Advance Directives are documents which let you make decisions on how you want your financial and medical affairs handled if you cannot handle them yourself. In New York, we have a health care proxy (which can include a HIPAA release), living will and power of attorney. They differ from a will in that they are only viable while you are alive. A will only takes effect when you pass away.
Health Care Proxy
A health care proxy becomes effective when a medical doctor determines that you are not able to express your wishes related to your health care. You want to name someone who has a knowledge of health care and also who knows your wishes regarding your healthcare. You should name a successor agent in case the first person named may not be able to take on the task, you may even be traveling with them. You should have a frank discussion with the people you want named as agents to be sure they are up to the task. The health care proxy itself may or may not describe your wishes within the body of the document, the person who is acting on your behalf should be aware of those. My Health Care Proxy, contains the HIPPA release, although you can have a separate HIPAA release, they are two different documents. The Health Insurance Portability and Accountability Act of 1996 (HIPAA)was enacted by the United States Congress and signed by President Bill Clinton in 1996, and protects your healthcare information which is why you need to sign a release to allow others to have access. You might want to sign a separate form if you wish to release information to someone but not enable them to make decisions for you. The next document I will discuss, a power of attorney, can also act as a HIPAA release.
Power of Attorney
The New York statutory short form power of attorney is a new form instituted in 2010. There was a change in the law at that time to make the agent have to sign the power of attorney before a notary public. This accomplished two things: First the agent must be aware that they are named as the principle’s agent. Prior to the new form the principle did not even have to discuss or ask the agent so it sometimes came as a surprise. Secondly, there is language in the form which instructs the agent on their responsibility to the best interests of the principle which protects them from the agent taking advantage. In fact the power of attorney becomes effective only after the principle and the agent sign before a notary public. When deciding on your agent, you should pick someone you trust and they should be a savvy business person, after all they are going to be able to make business decisions for you. You should select a successor in case the first person can not or will not act on your behalf. You can also instruct agents to act together, so you can have two different pairs of people. You can choose different people for different types of matters using more than one power of attorney. For example, you can designate an agent for the sole purpose of appearing for you at a real estate closing. You can also designate an agent for health care in a power of attorney which acts like a HIPAA release. There is a limited amount of money the agent can give as a gift from you. If you want the agent to be able to give larger gifts you need a Statutory Gift Rider. Of note, the power of attorney cannot speak for you, only sign for you Should you still feel that you do not trust your agent we also have the ability to designate a “monitor” to watch over the agent. You can also have dual agents that must act together if that makes you feel safer. A springing power of attorney is one that takes effect upon a certain circumstance. As an example, a business owner might have a springing power of attorney that enables another person to step in and run their business only if they become incapacitated.
The last document is a living will which dictates under which conditions you want things like artificial nutrition or artificial breathing. It can also be used to say that you want pain medication administered. Your health care agent can use this document to determine your wishes. Should they not be able or available, if two medical doctors agree that your situation is such that you have no hope for a meaningful recovery they can follow the directions in the living will.
As far as storage, we generally execute more than one original and we keep a scanned copy of the original for the convenience of our clients. The documents should be kept in a waterproof fireproof safe. I don’t recommend keeping them in a safe deposit box of a bank because it’s possible you may need them when the bank is closed. When determining who gets copies of your documents, some people keep all originals and photocopies and only release them if necessary, you can let your agent know where they are kept so that they can access them if necessary.
These documents are important for everyone over the age of 18 to have because unfortunately if you don’t have these documents and you become incapacitated your loved ones may have to petition for guardianship in order to be able to help you. That’s one of the reasons I advocate estate planning even for college students and young adults. Many people send their kids who are over 18 away to school with every item they think they need but neglect this essential paperwork.