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Protecting your family and your assets

Recent events in the news have brought to people's attention the need to do advance planning in order to assure that their wishes regarding disability care, end-of-life care are followed; and that their assets are protected.  To insure that your wishes will be carried out, even if you are no longer able to make your wishes known there are at least four essential documents you should make sure you have prepared in advance:  (1) A Last Will and Testament(2) A Living Will; (3) A Health Care Proxy; and (4) A Power of Attorney. 

What is a Last Will and Testament?

A Last Will and Testament is a written document describing how you wish your estate to be handled upon your death. A Will should include instructions regarding whom you wish to designate as your Executor (a person legally authorized to manage your estate after your death),  how you wish to dispose of your remains and who will be the guardian of any minor children (assuming no other parent is living or legally responsible for them).  Most importantly, your Will can and should be used to specify to whom you wish to give your remaining assets (called named Beneficiaries).   Your Last Will and Testament can also be used to provide specific instructions for a variety of other potential matters.  In order to avoid possible disputes (as they can be costly legal actions) after your death, your Will needs to be written as clearly and with as much specificity as possible.  Estates that consist of substantial real and personal property and where there are multiple beneficiaries, generally should be drafted by an attorney in order to assure that your wishes are followed and that expenses associated with the distribution of your estate are kept to a minimum. For more information about Last Wills and Testaments click here.

What is a Living Will?

Also known as an Advance Health Care Declaration, a Living Will is a document that contains your written wishes regarding the kind of health care you should receive if you are not capable of directing the care yourself.  It can explicitly lay out the kind of care you wish to receive under different circumstances and the kind of care or treatment you do not wish to receive.  In New York State, there is no statutory foundation recognizing Living Wills, though NYS courts have upheld their validity.  A Living Will can be very important in directing the person you have designated as your Health Care Proxy as to the kind of care you do and do not wish to receive.  If you live in New York, you should prepare or have prepared for you both a Living Will and a Health Care Proxy.  In general, Living Wills should be as specific as possible regarding the kind of treatments and under what circumstances they should or should not be administered.  The use of terms like 'Heroic Care' should be avoided since they have no specific definition and can lead to unnecessary disputes.

What is a Health Care Proxy?

A Health Care Proxy is a document that designates another person to make decisions regarding your health care should you not be able to direct your care yourself.  The validity of Health Care Proxies is specifically recognized under NYS Law and should always be prepared in conjunction with a Living Will.  The person you designate to act as your health care proxy should be someone you trust to carry out your wishes as you have expressed them in your living will.  A health care proxy gives the power to make all of the health care decisions that you would have the power to make if you were not incapacitated.

What is a Power of Attorney?

A Power of Attorney is a document that gives another party the legal authority to make decisions and manage affairs for you.  There are two basic varieties of Powers of Attorney: a Durable Power of Attorney and a Springing Power of Attorney.  A durable Power of Attorney is valid from the time it is executed, and its powers can be exercised at any time.  A Springing Power of Attorney only becomes operational upon the occurrence of a pre-determined event or set of events (such as your mental incapacitation).  Normally, Powers of Attorney are executed in order to provide another person with the legal authority to manage or assist in managing your financial affairs when you are either incapable or not fully capable of complete participation in managing those affairs.  In some states, a Power of Attorney for Health Care may be executed in order to meet needs that a Health Care Proxy fulfills in New York State.  In NYS, a Power of Attorney for Health Care is not necessary if a Health Care Proxy has been executed.