The New York Health Care Proxy

The New York Health Care Proxy Law allows you to appoint someone you trust - for example, a family member or close friend to make health care decisions for you if you lose the ability to make decisions
yourself. By appointing a health care agent, you can make sure that health care providers follow your wishes.

Everyone over the age of 18 needs to appoint a
health care agent
. There are two situations in which a health care agent will be
needed:

  1. Temporary inability to make health care decisions –No matter what your age is. For     example, you are having an outpatient surgical procedure and are under general anesthesia. Something unexpected happens and a health care
    decision needs to be made. If you have a health care agent, since you are temporarily unable to make your own decisions, the health care agent may     make the decision.
    Once you become conscious again, the health care agent would no longer have any authority to act.
  2. Permanent inability to make health care decisions – this would arise if you were comatose from a terminal illness, in a persistent vegetative state, suffered from an illness that left you unable to communicate or, if elderly, suffered from senile dementia or Alzheimer's disease. Under these
    circumstances you would obviously be unable to make your own health care decisions. If you don't have a health care agent, all appropriate medical
    treatments will be provided to you. If you have appointed a health care agent, your health care agent can be your voice and make your health care
    decisions according to your own wishes, or your best interests.
    Your agent can also decide how your wishes apply as your medical condition changes.
    Hospitals, doctors and other health care providers must follow your agent's decisions as if they were your own. You
    may give the person you select as your health care agent as little or as much authority as you want. You may allow your agent to make all health care decisions or only certain ones. You may also give your agent instructions that he or she must follow. The Health Care Proxy Form may also be used to document your wishes or instructions with regard to organ and/or tissue donation.

Making decisions about how you want to live the remainder of your life and appointing the appropriate person to be your health care agent can be overwhelming. In order to assist in the decision making process, the Health Department recommends the
following steps:

Clarify Values and Beliefs  It is important to consider and to think about your individual wishes as they relate to how you want to live the remainder of your life. Most people don't have any idea how to begin to think about this or begin a discussion about this. Many people are finding that using tools, such as a values assessment, may help to pinpoint key feelings and opinions about how they want to live the remainder of their lives.

We at Stay Fit 4 Life can sit down with you and your family members and discuss these painful issues of health decisions, life and death.

Welcome to the Compassion and Support

from Stay Fit 4 Life.

Choose a Spokesperson

Choosing a health care agent who will speak for you and make decisions when you are unable is a very important task that each adult needs to make, regardless of age or health care status. Your agent will advocate for your preferred treatment and ensure that your wishes are carried out at a point in time when you cannot speak for yourself.

Once your agent is chosen, it is very important to share your wishes, thoughts and opinions about how you want to live the remainder of your life with your agent.
Explaining your Wishes, thoughts, feelings and preferences will give your agent the information necessary to make decisions on your behalf.

This information will enable your providers to care for you in a manner that is consistent with your wishes.

Forms: Appointing Your Health Care Agent in New York State

The New York Health Care Proxy form and instructions are available as an Abobe Acrobat PDF (portable document format) online.

Practical Issues From Stay Fit 4Life

Once your Health Care Proxy has been signed,
it's important to ensure that a copy is given to your agent, primary care provider and other family members. It is also a good idea to consider carrying
a copy in your wallet or purse, in case of unexpected emergencies.
 



*What's a Power of Attorney?

Answers for New Yorkers

Power of Attorney is a legal instrument that is used to delegate legal authority to another. The person who signs (executes) a Power of Attorney is called the Principal. The Power of Attorney gives legal authority to another person (called an Agent or Attorney-in-Fact) to make property, financial and other legal
decisions for the Principal.

A Principal can give an Agent broad legal authority, or very limited authority. The Power of Attorney is frequently used to help in the event of a Principal's illness or disability, or in legal transaction where the Principal cannot be present to sign necessary legal documents.



 

Are there different types of powers of attorney?

Yes.
There are "Nondurable," "Durable," and "Springing" Powers of Attorney.

A "Nondurable" Power of Attorney takes effect immediately. It remains in effect until it's revoked by
the Principal, or until the Principal becomes mentally incompetent or dies.

 

A "Nondurable" Power of Attorney is often used for a specific transaction, like the closing on the sale
of a residence, or the handling of the Principal's financial affairs while the Principal is traveling outside the country. 

 

A "Durable" Power of Attorney enables the Agent to act for the Principal even after the Principal is not
mentally competent or physically able to make decisions. The "Durable" Power of Attorney may be used immediately, and is effective until it is revoked by the Principal, or until the Principal's death.

 

A "Springing" Power of Attorney
becomes effective at a future time. That is, it "springs up" upon the happening of a specific event
chosen by the Principal, and spelled out in the Power of Attorney. Often that "springing" event is the illness or disability of the Principal.

The "Springing" Power of Attorney will frequently provide that the
Principal's physician will determine
whether the Principal is competent to handle his or her financial affairs.
A "Springing" Power of Attorney remains in effect until the Principal's death, or until revoked by a court.

