In light of the coronavirus, it is important to know about the different legal planning documents and how they can be used to document wishes and empower loved ones to help should something happen.
“Mom is in the hospital and I need to take care of financial and other matters for her.”
“How do I make sure that my health care wishes are known?”
“How do I ensure my family is taken care of if something happens to me?”
Many of these questions are being asked as the coronavirus crisis confronts our communities, raising uncertainty, isolation and the risk of illness. This is especially true for seniors or for those with an underlying health condition.
Social distancing measures can make it harder to complete these documents because of witness or notarization requirements, which is why we are also sharing possible alternatives. Below are answers to frequently asked questions and are specific to New York residents.
How can I document my medical wishes and name someone I trust to make health care decisions for me if I cannot in the future?
During this health crisis, we are all concerned with ensuring that we will receive the medical care we need and want. What happens if you are no longer able to make your own health care decisions? New York State allows you to complete a Health Care Proxy to name an individual (as well as a backup), who you trust to advocate and make decisions regarding medical care on your behalf. Until Oct 4, 2020, remote witnessing is available to those who are unable to meet with witnesses face to face.
If you are admitted to a hospital or nursing home, staff will be able to assist you with the completion of a Health Care Proxy. Also, if you are admitted to a hospital or a nursing home and are unable or unwilling to sign a Health Care Proxy, the Family Health Care Decisions Act (FHCDA) allows others to make medical decisions on your behalf if you become unable to do so.
If you are in the community, there are several other options available to you. An explanation about these options and forms (including the Health Care Proxy form) is available here.
How can I allow a trusted person to assist me with financial or legal issues if I am quarantined, hospitalized, or incapacitated?
A Power of Attorney is a legal document that allows a person, called “Principal”, to share the powers that they have over their finances and property with another person or person(s), who are called “Agents”. A POA Agent is obligated to follow the directions of the Principal, or to act in their best interests. If an Agent breaks this duty to a Principal, it can result in investigations and negative legal repercussions. A guide for POA Agents is available here.
In order to ensure proper drafting of a POA and prevent the potential for abuse, we strongly urge that a POA be drafted with an experienced attorney. However, in this time of crisis where access to attorneys may be limited and social isolation is encouraged, it is possible, in case of an emergency, to create a POA. This POA, if crafted without an experienced attorney, should be redone once we overcome COVID-19. Governor Cuomo signed an Executive Order allowing for notarization via live audio-video transmission until Oct 4, 2020, so if the Principal and/or Agent (each must notarize separately) are unable to access a notary, remote notarization may be a possibility. More information on POAs is available here, and POA forms can be found here. A fill-in POA document with step-by-step information can be found here.
After this crisis is over, we recommend meeting with an experienced attorney to review and redraft a POA.
What is a Last Will and what happens if I or someone I love passes away without having signed one?
A Last Will is a legal document that states who will get your belongings after your death, and should be done with an attorney. If a person in New York dies without a valid Last Will, their property will pass through what is called “intestacy.” Additional information on intestacy can be found here. Under normal circumstances, we strongly discourage creating and signing Last Wills without the supervision of an experienced attorney due to the risk of creating a document that will not be enforceable. If an emergency arises during the current health crisis, there is a fill-in, free Will drafting program available here. After the constraints of this crisis are over, we recommend meeting with an experienced attorney to draft and execute a Last Will.
How do I make sure my loved ones know about my funeral wishes and pre-arrangements?
In New York, certain persons are allowed to make decisions concerning your funeral/burial/cremation. If you want to document any pre-arrangements and select someone to be able to handle your funeral, burial or cremation, or if your family members are far away, you should sign an Appointment of Agent to Control Disposition of Remains, which can be found here.
It can feel scary or overwhelming to plan for the possibility that you may not be able to make your own decisions. Planning for these scenarios does not make them more likely to happen, it’s an added protection to ensure you and your loved ones are taken care of in the way you want.