Advance Directives

The Power of Attorney: The Document You Cannot Live Without

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In my last article I spoke about the Health Care Proxy, a document that governs all health care and medical decisions. This week I will be addressing the Power of Attorney, the most powerful (and abused) document in anyone’s set of planning documents.

I will try to explain this legal document in a succinct yet clear manner. This is all elemental so remember, no deep dives.

The Case of Jane and John Smith

Last week I provided the hypothetical of Jane and John Smith. I am going to revisit their story and provide different details, to illustrate the importance and power of this document.

Jane worked as an accountant and left her job at a small firm to focus on a full-time screenwriting career. At the time of the accident, she had been writing full time for a little over a year and a half. John worked as an assistant principal at a Manhattan public elementary school.

They lived in a renovated three-story brownstone in Bushwick (Brooklyn). John purchased the brownstone as a then fixer upper well before meeting Jane. Two years prior to the accident, he took out a second mortgage in the amount of $450,000 to finance the major renovations with the hopes of renting out two of the three apartments.

 John also owned an apartment in Forest Hills, Queens he inherited mortgage free from his grandmother. He had been renting out the apartment for approximately $2000 per month and used those funds to assist in paying the $3000 mortgage on his brownstone. 

Jane and John held a joint savings account amounting to $100,000 at the time of his accident. He also held some investment accounts, jointly with Jane, worth about $300,000.

A year after the accident, financial problems began to surface. Jane’s work as a screenwriter was inconsistent, therefore so was the income. However, being a screenwriter allowed her to spend more time with John at his long- term rehabilitation facility.

 Jane has been paying $13,500 per month for the facility with the money in John’s investment accounts. She knows this money will not last and she will need to solicit long term care Medicaid for John sooner rather than later.

 She has maxed out their joint savings account. She has been able to pay the mortgage but, at times, with difficulty. As much as it pained her to think it, she believes she needs to sell the brownstone as it was too much to manage.

 She wants to keep the Forest Hills apartment as an income producing property.

John never executed any Advance Directives, and this included a Power of Attorney. At this point, Jane’s hands are tied with respect to properties she does not own. 

(As I mentioned in my previous article, there is a (costly) solution. It will be addressed next week).

Like a Health Care Proxy, the “POA” (the abbreviated term utilized by attorneys) is an Advance Directive. It is a document that is only valid when the person who executed it, also referred to as a Principal, is alive and incapacitated. The person who carries out the document’s intent is, again, the Agent.

A POA should have two Agents that either act separately or together. 

There are many authorities that can be conferred in a POA and, often, one person cannot do it all or may not have the aptitude for certain tasks. It does make sense to allow both Agents to act separately. When agents act together, this means they must agree on a course of action. This could lead to conflict but, to be fair, so can Agents who act separately.

Rule of thumb: Think responsibly and cautiously about who you select to act as your Agents. They do not need to be your spouse, child or close family member. If they happen to be and are appropriate, then so be it.

There should also be named successor Agents in the event your original Agent(s) are unable to serve for any reason.

The criteria for incapacity are the same as defined for the Health Care Proxy. The person can no longer make decisions, because they are

–      unable to verbally, or through other means, communicate and/or;

–      cannot comprehend what is being told to them;

–      it is usually a neurocognitive issue, and/or;

–      developmental or intellectual disability, and/or;

–      at times combined with a psychiatric illness.

And yes, some people will execute a Power of Attorney to permit others to act on their behalf even when they possess their cognitive faculties but present with limited to no mobility.

The Subjects Under a Power of Attorney

What powers does a Power of Attorney confer on the Principal’s named Agent, the person with the authority to act on their behalf?

Few to many. Narrow to broad.

It depends on the Principal’s level of comfort with ceding control as well as their expressed wishes. However, an effective Power of Attorney needs to cover a lot of bases and the one you download off the internet is not going to pass muster.

