Robert M. Freedman, Esq.
I am often asked, “Besides a Will, are there any other legal documents that I need?” I tell all of my clients that there are four documents that everyone should have.
Health Care Proxy
You need a Health Care Proxy to appoint someone (called your agent) to make medical decisions on your behalf if you are unable to make decisions yourself. If you do not have a Health Care Proxy, you may end up like Terri Schiavo, with family members fighting over your care and courts deciding your treatment.
You should have a Living Will, providing your written instructions regarding end of life and other medical decisions. This document will guide your agent under your Health Care Proxy as to your wishes. It will also serve as evidence of your wishes if your agent is unavailable or if you have not executed a Health Care Proxy.
This release, under the Health Insurance Portability and Accountability Act, authorizes providers of medical care to release information to the people you designate as your agents. Without this release, your family, including spouses and children, will not be able to get access to your medical records nor have authority to talk to your doctors. Many providers including hospitals and doctors will give a patient a form to sign. However, you should also prepare a number of generic releases so that your agents can have access to your medical information and the ability to talk to your medical providers where you have not filled out the specific form.
These three forms are available on the Internet. None of them requires an attorney to prepare. All of them are essential to make sure that you get the care you want during your life.
Power of Attorney
If there is someone that you trust, you should execute a Power of Attorney appointing this person, called an Attorney in Fact, to handle your legal and financial affairs. There are numerous Power of Attorney forms. Some of them only authorize the Attorney in Fact to handle a particular transaction or particular account. Some of them, including the standard New York State Statutory Short Form Durable General Power of Attorney, authorize the Attorney in Fact to handle almost all legal and financial matters. Some of the forms even authorize the Attorney, in Fact, to gift your money to various individuals or institutions, including to themselves.
Because this form provides so much authority to the Attorney in Fact, you should have the form prepared by a lawyer and you should only execute it after understanding the form and consulting with an attorney. You should renew this form every three to five years because financial and legal institutions prefer to see more recent documents and also because the form is revised from time to time. This form can be very beneficial in allowing somebody to handle your financial affairs, including collecting your income and paying your bills if you become incapacitated. However, it also has the potential for abuse if the person you appoint decides to use your money for their own benefit without your authorization. It is a form that every client should have, but it is a form that requires consultation with an attorney.
If you have a concern regarding funeral and burial, you may also wish to execute the new New York State Disposition of Remains Form which designates an agent for the disposal of your remains. This allows you to pick the person who will be in charge of your funeral and burial and to provide instructions regarding your wishes. In the absence of this form, generally, your closest relative, spouse, child, parent, sibling, etc., would be the person who would be in charge of making arrangements for your remains. If you want to make sure that your wishes are carried out, you should pre-arrange with a funeral home as well as execute this form.
I hope this column will encourage you to execute these forms so that your wishes are carried out during the remainder of your life.