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Planning for Incapacity - What To Say To Seniors You Care About

Much of my blog on estate planning has been dedicated to educating young to middle-aged parents about what they can do to protect their children and assets should something untoward suddenly happen to them. In this blog post, I’d like to offer some guidance to my readers about how they can talk to the older people in their lives about planning for incapacity, a key aspect of elder law and estate planning.

NOTE: This blog post is relevant to all of us. So long as we wish to retain our independence as adults in the event we lost our physical or mental capacities, we need to draw up documents ensuring that we legally retain that independence whatever the actual outcomes. For the seniors in our lives, there is an even greater urgency to do so.

A common concern for aging seniors is whether they will retain their dignity and personal choices when they become physically incapacitated (e.g. coma) or mentally incapacitated (e.g. dementia). Most fear that their lives might be artificially prolonged against their wishes. Or, that they may be subject to medical procedures and medications that they don’t want to receive as part of end-of-life care.

The law provides for such concerns. There are a number of ways by which a person can legally secure her wishes as regards her medical and health choices should she be unable to make them herself due to incapacity. In New York state, the law recognizes living wills, health care proxies, and DNR orders, These are collectively known as Advanced Directives. 

  • Living Will. This is not a will (which governs the distribution of your assets upon your death). A living will spells out to medical care providers the care the person wants - and does not want - to receive when they are incapacitated. Living wills can contain specific instructions but since there is no statutory standard form, working with an attorney is the best way of ensuring clarity and as much certainty as possible. Living wills in New York state need to be witnessed by two adults over the age of 18 years old. Unlike health care proxy documents (see below), there is no specific person in charge of a person’s care. The document’s instructions are aimed at health care providers, not any “appointed” person.

    The following are typical areas of care that a person can give instructions on in her living will:

    • feeding tubes (intravenously provided food, liquids )

    • life-support machines (mechanical respiration)

    • pain medication

    • blood or plasma

    • other types of medication such as antibiotics

    • diagnostic tests (e.g. CT scans, MRIs)

    • surgery

  • Health Care Proxy. A person can choose a specific individual to be solely in charge of making all medical decisions relating to her care when she is no longer able to do so for herself. That person is called a health care proxy.

    • In New York, the process of making someone a health care proxy is straightforward. You can access the legal form here. Note that the document has to be properly witnessed by two adults over 18 years old (neither needs to be an attorney or doctor, and neither can be the proxy or an alternative proxy).

    • Proxies have to be at least 18 years old and can be a spouse, relative, friend or even an attorney. Note: a person’s doctor can NOT be her health care proxy (unless that doctor is the spouse or relative as well).

    • Can two people be health care proxies to a single person? Yes, and the proxy document can set this out. But it’s crucial to ensure that the two proxies are almost certainly going to agree on decisions, and are independent-minded people who aren’t easily swayed by the emotions of the moment, or the preferences of other family and friends. A person can also pick just one proxy, and have another person named as an alternative proxy, in which case decisions are made by either proxy, not both.

    • The health care proxy(s) can make decisions on what medical treatment can or cannot be provided, and also choose between different kinds of treatments, be they procedures or medications or other forms of medical care.

    • A health care proxy can not be held legally liable for any decisions she makes for the incapacitated person, or for financial expenses relating to the person’s condition and care. Neither can a spouse or relative overrule a proxy’s decisions (unless they obtain a court order to do so).

    • The health care proxy’s authority takes effect when two doctors certify that the patient is incapacitated i.e. unable to make the decision for herself.

    • If the health care proxy is given a copy of the Living Will, that provides even clearer guidance. Not all situations can be anticipated in a living will, hence the need for a health care proxy to exercise his or her judgment in areas not provided for.

  • DNR (Do Not Resuscitate) Order. In New York State, the DNR applies only to situations of cardiac arrest i.e. cardiopulmonary resuscitation (CPR) is not to be administered to revive a person’s breathing and/or heart function.

    • A person’s doctor has to authorize the DNR order, with two adult witnesses.

    • Any adult 18 years or older can get a Hospital or a Non-Hospital DNR Order.

    • A Hospital DNR Order is issued if the person is in a hospital, nursing home, or a mental hygiene facility licensed by New York State. Emergency personnel (EMS) are also required to honor a Hospital DNR Order. A person’s Hospital DNR wishes can be laid out in her living will or health care proxy document or MOLST (Medical Orders for Life-Sustaining Treatment). A Hospital DNR Order is recorded in your medical chart.

