Too often people associate estate planning with death; however, the lives of your family, your loved ones, and yourself should be foremost on your mind. Estate planning, at a minimum, involves the preparation of a heath care proxy, a living will (not to be confused with a last will), a durable power of attorney, and a last will and testament.
A health care proxy is a document that appoints an agent to speak on your behalf regarding health care decisions if you cannot make decisions for yourself. The living will works hand-in-hand with the health care proxy in that it instructs your agent about your wishes under certain circumstances; for instance, it can direct your agent to withhold artificial nutrition and hydration in the event you were ever diagnosed to be in a permanent vegetative state.
A power of attorney gives your agent the power to make financial decisions for you in the event you were to become sick or disabled. An agent often needs to act when a person is hospitalized or suffers from dementia. Under New York law the agent must always act in your best interest when performing duties as your agent.
The agent does not need to be the same person you named as your health care proxy. For instance you may have a child that is a nurse; this child may be perfect for the heath care proxy. This same child may not be adept at financial decision making so your son, the accountant, may be a more appropriate choice for your durable power of attorney.
A person that never prepared a power of attorney or health care proxy that no longer is able to make health or financial decisions may be forced to go through a guardian proceeding. A guardianship proceeding is a court proceeding usually started by a family member that needs to act for the incapacitated person. It is a serious legal affair before a judge in the Supreme Court of New York. This family member will be forced to serve legal papers, maybe upon a beloved parent, in order to start the process. The judge takes this proceeding very seriously because the judge is being asked to take away the rights of a United States citizen to make health and financial decisions for himself or herself and give these rights to another person. The judge has to be certain this is in the best interest of the incapacitated person and the judge will try to render a decision that is appropriate and the least invasive for that incapacitated person. Needless to say, as with most proceedings before a court, it is an expensive, time consuming, and costly affair. Additionally, there are emotional costs that cannot be accurately measured. Sometimes these involve children battling in court to become the parent’s guardian and often these battles result in fractured relationships among siblings and their children.
The good news is that this can all be all avoided by preparing in advance and creating a health care proxy and power of attorney naming the appropriate agents of your choosing.