DO I NEED A HEALTH CARE PROXY, LIVING WILL AND/OR A DURABLE POWER OF ATTORNEY?

Discussions and decisions about health care proxies, living wills and durable powers of attorney are as important as decisions made in your will or trust. It is crucial that you understand the differences between them and decide whether you will incorporate them into your plan.

Living Will: This is probably the most talked about and written about document of the three. In general terms, the living will states your wishes with regard to medical treatments such as life support, artificial nutrition and hydration, and resuscitation. It does not name someone to act on your behalf with regard to these issues but clearly sets forth your wishes in the event you cannot state them for yourself. It usually has a Do Not Resuscitate (DNR) order as well as instructions to terminate life support in certain circumstances. It also may contain your wishes regarding donation of organs.

Health Care Proxy: Your health care proxy nominates an individual to make medical decisions on your behalf when you are unable to make them. The agent must follow your wishes and guidelines as he or she knows them. He also will be the person to decide procedures when your wishes were not expressed in writing.

Hospitals, nursing homes, doctors, and in general all health care providers are obligated to follow the directions of the health care proxy and are obligated to provide him the same information on your health as would be provided to you to enable him to make such decisions.

It is imperative that you speak with your health care agent about such things as do not resuscitate orders, life support, organ donations, specific treatments you do not want, situations you would prefer artificial nutrition and hydration withheld or continued, etc. Your health care agent cannot override clearly stated wishes (such as those in a living will) unless he has good faith reasons to believe that those wishes have been changed.

It is also important that you appoint a successor or alternate agent in the event the named proxy cannot be located.

Your health care proxy and living will must be known and kept available. You should give copies to your doctors, your agent, your family members, your attorney, and any other close friends. You should not put it in a safe deposit box.

Durable Power of Attorney: As your health care proxy makes decisions regarding your health, your agent under a power of attorney makes financial decisions for you. This document should only be prepared by an attorney who understands and explains to you the ramifications of it.

In general, people give their agent significant powers under this document. New York law requires that you delineate the powers given to your agent to prevent you from “accidentally” giving a power to your agent you did not intend him to have. Some of the powers frequently given to an agent are the power to: pay your bills; buy and sell stocks and bonds; buy, sell or mortgage real estate; pay your taxes and file tax returns on your behalf; apply for or collect benefits from governmental aid such as medicaid, social security, etc.; buy life insurance on your behalf or cash out current policies; make gifts on your behalf; file claims, start lawsuits and defend you in a lawsuit; and hire professionals to assist him in his tasks (attorneys, accountants, stock brokers, etc.). Your agent cannot make medical decisions for you – that right is reserved to your health care proxy.

The power of attorney has significant advantages. If you become incapacitated and can no longer handle your finances, your family would have to apply to court to have a guardian appointed. That guardian would have to file annual accountings in court outlining the transactions for the year and would receive a stipend for his services. In addition, the guardian would be permitted to hire an attorney for these proceedings and in most cases those fees would be paid out of your money. If you were to sign a power of attorney before you became incapacitated, there is no need for a guardianship proceeding for your finances.

There are two main types of power of attorneys: A durable power of attorney is a power of attorney which is effective immediately and stays effective even if you become incapacitated. As soon as that document is signed, your agent can make financial decisions for you as if he were you. And this power continues until you revoke it.

A springing power of attorney is a power of attorney which only comes into being when you are determined to be incapacitated.