National Healthcare Decisions Day is April 16th. We all know we should have advance directives in place that tell medical professionals who our agent is when we cannot communicate and direct the agent as to our wishes. Do you have your health care proxy signed?
The health care proxy is the "magic" legal document in New York as established by New York Public Health Law section 2981. Known as a healthcare power of attorney in other states, we simply call ours the "health care proxy." Statistics vary, but the average seems to be that less than 1/3 of our state population has a valid health care proxy in place. The New York State Department of Health has a very helpful online explanation, questions and answers and the official form for the health care proxy. Of course your attorney would be happy to assist you in preparing the health care proxy as part of your estate planning; I typically prepare a will, health care proxy and power of attorney as a package. The health care proxy form was designed to be valid without the need for attorney supervision or a notary public seal so you can iterally set it up at your kitchen table. To be valid the form simply needs to include your name and address, your agent's name and address, and have your signature in front of two witnesses, neither of whom can be the agent listed.
We also now have the Family Health Care Decisions Act in New York, that will allow family members to make decisions in the absence of a health care proxy. Do not rely on this measure, though, not when you can control who speaks for you and direct the choices they make on your behalf.
Get your health care proxy in place today – and then give it to your medical providers for your chart!
A well-recognized fellow National Academy of Elder Law Attorneys ("NAELA") member will be on the John Stossel show on Fox tonight (check you local listings). (Yes, this competes in some areas with the Cornell basketball game – go Big Red.) If you cannot watch the interview, though, read here how K. Gabriel Heiser counters John Stossel's hostile remarks that Medicaid asset protection planning amounts to efforts to cheat the government.
Here is a link to a summary of the key provisions in the health care bill passed last night as published by Kaiser Health News. Consumers Guide To Health Reform – Kaiser Health News. Whether the Congressional Budget Office's number are valid remains to
be seen. So, too, the true fallout from the mandates, fines and
government control measures. What has not changed with all the rhetoric, polemics and hysteria generated by this topic is the need for everyone over the age of 18 to take their own medical and financial affairs in hand and plan today. The government is inserting itself into our lives more and more every day. Do you really want to leave your long term care planning to chance? Remember, no plan is a plan for failure.
At long last, family members of individuals without advance directives will be able to make health care decisions on their behalf, including the withdrawal or withholding of life-sustaining treatment. See Governor Paterson's press release, link below.
The article below says it "may" be helpful to contact an elder law attorney. I would argue that the elder law attorney should be contacted as soon as there is a diagnosis of dementia or any condition that may lead to long term disability and the inability to take care of yourself or a loved one. Too often families listen to non-legal professionals or attorneys who do not focus on elder law and spend tens of thousands of dollars before they finally contact a skilled elder law attorney. The myth continues that sound legal advice is too expensive. Please tell that to the daughter who cried last year after ravaging her father's IRA to pay for the nursing home care he was receiving; her financial advisor told her there was nothing else to do. Had she paid for a two-hour consultation and hired me a year earlier her father would have qualified for Medicaid months sooner and had over $80,000 more left in his IRA to pay for non-covered things to make his daily life better. Luckily his children pay for the "extras," things like regular haircuts, cable television and special food that are not covered under the nursing home daily rate or the $50 he is allowed to retain as a Medicaid recipient. Oh, and to add insult to injury, he now needs to pay federal income taxes because his income was too high last year due to the IRA distributions. Too expensive? Listening to their financial advisor was the costliest decision this hard-working family ever did. Elder law attorneys are here for a reason. We do not offer investment advice. Investment advisors should not offer Medicaid planning advice. The good advisors work with elder law attorneys as a team. If your advisor does not recommend that you see an elder law attorney, question why.
If you or a loved one are facing impending changes that could halt your independence, please contact me. You will walk out with information and referrals to local professionals who can help.
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