Advanced Directives

ADVANCE DIRECTIVES

POWERS OF ATTORNEY
HEALTH CARE PROXIES
LIVING WILLS

Joan S. Arbiter, Attorney at Law, P.C.

The general term advance directive is commonly used to refer to documents such as Powers of Attorney, Health Care Proxies and Living Wills.  These deceptively simple documents are vital to help protect an individual who cannot act for himself.  They are important for everyone at any age because we never know what the future may bring or when adversity may strike. 

By using an advance directive a person can appoint another to act for them and specify the type of action or care they wish to receive.  They are effective tools to prevent the need for a costly and time consuming guardianship proceeding in the event that a person can no longer express his or her wishes.  Not even a spouse can act for the other spouse without a valid Power of Attorney or Health Care Proxy.

All advance directives must be signed while the person making them is of sound mind, understands the meaning and consequences of the document and is able to communicate his or her wishes regarding their person or property.  In order for these documents to be effective they must be signed in accordance with state law.

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A Power of Attorney prepared by an elder law attorney is usually a comprehensive durable power of attorney in which the person signing it (the principal) gives someone else (the agent) very broad powers to act in their behalf. 

Unless the Power of Attorney is drafted and executed as required under state law to appoint a health care proxy, the agent appointed cannot make health care decision for the principal.  A Power of Attorney is used for property management, financial and legal matters.  Separate documents should be used for health care issues.

A principal can always revoke a Power of Attorney so long as he has the mental capacity to do so.  The principal can appoint one or more agents to act for him in the same document.  He can either require them to act together or allow them to act individually.   All Powers of Attorney terminate upon the death of the principal. 

The power is durable if the document states that the power continues upon the incapacity of the principal.

One type of Power of Attorney also used is called a Springing Power of Attorney.  This document does not go into effect until the occurrence of a specified event in the future.  Often it is signed by a person who does not wish to give another the power to act for them while they are capable of making their own decisions. 

Although a Power of Attorney can be drafted to give the agent limited powers either in scope or for a specific period of time, generally, the more comprehensive the power, the more useful it will be in matters of property management and asset protection. 

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A Health Care Proxy can be thought of as a special power of attorney in that it appoints an agent to make health care decisions for the principal, but only if the principal is unable to make those decisions for himself. An adult is assumed to be competent and can appoint an agent in the event that he becomes incapacitated.  No power is given to make financial decisions or manage property. 

The Health Care Proxy does not go into effect until it is determined that the principal no longer has the mental capacity to make decisions for himself.  Until then, it can be revoked.

A Health Care Proxy can also be used to indicate one’s desire to be an organ or tissue donor and the principal can place limitations on organ or tissue donation.  If one fails to indicate a desire to donate, it will not be construed to mean that one does not wish to donate. 

A principal should also indicate and appoint an alternate agent in the event that the person designated is unwilling or unable to act.

A person may indicate their wishes or instructions in the Health Care Proxy or he may place limitations on the agent’s powers, but it is better to use a separate document to state one’s wishes and instructions for health care and procedures or treatment especially regarding artificial nutrition and hydration.  This is accomplished by using a Living Will.  The Health Care Proxy should then include a statement clearly indicating that the agent knows the principal’s wishes regarding artificial nutrition and hydration.   The reason for this is that it gives the principal more flexibility in this area.  A person’s feeling in these matters may change dependent upon the circumstances. 

A Health Care Proxy can include authority for the agent to obtain health information or other medical records governed by the Health Insurance Portability and Accountability Act (HIPAA) and instruct medical providers to release information to the agent or a third party.

Health Care Proxy forms can be obtained for free from any hospital or physician but they are best used in conjunction with other legal documents and prepared, explained, and executed under the supervision of an attorney.

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A Living Will is a document wherein a person states his or her wishes regarding the administration or withholding of medical treatment.  It can be thought of as instructions to both the Health Care Agent and to medical providers.  One can state that one does not want to be kept alive in the event that one is in a coma, state of permanent unconsciousness, profound dementia or has sustained substantial loss of mental capacity,  or has an incurable or terminal condition or illness likely to cause death within a relatively short time.   In often states that a person does not want to be kept alive by artificial nutrition or hydration, a feeding tube.   In may also include a Do Not Resuscitate Order (DNR).   Alternatively, it can direct that a person wishes to be kept alive regardless of the circumstances.
 
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All agents appointed in any advance directives are considered fiduciaries.  This means that they always must act in the best interests of the principal. 

Note that the forms of advance directives purchased in a stationary store or online may not be the best forms for you. These are legal documents that are best drafted and executed under the advice and supervision of an attorney.

To discuss your individual concerns, contact me at my Melville, New York, law office today.

Joan S. Arbiter, Attorney at Law, P.C.
425 Broad Hollow Road, Suite 203
Melville, NY  11747
Phone: (631) 249-1976
Fax: (631) 777-3204

Melville, New York attorney, Joan S. Arbiter, helps families and individuals throughout Nassau County, Suffolk County, and the New York Metro Area to resolve legal issues in the areas of elder law, Medicaid planning, estate planning, probate, and real estate. Long Island communities she serves include Amityville, Commack, Dix Hills, Farmingdale, Hauppauge, Hempstead, Huntington, Babylon, Levittown, Massapequa, Melville, Mineola, Plainview, and Woodbury.