Elder Law

Question: My mother is widowed and is beginning to decline in health.  I have two siblings.  We know that in order to qualify for Medicaid, Mom cannot have more than a certain amount of assets in her name.  She rents a house, but has approximately $150,000.00 in various CD accounts.  A friend of hers told her that she can give up to $14,000.00 to each of us annually without penalty and still qualify for Medicaid if she needs it in the future, is she correct?

Answer: NO!  We often see clients who believed this to be true, and thinking that they were doing the prudent thing did exactly this sort of gifting, resulting in long periods of ineligibility when the time came to apply for Medicaid. To begin with, what your friend is likely referring to is the $14,000.00 gift exemption under the Internal Revenue Code.  Under the Code, all gifts made in any given year are subject to a gift tax.  However, the first $14,000.00 gifted to each individual in any given year is exempted from the gift tax, and for that reason, for many individuals, gifting during lifetime is a way to distribute wealth and reduce their taxable estate at death.

Oftentimes, seniors and their children believe that this same exemption holds true for Medicaid eligibility, and that gifting this amount of money away annually will not affect them should they need to apply for Medicaid benefits in the future. Medicaid requires that all Medicaid applicants account for all gifts and transfers made in the five years prior to applying for Institutional Medicaid.  These gifts are totaled, and for each approximately $12,000.00 that was gifted, one month of Medicaid ineligibility is imposed.  It is also important to note that the ineligibility begins to run on the day that the applicant enters the nursing home rather than on the day that the gift was made. 

For example, if your mother had taken the advice of her friend, and gifted each of you $14,000.00 per year for three years, she would have given virtually all of her money away.  If at the end of those three years she then needed Medicaid, those gifts would be considered transfers “not for value” and would have made her ineligible for Medicaid benefits for approximately eleven months.  What makes this even more difficult for some families is that an inability to give the money back or help mom pay for her care is not taken into consideration, causing many families great hardship.  It is important for families who have done this sort of gifting to know that there are still options available to them.  An Elder Law attorney who concentrates their practice in Medicaid and Estate planning can help to you to optimize your chances of qualifying for Medicaid while still preserving the greatest amount of assets.     

By: Nancy Burner, Esq. and Robin Burner Daleo Esq.

Most of my clients come in to my office knowing that a trust can afford some kind of asset protection. In the context of elder law, what the client is usually looking for is asset protection from Medicaid should he or she need long term care in a nursing home after the five year look-back. What many clients do not realize is that trust planning can also provide “spendthrift” protection from the creditors of their beneficiaries.

            The term “spendthrift” refers to a trust that prohibits the beneficiary from assigning present or future income and/or principal in the trust to his or her creditors. The idea behind permitting grantors of trusts the right to protect their beneficiaries against creditors is often associated with the proverb “Cujus est dare, ejus est disponere”; that is, “whose it is to give, his it is to dispose.” For many, the idea that their property will be held for the benefit of and pass only to their selected beneficiaries rather than to creditors or divorcing spouses is one of great comfort.

            Under the New York Estates, Powers, Trust Law Section 7-3.1, an individual may not create a spendthrift trust for his or her own benefit. Thus, all spendthrift trusts must be made by a third party. If drafted correctly, these trusts provide creditor protection by prohibiting the trustee of said trust from making distributions from principal in satisfaction of the beneficiary’s debts. If a beneficiary has a right to income from the trust, only 10% of said income would be available to creditors, unless a court determines otherwise.

            There are many different types of trusts that can include a spendthrift provision.  For instance, a credit shelter trust (or commonly known as a bypass trust) is used in estate planning documents for married couples to protect the New York State Estate Tax exemption which is currently $1 million. When the first spouse dies, the credit shelter trust is funded with up to $1 million and held for the benefit of the surviving spouse and other named beneficiaries as well. Of course, if the surviving spouse needs to access those funds, they can unravel it, but if the $1 million is kept in the credit-shelter trust and left to grow, all the funds in said trust will pass tax free to the testator’s other beneficiaries. While these trusts are important for tax saving strategies, they also can be spendthrift trust which protect the beneficiaries (typically the surviving spouse and children) from their creditors or potential creditors.  As a result, creditors, including divorcing spouses, cannot make a claim against the assets in the trust.

            A second type of spendthrift trust is known as a descendant’s trust. This trust can be created during the grantor’s lifetime or in a will document. The grantor can decide whether they wish for their child to be the sole trustee of their descendant’s trust, or appoint a different trustee, or even a co-trustee with the child.  A descendant’s trust holds property for your children in trust and provides for creditor protection, including protection against divorcing spouses. In New York, inheritance is considered separate property and therefore not subject to equitable distribution in a divorce proceeding. However, if the inheritance is co-mingled with marital funds, namely placing the assets in joint names, that property could be subject to equitable distribution in a divorce action. In addition, a surviving spouse of a child has the right to elect against their spouse’s estate. So if a child received an inheritance outright, and then passed away, their spouse would be entitled to “elect” against those funds. By placing an inheritance in a descendant’s trust, you could ensure that when your child passes away, the trust would continue for the benefit of your grandchildren rather than the surviving spouse.