The subjects addressed in your boilerplate POA:

–      Claims and Litigation;

–      Banking transactions;

–      Bond, share and commodity transactions;

–      Real Estate transactions;

–      Benefits from governmental programs or civil or military service;

–      Health care billing and payment;

–      Tax matters;

–      Estate transactions;

–      Business operating transactions;

–      Retirement benefits;

–      Insurance transactions;

–      Personal and family maintenance;

–      Chattel and goods transactions; and

–      “All other matters”

On its face, the above subjects appear to be comprehensive. They cover every facet of your life outside of health care and medical decisions. But do they really protect you as the Principal?

From the perspective of an experienced Elder Law or Trusts and Estates attorney, the above provides insufficient to minimal protection, in that the language is too generic and open to any interpretation—usually of the narrow kind. It is also missing other subject matters that are important to an aging population and those with special needs.

It is simply not tailored to the Principal, his/her life and future needs.

A Minute on the Banks and Financial Institutions

Let’s talk about the banks and financial institutions. They are not known for their POA “friendliness.” They will often ask their customers to complete an institutional POA, even though this is not necessary-or is it?

If you look at a standard/template POA it simply states, “banking transactions.” What exactly does that mean? Whatever the person looking at the document determines it to be—and it will often not work in the Agent’s favor.

I can say the same thing for every single category listed. Additionally, the “all other matters” language is akin to a catch all provision in a contract -and not a good one.

The Statutory Gifts Rider

Another mistake people make when it pertains to a POA? The absence of a Statutory Gifts Rider, which for this article’s purpose is defined as an accompanying document that permits the Agent(s) to make gifts of money in excess of $500. The sole gifting provision in the POA only allows gifting in an amount up to and including $500. The additional gifting authority found in the Rider is vital in the area of Medicaid Planning, a future series topic.

An experienced Elder Law attorney will further flesh out the above subjects when drafting a POA and the Statutory Gifts Rider. Furthermore, they will also include and expand the following topics; this is definitely a general and non-exhaustive list:

–      Trusts (creating, funding, modifying, termination, etc.)

–      Medicaid Planning

–      HIPPA (access to confidential medical records)

–      Beneficiary Designations (modifications, etc.)

–      Powers of Appointment

–      Statutory Elections

–      Domicile and Residence (changing the Principal’s home setting as well geographic location, etc.)

–      Estate Transactions (receipt, waivers, consents and releases, etc.)

–      Real Estate transactions (sales, leasing, transfers, etc.)

–      Employment of other professionals (to assist the Agents in handling the Principal’s affairs)

–      Reimbursement issues for the Health Care Agent

–      Enforcement proceedings against banks or financial institutions

–      And even the naming of the Agent as a Guardian, should the question of formal guardianship arise during the period of incapacity

To close, I will return to my hypothetical. Can you see some of the problems Jane Smith is facing in the absence of the POA?

At this point in time, she has no authority to 1. Sell the brownstone, much less collect the proceeds from the sale, 2. Transfer the Forest Hills apartment to her name, 3. Do any type of preliminary Medicaid planning (or spend down) for her husband, 4. Establish new bank or financial accounts for her husband, 5. Establish a Trust for her husband’s benefit, and/or 6. Move her husband to a different facility if she wanted to.

A properly drafted POA would have made most of, if not all, the hurdles non-existent.

This has been my longest article in the Series (thus far) and even so, I could still write more. All the topics I have and will discuss are important, but Advance Directives are unique, in that they are literally living documents.

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If you liked this article, please “like,” comment and share with others. I would love your feedback!

If you’d like to learn more about me and my law practice you can go here or, si hablas español, here.

“The Greatest Wealth is Health”​ -Virgil

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Health is something most of us fail to appreciate, especially when we are young.

Health is something we only true value when we lose it.

There is a sense of helplessness that comes with being ill. There are many things in life that are out of our control and, under some circumstances, certain medical situations can be unpredictable, unimaginable and devastating.

But there is something we can all do to preserve our wishes when it comes to health care decisions and even end of life issues.

