Power of Attorney & Health Care Directives Lawyer in New York

When most people think of estate planning, they think it addresses only after death issues. But the most important estate planning documents may actually be the documents you prepare to be used during your lifetime, in the event of incapacity. We all hope to live long, healthy and peaceful lives, but in the face of unexpected tragedy or the onset of dementia, it is critical to have specific estate planning documents in place to ensure that your wishes are followed and you have legally authorized the people of your choice to make crucial decisions in the event you cannot.

“Advance Directives” is a term used for the documents prepared in the event of incapacity. These documents generally include a Power of Attorney, Health Care Proxy and Living Will.

What is a Durable Power of Attorney?

A Durable Power of Attorney prepared by an experienced elder law attorney is the most important document you can prepare as part of your estate planning. A properly executed Durable Power of Attorney is crucial to allow a person you have chosen and trust to handle your finances should you become unable to make your own financial decisions due to a medical condition, illness, or incapacitation. Such authority would include any planning that may be needed to qualify and maintain long-term care Medicaid eligibility, including preservation of your assets and the uninterrupted financial care of your family members. You do not want to be in a situation where you are left unprepared.

The individual you name is known as your Agent, and you are known as the Principal. Your agent can handle legal and financial affairs on your behalf, including but not limited to:

  • Writing checks to pay your bills, including your mortgage, rent, insurance payments, utilities, college tuition, etc.
  • Dealing with your insurance company on your behalf
  • Obtaining and managing benefits from government programs
  • Managing health care billing and payment matters
  • Ensuring that your taxes are paid and dealing with all tax matters
  • Managing your retirement benefits
  • Protecting your assets from the high cost of long-term care in the event of incapacity

If you experienced a sudden illness or an unexpected accident that left you unable to make your own decisions, and you did not have a Power of Attorney, your loved ones would be very limited in their legal or financial ability to help you. Further, any of your loved ones that were relying on you for financial support could suffer as well. It is awful when a family is confronted with not only the torment of their loved one’s incapacity and emotional, physical and psychological issues that come with it, but further suffers the stress of not having the right documents to take care of legal and financial matters on behalf of their loved one.

Your chosen Agent must be at least 18 years old, and able to fully understand what the Power of Attorney entails. You can appoint more than one Agent to handle your affairs and can specify whether the Agents must work jointly or may act independently of each other. You may also name a “successor” Agent to act in the event the first agent becomes incapacitated, declines to serve, resigns, dies, or is not qualified to serve. The Agent you name is supposed to act according to your instructions, or, in the absence of instructions, in your best interests. As long as long as you have capacity to do so, a Power of Attorney can be revoked at any time. Your Power of Attorney ends upon your death—your Agent is only authorized to act on your behalf while you are alive.

In the event there is no power of attorney, an incapacitated person’s loved ones may petition the court for guardianship. This process can be costly, lengthy, and emotionally tolling. Further, the proceeding could be contested, which means the person who you would have wanted to be appointed guardian, may not be the one the court ultimately decides to appoint. Having a power of attorney in place is protection for you and your family.

Is There a Difference Between a Power of Attorney and a Durable Power of Attorney?

The word “durable” before power of attorney means that the authority granted in a power of attorney will continue even if and when the principal no longer has mental capacity. With a nondurable power of attorney, the authority would cease if the principal became incapacitated.

A power of attorney is a legal document that allows one person (known as the “principal”) to appoint another person (known as the “agent”) to act on his or her behalf for financial and legal matters. New York State has a statutory form that governs the format and requirements of a power of attorney form which includes a list of actions that the agent can take on behalf of the principal, such as finance, business, tax, insurance and real estate matters.

A nondurable power of attorney may be beneficial for business transactions, or for convenience purposes, but when it comes to your estate planning, it is almost always the goal to have a “durable” power of attorney. A power of attorney that is done in the context of estate planning is usually done to protect the principal and ensure that if the principal became incapacitated, someone that the principal trusts would be legally able to step into his or her shoes (figuratively) and manage the principal’s legal and financial affairs.

Do I Need a Lawyer to Create a Power of Attorney in NY?

If you want to make sure that your agent will have the legal authority to fully assist you with your legal and financial matters in the event you lose mental capacity, due to illness, accident or old age, it is strongly recommended to seek the assistance of an elder law attorney to prepare your power of attorney. When someone becomes incapacitated, in addition to day-to-day transactions, there are often many long term care issues that surface, which may involve where the principal should reside, how he or she should be cared for, and how payment should be arranged, including asset protection and Medicaid planning. An elder law attorney is familiar with these types of issues and the planning necessary, so he or she will include the authority necessary for the agent to handle these types of transactions. While the statutory power of attorney that you can download online or purchase from a legal stationery store may be sufficient for regular transactions, it will not include many types of authority that may become necessary to protect the principal’s assets, or handle Medicaid planning on the principal’s behalf. Further, the form can be confusing and if not initialed, signed, notarized and witnessed in the right manner, can invalidate the form. These are not issues you would want to find out when you are ready to use it, which will be too late at that point to fix (because the principal will be incapacitated and won’t be able to sign a new power of attorney).

Is the power of attorney that I downloaded from the internet good?

First, let’s assume you downloaded the current statutory form for New York State, and you initial it in all the right places, and your signature is properly notarized and witnessed.