            While there is a presumption in New York that a trust is spendthrift unless the grantor states otherwise, the trust must still be drafted properly in order to provide for the most effective asset protection and tax savings strategy.

-By Nancy Burner, Esq.

A woman walked into my office a few years ago. Her longtime companion of 30 years had just passed away suddenly. Her grief was readily apparent. He had been her “rock”, her protection against the world and, not least of all, her sole support.  She cared for the house and he provided the financial support. She asked me to handle his estate and we began the task of listing the assets in the decedent’s name.  They had some joint bank accounts and she was entitled to all of the proceeds of those accounts as the surviving owner. She had title to the condominium in Florida where they spent a few weeks per year, but he held sole title to their New York residence. It was a beautiful house, their dream house, built on the north shore of Long Island, overlooking the Long Island Sound. They worked tirelessly on the house and gardens and planned to spend their retirement there.  They were going to change the deed to include her, but they “never got around to it.” She told me that he had a Last Will and Testament that left the house to her. When she showed me the “Will”, which was handwritten, the concern on my face was obvious. He wrote a simple will naming her as his sole beneficiary. He had 2 witnesses sign and date the document on different dates. No attorney was present. This grieving client was in jeopardy of losing her home.

                For a Will to be valid certain formalities must be followed. First, the testator must sign the Will at the end.  There must be two attesting witnesses.  The witnesses must sign the Will attesting to the Testator’s signature which is either signed in their presence or acknowledged by the testator to be his signature.  Another formality involved in the signing of a Will is that the person signing the Will must declare to the witnesses that the document is his Last Will and Testament.  The witnesses, at the very least, must be aware that the document they are witnessing is a Will. This issue will await discovery and protracted litigation.

                There is a presumption in the law that if a Will is prepared and signed with an attorney, that all of the required formalities have been followed and the Will is valid.  In this case, if the Will had been drafted by an attorney and signed in the attorney’s presence, it would have had the benefit of the presumption.  Anyone challenging the Will would have the burden of proving otherwise.  The lesson is this:  a simple Will may not be so simple. 

                By: Nancy Burner, Esq. and Kera Reed, Esq.

May is National Elder Law Month, for that reason we have decided to switch from our normal format and answer a question that we are oftentimes asked in our practice, “What is an Elder Law Attorney and why do I need one?”

Answer: Elder Law is a fairly new and unknown area of the law.  As baby boomers and their parents’ age, they are living longer and oftentimes, living with chronic medical conditions.  As the cost of long term care continues to spiral out of control and families struggle to meet the needs of their aging members, an experienced Elder Law attorney can help you and your family members establish an estate plan that maximizes protection of assets while ensuring that your loved one has the best care available to them should they face a health crisis.  While it is always best to plan proactively, Elder Law attorneys are adept at crisis planning and oftentimes can provide a solution which can  preserve assets or save taxes where others you have consulted have told you that no solution existed.

Elder Law attorneys must be familiar with multiple areas of the law - contract law, estate planning, trusts and estate administration, Medicare, Medicaid, health care insurance regulations, Public Health Law, Mental Hygiene Law, the Internal Revenue Code & State and local tax issues.  In each instance the issues that we deal with are fact sensitive and the clients must be willing to give us the information that we need to formulate the Elder Law plan.  This in itself is oftentimes a struggle as the clientele that we deal with tends to value privacy and are oftentimes reluctant to divulge information regarding their assets and private family issues.  

The various disciplines that make up the Elder Law practice are in a constant state of flux.  As a result, it requires the Elder Law attorney to spend a great deal of time reading current journals and cases and continuously taking legal education courses.  In addition, many Elder Law attorneys meet in informal study groups to read, understand and strategize. 

As the facts change, there will likely be different solutions for each client.  What works for one client may be totally inappropriate for another.  For instance, in one day, we may see two different clients, both clients are 86 years old, own their own homes, and need long-term care.  Client A has a daughter, age 55 and Client B has a niece age 55.  Client A, on the eve of going into a nursing facility, is advised to transfer her home to her caretaker daughter, who lives with her and has lived with her for more than 2 years.  The transfer does not make Client A ineligible for Medicaid.  Client B cannot follow the same plan because her niece is not her child.  There are no exceptions for transfers to caregiver nieces.  Because we do not have an exempt transfer available to us for Client B I advise Client B to sell the home and advise her that even though no pre-planning has been done, we will likely be able to save more than sixty percent of her aunt’s assets by engaging in crisis planning.  Remember - one size fits all – is not the rule.  Your Elder Law plan is personal, fact sensitive and requires a careful review of all of the facts and circumstances. 

