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A brief overview of incapacity planning in New York

Making arrangements for the possibility of incapacity is a vital part of estate planning.

Estate planning goes beyond wills and trusts. In fact, one of the most important parts of an estate plan does not have anything to do with the transfer of assets. Instead, this area addresses the possibility of you becoming unable to make medical and financial decisions, due to a medical condition or injury. In New York, you can specify what happens in such an event by making an advance directive and power of attorney.

About advance directives

As medical care has experienced enormous changes and advances over the past several decades, more people than ever can be kept alive through artificial means. However, merely being alive does not guarantee a good quality of life. Because of this fact, it is important to make an advance directive to specify your treatment wishes in such cases. In New York, advance directives typically include a healthcare proxy and a living will.

By executing a healthcare proxy, you appoint someone to act as your agent to make decisions regarding your medical treatment on your behalf in the event that you are unable to do so yourself. Your agent will primarily base the decisions made on your behalf on any expressed wishes that you have made (i.e. in a living will). If you do not leave any written wishes, your agent may base his or her decisions based on what he or she knows about your values and opinions.

Under the law, the healthcare proxy does not go into effect every time that you see a doctor. On the contrary, becomes effective only after two doctors certify that you are unable to make medical decisions for yourself.

In addition to the healthcare proxy, it is important to have a living will as part of your advance directive. This written document allows you to communicate to your agent, your medical providers and family your beliefs and wishes regarding life-sustaining and life-prolonging treatments. These types of treatments include CPR, life-support measures and the use of feeding tubes.

As mentioned above, having a living will ensures that your agent (and others) will be informed of your healthcare wishes. Under the law, your agent must follow your written wishes, regardless of what he or she believes is your best interest. Having a living will also spares your family emotional turmoil, as it takes the delicate decision of your medical care out of their hands.

Financial matters

In addition to addressing your healthcare wishes, sound estate planning can also ensure that your finances are taken care of in the event of your incapacity. This is done by executing a durable power of attorney. This document works similarly to the healthcare proxy, except that it deals exclusively with the financial aspect of your life.

In this type of document, you appoint an agent to manage your finances if and when you are unable to. Although you have complete control over the scope of your agent's powers, many people grant their agent the power to pay taxes, sign checks and perform other routine financial transactions on their behalf.

Consult an attorney

To ensure that no potential issue goes unaddressed, it is important to complete your estate plan only under the advisement of an experienced estate planning attorney. An attorney can propose creative solutions that will ensure that your wishes are carried out.

Keywords: wills, trusts, estate planning, healthcare proxy, incapacity, invalidity, powers of attorney

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