A power of attorney is a legal document that allows you to designate another individual to make decisions regarding financial matters and/or legal affairs during your lifetime. The person who signs the power of attorney is called the Principal. The person who has been designated to act on the principal’s behalf is called the Attorney-in-Fact.
A power of attorney can be terminated in several ways: (1) if a specific designated task has been accomplished (e.g. the closing of a real estate transaction); (2) by revocation of the Principal; (3) the Principal becomes incapacitated; or (4) when the Principal dies.
A power of attorney does not authorize an Attorney-in-Fact to make medical decisions. Medical decisions can be made by a health care agent as designated in a Health Care Proxy.
On August 15, 2010, the State of New York enacted revisions to its laws regarding the statutory requirements of powers of attorney. The 2010 revisions became effective on September 13, 2010. If you executed a power of attorney prior to September 13, 2010, please consult an experienced attorney to discuss the appropriateness of executing a new power of attorney.
A “durable” power of attorney serves the same function as a power of attorney. However, as its name implies, a durable power of attorney remains effective even if the Principal becomes incapacitated. A durable power of attorney is an important estate planning tool as it allows the Attorney-in-Fact to manage the Principal’s financial affairs immediately and without any need for court intervention.
A durable power of attorney can be terminated in several ways: (1) by revocation of the Principal; or (2) when the Principal dies.
A durable power of attorney does not authorize an Attorney-in-Fact to make medical decisions. Medical decisions can be made by a health care agent as designated in a Health Care Proxy.
A Health Care Proxy is an instrument that allows a patient to appoint a Heath Care Agent to make health care decisions in the event that the primary individual is incapable of making such decisions.
A Health Care Proxy can be revoked at any time by the primary individual. Revocation can be accomplished by advising the health care provider and Heath Care agent, orally or in writing.
A Health Care Agent is not authorized to make financial decisions on behalf of the primary individual. Financial decisions can be made by an Attorney-in-Fact as designated by a valid Power of Attorney.
Copies of your Health Care Proxy should be delivered to the designated Heath Care Agent, your doctor, or other people close to you.
A living Will is a legal document that allows you to express your wishes in case you become incapacitated. A Living Will informs others of your preferred medical treatment should you become permanently unconscious, terminally ill, or otherwise unable to make or communicate decisions regarding treatment.
Copies of your Living Will should be delivered to the designated Heath Care Agent, your doctor, or other people close to you.
To help physicians and other health care providers discuss and convey a patient’s wishes regarding cardiopulmonary resuscitation (CPR) and other life-sustaining treatment, the NYS Department of Health has approved a physician order form DOH-5003 MOLST, which can be used statewide by health care practitioners and facilities.
The MOLST form is a bright pink medical order form signed by a New York State licensed physician or a border state physician that tells others the patient’s medical orders for life-sustaining treatment. All health care professionals must follow these medical orders as the patient moves from one location to another, unless a physician examines the patient, reviews the orders, and changes them.
The MOLST serves as a single document that contains a patient’s goals and preferences regarding:
- Resuscitation instructions when the patient has no pulse and/or is not breathing
- Instructions for intubation and mechanical ventilation when the patient has a pulse and the patient is breathing
- Treatment guidelines
- Future hospitalization and transfer
- Artificially administered fluids and nutrition
- Other instructions about treatments not listed
Under State law, the MOLST form is the only authorized form in New York State for documenting both nonhospital Do Not Resuscitate (DNR) and Do Not Intubate (DNI) orders. In addition, the form is beneficial to patients and providers as it provides specific medical orders and is recognized and used in a variety of health care settings.
A Last Will and Testament is a legal document that communicates a person’s final wishes regarding to the disposition of property, both real and personal, after death. A properly drafted Last Will and Testament will cover several important points: (1) the nomination of an Executor who will be in charge of settling your final affairs and carrying your final wishes; (2) the identification of Beneficiaries who are the individuals (or charities) that will inherit your property and possessions after your death; (3) setting forth the powers your Executor will have; (4) setting forth the essential details concerning how your property will ultimately be transferred to your Beneficiaries; (5) establishing trusts; (6) listing funeral wishes; and (7) if you have young children, you may also nominate a Guardian(s) for your children in your Last Will and Testament.
If, at the time of your death, you do not have a Last Will and Testament, the State of New York will dictate how your assets are distributed according to the State’s Laws of Intestacy. A Last Will and Testament is one way to insure that your property will go the beneficiaries that you choose.
While Wills can serve as powerful estate planning tools, they are only effective if they are properly drafted to suit the needs of each individual. Therefore consulting with an experienced estate planning attorney is vital.
The Health Insurance Portability and Accountability Act of 1996 (HIPAA), gives the right to privacy to individuals at or above age of 12, and prohibits the release of information, even to spouses and parents. Most medical providers have refused to release information in the absence of a signed disclosure. Therefore, as part of your advanced incapacity planning, you should sign a HIPAA authorization form that allows the release of medical information to your agents, successor trustees, family or any other individuals you wish to designate.