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

Friday, March 19, 2010


As of Tuesday, March 16, 2010, New York has joined 48 other states in allowing a spouse, domestic partner, or other family member to make health care decisions when a loved one is unable to do so for themselves and does not have a health care proxy on record. Previously, approximately 75,000 people a year have died in New York hospitals in this exact situation.

With the support of over 100 organizations such as AARP, Alzheimer’s Association, American Cancer Society, NYS Bar Association, Excellus Blue Cross/Blue Shield, just to name a few and the sponsorship of Assembly Member Richard N. Gottfried and Senator Thomas K. Duane, the bill passed both the Assembly and the Senate with enthusiastic approval.

The gist of the matter boils down to the fact that even though patients did not go through the formal process of creating a health care proxy or provide their family with “clear and convincing” evidence of their health care wishes, they shouldn’t be subjected to either burdensome or unwanted treatments or denied appropriate treatment altogether. This has unfortunately been the case for too long. This new law puts an end to it altogether.

Specifically, The Family Health Care Decision Act (FHCDA), signed into law on March 16th, 2010, now gives family members and others who are close to the patient, the legal authority to act on behalf of the patient when it comes to making decisions concerning the patient’s medical treatment. The law includes numerous safeguards to ensure that sound medical treatment and any other decisions are consistent with the patient’s wishes and in the patient’s best interest.

However, it is still important and recommended to have advance care directives on file with our doctors, your elder law attorney and your family members. This new law certainly DOES NOT eliminate the need for such crucial paperwork. As a matter of fact, it is extremely important, as it always has been, to be sure you engage in conversation with those you trust in an effort to clearly spell out your wishes and desires for medical care options.

Legal documents such as a health care proxy, a New York State Living Will and a Medical Order for Life Sustaining Treatment (MOLST) are necessary tools that should be put into place to avoid any future confusion in a very stressful situation. The good news is that is you don’t have these documents, the people that you’d want to make these decisions for you, can now do so.

Friday, March 5, 2010


When creating an estate plan, an important decision is who to name as your fiduciary. A fiduciary is a fancy legal term for the person who will take care of your property for you if you are unable to do it yourself, such as the executor of an estate, the trustee of a trust, or an attorney-in-fact under a power of attorney. Your first instinct might be to name one of your children as a fiduciary, but if you want to avoid conflict among your children, this might not be the best option.

When naming a fiduciary, it is important to be able to trust the individual, which is why people often name family members as fiduciaries. However problems can arise when a parent with two or more children names one child as a fiduciary. According to Tim O'Sullivan, an attorney from Wichita, Kansas, who spoke on the issue of family harmony at a recent conference for elder law attorneys, a child is often not the best fiduciary for several reasons:

•It is hard for a child to be completely objective.
•Children often disagree over many things, including how long the estate should take to complete, the selling of assets, and the division of personal property.
•Children often don't communicate with each other well.
O'Sullivan says that, in his experience, when one child is named as fiduciary problems arise between family members about one-quarter to one-third of the time.

An alternative is to hire a professional fiduciary. A professional fiduciary can be a bank with trust powers, a certified public accountant, or a trust company. The attorney who is drafting your estate planning documents can recommend a good one in your area. A professional fiduciary will charge a fee, but the fee should be explained ahead of time. In addition, because a professional is experienced in managing money and property, your assets are more likely to increase under this person's or institution's guidance.

To ensure that your family has some input, you can include a provision that allows one or more family members to discharge the fiduciary if they feel the professional is not doing a good job. This will allow your family to make sure the fiduciary is performing properly without having the burden of acting as fiduciary.

An attorney at Davidow, Davidow, Siegel & Stern can help you make sure you have the right fiduciary for your family.

Source: www.elderlawanswers.com