I recently visited with my parents out of state. They are in their eighties, and sadly, health is beginning to decline. My mother, who is now on oxygen around the clock broached the topic of amending their Will with me, which evidently has not been touched since 1977, and includes a clause for mine and my siblings care by a now deceased friend of the family. In any event, she told me about her dear friend whose husband passed away without amending their Will and HealthCare Directives. It seems she had some children who felt she was incapable of deciding what to do with her money and they attempted to have her adjudicated incapacitated. The friend hired an experienced attorney to advocate for her and the court ultimately found that she was not incapacitated. However, the rift this caused in the family may never be repaired. Fortunately, in that case, the friend was not experiencing dementia. What if she was? What if her Will was no longer valid and she was incapable of drafting a new document because of dementia? The estate could fall into intestacy, a statuary framework for distribution that can result in years of litigation before anything is distributed (if anything is left after court and legal fees). The bottom line is that for less than the cost of a week’s groceries, you can ensure you and your family will receive the peace of mind, knowing you have planned for their survival in the event of an unexpected loss.
In 2010, New York State implemented the Family Health Care Decision Act, which allows a close family member to make medical decisions on your behalf , according to your wishes or in your best interest, in the event you are incapacitated and cannot speak to your doctor. However, the best way to ensure your specific desires are honored is to draft a simple Health Care Proxy with Advanced Directives. What if you, a healthy and fit individual were driving on the Thruway, like you do every day, when a semi comes barreling down behind you, unable to stop, collides and crashes into you. You are taken to the hospital where the doctors state that you have no hope of survival, that you are brain dead. Would you want your doctor to withhold or withdraw medical treatment if it would only prolong death? Would you want CPR to restore your breathing and heartbeat? What about a feeding tube? Maximum pain relief even if it hastens your death? How would your family be aware of your choices in regard to these crucial decisions?
The best way to ensure your exact wishes are honored is to draft a written document reciting your specific health care decisions at the end of life. In New York, there are four advanced directives:
- A Health Care Proxy lets you appoint a health care agent—that is, someone you trust to make health care decisions for you if you are unable to make decisions for yourself.
- A Living Will allows you to leave written instructions that explain your health care wishes, especially about end-of-life care. You cannot use a Living Will to name a health care agent; you must use a Health Care Proxy.
- A Living Will together with a Health Care Proxy lets you state your health care wishes and name a health care agent.
- A Do Not Resuscitate Order (DNR) only lets you express your wish to do without cardiopulmonary resuscitation (CPR)—that is, emergency treatment to restart your heart and lungs if your heartbeat or breathing stops.
No one wants to confront his or her own mortality. We are all going to die, we simply do not care to dwell on it. In this case, loving our children in the moment is simply not enough. Take ten minutes out of your day and call me to schedule an appointment to discuss putting together a Will, Estate Plan and HealthCare Proxy to ensure peace of mind in the many happy days of your life to come. Call me to discuss how we can create a simple but comprehensive estate plan to ensure you did everything to ensure your family will thrive in the event of your passing.
Andrea L. Gamalski Attorneys at Law
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