Getting your Life and Estate Planning Documents in Order during a Health Crisis
As the world searches for a new normal, it is more important than ever to make sure that the interests of you and your loved ones are properly protected. We have compiled the below list of the basic life and estate planning documents that we recommend every adult (individuals over 18) have in place.
While in normal times, an in-person appearance is required to sign most documents, at present, this is not prudent. Luckily, New York State Governor Andrew Cuomo has signed several Executive Orders that temporarily allow for documents to be completed virtually for people physically in the State of New York, so long as all parties have access to a Web Camera (including a smartphone) and a scanner (including a smartphone app).
HIPAA Release and Authorization Form
Anyone 18 or older should complete a general HIPAA Release and Authorization Form to pre-approve certain individuals to access protected health information. The Health Insurance Portability and Accountability Act (HIPAA) generally will not allow family members to access your protected health information unless you have given them authorization. You can give authorization to as many people as you want. Giving someone authorization to access information under HIPAA does not give them any ability to make medical decisions for you. It also does not require a finding of incapacity to become effective, so it can be a useful tool for when you need assistance communicating and understanding physicians but can still make the ultimate decisions yourself.
Health Care Proxy
Anyone 18 or older should appoint someone they trust (except certain health care professionals) to serve as their Health Care Agent by completing a Health Care Proxy. You can also appoint successor agents as back up, but you cannot appoint more than one agent to act at a given time. Agents have the authority to make all medical decisions but can only make decisions to withhold artificial hydration and nutrition if the agent is aware of the principal’s wishes on this issue. The Health Care Proxy should either state the principal’s wishes or state that the agent is aware of the principal’s wishes. You can also provide your Agent with instructions about Organ Donation in the Health Care Proxy.
Appointment of Agent to Control Disposition of Remains
An Appointment of Agent to Control Disposition of Remains provides the ability to your designated agent to make final arrangements including funeral, burial or cremation. This form is especially important if your wishes might not be followed by your family members and/or if you want to be cremated. You may also wish to consider making pre-need funeral arrangements which can be documented in the form.
Power of Attorney
Anyone 18 or older should use a Power of Attorney to appoint an Agent to handle their financial and legal affairs. The standard form is the New York State Statutory Short Form Durable General Power of Attorney. You should also consider executing a Power of Attorney form at financial institutions where you have assets and in other states where you have real property or substantial financial ties. Unlike with a Health Care Proxy you can appoint agents to act jointly.
Statutory Gifts Rider to Power of Attorney
This rider to the Power of Attorney is the only way to authorize your agent to make gifts on your behalf. This includes typical “gift” transactions but can also apply to any ongoing support you provide to family members.
Last Will and Testament
You should complete a Last Will and Testament to provide for distribution of assets held in your name alone (i.e., without designated beneficiaries or joint owners). You can not only control “who gets what” but can also dictate the terms of how they inherit. This is particularly important for couples with minor children, as without the inclusion of a Trust for their inheritance a Guardian of the Property will need to be appointed to control the child’s inheritance.
Designation of Beneficiary Forms
Certain types of accounts, namely retirement accounts and life insurance, allow the owner to provide for distribution of the asset after death according to the instructions given on a Beneficiary Designation form. It is vitally important to understand what happens to these accounts by default and to make sure that the designations are changed to appropriately fit within your overall estate plan.
If you have strong feelings about the care you do or do not receive at the end of your life, you can complete a “Living Will.” In New York, there is no specific form for the Living Will and the document itself is not binding. However, it can serve as evidence of your wishes and can be a useful tool for your appointed agent. A Living Will can be particularly helpful if you want to make unconventional decisions or if you think your Agent will need reassurance that they are making the “right call.”
A Medical Orders for Life Sustaining Treatment (MOLST) form is a specialized form that is completed with your Medical provider. The MOLST form is intended to be completed by patients residing in long-term care facilities or who are receiving long-term care services at home and for individuals who might die within a year. Unlike a Living Will, the contents of a MOLST are binding on providers as Medical Orders. A MOLST should be printed on bright pink paper to ensure it is recognized by health care providers.
The form for a MOLST can be found here.
Designation of Person in Parental Relation or Appointment of Standby Guardian of a Minor
These are forms available to parents to temporarily appoint someone to make medical and educational decisions for a minor child if the parents are unable to do so. These forms also provide for a temporary guardianship after the death of both parents.