QUESTION:
I've read such terrible stories about court battles when a person is incapacitated, even on life support. Are there any steps we can take to prevent this from happening?
ANSWER:
Your question brings up an excellent point - one which will be often repeated in this column: Prevention is the key. In fact, in this case, the old saying, "An ounce of prevention is worth a pound of cure," may be changed to, "An ounce of prevention is worth a ton of cure."
Why? Because here, months of extremely expensive and stress-filled court battles may be replaced by two simple documents: a Health Care Proxy and a Durable General Power of Attorney.
First, let's discuss the Health Care Proxy. This is a document, authorized by the New York State Legislature, in which you choose a person (and a back-up) who will make your health care decisions in the event that you are unable to do so. Note that the emphasis is on you because you are making the choice in advance so that your family will not need to go to court later to have the Judge make the choices for you.
The question is often asked, "Who should I choose as my 'Health Care Agent' for my Health Care Proxy?" First, eliminate your doctor. The law states that if your doctor is your health care agent, he cannot treat you. So, we suggest your spouse, adult child, or a trusted friend - over the age of 21. This is a personal decision. The main requirement is to choose someone who you can trust to carry out your wishes. It is a generally a good idea to make sure that whomever you are going to choose is also willing to be chosen. Some may not wish to take on this heavy responsibility.
Aside from the most important task of choosing your agent and back-up agent, there are two other areas to consider. The first is whether or not to add specific instructions as to your wishes on the Health Care Proxy itself. In general, we advise our clients to refrain from adding any specific instructions. These can serve to limit your agent's authority to make decisions for you. More importantly, a hospital or doctor can use your written instructions as a basis for disagreeing with your agent's decision by simply interpreting your instructions in a different way. This can ultimately end up defeating your goal by requiring the intervention of a court. Since your aim is to have your family make your health care decisions, specific instructions should be avoided.
Second, you have the option of organ donation through the Health Care Proxy. This, of course, is a very personal choice. You may choose from donating none, any needed, or specified organs.
Health Care Proxies must be witnessed by two independent witnesses, that is, you may not use as witnesses anyone you have named as your Health Care Agent. Since hospitals may not accept copies of your Health Care Proxy, it is best to do execute several, about half a dozen, all with original signatures. What do you do with all of the originals? First, make sure that your agent and back-up each have one. Your primary doctor or doctors may also be given one. Most important, you should have an original Health Care Proxy on your person (in your purse, briefcase, glove compartment, etc.). In this manner, if you are, for example, in a car accident, emergency personnel will look through your papers and will know who to call.
Finally, where do you have the Health Care Proxy prepared? As some may be aware, when you enter a hospital, they will give you one to sign. Others will have theirs prepared in advance by an attorney. There are two reasons why the second may be the better choice. First, any document executed under the supervision of an attorney has a presumption of being executed properly. This is a distinct advantage if there are ever questions or a challenge to your Health Care Proxy. Second is the practical reality that, if you are admitted to the hospital either unconscious or incapacitated, you certainly cannot sign a Health Care Proxy, or anything else.
While Health Care Proxies provide a vehicle for appointing someone to make your health care decisions, the Durable General Power of Attorney allows you to designate individuals to carry out your day to-day business. The powers that may be granted to your agent, referred to as your "Attorney-in-Fact," are wide ranging and include such areas as banking, real estate transactions, tax matters, and many more. Understandably, if you are incapacitated, having already chosen someone to continue with those business and financial activities that make up your every day life can be of great value to you.
On the other hand, unlike the Health Care Proxy which only takes effect when you are incapacitated, a Durable General Power of Attorney is valid from the time it signed. You may well be justified in asking, "How can I give so much power to someone before they even need to use it?" The answer, of course, is, "Very, very carefully."
There is no doubt that Durable General Powers of Attorney have been abused over the years. Therefore, it is essential that you choose a friend or relative who is extremely trustworthy and will look out for your best interests. While it is against the law for your Attorney-in-Fact to act in any way that harms you, that is small comfort if the harm is already done. Caution is the key. In addition to being careful with your choices, care is advised with the document itself. While we advised handing out originals of your Health Care Proxy to your Health Care Agent and back-up, the opposite is advisable with the Power of Attorney. We suggest that you sign only one original and keep it in a safe but accessible place. Of course, your Attorney-in-Fact must know where it is, but he or she should be instructed in that it should only be used if absolutely necessary.
How many Attorneys-in-Fact should you designate on your Power of Attorney? You have much more flexibility for a Power of Attorney than with the Health Care Proxy where you are limited to one agent and a back-up. You may choose one or more primaries along one or more back-ups. If you wish, you can set it up so that any one of them may act alone or so that they all must agree for any action. The first is more convenient, the second is safer, but sometimes cumbersome. It is never necessary, for example, to name all of your children as Attorneys-in-Fact just so nobody's feelings are hurt. Think, instead, of who is the most capable, dependable, and trustworthy.
A client recently asked if he was giving up his own rights to act by designating his son on his Power of Attorney. Be assured that this is not the case. As his Attorney-in-Fact, the son can only act as his agent. In short, you give up nothing but you gain a helping hand if you need it.
You may have noticed that we have referred to the Power of Attorney as durable. This means that it can be used even if you are incapacitated. Of course, times when you are incapacitated are exactly when you need it most. However, as hard as this may be to believe, the law is that unless your Power of Attorney specifically states that it is valid when you are incapacitated, it cannot be used during this time. While the necessary wording is almost automatically included in all Powers of Attorney, it is still worth your while to make sure it is there before signing.
Finally, there is a common misconception that whoever is named in your Power of Attorney may handle your affairs after you pass away. This is not true. The Power of Attorney dies with you. Who can take care of your business once you are gone? We will answer this question in the later column on wills and estates.
Please note that while this column is intended to give general legal information, everyone's circumstances differ. This column is not a substitute for obtaining legal advice directly from an attorney which will address your particular circumstances.
Sanford R. Altman is a member of the Business, Trust & Estates team and is a graduate of New York Law School, former Assistant District Attorney of Kings County and a member of the AARP Legal Services Network since its inception.
