Estate Planning is applying the law of property, trusts, wills, insurance, and taxation to the ordering of one’s affairs, while keeping in mind the possibility of retirement and the certainty of death. Estate Planning is controlling your property while you are alive and well, planning for yourself and your loved ones in case you become mentally disabled, giving what you have to whom you want when you want and the way you want, and having full access to today’s legal and financial opportunities.

The basic estate plan consists of a Power of Attorney, Health Care Proxy, Living Will, and Last Will and Testament. Having these documents as part of your basic estate plan will help you identify and address whatever legal, health, or financial issues you might face, as well as help you satisfy your estate planning objectives.

Power of Attorney.

A Power of Attorney serves a useful function, when used appropriately. When used appropriately, the Power of Attorney is a wonderful tool to make sure your property, financial, and/or legal decisions are made effectively and efficiently by the person you trust and who will be responsible for making these important decisions. However, the Power of Attorney can also be a dangerous weapon in the hands of an agent who is not trustworthy and does not act in your best interest. The Power of Attorney can also be a dangerous weapon when prepared by a short-sighted legal or financial professional.

For people who do not have the independent capacity to make decisions for him or herself, a Power of Attorney is, many times, the only way to a successful long-term care plan. Having the necessary and appropriate authority within a valid Power of Attorney will assist your agent/family member/decision-maker make the decisions to put the plan together and put it in place. Without this authority, your family’s only other option might be a guardianship, and all of the problems associated with that.

See also my blog post – Appointing a Power of Attorney – from August 2015.


Health Care Proxy.

In New York, appointing someone you can trust to decide about your medical treatments and/or health care if you become unable to decide for yourself is the best way to protect your wishes and concerns regarding your health care decisions. “Health care” means any treatment, service, or procedure to diagnose or treat, a physical or mental condition. You have the right to appoint someone by filling out a form called a Health Care Proxy.

The Health Care Proxy designates an agent to make your health care decisions (in the event you are not mentally able to make those decisions for yourself). Also, the agent is designated to represent your wishes, as set forth in your Living Will (discussed next), with respect to the use of unnatural extraordinary means to sustain your life. Hospitals, doctors, and other health care providers/facilities must follow your health care agent’s decisions as if they were your own. You may give the health care agent as little or as much authority as you want, and may allow your health care agent to make all of your health care decisions or only certain ones. The Health Care Proxy can also be used to document your wishes or instructions with regard to organ and/or tissue donation.

If you are worried about when the Health Care Proxy becomes effective, discuss options with your attorney. Your attorney should be able to discuss with you language detailing the process by which your attending physician certifies that you are mentally disabled. The following language may be used as an example: “For purposes of establishing incapacity, whenever two (2) licensed, practicing medical doctors who have personally examined me (one of whom shall be my primary care or attending physician) who are not related to me or to any beneficiary or heir at law by blood or marriage certify in writing that I am unable to make my own decisions relating to my health care choices because of mental or physical infirmity and the certificates are written into my medical record, then the agent appointed hereunder shall assume all powers granted in this Health Care Proxy.”

See also my blog post – Health Care Proxies for Minor Children – from March 2015.


Living Will.

A Living Will is essentially a document whereby you set forth in writing your desire to have, or not have, your life extended by unnatural extraordinary means, such as life support and other extreme medical technologies. For example, if your death is imminent but for the use of respirators, feeding tubes, etc., your substitute decision-maker, as designated in your Health Care Proxy (discussed above), would have the power to instruct the doctors to terminate their efforts.

Adults in New York have the right to accept or refuse medical treatment, including life-sustaining treatment. This means that you have the right to request or consent to treatment, to refuse treatment before it has started, and to have treatment stopped once it has begun. Many patients turn to family members, friends, or caregivers for advice, or want medical decisions ultimately made by them, but sometimes a patient cannot make his or her medical decisions, and has not effectively delegated that decision-making authority to others. For this reason, it is important for you to make your wishes explicitly known, in advance.

Many states have enacted laws that relate to a patient’s right to prolong or terminate his or her own medical treatment, resuscitation efforts, and life-sustaining measures. New York is not one of those states. The common law right to express one’s wishes as to his or her so-called “right to die” is found in the caselaw beginning with In re Westchester County Medical Center, wherein the court established the need for “clear and convincing” evidence of a patient’s wishes and stated that the “ideal situation is one in which the patient’s wishes were expressed in some form of writing, perhaps a ‘living will’.”

There are no formal requirements to the signing of the Living Will. The person signing the Living Will must be in all respects mentally competent. The Living Will must be signed by the patient, dated, and should be witnessed by at least two (2) independent witnesses. The Living Will need not be notarized.

Your attorney should understand that general instructions about refusing treatment, even if written down, may not be effective. Your instructions must clearly cover the treatment decisions that must be made. For example, if a client merely writes down that he or she does not want “heroic measures,” the instructions may not be specific enough for the hospital or health care facility to honor. A Living Will must specify the type of treatment, such as a respirator or chemotherapy, and describe the medical condition(s) when the client would refuse such treatment, such as when the client is terminally ill or permanently unconscious with no hope of recovering normal brain function.


Last Will and Testament.

For many, the Last Will and Testament is an important document within their comprehensive Estate Plan. For some, the Last Will and Testament is important because it converts a deceased’s intestate estate into a testate estate. When a person dies with a Will, he or she is said to have died “testate”. When a person dies without a Will, his or her estate is an “intestate” one.

For a family of moderate means, not having a Will means that the surviving spouse may have to share a small estate with children which may effectively deprive the surviving spouse of property needed for his or her welfare. Moreover, if one or more children are minors, then guardianship may be needed for property passing to the minor child. Similarly, if a beneficiary is disabled and receiving government benefits, a distribution to him or her, without condition, might disqualify that beneficiary for his or her benefits. In these cases, the Last Will and Testament could provide that the surviving spouse receive the full estate, the minor children’s shares be held in trust, thus avoiding the guardianship, and that the disabled beneficiary’s government benefits not be supplanted by the inheritance.

For spouses where there are no children, each spouse might assume that without a Will the surviving spouse would take everything. In that case, they would be wrong. Under Florida law, for example, if the deceased is survived by a spouse and issue of the deceased but not of the surviving spouse, then the surviving spouse’s share is one-half of the intestate estate. The other one-half goes to the surviving issue of the deceased or, if none, then to the deceased’s parents. The devolution of property continues, but the point is made: If the married couple do not have children, then the surviving spouse does not inherit the whole intestate estate. He or she must share it with the parents, and successive generations, of the deceased’s heirs.

The Will also gives the deceased the opportunity to name his or her own Executor or Personal Representative. That person may be different than the person who may want to be the Administrator under the state’s laws in an intestate administration proceeding.

About Jeffrey A. Asher

Jeffrey A. Asher is admitted to practice in NY and CT. Mr. Asher is a member of the New York State Bar Association, where he serves on the Executive Committee of the Elder Law and Special Needs Section, the Executive Committee of the Trusts and Estates Law Section, is co-chair of the Legislation Committee of the NYSBA Elder Law and Special Needs Section, is co-chair of the Committee on Elderly and Disabled of the NYSBA Trusts and Estates Law Section, and is Chair of the Elder Law Section of the New York County Lawyers’ Association. Mr. Asher recently appeared in the HBO Documentary “Bobby Fischer Against the World: Fight for the Fischer Estate.” Mr. Asher also is a legal commentator on Trusts and Estates and Elder Law matters for Court TV, TruTV, and CNN Headline News.

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