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Davidow, Davidow, Siegel & Stern, LLP
Long Island's Elder Law, Special Needs & Estate Planning Firm

Thursday, September 29, 2005

Durable Powers of Attorney: One Size Does NOT Fit All

For most people, the durable power of attorney is the most important estate planning instrument available, even more useful than a will. A power of attorney allows a person you appoint, your "attorney-in-fact: to act in your place for financial purposes when and if you ever become incapacitated.
However, instead of the one-size-fits-all powers that many lawyers prepare (and that are found in office supply store forms), each document should be custom-drafted to fit your particular needs, according to an article on the MSN Money web site.
For guidance on ensuring that powers of attorney are properly crafted, MSN Money consulted ElderLaw attorneys and they suggest asking your lawyer point blank whether your durable power will be like every other one he or she drafts. If the answer is yes, he advises, find another lawyer. Likewise, they recommend asking, "What information do you need from me to draft my power of attorney?" "I(f he says he doesn't need anything, you don't want that lawyer."
A good power of attorney might contain many pages spelling out the things the agent can and cannot do on your behalf, such as make deposits, write checks from your accounts, sell real estate, sue someone who owes you money, make chartiable gifts, draw down your 401(k) plan in specific circumstances, or receive compensation for his or her work. Making your intentions clear is the key.

Source: MSN Money Article, www.msn.com

Thursday, September 22, 2005

Planning for unmarried and same-sex couples

New York is only one of four states that still has not defined what marriage consists of, leaving many couples confused and unprepared for the future. The majority of the other states define marriage as a union between one man and one woman. This issue may not seem important, but there are over fifteen hundred federal and state laws (including child visitation rights, power of attorney, and tax benefits) in which benefits, rights and privileges are contingent on marital status.
New York has made the news recently because of the landmark decision of Hernandez v. Robles which holds that denying marriage to same-sex couples violates New York’s constitutional guarantees of equality, liberty and privacy for all New Yorkers. The trial court decided the case in February 2005 and the case was appealed to the appeals court with oral arguments scheduled to start in the fall. The trial court decision means that the New York City clerk may no longer deny marriage licenses to same-sex couples. Since the case was appealed, the judge’s decision is not yet valid.
State Supreme Court Justice Doris Ling reasoned it unfair that in New York the "plaintiffs couples may not own property by their entireties; file joint state income tax returns; obtain health insurance through a partner's coverage; obtain joint liability or homeowner's insurance; collect from a partner's pension benefits; have one partner of the two-women couples be the legal parent of the other partner's artificially inseminated child, without the expense of an adoption proceeding; invoke the spousal evidentiary privilege; recover damages for an injury to, or the wrongful death of, a partner; have the right to make important medical decisions for a partner in emergencies; inherit from a deceased partner's intestate estate; or determine a partner's funeral and burial arrangements."
In addition to marriage, New York has no laws either allowing or prohibiting domestic relation agreements or civil unions between same-sex couples. Unlike marriage, civil unions and domestic partnerships are invalid outside the state in which they occur and do not provide any federal marriage benefits. Because New York does not have any civil union laws giving certain rights to gay and lesbian couples, it is important to create a domestic relationship agreement with the help of a knowledgeable estate planning attorney.
It is crucial to plan ahead because unmarried partners face a lot more obstacles than their married counterparts. Issues that affect domestic partners such as power of attorney have recently surfaced in the wake of Terri Schiavo case. In addition, if you plan on sharing all or even a part of your estate with your partner, it is critical that the details are recorded in a written document. If you are currently living together with a partner, it may be necessary and surely advisable to speak to a specialized estate planning attorney to help create a domestic relationship agreement to ensure that you and your loved ones are protected.

