Assisting In The Creation Of Powers Of Attorney And Health Care Proxies

When an individual is in need of medical care and cannot communicate his or her own wishes, family members and loved ones are left to guess the proper course of action. If you become unable, even temporarily, to make health care decisions, someone else must decide for you. Health care providers often look to family members for guidance. Family members may express what they think your wishes are related to a particular treatment.

Appointing an agent through a health care proxy lets you control your medical treatment and other aspects of your life by:

  • Allowing your agent to make health care decisions on your behalf as you would want them decided;
  • Choosing one person to make health care decisions because you think that person would make the best decisions;
  • Choosing one person to avoid conflict or confusion among family members and/or significant others.
  • You may also appoint an alternate agent to take over if your first choice cannot make decisions for you.

At The Tarantino Law Firm, in Buffalo, New York, we are highly knowledgeable of the process through which health care proxies and powers of attorney can be established. Our attorneys take the time to get to know you, your situation and your goals before moving forward with a health care proxy, power of attorney or other estate planning matters.

Details Of A Health Care Proxy

Before a health care proxy goes into effect, a treating doctor is the one who determines that patient is no longer able to make medical decisions for him or herself due to incapacitation, disability or dementia. Once it is determined that someone else is needed to make decisions, a proxy is actionable.

Included in a proxy document can be the following:

  • Basic information of the "agent" (person who can execute the health care proxy). This is to ensure he or she can be reached when/if needed.
  • Detailed instructions on what type of medical care the patient wants or doesn't want. In some cases, a separate document (health care directive) is created to detail these specifics, but it is beneficial to include it in a proxy so the agent can reference it when a situation arises.
  • Duration of the proxy. Typically, time limitations are not set on proxies. This means it is valid until stated otherwise. However, if a patient wants a proxy to be discontinued at a certain point in time, that can be stated in the document.
  • Wishes regarding organ donation.

Helping Clients Establish Powers Of Attorney

Part of planning for the future is ensuring that you have designated someone to make financial decisions for you in the event you become incapacitated. A person designated by you as a "principal" can transfer assets to family members, continue a program of charitable giving or maximize the gift tax exclusion.

When considering creating power of attorney (POA), or other estate planning documents, it is beneficial to discuss your questions and concerns with an experienced estate planning lawyer at The Tarantino Law Firm in Buffalo first.

Types Of Powers Of Attorney In New York

There are three different types of powers of attorney utilized in New York:

  • Durable power of attorney: Someone who is designated with durable power of attorney can handle decisions and transactions on behalf of the principal, even when the principal is still able to make his or her own decisions. It begins immediately upon signing the documents and continues until the principal revokes the designation or passes away.
  • Nondurable power of attorney: A nondurable power of attorney is often in place to address a specific type of issue or transaction. This type is effective immediately and is in place until the principal is deemed incompetent, is incapacitated or dies.
  • Springing power of attorney: This type of power of attorney is considered "springing" as it is not effective immediately, but "springs up" due to certain situations or events, such as the disability or incapacitation of the principal. A springing power of attorney then continues until the death of the principal or revocation by a court.

Recent changes to New York State law require that specific documents be executed in order to provide a principal to make major gifts and asset transfers on your behalf. The power of attorney law requires that the power of attorney form be accompanied by a statutory major gifts rider ("SMGR") to authorize an agent to make major gifts and asset transfers. The SMGR must be notarized and witnessed by two persons, and executed at the same time as the power of attorney form. The SMGR provides for the authorization of major gifts or transfers of property to third parties and contains an optional provision authorizing an agent to make gifts or transfers to himself or herself.

Without a SMGR, an agent is restricted to "continue gifts that the principal customarily made to individuals and charitable organizations prior to the creation of the agency, provided that no person or charitable organization may be the recipient of gifts in any one calendar year which, in the aggregate, exceed five hundred dollars." The valid execution of a SMGR will be necessary to empower the agent to make annual gifts in the amount of the current gift tax exclusion, $14,000 in 2016 per person per year. Serious consideration should be given regarding the authorization of more expansive powers including the power to change beneficiaries on assets such as life insurance, annuities and retirement accounts, as well as the authority to transfer assets and property outright to third parties and the agent.

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