Proudly Serving the Hudson River Valley Community for Over 30 Years

  1. Home
  2.  | 
  3. Articles
  4.  | A Complete New York Estate Plan Includes Provisions For Incapacity

A Complete New York Estate Plan Includes Provisions For Incapacity

On Behalf Of Gregory D. Supple

Estate planning is much more than deciding which persons or institutions will receive your assets after you die. Planning for the possibility of your incapacity is an equally important part. Incapacity occurs when you are unexpectedly unable to make important decisions, particularly legal or financial, because of an injury or illness. In New York, such a possibility can be addressed through advance directives and powers of attorney.

Advance Directives

Today, with advances in medicine that allow people to survive (though not always consciously) injuries and illnesses that would have killed them in the past, having an advance directive is more important than ever. Since not everyone wants to be kept alive by artificial means if there is little hope of a recovery, an advance directive can make your wishes known on this subject. In New York, advance directives can be comprised of a health care proxy and living will.

A health care proxy allows you to designate someone else to make decisions concerning your medical treatment on your behalf in the event of your incapacity. Your agent must make the decisions based on any written wishes or instructions that you have provided (in your living will, for example). If you do not leave instructions or the instructions do not address a particular situation, your agent can decide what to do based on what they think you would have wanted. As a result, it is wise to pick an agent who has strong knowledge of your values and opinions regarding your medical treatment.

Executing a healthcare proxy does not affect the medical treatment that you receive while you are not incapacitated. Instead, the proxy does not become effective until at least two doctors have certified that you are not able to make decisions for yourself.

Aside from a health care proxy, it is also important to have a living will. This document allows you to communicate your beliefs and wishes concerning life-prolonging and life-sustaining medical treatments (e.g., feeding tubes, CPR or ventilators) to your medical providers, health care agent and the members of your family. Aside from making your wishes legally binding, living wills can save your family a significant amount of grief, as they do not have to guess about what you would have wanted.

Powers Of Attorney

If you become incapacitated, your finances can suffer as well. In order to ensure that they are taken care of, it is advisable to execute a durable power of attorney. This document, which works similar to a health care proxy, allows you to designate an agent to manage your financial affairs in the event of your incapacity. In the document, you can set limits on your agent’s powers. However, many people grant their agents the ability to handle routine transactions, manage stocks and investments, sign checks, and pay taxes on their behalf. Similar to the health care proxy, this document only becomes effective if you become incapacitated.

An Attorney Can Help

When planning for incapacity, the advice of an experienced estate planning attorney is invaluable. An attorney can draw upon their years of experience and ensure that your plan addresses every likely possibility and that your wishes are carried out.