One part of estate planning that often gets overlooked involves the planning necessary to provide continuity of decision-making for individuals who find themselves incapacitated by illness or injury. Every estate plan should include some type of incapacity plan to ensure that you don’t suffer the negative consequences of guardianship – consequences that can include a reduction in the value of your estate and other dire effects. If you haven’t yet prepared your own advance directive for health care, here are five key facts about healthcare directives that you need to know.
Your Financial Power of Attorney is Not Enough
If you already have a power of attorney for your finances, you might think that you’ve done all that you need to do for incapacity planning – but you’d be wrong. A financial power of attorney is an important document to have, since it can provide you with the ability to ensure that you have continuity in your financial affairs. By naming an attorney-in-fact to manage your financial decisions when you can no longer do so, you can guarantee that there is someone there to handle financial matters during any incapacitating illness or injury.
However, that POA only covers your financial decision-making needs. So, why do so many people think that the power of attorney is all they need? Unfortunately, there are many who believe that their families can make health care decisions for them if incapacity strikes. After all, that’s often what they see happen in movies and on the television screen. The reality, though, is something very different: without the right directives in place, your family will be powerless to make those health care decisions on your behalf.
Your Advance Directive is Key to Health Care Decision-Making
The good news is that there is an option for your health care decision-making: healthcare directives. These directives include things like the health care proxy – which is basically a power of attorney for health care, a living will, do-not-resuscitate orders (DNR), and organ donor designations. Most advance directives for health care include at least the health care proxy and living will options, since those two help to provide the authority and instructions needed to ensure that you get the care you want and need when incapacity strikes.
The health care proxy is a powerful document that shares many similarities with that financial power of attorney. Through it, you can appoint another person to serve as your proxy during incapacity – empowering that person with all the legal authority he or she needs to make treatment decisions on your behalf. By choosing a proxy, you can accomplish several important goals that can protect your interests and provide important benefits for your family:
- Your proxy will be empowered to make decisions about your health care, often guided by specific instructions that you include within the proxy document.
- That proxy can be someone that you trust to make sound decisions on matters that you might not have foreseen – though it’s helpful to discuss your broad views on treatment options when you first designate someone to serve in that role.
- When incapacity afflicts a loved one, it’s not uncommon for family members to have differences of opinions about the available treatment options. By choosing a proxy, you can eliminate any controversy in your family about the type of care that you would prefer and help to avoid potential conflict about those decisions.
Your Health Care Directive Can Spare Your Family the Stress of Guardianship
Guardianship is not only expensive, but stressful for the family members involved in the process. When no incapacity plan exists, your family will need to petition the court to seek guardianship – court-empowered authority to manage your health care decisions. This can be a stressful process, as medical assessments will need to be made to determine your actual capacity, and the court will conduct a full hearing to help it render a decision. For many families, this can result in discord and confusion, especially when there are differences of opinion about the type of treatment you should receive. Your directive can help to avoid that stress by providing a clear roadmap for decision-making succession.
You Can Combine Your Health Care Proxy and Living Will
In the state of New York, your health care proxy and living will document can be combined into one healthcare directive. Though the living will may not be formally recognized by the state’s laws, it is still helpful to have one to serve as evidence of your actual treatment preferences. Your health care proxy document takes care of most of your decision-making issues, however, since it is the instrument that provides comprehensive authority and guidance for your proxy, ensuring that you have a trusted agent to represent your health care interests.
A Lawyer Can be Invaluable
Often, people ask whether they need an attorney when they’re creating advanced directives for their healthcare needs. The answer is simple: no, you don’t technically need a lawyer to draft an incapacity plan. However, it’s wise to retain an attorney for your will or other estate planning document creation, and that’s usually a great time to consider your healthcare and financial power of attorney needs. Besides, an attorney can help to ensure that the incapacity planning documents that you’re relying on during an emergency can truly provide the protection that you need. So, while there’s no rule that says that you need to have an attorney’s help, it’s still the smart thing to do.
Your healthcare directives can help to ensure that you have the comprehensive incapacity plan that you need to protect yourself, your interests, and your loved ones during times of trouble. Along with your financial power of attorney, these healthcare documents can aid you in avoiding guardianship and ensuring continuity for important decision-making needs. At the Law Offices of Mary A. Miller, P.C., our incapacity planning experts can help to provide you with the comprehensive protection you need to enjoy the peace of mind that you deserve. To learn more about how an advance directive for healthcare can benefit you and your loved ones, contact us online or give us a call at (914) 939-6565 today.
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