Advance Directives are written statements that are valid during a person’s life but onlywhen they are incapacitated. There are two Advance Directives you should know about. I will be addressing one of them in this article; the next article in the Series will address the other.

Incapacity, for brevity’s sake, is when a person is unable to make their wishes known because they cannot communicate verbally or otherwise, or is incapable of processing or understanding information due to neuro-cognitive deficits caused by any number of medical conditions.

The document is a Health Care Proxy and it is vital to any person alive. The latter statement is not an exaggeration.  The following hypothetical will, hopefully, drive the point home.

Jane Smith and John Smith are in their forties. They have been married for eight years with no children.

John comes from a large family, while Jane is an only child.

Neither has any major medical issues and are in seemingly good health.

Then one day, Jane and John are driving down a local road when they are in a head on collision with another driver who ran a red-light driving way over the 25 miles per hour speed limit. John is ejected from the car.

Jane was wearing her seat belt, while John was not.

While John survived the accident, he was very seriously injured. He suffered a traumatic brain injury when his head hit the glass, he was ejected from the vehicle and his body hit the pavement.

Unfortunately, he never regained full consciousness. He has not spoken in over a year and will only briefly open his eyes but does not focus on anything or anyone. He cannot feed, toilet or clothe himself. He is confined to his bed. He was placed on a mechanical ventilator to assist with breathing since he was unable to do so on his own. A tracheostomy was also performed.

The neurologists are unsure of what John can hear or understand, but they do not expect a reversal of his condition.

John had, one more than occasion, told Jane that he did not want to be kept alive through artificial means if he were to suffer an accident that left him in bad shape. Jane wanted to honor those wishes.

John’s siblings, however, objected to Jane’s plans. They wanted to keep their brother alive at all costs.

Who did the hospital listen to? Neither side. They kept him alive through artificial means because that is what hospitals are supposed to do. There was no Health Care Proxy (or a Court order) which allowed the medical staff to follow anyone’s directives regarding care and life sustaining measures.

Jane’s status as John’s legal wife carried no weight when it pertained to health care decisions, particularly life sustaining measures.

NOTE: There is a solution to the above scenario—and I will address this later in the Series.

This is a terribly sad hypothetical, but it is a composite of real life situations I have run into repeatedly through my guardianship practice. It is more common than you think and more emotionally devastating than I have painted here.

What would have changed in this scenario if a Health Care Proxy had been in place?

If the Proxy was properly drafted, executed and witnessed, the Principal (in my hypothetical, John) would have named an Agent (his wife, Jane) to make health care decisions. And John’s wishes would have been followed. No extraordinary measures would be taken to prolong his life. He would be given medication to make him comfortable and to lessen and eliminate physical pain.

An Agent must be a person the Principal trusts, who is reliable and responsible and who has displayed a pattern of good decision making. They must be a person who can act decisively under pressure.

If in my hypothetical, Jane is a person who is indecisive, unreliable or buckles easily under pressure then she is not a good candidate to be John’s Agent. It is undeniable that she loves her husband but she may not make the best decisions in a life or death situation. Remember, it is always about the Principal’s best interests and wishes, not about the Agent’s feelings or self-interest.

Here are some important points I wish to highlight about the Health Care Proxy.

·      An Agent must be at least eighteen years of age. I would not recommend a younger person as an agent unless they have demonstrated maturity that defies their chronological age.

·      The Principal should inform the person they want to name as Agent of their decision prior to executing the actual document. The Agent can either accept or decline to act in that capacity.

·      A listed Alternate (“back up”) Agent is ALWAYS a good idea. And the same criteria I cited above for the Agent would be applicable here. Someone must be available to step in for the Agent if they become unable to serve in that capacity.

·      The Health Proxy should be for an indefinite period of time. I have rarely encountered a person who wants it to expire under a certain set of circumstances or on a specific date. How can any person know the future?

·      A Principal should always discuss their wishes with the Agent during capacity. The Health Care Proxy allows an Agent to follow a Principal’s wishes as he or she “knows them to be”—i.e. they do not need to be memorialized in the document.

