No one knows when tragedy will strike. A fatal motor vehicle crash at 30. An unexpected terminal illness at 50. Old age sets in faster than you think. The question in this day and age is, Are you prepared?
There are several legal and ethical issues which can cause problems for unprepared families. There are four key documents every family member should execute in the event a tragedy occurs.
A will is generally defined as a written declaration by which a person makes a disposition of his or her property to take effect after his or her death, and which by its own nature is ambulatory and revocable during the person’s lifetime. Wills are governed by the New York Estates Powers and Trusts Law (EPTL) and in order to be considered valid and enforceable, the following requirements must be adhered to:
1. The will must be executed by a person who is eighteen years of age or older and of sound mind and memory, and;
2. Generally speaking, a will must be in writing and signed by the testator in the presence of at least two witnesses, to whom the testator has declared that the document being signed is his or her will and whom the testator has requested to be a witness to the execution of it.
A will must be prepared by parents with an eye toward a guardianship in the event a tragedy occurs. If an infant under the age of 18 years or a child, relative with special needs is a factor, careful consideration must be given to the proper guardian of the child or relative.
HEALTH CARE PROXY
Generally, a health care proxy is a document naming someone else to tell your medical providers and other family members what you want in the event you can no longer make health care decisions for yourself. The standard health care proxy does not describe your specific wishes, such as whether you want artificial nutrition and hydration, it just designates that your agent or proxy knows what your wishes are and has the authority to speak for you. The proxy or agent is authorized to turn off the respirator, remove food, water and other nutrient and refuse life sustaining medical treatment.
The most important factor for the person (i.e, the principal) executing the health care proxy is to communicate at length with the designated proxy or agent about whether you would want to live in a persistent vegetative state and if so, for how long.
In order for the Health Care Proxy to be effective, the proxy must be executed and dated by the principal in the presence of two adult witnesses neither of whom is the proxy or agent designated in the document, and who must declare that the principal executed the document voluntarily.
A living will is a document that specifically states what medical treatment you want and don’t want, and under what circumstances. If can be very detailed, but if a person does not have a health care proxy to help carry out the wishes set forth in a living will, living wills can be open to interpretation. New York State does not have legislation on living wills, as most other states do. However, most hospitals and medical care providers do accept them if there is nothing else to guide them.
Every person should have a living will and a health care proxy. One reason is that living wills are generally recognized nationwide; you could end up hospitalized in a state where a New York health care proxy means nothing and you living will is recognized. Another reason is that a living will offer invaluable guidance to your health care agent or proxy. Preparation of a living will forces a person to have a conversation about what you want and may shield children from having to make life or death decisions for you on a hunch.
POWER OF ATTORNEY
A Power of Attorney is a document by which a person appoints a certain person as his or her agent, and which generally allows the agent to gain access to your important papers, including bank accounts, to help pay expenses, etc.
New York General Obligations Law Section 5-1501 governs powers of attorney in New York State. The principal may confer specific or broad powers upon the agent. Different forms of powers of attorney may be executed, including one which goes into effect at some specified future time or contingency. A springing power of attorney is used when one person cannot be present to sign a contract or act on his or her own behalf for one event. That type of power of attorney is referred to as a common power of attorney or a springing power of attorney.
A durable power of attorney is one which survives the occurrence of a contingency and enables the agent to act even where the principal is no longer incapacitated. A durable power of attorney is only to be given to a very trusted person, such as a spouse or close relative, because it generally grants the power to make binding financial decisions for the principal. It is often said that the durable power of attorney may be the most important document to execute so that one’s family may utilize a person’s own assets to pay for treatment or obtain adequate care for the incapacitated person.
Thomas Dargan, Esq.
Lewis Johs Avallone Aviles, LLP
1377 Motor Parkway, Suite 400
Islandia, N.Y. 11749