The Trifecta: Power of Attorney, Healthcare Proxy and Living Will
Although attorneys have long advised that anyone over the age of eighteen needs advance directives—Health Care Proxy, Living Will, Durable Power of Attorney, nomination of guardian if you have minor children—we contemplated life changing events particular to a single person not a global event that would affect everyone all at once. I, for one, never envisioned Covid-19.
A Health Care Proxy delegates authority to another adult to make health care decisions on h behalf of the person executing the proxy should the principal be unable to do so on his or her own. A living will pertains to a person’s end of life decisions—when in a terminally ill or vegetative state—such as when you no longer want artificial nutrition or hydration. A Durable Power of Attorney is a document by which a person designates an Agent (also called an Attorney-in-Fact) to act on his or her behalf with respect to financial or legal matters. The latter is a powerful document that allows a trusted agent to step into the shoes of another immediately upon execution of the document.
Explaining to a couple in their 60’s or 70’s why they should consider Advanced Directives is straightforward: if you do not have a healthcare proxy and durable power of attorney and were to become incapacitated, you would require a Guardianship proceeding in order for someone to make healthcare and financial decisions in your best interest. An Article 81 Guardianship is expensive and intrusive – despite some of the best judges and attorneys practicing in this area. At its heart, a Guardianship involves serious civil liberty concerns, which can be avoided with these two pieces of paper drafted before any crisis.
Such a scenario is too far removed for my younger clients, who balk at the power of attorney bestowing so much power on another. Up until a few months ago, I fumbled trying to explain their need for this powerful document. What if you got into a terrible accident and were unable to leave the hospital for months? Unfortunately, the Covid-19 pandemic now negates the need to concoct farfetched “what-ifs” because it is one of those unprecedented, unexpected, unimaginable events.
Although estate planning attorneys regularly plan for contingencies that may never come to pass, we could not foresee the closing of courts or quarantining of patients. If you are hospitalized or quarantined, no one will be able to access your bank accounts on your behalf – pay bills or apply for unemployment or a disaster loan. If you become incapacitated, how can the doctors know your wishes? If you are in an assisted living facility or a nursing home and decide it is time for these documents – we are largely unable to reach you except through extraordinary measures and the kindness of social workers.
Although Article 81 guardianship hearings are still available via Skype video conferencing, there are unavoidable delays in holding the hearings as well as in drafting a petition in quarantine. Certainly not impossible, but avoidable and time-consuming.
Advance directives are not complicated but they are crucial. Any estate planning attorney regularly drafts such documents along with a Will or a Trust. If you can afford an attorney, that is certainly the best route. However, simply writing down your wishes and downloading a Health Care Directive from the NYS.gov website is a good start. Additionally, I have made available a free nomination of guardian form, but please read about it before executing because it is not recommended best practice. Just make sure you follow the proper guidelines for executing the documents. Governor Andrew Cuomo’s Executive Orders 202.7 and 202.14 allow for notarizing and remote witnessing of such documents if certain protocols are followed.
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