Time constraints, informational and emotional considerations frequently present barriers to advance care and estate planning. Breaking though these barriers, while not easy, can provide peace of mind to you and can ultimately relieve your friends, family members or other designated agents of an otherwise considerable decision-making burden.
Unexpected illness or injury can occur at any time. Do you have “Advance Directives” in place? Do you know how they function? A Health Care Proxy is a legal document used to designate the person(s) who can make health care decisions anytime; not only at the end of your life, but also at any time that you cannot do so yourself. The Living Will permits you to state your wishes about medical care in the event that you develop an irreversible condition that prevents you from making your own medical decisions. The Living Will permits you to indicate the state of circumstances under which you would favor or object to any specific treatment and lets your designated health care agent know your personal wishes as to end-of-life choices. While you are well, take time to consider your own values and beliefs and what would be important to you if something were to happen. Share those thoughts with your family or other intended agent(s) and, as appropriate, your health care provider, and complete your Advance Directives while you are healthy. In New York, Advance Directives may be completed in front of two disinterested adult witnesses without an attorney present if: (1) you are over age eighteen, and (2) you are competent to select someone to be your agent.
When your child turns eighteen, he or she will have the legal right to make all decisions, including financial and medical ones for him or herself. This can be difficult for parents to absorb. You have been handling your child’s health care for your child’s entire life and – all of a sudden – he or she turns eighteen and you can no longer review his or her medical records or make important medical decisions unless designated to do so. We encourage you to consider how to best assist your now-adult or soon-to-be adult with regard to handling his or her needs.
For typically functioning new adults, and for those who have a developmental disability but who are clearly capable of assigning responsibility for health care to a parent or other person, we suggest that you strongly consider reviewing the Power of Attorney together before he or she attains age eighteen and having him or her sign the document at that age. If your child is in college or other residential program bound and is attending school in another state, he or she should complete a Health Care Proxy in both the home state and the state in which he or she will be living and should provide the relevant state form to the residential health care center.
For a child who clearly cannot handle his or her own affairs due to disability, legal guardianship should be pursued. The guardianship process requires the filing of a petition, doctors’ affirmations and other paperwork with the Surrogate’s Court for the county in which the child resides. It also requires a hearing which the child may be required to attend. In instances where the need for a guardian is straightforward and there are no assets in the child’s name, it may be possible to petition the Court on your own. In more complex cases, it may be best to hire a lawyer to assist you in the process. Many times, the decision to pursue a guardianship is a grey area. In these cases, you may also wish to consult an attorney and/or get a third party professional opinion from your health care provider as to whether it is more appropriate to go the Health Care Proxy or guardianship route.
A Health Care Proxy is always recommended for all adults (for whom guardianship has not been obtained) age eighteen and above, healthy or sick. There is another form, the MOLST (Medical Orders for Life-Sustaining Treatment), that may be needed for patients of any age with advanced illness. The MOLST is intended for patients with serious medical conditions who: (1) want to avoid or receive any or all life saving treatment; (2) reside in a long-term care facility or require long-term care services; and/or (3) have a life expectancy of one year or less. Whereas the Health Care Proxy is a legal form, the MOLST is a medical document which must be signed by the patient (or the patient’s health care agent, if the patient lacks capacity) and the physician. For persons with mental illness or developmental disabilities who lack decision-making capacity and/or for whom a guardian has been appointed under SCPA 17-A or 81, there are additional legal requirements. Details regarding the MOLST form and the additional checklist requirements for persons lacking decision-making capacity can be found at https://www.health.ny.gov/professionals/patients/patient_rights/molst/
For any questions regarding Advanced Directives contact Michelle H. Frank, Esq., Estate Planning Attorney at Barger & Gaines.