Wednesday, September 14, 2005

Family Health Care Decisions Act - Part 2

Surrogates can make decisions to withhold or withdraw life-sustaining treatment if treatment would be an excessive burden to the patient and the patient is terminally or permanently unconscious, or if the patient has an irreversible or incurable condition and that treatment would involve such pain and suffering that it would reasonably be deemed inhume or “excessively burdensome” under the circumstances. The determination of terminal illness, permanent unconsciousness, or irreversible or incurable condition must be made by two physicians in accord with accepted medical practice. It is important to note that at any time, a patient, surrogate, or parent of a minor child may revoke consent to withhold or withdraw life-sustaining treatment by notifying a physician or member of the nursing staff.
Hospitals and nursing homes must also adopt written policies requiring implementation and regular review of decisions to withhold or withdraw life-sustaining treatment, in accord with accepted medical standards. In addition to adopting written policies, hospitals and nursing homes must also establish ethics review committees. Committees must be interdisciplinary and include at least two individuals who have demonstrated an interest in or commitment to patients’ rights. In a nursing home, committees must include a member of the resident’s council or someone who is not affiliated with the facility but who has or had a family member as a resident.

Because more people, including surrogates, professionals, and committee members, are now involved in the decision making process, liability issues naturally arise. An important provision of proposed Article 29-D is that it protects surrogates, health care professionals, and committee members from both civil and criminal liability. As long as a member acts in good faith, he or she is protected from civil and criminal liability as well as charges of professional misconduct.
Even though our current law does not explicitly recognize the authority of family members to consent to treatment of an incapacitated patient, health care providers usually turn to family members for consent. So in that regard, the proposed bill codifies an already accepted practice. However, the New York Court of Appeals has ruled that family members or others close to patients cannot decide about life-sustaining treatment in the absence of a healthcare proxy. The Family Health Care Decisions Act will finally allow for a family member to decide to forego or continue life-sustaining treatment for a patient. This proposed change in the law will add New York to the majority of states that already permit family members to make life-sustaining treatment decisions. More importantly, this proposal would minimize disputes over decision making authority and would keep decisions at a informal personal level with minimal court involvement. Families will finally have access to incapacitated patients’ medical records allowing them to decide what treatment is in their loved one’s best interests.
It is critical to understand that although Family Health Care Decisions Act is an important and necessary step for New York, it does not replace the need for a health care proxy. The purpose of this legislation is to provide an acceptable substitute process in the event there is no health care proxy. Everyone over 18 years of age, regardless of health condition should have a health care proxy as it will always remain the preferred method of planning for incapacity.

Thursday, September 8, 2005

Family Health Care Decisions Act - Part I

Family Health Care Decisions Act

Under current New York law, if one becomes incapacitated, and is no longer able to make health care decisions, there is no person (spouse, child, or otherwise) who can legally make those decisions. In order to have someone make medical decisions for another in New York, a person must have a health care proxy. A health care proxy allows adults to delegate authority to another adult to decide about all health care treatment, including life-sustaining measures in the event patients are unable to decide about treatment for themselves. If there is no health care proxy, only a court-appointed guardian can make health care decisions for an incapacitated individual. Court proceedings are usually burdensome, lengthy, and expensive. Few families have the emotional or financial resources to pursue judicial relief in these unfortunate situations. And we are all too familiar with cases spiraling out of control such as the case of Terry Schiavo. The end result in many cases is that some incapacitated individuals are denied specific treatment, while others may receive treatment that violates their wishes along with their religious and moral beliefs. Proposed legislation would help to avoid future situations like the Schiavos’ by filling the void in the law regarding the authority to make health care decisions for a family member without a health care proxy.
Our current law is at odds with at least 26 other states, where either statutes or court decisions expressly permit family members to decide about life-sustaining treatment. Along with Missouri, New York is the only state that explicitly denies family members this authority. The proposal would amend the Public Health Law and bring New York up to date with the majority of other states. The new proposed Family Health Care Decisions Act (article 29-D of the Public Health Law), would finally grant family members and close friends the authority to make health care decisions in the event a loved one becomes incapacitated.
The proposed legislation has three main sections in which it outlines the proper procedures to use in event someone close to you becomes incapacitated. First, it creates a process for determining incapacity. Second, it establishes a priority list of people who may act as surrogate. Third, the proposed legislation sets specific standards for surrogates’ decisions.
Under the proposed bill, there would be a presumption that every adult has the capacity to decide about treatment unless otherwise determined pursuant to the procedures set forth in the bill, or pursuant to a court order. An attending physician must determine that a patient lacks capacity to make health care decisions. In a residential health care facility, at least one other health care professional must concur. In a general hospital, the concurrence is only necessary for a decision to forgo life-sustaining treatment. Hospitals must draft and adopt written policies identifying professionals qualified to provide the concurring opinion.
The bill proposes that patients remain empowered and make a final decision regarding their capacity, surrogates, and health care options. If a patient is declared incapacitated, health care professionals must inform the patient of the determination of the incapacity. If the patient objects to the determination of incapacity, the appointment of a surrogate, or to a surrogate’s decision, the patient’s objection prevails, unless a court determines otherwise.
The bill creates a list of possible surrogates and their order in making decisions. A surrogate is defined as a person selected to make a health care decision for a patient. The order of authority is as follows:

