I already have a Will. Why would I also need Elder Law documents?
- Elder law documents are critical because they are often required while one is alive yet is incapacitated.
What is a POA?
- A general POA is a statutory document where a principal appoints an agent with the right to manage the principal's affairs. In New York, a POA is created immediately when the agent accepts such appointment and terminates upon the death of the principal. The POA is a powerful document that is voidable if it is not prepared in strict accordance with state law. It is critical to carefully choose one's agent under a POA because if an unethical agent is chosen, the POA can be used as a license to steal.
Should a POA be durable or non-durable?
- A general non-durable power of attorney automatically expires when the principal becomes incompetent. A durable POA on the other hand includes language to extend the agent's authority if the POA has already expired when the principal becomes incapacitated.
What is a HCP?
- A Health Care Proxy or HCP is modeled after the POA in that the principal appoints the agent to act in his or her best interests. However, a HCP pertains exclusively to health matters and only when a medical professional determines that the principal can not make medical decisions on his or her own. If the principal has expressed particular wishes, then the agent must follow those wishes.
May I use the Health Care Proxy form to express my wishes about organ and/or tissue donation?
- Yes, you may but if you fail to do so, as of August 26, 2009, your health care agent will be authorized to make decisions pertaining to organ and/or tissue donation upon your death.
What is the difference between a Will and a Living Will?
- A Living Will is a misnomer. It is not a Will but rather a directive where the signer sets forth how he or she wishes to be treated in the event that medical professionals determine that he or she can not be kept alive without artificial means. It is analogous to a Do/Do Not Resuscitate Order and should be carefully coordinated with the HCP.
What is a HIPAA form?
- The Health Insurance Portability and Accountability Act was enacted in 1996 and one of the benefits of this legislation was the production of the HIPAA form which is a form presented by the health care agent to the hospital team in order to immediately access health and hospital records in order to make an informed medical care decision on behalf of the principal. The HIPAA form should be coordinated with both the HCP and Living Will.
Where should I keep my Elder Law documents once they are finalized?
- These documents should be kept in a safe yet readily accessible space (not a bank safe).
Whom should I notify that I have executed my Elder Law documents? Who should retain originals?
- You should notify those whom you wish to serve as agents and, if possible, arrange for them to accept their appointment contemporaneously with your execution. Once these documents are signed, each agent should retain copies and you and your attorney should retain originals.
What is a guardianship proceeding?
- Article 81 of the Mental Hygiene Law provides care instructions for incapacitated persons who can no longer manage their property or financial affairs. The court will first appoint a court evaluator who will meet with the alleged incapacitated individual. If the court evaluator determines that a guardian should be appointed, then the court will then proscribe the scope of the guardianship as well as the guardian. We can help you navigate this complex process.
What is a Supplemental Needs Trust?
- A Supplemental Needs Trust or SNT is created for a chronically and severely disabled beneficiary. The SNT supplements benefits to beneficiary while not diminishing key governmental benefits such as Medicaid. The first type of SNT is a "third party" trust, where a person outside the disabled person settles it for the disabled person. So long as the SNT gives complete and total discretion over distribution of trust income and principal over to the trustee, then this trust will not be included in the beneficiary's governmental benefits. The second type of SNT is established with the funds of the disabled person or his or her spouse. The disabled person may use funds received from an inheritance, medical malpractice or personal injury settlement to fund this SNT type. It will be valid so long as the state is repaid for medical assistance already provided to the disabled person upon the termination of the trust.