A properly executed statutory power of attorney would allow the agent you designate to perform transactions on your behalf including paying your bills, dealing with your insurance, or even selling your real estate. But the only way your agent can set up a trust on your behalf to protect your assets in the event Medicaid or tax planning is needed, the power of attorney would need to grant additional specific authority. While a basic statutory power of attorney can be helpful if someone was on vacation and needed an agent to step in to help with a single transaction, or even pay bills in the event of illness, the most important time that a power of attorney is needed is in the event of incapacity. Therefore, it is so important that a power of attorney grants authority that would allow for long term care planning, which goes hand in hand with someone that becomes incapacitated. It is highly recommended to have an elder law attorney prepare your power of attorney to include broad and extensive provisions that relate to all possible needs that may arise in the context of long term care and especially Medicaid.

Case Study: Lisa properly signed a New York State Statutory Durable Power of Attorney designating her son David as agent. Several years later, in January 2023, Lisa needs Medicaid home care services. Her monthly income, which includes her social security income and pension is $4,300, which she uses to cover her monthly expenses. As of January 2023 rules, Medicaid permits a home care applicant to retain $1,563 of income per month, (plus certain insurance premiums and medical expenses). According to the New York State Medicaid rules, the surplus must be paid to Medicaid as a “co-pay” UNLESS the applicant joins a pooled income trust and deposits the surplus amount to the pooled income trust. Depositing the surplus into a pooled income trust will allow the applicant to preserve her income and have it available to pay her expenses. The problem is that Lisa lacks mental capacity, and her power of attorney does not grant authority to David, to join a pooled income trust. The result is that David can apply for Medicaid on Lisa’s behalf, but must pay Medicaid the surplus “co-pay.” Unfortunately, David cannot preserve Lisa’s surplus income for her own use because he lacks authority to join the pooled income trust on her behalf. Lisa will lose thousands of dollars each month that she could have preserved had she had a power of attorney prepared by an elder law attorney. (*Note: David can bring a guardianship proceeding and ask the court’s permission to join a pooled income trust, but that will take months and significant financial expense.)

Wouldn’t next of kin automatically step in if there was no power of attorney? What is the default procedure?

Contrary to what some may believe, there is no default person with ability to act as an agent for legal and financial matters on behalf of someone else. If you lost mental capacity and needed something legal or financial performed on your behalf (from simply paying bills, to more involved such as signing a nursing home admissions agreement or setting up or modifying a trust, etc.), under New York State law NO ONE would automatically have authority.

A spouse, parent, child, or sibling wouldn’t automatically have the authority to act for an incapacitated individual. The only direct way a person can act for another individual, legally or financially, is by an individual signing a power of attorney when they had capacity to do so, naming the person or people of their choice to act as agent on their behalf. If you did not sign a power of attorney and became incapacitated, someone would have to petition the court to be appointed your legal guardian. The guardianship court process can be very costly, very time consuming, and takes an emotional toll as well.

Case Study: Bob and Mary, husband and wife, own their one-family home together. Bob is now mentally incapacitated due to Alzheimer’s Disease. He can no longer climb the steps in their home and has suffered disorientation and falls. Mary feels it would be very helpful to sell their multi-story home and downsize to a smaller one floor apartment for Bob’s safety and wellbeing. The problem is that Bob never prepared and signed a power of attorney and no one can sign a deed selling the house on behalf of Bob. Mary needs to seek a guardianship to get court authority to act on behalf of Bob’s interest to sell the home. A guardianship is expensive, will take months, and a stranger will pry into their lives to determine and confirm that Bob needs a guardian, and Mary will be suitable to be appointed.

What happens if someone dies without an estate plan in place?


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Health Care Directives in New York

One type of New York Health Care Directive is known as a Health Care Proxy. This is a document that allows you to designate a trusted person to make healthcare decisions on your behalf should you become unable to make those decisions yourself. The person named in a Health Care Proxy can be given broad powers to make health care decisions on your behalf. Those decisions may include those which are necessary to help regain your health or the termination of life support. If you have no Health Care Proxy or Health Care Directive, a physician might be required to provide treatment you might have refused, had you been able. Further, in New York, the law may allow a family member that you would not have chosen, to make medical decisions for you. It is important to choose a health care agent you trust, and who you are confident will advocate on your behalf, making sure your wishes are carried out. While it is difficult to plan for every single scenario, the more you discuss with your agent, the easier it will be for him or her to make decisions on your behalf. It is also recommended to have a HIPAA Authorization, which names those you authorize to receive your medical records which can make navigating your health care easier.

We Can Help You Prepare a Durable Power of Attorney and Health Care Directives

Having the Esther Schwartz Zelmanovitz, PLLC, attorneys in your corner can make all the difference in the event you become incapacitated and can no longer manage your own affairs and express your own wishes. Esther Schwartz Zelmanovitz, PLLC, wants to give you peace of mind in knowing that you have maintained control by proactively giving legal authority to the individuals that you have personally selected to take care of your legal and financial needs and effectuate your health care wishes.

We make the process as simple as possible for all clients, offering home and evening visits when necessary. We serve the legal needs of all those on Long Island, all five boroughs of New York City, and across the state. Esther Schwartz Zelmanovitz, PLLC, is the law firm to choose when you are considering Powers of Attorney and Health Care Directives. We want to help ensure you have everything you need to know you and your family members are properly protected in the event of your incapacitation.  Contact Esther Schwartz Zelmanovitz, PLLC, today.