    • Outside any of these medical facilities, a Non-Hospital DNR Order is required. It must be recorded on a state-specific form [DOH- 3474] and signed by a doctor. It can be completed with the consent of the patient or her health care proxy or surrogate.

    • In EMS situations, a Non-Hospital DNR order can be reflected in a bracelet or a copy of the order on a person at the time of emergency. If there is a bracelet with DNR on it, the law assumes that it’s backed by a Non-Hospital DNR order and the EMT can withhold CPR.

  • Surrogate Under FHCDA. The 2010 New York Family Health Care Decisions Act  (FHCDA) gives family members or a close friend the legal power to decide on a person’s health care when that person is incapacitated and cannot make decisions for herself. It is an alternative to a Health Care Proxy.

    • Under the FHCDA, that person is called a “surrogate”. A surrogate’s role is very much like that of a health care agent/proxy.

    • A surrogate, however, is authorized to act only if the incapacitated person is in a hospital or a nursing home, or if the decision is about hospice care. A health care agent may make decisions whatever the situation. This is an important distinction.

    • A surrogate may only make decisions based on the patient’s religious or moral beliefs, or in the absence of those, her “best interests”.

  • MOLST Form. MOLST stands for Medical Orders for Life-Sustaining Treatment. Such forms are state-mandated and most healthcare/medical facilities have these forms.

    • It allows doctors to record your preferences regarding CPR, mechanical intervention, and other life-sustaining treatments on a single form as a physician order.

    • An MOLST form must be completed by a health care professional and signed by a New York State licensed physician in order to be valid.

  • Power of Attorney. Under New York State law, a person can designate any adult to make property, financial, and other legal non-healthcare decisions on her behalf through a “Power of Attorney.”

    • A Durable Power of Attorney allows a person (Principal) to appoint an Agent to act for her immediately upon its execution or the occurrence of some future event identified by her (e.g. incapacity). It lasts until the Principal cancels it or upon her death.

    • A Power of Attorney can grant the Agent power to buy or sell the Principal’s real estate; manage her property; manage her financial matters (banking, investment, tax, retirement). Power of Attorney is typically used to plan for one's future incapacity or disability and loss of competence resulting, for example, from Alzheimer's disease or a catastrophic accident.

    • One can not combine one’s Health Care Proxy with one’s Power of Attorney.  These must remain two separate documents The agent appointed in a Power of Attorney, however, may but need not be, the person who is the Health Care Agent in the Health Care Proxy.

One more thing — “incapacity” is what triggers most of the above legal arrangements. In New York state, determinations of incapacity must be made by a physician who is qualified to work with those populations, and cannot be made by an ordinary attending physician. Consequently, people with mental disabilities are not unnecessarily stripped of their rights to make medical decisions for themselves.

Planning for incapacity can be a complex process. So it’s important to start this conversation with your elderly friend or relative soon. Time is generally not on their side, and the longer they wait, the more heavily a failure to plan weighs on them.

Also, don’t assume that just because they are married or partnered or have adult children that all will be taken care of. If the senior you know expresses discomfort or anxiety about losing their independence, then the time is ripe for you to start them on this important conversation. In my work, I often come across spouses who have been married for many years feeling distress over whether they made the best end-of-life choices for their deceased spouse. Two persons can be married or partnered for a long time, but don't assume they each know everything about what the other truly wants.

If you're reading this and realize that you may in fact be an elderly person's only next-of-kin, decisions about their care and even their lives may fall to you, often in crisis situations. You can save yourself and them a lot of stress and angst if they unequivocally decide for themselves what they want and have their wishes laid out in a legally enforceable document before the situation arises. Having them put in place Advanced Directives can free you from the distress of having to make such decisions.

Where should you begin? Help them to start thinking about the above options by sharing with them what you know. These are deeply difficult and complex matters for anyone of any age and are not to be taken lightly. That said, it always helps to have a trusted friend or relative to work with one when it comes to hard choices. Once those choices are made and properly documented, however, there is peace-of-mind for all concerned.

Last but not least, how I talk to seniors about Living Wills, Health Directives, and other similar legal vehicles is as important as what I talk about. I always cast my conversations with my senior clients in a more positive light by emphasizing that when they direct their own decisions, they get to define their legacy and retain their freedom of will. This approach is a powerful antidote to the anxiety and angst they feel when they fear losing their independence. Talking about death and incapacity in a gentle, compassionate and factual way can help to lessen this discomfort.

If you’ve found this blog post useful and would like to find out what would work best in your own unique situation, contact The Law Office of Robert J. Maher, P.C. for a complimentary 90-minute consultation.