1. court-appointed guardian
2. spouse
3. adult son or daughter
4. a parent
5. an adult brother or sister
6. a close adult friend or relative familiar with the patient’s personal, religious, and moral views regarding health care.

It is important to note that courts can appoint any person from the surrogate list to act as surrogate, regardless of that person’s priority on the list if the court determines that such appointment would best accord with the patient’s wishes.
The surrogate will be able to make all the health care decisions for the patient that the adult patient could make for himself or herself. A decision by a surrogate cannot supercede or override prior decisions or wishes, whether orally or written, by a competent patient. Surrogates must decide about treatment based on the patient’s wishes, including the patient’s religious and moral beliefs. If a patient’s wishes are not known, the surrogate must try to make a decision that would be in the patient’s best wishes. Also, Surrogates have a right and duty to obtain any information regarding a patient’s condition. In addition, health care providers have a duty to give the surrogate medical information and clinical records necessary to make informed decisions for the patient. Presumably, this language should allow a Surrogate to obtain medical information and/or documentation notwithstanding HIPAA confidentiality rules.
Health care providers are not at the mercy of the surrogates, however. The bill grants surrogates the authority to consent to and to refuse treatment, but does not obligate health care providers to offer or provide treatment that they would have no duty to offer or provide to a competent patient because the treatment is medically futile or inappropriate. Health care providers are able to support their conclusion by referring to its ethics committee guidelines. However, if any hospital or attending physician refuses to honor a health care decision made by a Surrogate, the hospital will not be entitled to compensation for treatment or services provided without the Surrogate’s consent.

Thursday, September 1, 2005

Estate Planning for Unmarried Couples Can Be More Complex

The American legal system makes assumptions about married couples. For example, default provisions give a husband or wife the power to make at least some medical decisions for a spouse who is no longer competent to direct his or her own treatment. The surviving spouse usually has first priority to administer a deceased spouse's estate, and will usually inherit most of the estate if the deceased spouse did not sign a will.
None of those automatic protections apply to unmarried couples, regardlesss of the strength or duration of their commitment. Many heterosexual couples chose not to marry for one reason or another, and thereby forgo the protections and benefits of marriage laws. Gay and lesbian couples, of course, are not provided an opportunity to duplicate the marriage relationship except in narrow circumstances.
That makes estate planning much more important for couples who are committed to one another but unmarried - for whatever reason. A sampling of the issues faced by such couples:
Powers of Attorney. Neither partner will have any automatic right to make decisions for the other in the event of a medical catastrophe. In fact, neither partner will have any right to visit the other in the hospital setting, to talk to doctors or even to get status reports.
Living Wills. Without clear instructions (and a health care proxy), each partner runs the risk of leaving family members in charge of their medical decisions. That may be fine for some, but terrifying for others.
Wills and Trusts. Assuming that each paratner wants to share a part of his or her estate with the survivor, it is essential that those provisions be reduced to writing. Relying on the goodwill of family members, or spoken (even clearly spoken) instructions, is simply begging for legal trouble, expense and personal devastation for the survivor.
Partnership agreements. If partners have any desire to protect one another (and, not incidentally, to minimize legal costs and acrimony) in the event that the relationship should end, then a written agreement is a necessity. Simply placing assets in joint names may not be sufficient, and may even be dangerous in ways not experienced by married couples. The partnership agreement may resemble a prenuptial agreement often signed by married couples.
Joint parenting agreement. Family realtionships are much more complicated today than the legal system is prepared to address. Unmarried couples, even same-sex couples, may have adopted one another's children, or jointly adolpted a child not biologically related to either of them. If one partner dies or the couple splits up, parenting and even visitation rights may be difficult to address. A written agreement may help ease the transition.

Source: Elder Law Issues, Volume 12, Issue 51.