 



Statutory Short-Form Powers of Attorney

Effective
January 1, 1997, New York State has adopted statutory forms for
"Nondurable," "Durable," and "SpringingPowers"
of Attorney. That means that the State Legislature has written model forms for Powers of Attorney, and that New Yorkers can rely on these statutory "short forms" as being legal.
Printed short-form Powers of Attorney can also be purchased from legal stationers and
office supply stores. Do not purchase a printed form that is dated earlier than January, 1997.

Statutory "short-form" Powers of Attorney may also be customized to fit the needs
of the Principal by adding to the powers that are listed on the statutory short
forms.

Caution: New York laws involving
Powers of Attorney have been amended, effective January 1, 1997. Powers of Attorney signed after January 1 should reflect those changes in law. However, Powers of Attorney that were properly executed before January 1, 1997 will
remain effective after that date.

 



When is it appropriate to use a "Durable" or
"Springing" Power of Attorney?

"Durable" and "Springing"
Powers of Attorney are frequently used to plan for a Principal's future incapacity or disability and loss of competence resulting, for example, from Alzheimer's Disease or a catastrophic accident.

By appointing an Agent under a "Durable" or "Springing" Power of Attorney, the Principal is setting up a procedure for the management of his or her financial affairs in the event of incompetency or disability. A "Nondurable" Power of Attorney, on the other hand, is no longer effective when a Principal becomes mentally incompetent. 

"Durable" and "Springing"
Powers of Attorney enable a Principal to decide in advance who will make important financial and business decisions in the future.
They are also helpful in avoiding the expense of having a court appoint a Guardian to handle the Principal's affairs in the event of incompetence or disability.

 

How can I tell if a Power of Attorney is a "Durable"
one?

State law requires that the "Durable" Power of Attorney form have the title: Durable Power of Attorney, New York Statutory Short Form. The form also says, "The powers you grant below continue to be effective should you become disabled or incompetent." After January 1, 1997, every short-form "Durable" Power of Attorney must contain that statement following the title.

 

What kinds of legal authority can be granted with a Power of Attorney?

Whether "Nondurable", "Durable," or "Springing," a Power of Attorney can be used to grant any, or all, of the following legal powers to an Agent:

  • Buy or sell your real
         estate
  • Manage your property
  • Conduct your banking
         transactions
  • Invest, or not
         invest, your money
  • Make legal claims and
         conduct litigation
  • Attend to tax and retirement matters
  • Make gifts on your behalf

Can a Power of Attorney grant an Agent the authority to make
medical decisions for the Principal?

No. In New York State, the proper legal instrument for delegating health-care decisions to another is called a Health Care Proxy. Here, too, there is a statutory short form approved by the State Legislature. It can be found at Article 29-C of the New York Public Health Law. A copy can be obtained by writing: Health Care Proxy, P.O. Box 2000, Albany, NY 12220.

 

How do I select an Agent for a Power of Attorney?

You should choose a trusted family
member, a proven friend, or a professional with outstanding reputation or honesty. Remember, signing a Power of Attorney that grants broad authority to an Agent is very much like signing a blank check. Many times we have seen the Principals property and money be used in inappropriate manners such as personal gifts, vacations, cars, and other abuses. Handing over a blank
check to some may be too much temptation, so
be very careful
when choosing your Agent.

Certainly, you should never give a Power of Attorney to someone you do not trust fully. And do not allow anyone to force you into signing a Power of Attorney.

 

Can I appoint more than one Agent in a Power of Attorney?

Yes. You may appoint multiple
Agents. If you appoint two or more Agents, you must decide whether they must act together in making decisions involving your affairs, or whether each can act separately.
There are advantages and disadvantages to both forms of appointment. Requiring your Agents to act jointly can safeguard the soundness of their decisions. On the other hand, requiring agreement of all your Agents can result in delay or inaction in the event of a disagreement among them, or the unavailability of one of them to sign legal documents.

Allowing your Agents to act separately may ensure that an Agent is always available to act for you. But it may also result in confusion and disagreements if the
Agents do not communicate with one another, or if one of them believes that the other is not acting in your best interests.

As of January 1997, the statutory short-form Power of Attorney provides space to appoint an alternate or substitute Agent. A substitute Agent can act if the first Agent is unable or unwilling to act for you. It is generally a good idea to appoint a substitute Agent.

Caution: Powers of Attorney are
only as good as the Agents who are appointed. Appointing a trustworthy person as Agent is critical. Without a trustworthy Agent, a Power of Attorney becomes a dangerous legal instrument, and a threat to the Principal's best interests.

Once I sign a Power of Attorney, may I continue to make legal and financial decisions for myself?

Yes. The Agent named in a Power of Attorney is your representative, not your "boss." As long as you have the legal capacity to make decisions, you can direct your Agent to do only those things that you want done.

An Agent appointed in a Power of Attorney is a fiduciary, with strict standards of honesty, loyalty and candor to the Principal. An Agent must safeguard the Principal's property, and keep it separate from the Agent's personal property. Money should be kept in a separate bank account for the benefit of the Principal. Agents must also keep accurate financial records of their activities, and provide complete and periodic accountings for all money and property coming into their possession.

