Understanding the Health Care Proxy and Power of Attorney

| May 9, 2020 | Firm News |

Because of the Coronavirus, many people are seeing their loved ones fall prey to a debilitating virus. As a result, they are finding that handling the healthcare decisions and finances of their loved ones while they are sick requires them to have a power of attorney and a healthcare proxy. Most people however, do not know what these are, or how to get them. Understanding both of these very important documents can be crucial to taking care of your loved one in their time of need.

Understanding the Healthcare Proxy

The first of these documents that we’ll discuss is the healthcare proxy. While most people have heard of this, many do not understand what a healthcare proxy is, and what it enables a person to do as an agent for another individual. A healthcare proxy essentially allows another person to step into your shoes and make decisions for you if you become too ill to make them for yourself. The benefits of this is that if you’ve picked someone that you trust to execute your wishes, then you do not have to worry about a doctor or a family member making choices for your healthcare that you might otherwise not make. Many of these choices tend to affect your end of life care, whether or not you wish to be resuscitated, whether or not you wish to be kept alive through artificial means, etc.

Because of the importance of these decisions, it is imperative that you pick someone that you truly trust to execute your wishes. It’s even more important that the person agreeing to be your healthcare proxy is actually willing to follow your wishes. As it can be very difficult to make choices for another person that may mean the difference between life and death, not everyone is suited to being a healthcare proxy. If you are considering serving as one for a friend or a loved one, understand that it is a big responsibility.

In addition to discussing your wishes with your healthcare proxy you can outline them in the document. You can specify whether you want to be an organ donor, how you want your end of life care to be handled, and whether there are any other limitations you want to put on your healthcare proxy’s abilities. With that being said, while you want to make sure your wishes are followed, you also want to ensure that your healthcare proxy has the ability to make proper decisions that may save your life.

If you are considering appointing a healthcare proxy, you may have also heard about a living will. To discuss the difference between these two briefly – the healthcare proxy appoints an agent to make your healthcare decisions in your place. The living will on the other hand, is a document that specifies your advanced directives of how you want your healthcare to be handled if you should become incapacitated. The downside to the living will, is that often living wills can be made many years before they’re needed, and are therefore not up to date with the most recent types of medical treatment, whereas if you designate someone you trust to be your healthcare proxy, you can rest assured knowing that they will do what is in your best interest.

If you’ve found an agent that you trust to be your healthcare proxy and are looking to have one prepared, you can obtain a format for it here. With that being said, there are certain formalities that must be observed when preparing a healthcare proxy, such as having the requisite number of witnesses, and discussing the potential implications of appointing someone as your healthcare proxy. While I’m not going to get into all the specifics here, feel free to contact my office at (631) 650-6900 at any time with any questions you may have.

Understanding the Power of Attorney

Before we get into the specifics of what a power of attorney is, I’m going to discuss the difference between a power of attorney and a healthcare proxy. Whereas the healthcare proxy allows someone to make healthcare decisions for you, the power of attorney allows someone to make financial decisions for you. Understand that a power of attorney will NOT allow someone to make your healthcare decisions and a healthcare proxy will NOT allow someone to make your financial decisions.

New York power of attorneys are governed by the N.Y. General Obligations Law which can be viewed here. Essentially, giving someone else power of attorney allows them to walk in your shoes and handle your financial transactions. With that being said, there are limitations that you can place on your power of attorney depending on how you fill out the form. The New York State Bar Association offers a sample form here, however, if you are seriously considering giving someone power of attorney, it is best to speak with a lawyer before doing so.

When deciding on who to give power of attorney to, make sure that it is someone you completely trust. Depending on the powers that you give them, they may be able to sell your home, take money out of your bank account, buy or sell your stocks or other investments, and many other things. Completing the power of attorney form and more importantly, completing it properly, can be a difficult task to navigate alone. With the form, you can specify if and how your agent will be compensated for handling your affairs, whether there should be an individual to monitor your power of attorney, whether your agent will be able to make gifts to individuals on your behalf, among many other powers. Additionally you can appoint multiple agents, determine whether they have to act together or separately, and appoint successor agents if for some reason your agent becomes unable to act on your behalf.

Additionally, the power of attorney will survive even if you become incapacitated (unless you modify the form appropriately) and will only terminate if/when you revoke it, or upon death. Becoming a power of attorney is also very serious, because when you sign and agree to act as an agent for another person, you are also agreeing that you will act in their best interests and that you will not use their money to benefit yourself. As you can imagine, it is not uncommon for elder abuse and abuse of mentally incapacitated individuals to occur through the use of a power of attorney, and therefore it is important that if you are serving as an agent on someone’s behalf that you keep good records of any and all financial transactions that you perform.

With all of this being said, designating someone that you trust as your power of attorney has many advantages, particularly if you become unable to handle your own finances in the future. If you do not have a designated power of attorney and become unable to handle your finances , you and your family will have to go through the process of getting a guardian appointed through the court. Obviously this goes without saying, but this can be a difficult process, and many people prefer to avoid dealing with guardianship proceedings. Through proper planning, many people are able to avoid the difficulties and complications that come once the court gets involved.

If you are looking to have a healthcare proxy and power of attorney done now, but are worried about meeting with an attorney in person, don’t worry. As of right now, Governor Cuomo has extended his executive order to May 16, 2020, which allows for people to notarize documents over the computer with certain restrictions.

As always, if you have any questions about any of these things, please feel free to contact my office at (631) 650-6900 at any time. I hope everyone stays safe during this difficult time! All the best.