Durable Power-of-Attorney

The “durable power-of-attorney” is one of the most powerful planning tools that an attorney can recommend to a client, not only for estate planning, but also for Medicaid and other entitlement programs.  When a person (the principal) signs a power-of-attorney, s/he gives another person (the agent) the power to act in his place and on his/her behalf in managing his/her assets and affairs. A single principal may name one or more agents who can be authorized to act either “jointly” or “severally” (alone without the signature of the other agent or agents). The agent’s powers may be broad and sweeping so as to include almost any act which the principal might have performed. It should be noted, however, that, in general, acts which are inherently testamentary in nature, such as the authority to make or revoke a will, may not be performed by an agent.

A power-of-attorney can be either a “general” power-of-attorney, where the agent may perform almost any act the principal might have performed themselves regarding the financial management of his affairs, or a “limited” power-of-attorney where the agent has one or more specific powers, such as the power to sell a particular property to a particular purchaser at a particular time. Furthermore, either of the above can be made to be “springing” which means that the agent chosen may only act in the future at a time when the principal has become incapacitated.

The “durable” power-of-attorney is unlike the “ordinary” power-of-attorney in that it does not become inoperative upon the incapacity of the principal. The durable power-of-attorney provides that those powers granted to the agent will not be affected by the subsequent disability or incapacity of the principal or by the lapse of time. In drafting powers-of-attorney, care should be given to confer powers with as much specificity as possible in order to avoid the possibility of a court construing a specific omission as an intent to fail to grant that specific power. Such an adverse finding could be a serious detriment to the principal’s assets.

The great advantage of the “durable” power-of-attorney is that it remains effective after the principal’s incapacity. The agent, therefore, can act immediately upon the principal’s incapacity to manage his assets or to take various measures without initiating costly and time-consuming guardianship proceedings to obtain the court’s authorization for such transactions.

In a few states, the principal is allowed to delegate to the agent in the durable power-of-attorney various health care powers in addition to control over financial matters. In New York State, however, a health care power-of-attorney or proxy must be a separate document from a power-of-attorney.  Lastly, upon the death of the principal, the power given by the principal to the agent dies with the principal, thus making the power of attorney no longer effective.

Living Will/Health Care Proxy

With the increasing ability of medical science to sustain our lives, people are living much longer than ever before. Unfortunately, as we grow older, or if we experience health challenges, we may find ourselves in a position in which decisions need to be made as to how we wish to be treated in a variety of medical situations. This is especially true at the end of our lives, but can be true at any time as a result of the impact of an accident, injury, or illness. If we are in a condition such that we no longer can express our preferences about treatment, decisions will be made for us by others if we have not planned for our own treatment in advance. Advance health care directives allow us to deal with these situations. Without such directives, our families may find it necessary to obtain court orders to deal with our medical situations.

Completing a living will/health care proxy will allow you to express your preferences concerning medical treatment in an extreme medical situation when you cannot communicate, including at the end of your life. By expressing such preferences in a written legal document, you are ensuring that your preferences are made known. Physicians prefer these documents because they provide a written expression from you as to your medical care and designate for the physician the person he or she should consult concerning unanswered medical questions. Rather than the physician having to obtain a consensus answer from your family as to your treatment, the physician knows your preferences and knows who you want to provide decisions when you cannot do so.  Also, providing such information and designating a health care proxy means that the physician knows whose direction is to be followed in the event your family disagrees as to what medical treatment you would want.

Under New York law, an individual may appoint someone s/he trusts, for example, a family member or close friend, to decide about medical treatment if s/he loses the ability to decide for themselves. S/he can do this by using a health care proxy in whom a health care agent is appointed to make sure that health care providers follow his/her wishes. The agent can also decide how his/her wishes apply as her medical condition changes. Hospitals, nursing homes, doctors and other health care professionals must follow the agents’ decisions as if they were the patients’. The individual can give his/her health care agent as little or as much authority as s/he wants. S/he can allow the agent to decide about all health care or only certain treatments.

It is important to note that there is a difference between a “living will” and a “health care proxy.” A living will is a written statement of an individual’s wishes regarding medical treatment. The statement is to be followed if the individual is unable to provide instructions at the time medical decisions need to be made. The health care proxy is significantly different from the living will in that it empowers another person (the agent) to make health care decisions if the patient cannot do so themselves. The living will, on the other hand, has no such provision but enables a person to express his/her own choices regarding medical treatment. It makes sense to utilize both a living will and a health care proxy in one document. Signing a living will or health care proxy is voluntary. No one can require an individual to complete either directive but it is highly recommended so as to aid the family when decisions need to be made. In addition to helping your physician, these documents express your wishes to your family so that they do not have to guess about what you would want.  Making your wishes known in advance prevents family members from making hard choices at what likely will be one of the most stressful times in their lives.

Note: Many orthodox Jews choose to prepare/complete a halachicly approved living will and health care proxy.

Once you have a living will/health care proxy, you should keep it among your important papers. Make sure a responsible adult, such as the named health care agent, knows where you keep these documents. If you have a regular physician who keeps your medical records, you should provide a copy of the document to him or her for your medical records. In the event you are admitted to a hospital, you should take this document with you at the time you are admitted and permit the hospital to place a copy of it into your medical file. Many people prefer to keep their legal documents private but it is a good idea to discuss the decisions you have made in your document with family members so that they may better know and understand your wishes concerning these matters. With end of life issues, communication is key and communicating your wishes is essential. Make sure your family knows how you feel about end of life issues. The more these individuals know, the easier it will be for them to fulfill your wishes. While the conversations are no doubt difficult, they will relieve those you appoint of tremendous emotional burdens by your having personally explained your desires. May we all merit living long, healthy and happy lives – amen.

The attorneys in the Corporate Practice Group and the Tax Practice Group at Yedid & Zeitoune have a combined 15 years of legal experience and are ready to assist you with all your corporate/tax needs.

Isaac Yedid, Esq. and Raymond Zeitoune, Esq.

Yedid & Zeitoune, PLLC

1172 Coney Island Avenue Brooklyn, New York 11230

Phone: (347) 461-9800          Fax: (718) 421-1695               Email: [email protected]

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