Beth Polner Abrahams, Esq., Elder Law, Estate & Special Needs Planning Attorney

Elder Law, Estate & Special Needs Planning Attorney Beth Polner Abrahams is this month's featured colleague. 

For more visit: 

www.bpaelderlaw.com 

       While most families visit an elder law or estate planning attorney to discuss their Wills, two of the most crucial legal documents have nothing to do with death.  In New York State, the financial power of attorney and medical health care proxy legal documents are designed to preserve your financial integrity and independence, and medical dignity.

     The financial power of attorney (POA) authorizes a designated agent to handle all of your financial affairs in the event of incapacity.  On September 1, 2009 (with technical amendments in September 2010), the NYS legislature revised both the law and form used.

    The most significant change is that your agent or co-agents cannot act until he or she signs the document before a notary public.  Your agents do not have to sign at the same time as you (the principal) but would sign once you are unable to manage your financial affairs.   This gives the agent the authority to act on your behalf.  To protect against fraud or theft from you, the law now requires a separate document that describes the gift-giving authority of your agent, called the Major Gifts Rider. There are other changes to the form and law that a qualified attorney can review with you. 

     Must you update your power of attorney and is your current power of attorney still valid?  No update is needed if the principal was competent when the document was signed and notarized.  If the POA was executed several years earlier with a qualified attorney, it should have an Affidavit of Full Force and Effect.  The Affidavit is usually completed by the agent if the financial institution requires proof the document has not been revoked (cancelled). 

     If your document authorized gifting or lawful Medicaid planning, it generally remains valid as part of the lawfully executed document under the new laws.  The decision whether to update your POA could depend on a few considerations:  have you designated one agent without a successor or co-agent; is your designated agent no longer trustworthy or in ill health or died; did you execute a 'bank' power of attorney or use a form from a stationary store without legal representation?  If yes, you may wish to consider signing a new power of attorney for financial management.

     Equally important is the Health Care Proxy for medical decision making when you cannot make an informed medical choice.  Unlike the POA, you can obtain this form from your physician or online at the website for the NYS Department of Health, without an attorney.  The Health Care Proxy form must be signed by you and witnessed (not notarized) by two persons whom you have not selected as your proxies.  Be sure to make copies of the document and give it to your physicians, keeping the original in a safe place.

     The designated health care proxy may not make any health care decisions, even in an emergency, in the absence of a doctor, social worker or nursing determination that the patient is incapacitated and unable to make his or her own informed medical decision.   Once that determination is made, your health care proxy must make medical decisions based upon what you would have wanted, and if unclear, based upon your best interests.  Your health care proxy must know your wishes about feeding tubes to make that end of life decision but since June 2010, New York's Family Health Care Decisions Act creates a detailed procedure for authorizing a family member or 'surrogate' to make end of life decisions for a loved one in a hospital or nursing home if wishes are not known. 

     The new power of attorney law is designed to protect seniors and others from being easy targets for financial fraud and abuse if health and capacity diminish.  The health care proxy preserves your medical wishes and decisions even when you are incapacitated and unable to make those medical choices, yourself.