful thought. Ethical concerns and family dynamics are important considerations.

A guardian is an individual or agency appointed by the court to manage the affairs and arrange for services to meet the needs of an incapacitated adult.
There are two types of guardianships in New York State:

1) An Article 17-A guardian has broad powers. The guardianship appointment is made after a diagnosis of developmental disabilities or mental retardation by two physicians or one physician and one psychologist. The family member (or friend) can go to court to obtain a guardianship on his/her own or hire an attorney to complete this process. Article 17-A guardianships are usually the less expensive type of proceeding, but there is very little ability to tailor the guardian’s powers to the needs of the individual.

2) An Article 81 guardianship allows for tailoring of the guardian's powers to the abilities and limitations of the individual. The statute grants the individual with developmental disabilities greater rights in this kind of proceeding. Obtaining an Article 81 guardianship usually requires the assistance of an attorney, and it tends to be more expensive than Article 17-A guardianships.

Under both Article 17-A and Article 81, the court may appoint a stand-by guardian(s) to assume the guardianship when the primary guardian is no longer able to serve in that role. This is one way to plan for the future and to achieve greater peace of mind.

Lifespan can help you identify who may be appointed guardian, and if there is no family member available to take this responsibility, can assist in finding other options, such an agency to serve in this role. Lifespan can also help you access the court system by recommending knowledgeable attorneys or by offering support if you choose to proceed on your own.


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