·      However, the Principal is well within their right to elaborate on, limit or expand those powers within the document. The instructions can be brief or pages long. It is a highly personal document and the decisions that follow are personal as well.

·      A Health Care Proxy also addresses routine medical care, like doctors’ visits, medications, course of treatment, hospitalizations, surgical procedures and overall health. It covers all medical decisions, including “end of life.”

·       “End of life” treatment can also be explicitly addressed in the document.

  •  “End of life” includes, but is not limited to, mechanical respiration and ventilation as well as artificial nutrition and hydration, cardiopulmonary resuscitation (CPR), surgical procedures, blood transfusions, and even antibiotics.
  •   You can specify medical conditions by category and state what treatments you want or want withheld (examples of conditions are coma or an unconscious state with no chance of reversal, a terminal illness, or brain damage- like John in my hypothetical).
  • The Principal can either request that all life sustaining measures be taken or that they be withheld if a meaningful recovery is medically impossible and/or if the Principal’s diagnosis would not allow them to live a full or independent life. What a quality life means to the Principal differs for every person.
  •  The Principal must sign the document.
  • The Principal’s signature must be attested to by two witnesses who then also sign the document, but notarization is not required.
  • The witnesses have no right to read the Health Care Proxy. They are there to attest to the Principal’s state of mind as well as the voluntary nature of the document execution.
  • The Agent is never to be a witness.
  • The Health Care Proxy should be kept in a place accessible to family and emergency medical personnel; it’s location should be known to anyone who is important to you-especially your Agent. Copies should be made available to family and your physicians.

It is not a secret document.

Every person, once they reach eighteen years of age, should have a fully executed Health Care Proxy among their most personal and important documents. Your life is the most precious gift. When you are no longer able to speak for yourself, others should treat your life in accordance with your beliefs- with respect.

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This article is part of a LinkedIn Series Pilot I was invited to participate in.

If you liked this article, please “like,” comment and share with others. I would love your feedback!

If you are a subscriber to the Series, thank you.

If you aren’t a subscriber, please consider doing so to follow my Series along to to its conclusion.

If you’d like to learn more about me and my law practice you can go here or, si hablas español, here.

Why I am Doing This

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A number of months ago, LinkedIn invited me to their Series “pilot,” and I began to publish my Series, “Elder and Special Needs Law in a ‘New York Minute'”

I am reproducing the Series here every week.

Super thankful to have been invited to this Series pilot. I must write that as a first sentence.

Now, I will tell you why I titled it “Elder and Special Needs Law in a New York Minute.”

I was born, raised, live and practice law in New York City. It is a fast-paced city, where people oftentimes need an answer—succinctly and quickly.

Elder and Special Needs Law is not a sexy topic, I can admit that.  However, I will strenuously argue that it is important, even vital, to every single person including…you.  If you have not been touched by these areas of law (yet), you will be and already know a person or persons who have confronted legal issues associated with aging, a special needs child or both.

Unfortunately, and all too often, people’s decision to plan is reactive, as opposed to proactive. What I mean by this is, 1) they never thought about, 2) did not want to think about, 3) did not think it was their time to think about it yet (i.e. too young), or 4) thought it was too costly to do…until they could no longer avoid it.  Fear is one contributing factor to this “procrastination,” but cultural taboos around aging, illness, money and death are others.

When they finally decide to plan, some are surprised, disappointed or frustrated to realize that waiting left them with less than desirable options. In these areas of law, time is not necessarily your friend.

The purpose of the series will be to break down these two areas of law into its components, starting with the basics of estate planning and branching out into Elder Law and then Special Needs. When people ask me what Elder Law is, I always reply that it is a “sibling” to Trusts and Estates. Like real siblings, they share important characteristics but are clearly distinct from one another. I characterize Special Needs Law as the youngest, the “baby.”

