How Can I Plan for My Disability in New York?

There are ways to manage what happens to you in the event you are not well enough to make your own decisions. A Power of Attorney allows you to appoint a person to manage your financial affairs, a Health Care Proxy allows you to appoint a person to make medical decisions for you and a Living Will makes known your wishes regarding life-prolonging medical treatments.

Power of Attorney

A Power of Attorney is a legal document in which you give another person legal authority to act for you. There are many uses for a power of attorney, from giving your spouse the authority to sell your apartment to giving your child the authority to take over financial decisions in the event you become incapacitated.

For your agent, you will select someone you trust, like your child or spouse. A revocable power of attorney makes sure that you can change your agent at any time.

If you do not have a power of attorney, your family might have no choice but to ask the court to appoint a guardian to make medical or financial decisions on your behalf. This procedure can be expensive and time-consuming and may result in the court appointing someone that you might not have wanted to make financial decisions on your behalf.

There are three basic types of Power of Attorney which we use for estate planning purposes.

• • Limited Power of Attorney
• • The Limited Power of Attorney allows you to authorize another person to act as your agent for a limited period in time or for specific circumstances only. For example, to make someone an agent for a specific transaction, or only until you recover from an illness.

• • Durable Power of Attorney
• • The Durable Power of Attorney authorizes your agent to continue to act on your behalf after you become incapacitated. This document takes effect as soon as you sign it.

• • Springing Power of Attorney
• • A Springing Power of Attorney goes into effect only if you become incapacitated. It’s up to you to define how incapacitated you need to be for the Power of Attorney to go into effect.

Living Will

The Living Will determines what life-sustaining measures if any, you wish to be taken in case you will not be able to direct the doctors. For example, do you want to leave a do not resuscitate (DNR) instruction? Does your religion dictate a preference? What do you want to happen to your organs? These and many other issues are addressed in your living will.

Health Proxy

The Health Proxy is a document that specifies the person that you would like to make health decisions for you when you are not able to do so yourself.

Call the Law Offices of Albert Goodwin at (212) 233-1233 and make an appointment to discuss your estate planning needs.

The Costs of Not Planning for Disability

People often think of estate planning as planning for death. But disability planning — preparing for the possibility that you cannot make your own decisions — can be even more consequential than death planning because, unlike death, disability is something you may live with for years.

Without disability planning in place, the alternative is generally an Article 81 guardianship. The process involves a family member or other interested party petitioning the Supreme Court, the court appointing a court evaluator to investigate, you being entitled to counsel (sometimes court-appointed), a public hearing with evidence about your condition, the court evaluator's report and other evidence being reviewed, and the court issuing an order specifying your incapacity and appointing a guardian.

The process is public, expensive, time-consuming, and may not result in the appointment of the person you would have chosen. By contrast, advance planning through powers of attorney and health care proxies skips this whole process and keeps decisions in the hands of the people you have selected.

The Disability Planning Document Set

A complete disability planning package generally includes:

Durable Power of Attorney. Authorizes your agent to handle your financial affairs when you cannot. New York's 2021 statutory form is the standard, with options to customize the scope and to grant gifting authority.

Health Care Proxy. Authorizes your agent to make medical decisions when you cannot. Governed by Public Health Law § 2981.

Living Will. States your specific preferences for end-of-life care. Useful as evidence of your wishes.

HIPAA Authorization. Allows your designated representatives to access your medical information.

MOLST Form. For individuals with serious illness, the Medical Orders for Life-Sustaining Treatment form provides specific medical orders that follow you across care settings.

Revocable Living Trust. Holds your assets so that a successor trustee can manage them seamlessly if you become incapacitated, without any court involvement.

Choosing Your Agents

The decision about whom to name as your agents is one of the most important in disability planning. The candidates fall into several categories: spouse (the most common first choice), adult children (often named as successors or as primary agents for unmarried individuals), other relatives, friends, and professionals.

The financial agent and health care agent do not have to be the same person. Some clients name a financially sophisticated agent for the power of attorney and a different person who knows them well personally for the health care proxy.

Talking with Your Agents

The legal documents authorize your agents to act, but they do not give the agents insight into your wishes. To make the documents useful, you should have detailed conversations with your agents about your preferences. Topics include:

• How you want your finances managed during incapacity.
• Your medical care preferences in various scenarios — aggressive treatment versus comfort care, end-of-life decisions, religious or cultural considerations.
• Your housing preferences if you can no longer live independently.
• Family relationships you want maintained or that may need careful navigation.
• Specific assets that have personal significance and how they should be handled.

These conversations are uncomfortable but essential. They give your agents the foundation for decisions when you cannot make them yourself.

Coordinating Disability Planning with Estate Planning

Disability planning and estate planning are tightly connected and should be designed together. The same person who serves as your power of attorney agent might be your executor. The trustee of your revocable trust might be your health care proxy. The whole plan should work together, with each document supporting the others.

A common gap occurs when disability documents are signed but the estate plan is not updated. Comprehensive review of all documents together prevents these conflicts.

Long-Term Care Planning

Disability planning includes thinking about how care will be paid for. Long-term care — nursing home, assisted living, extensive home care — is expensive. Common payment sources include personal savings, long-term care insurance (purchased before the need arises), Medicare (limited), Medicaid (after a spend-down or with advance planning), Veterans Aid and Attendance benefits, and reverse mortgages or sale of the home.

The right combination depends on your assets, income, family situation, and care needs. We work with clients to develop strategies that match the situation.

Updating Documents Over Time

Disability planning documents should be reviewed periodically. Recommended review triggers include significant change in health, move to a different state, death or incapacity of a named agent, change in relationship with an agent, significant change in assets, and change in law (the 2021 New York power of attorney revisions are a recent example).

An out-of-date document is sometimes worse than no document at all. Periodic review keeps the plan current and ensures the documents will be effective when needed.