Make clear to your Agent that you want accurate records of all transactions completed for you, and to
give you periodic accountings. You can also direct your Agent to provide an accounting to a third party -- a member of your family or trusted friend -- in the event you are unable to review the accounting yourself.

 

Is it possible for an Agent to steal my money and property?

Yes, Yes, Yes. .A Power of Attorney can be abused, and dishonest Agents have used Powers of Attorney
to transfer the Principal's assets to themselves and others. That is why it's so important to appoint an Agent who is completely trustworthy, and to require the Agent to provide complete and periodic accountings to you or to a third party.

 

Can the transfer of a Principal's assets to other people be a good thing?

Yes. A Principal may want to authorize transfers or gifts of property for estate planning and other valid purposes. New statutory short-form Powers of Attorney in New York State permit Agents to make gifts to members of the Principal's family, if the Principal so authorizes in the Power of Attorney. The Principal can also customize a Power of Attorney to permit the Agent to make gifts to non-family members.

 

Who monitors the actions of my Agent?

There is no official or government monitoring
of Agents acting pursuant to Powers of Attorney. That is the responsibility of the Principal. It is therefore important to insist that your Agent keep accurate records of all transactions completed for you, and to provide you with periodic accountings. You might also direct your Agent to give an accounting to a third party in the event you are unable to review the accounting yourself.

 

Caution: Should a Principal, member of the Principal's family or a friend have grounds to believe that an
Agent is misusing a Power of Attorney, the suspected abuse should be reported to the police or other law enforcement authority to protect the Principal from the loss of his or her property. Consider asking a lawyer for help and advice.

 

What can I do if my Agent does not follow my instructions?

  • You may revoke your Power of
         Attorney at any time.
  • You should inform
         your Agent, in writing, that you are revoking the Power of Attorney.
         Request the return of all copies of your Power of Attorney.
  • You should notify
         your bank or other financial institution where your Agent has used the
         Power of Attorney that it has been revoked.
  • You should file a copy of the
         revocation with the County Clerk if your Power of Attorney has been filed
         in the Clerk's office.
  • Caution: If you decide to revoke a Power of attorney, it is probably in your best  inerests to consult a lawyer, and arrange to have a new Power of Attorney executed.

Am I required to file a Power of Attorney in a government office?

Not unless the Power of Attorney is used in a real estate transaction. In that case, it must be filed in the County Clerk's office. And when you file in the County Clerk's office, the Power of Attorney is a public record open to inspection by the public. A writing that revokes a filed Power of Attorney should also be filed in the County Clerk's office.

If you file a Power of Attorney in the County Clerk's office, you will be able to get additional "certified" copies from the County Clerk for a small fee. A certified copy is legally equivalent to the original document, and it is often convenient to have certified copies of your Power of Attorney on hand.

How many copies of a Power of Attorney should I sign?

You are required to sign (execute) only one copy. However, it is not unusual for a Principal to sign several
original copies. Banks and financial institutions, for example, generally require an original or a certified copy before allowing an Agent to transact business on the Principal's behalf. And banks and financial institutions
frequently provide customers with their own Power of Attorney forms.

Do I need to have my signature witnessed on a Power of Attorney?

Yes. Your signature on the
Power of Attorney must be witnessed by a Notary Public.

Do I need a lawyer to prepare a Power of Attorney?

No. You are not required to
hire a lawyer. However, because a Power of Attorney is such an important legal
instrument, the careful consumer will consult a lawyer who can:

  • Provide legal and
         other advice about the powers that are appropriate to be delegated to your
         Agent;
  • Provide counsel on
         the choice of an Agent;
  • Outline the Agent's
         legal and fiduciary obligations while acting under a Power of Attorney;
  • well there it is more great info from Stay fit4Life

New York -Will- Requirements

Writing a will is not that difficult. But there are requirements you need to follow to write a valid will. If you fail to meet these requirements, your will may be challenged, setting up a nasty will contest that could tear apart your friends and family.

Of course planning for your whole estate to be distributed after you death can be complicated. However, when it comes down to it, a will has some pretty easy to understand requirements for it to be considered enforceable by the court.

Here are the three main New York will requirements:

  1. Write the will. The will must be in writing to be valid. It doesn't matter if it's typed or written on a napkin. Only in very rare circumstances is an oral or unwitnessed/unsigned will valid. These circumstances include wills drafted by members of the armed services actually in combat and mariners lost at sea. So unless you're fighting or drifting, write out your will.
  2. Sign the will and sign it at the very bottom. You need to sign the will for it to be valid. Additionally, if you don't sign at the very bottom, you may invalidate everything. For example, if you have terms, clauses, or explanations following your signature line, that may invalidate everything you wrote above the signature line and no effect may be given to terms you add after you had already signed the will. Basically, not signing on the very bottom of the will could have the same effect as not signing the will at all -- complete invalidation.
  3. Get witnesses to your signing. You must sign the will in the presence of at least two witnesses. The witnesses should also sign the will acknowledging that they saw you sign it. You don't need to be best friends with your witnesses, or even know them, you just need someone to say they saw you sign it.

There are only three New York will requirements. Make sure you comply with all three. Or better yet, talk to a New York estate planning attorney to make sure your will is valid, legal and can be enforced.