I am here to teach. I am here to impart understanding. I am here to demystify these areas of law. I do not want people to be afraid.  I promise not to overload you with information. On the contrary, I hope to assist you in creating a foundation, a foundation that is important now, no matter your age, and well into your future.  

If you’d like to learn more about me and my law practice you can go here or, si hablas español, here.

The Tragic Case of Peter Knoll: What Legal Steps Could Have Prevented His Death?

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This morning, I was reading the newspaper– on my smartphone– when a headline grabbed my attention: “Battle Erupts Over Estate of Wealthy Recluse Who Froze to Death Inside his Upper East Side Mansion (you can read the article here http://www.nydailynews.com/new-york/ny-metro-battle-estate-upper-east-side-man-20180722-story.html).

Reading this article led me to another one published on April 23, 2018, a number of months after his death that winter (read here: http://www.nydailynews.com/new-york/manhattan/hypothermia-kills-75-year-old-man-upper-east-side-townhouse-article-1.3949019).

Peter Knoll, a 75 year old Manhattanite and son of a furniture magnate,  froze to death in his apartment.  Con Edison had shut off his utilities in 2014. However and very unfortunately,  they failed to notify the proper adult protective and other city authorities so Mr. Knoll suffered in silence until his death. His close circle of family and friends evidently knew he had no heat in his home, but…nothing was ever said by anyone (as far as we know).

Publicly, there is not a lot known about his life in those last years. There is a brief mention of physical ailments, but the public record is largely silent on whether or not he suffered from any condition that cognitively or psychologically impaired him. My suspicion is that Mr. Knoll was not in his right frame of mind.  And I have some thoughts on that, but before I get to that…

In my professional experience, older people who live alone are often isolated-particularly if they live in a private residence–unless they have involved family or friends to supervise or otherwise “check in” on them.  This is why many older people and their loved ones, opt to have them reside in 1) senior living communities or 2) an assisted living residence. A third option, if finances permit, is to hire professional live in help. If problems arise, they will become known sooner.

It is shocking and tragic that a man of Mr. Knoll’s immense financial  resources would have been left to suffer alone. He had enough assets to not only live comfortably the rest of his days but to have others attend to his every need- without him ever having to leave his home, or ever becoming impoverished as a result.

The solution to this inevitable tragedy? Properly executed “Advance Directives,” individually known as a Health Proxy (for medical decisions) and a Power of Attorney (for everything non-medical). These documents are in effect during a period of incapacity. If these documents were never executed,  then the option would be an Article 81 Proceeding a.k.a. Adult Guardianship

I have been involved in Article 81 proceedings for a number of years and have worn every hat imaginable: 1. Petitioner’s Counsel, 2) Court Evaluator (the Judges’ “eyes and ears,”), 3) Counsel for the Alleged Incapacitated Person (AIP) and 4) Permanent Guardian.  Briefly, this proceeding is filed in Supreme Court (a trial court)  to request from the “Court” (the Judge) that a Guardian be appointed to care for the personal needs and property management of an “Alleged Incapacitated Person.” Yes, there is a hearing. Sometimes they are uncontested, other times they are quite contested. The AIP can consent, but sometimes they do not and then there are those who cannot.

In the end, the Judge determines if the person is incapacitated and how this incapacity could further harm them without the appointment of a Guardian.

Based on the brewing estate “battle” and the allegations by one of Mr. Knoll’s adult sons that others took advantage of his father’s “frail physical and mental state,” it seems it was known, at least by some, that Mr. Knoll was not well.

So why did nothing happen? I have absolutely no idea.  And if I were to put forth theories, this blog post would become even longer and I would become even more incensed.

My biggest takeaways from his story:

  1. Even all the money in the world cannot protect you, when people choose to remain silent.
  2. Watch over older people you know, in your family and community.  It really is our responsibility.
  3.  In Spanish there is a saying, “Hoy por ti, mañana por mi” which means “Today for you, tomorrow for me.” Treat others how you would want to be treated. Getting to old age is a privilege and it should happen with dignity.