By: Nancy Burner, Esq.  and Robin Burner Daleo, Esq.

Q: My mother recently passed away. Her will named my father who died 5 years ago as executor and my sister who died last year as successor executor.  My brother and I are her only surviving children and the beneficiaries of her Will.  Is her will invalid because all of her named executors are dead?

A: No, your mother’s will is not invalid and it can still be submitted to the Surrogate’s Court for probate. Instead of a named executor being appointed, the Surrogate’s Court will appoint an Administrator c.t.a. An Administrator c.t.a. has the same authority to act on behalf of the estate as an executor.

  Administrator c.t.a. is the abbreviation of Administrator cum testaments annex, which means 'administrator to the will annexed'.  An Administrator c.t.a.  is appointed by the Surrogate’s Court  when the decedent had made a Will without naming any executors, the named executors predeceased the decedent, or where the nominated executors refuse to act.

In this situation, the Surrogate’s Court will issue Letters of Administration c.t.a. in the following order of priority:

1. To the sole beneficiary of the Will;
2. To one or more of the residuary beneficiaries of the Will;
3. If there are no residuary beneficiaries of the estate eligible to receive Letters of Administration c.t.a., the Surrogate’s Court may issue letters to the other beneficiaries of the Will. This includes beneficiaries that either receive a bequest of specific property or money under the Will;

If any person otherwise entitled to letters as stated above is a minor or has been declared incapacitated by the Court, the guardian of the property of that person is eligible to serve. Letters of Administration c.t.a. may also be granted to a non-beneficiary upon the consent of all of the beneficiaries. This person would be known as a designee.

Since you and your brother are named in your mother’s Will as residuary beneficiaries, either one of you may serve as the Administrator c.t.a or you may decide that you want to serve together.  As the Administrator c.t.a. you will have the responsibility of collecting your mother’s assets, paying any valid debts, timely filing and paying any estate or income taxes due and distributing the estate assets to the beneficiaries of the estate.

                By: Nancy Burner, Esq. & Kera Reed, Esq.

Now more than ever, computers, smartphones and the internet play a major part in our lives. Statistics show that more than half of American adults ages 65 and older are online and that the majority of internet users have paid to access or download some kind of digital content in their lives, with music and software being the most common kind of purchase. These purchases along with data stored in our computers, smartphones, social media accounts, e-mail accounts and domain names are what are generally known as “digital assets.” A proposed Oregon statute regarding these kinds of assets defines digital assets more comprehensively as:

“Text, images, multimedia information, or personal property stored in digital format, whether stored on a server, computer, or other electronic device which currently exists or may exist as technology develops, and regardless of the ownership of the physical device upon which the digital asset is stored. Digital assets including, without limitation, any words, characters, codes, or contractual rights necessary to access the digital assets.”

            While many of these assets are sentimental in nature, some “digital assets” have monetary worth. For example, software and domain names can be extremely valuable. According to Wikipedia, the highest selling domain name was “insure.com” which sold in 2009 for $16 million! A more common example would be the music on your iTunes account or the “reward points” from loyalty programs, usually accessible online.

            The question for estate planning practioners therefore becomes, how can one protect these “digital assets?” The answer, unsurprisingly, is, it depends.

            Protection of digital assets should be divided into two categories: the safeguarding of access to digital access while you are alive and planning for distribution of any digital asset upon your death.

            The first category is essentially a lesson in the importance of protecting against identity theft and allowing access for trusted loved ones should you become incapacitated. Because this area of the law is so new, law-makers and practioners are still debating what the best way to protect and access these assets may be. The simplest way to allow for access to these assets is to write down all your usernames and passwords so your agent can access your assets and accounts should you be unable to do so. This would include accessing your websites, social media accounts, music and video media accounts, e-mail accounts or any online account you may have.

The obvious problem with this technique is determining where to keep such an important document. Some lawyers advise to keep this document attached to your Last Will and Testament, however this not a good idea because Wills become public record. Moreover, since many websites require us to change our passwords every few months, keeping this list updated may prove to be futile.

Finally, giving agents your access information may even violate federal laws such as the Stored Communications Act and Computer Fraud and Abuse Act. Therefore, some savvy lawyers have begun incorporating digital asset access language in to their Durable Power of Attorneys so that agents could have official authority to access online accounts, even without having the proper username and passwords. Whether or not institutions or internet companies will accept such authority remains to be seen. This is because so many accounts we use require us to electronically sign or agree to the “user agreement” which most of many do not even read. If the agreement provides that multiple users are impermissible, the power of attorney may be useless.

The second category regarding what happens to your digital assets when you pass away is equally as complicated as protecting them while you are alive. First of all, most people do not think of digital assets when they execute a Last Will and Testament, and so no specific provisions are written for it, such as what you would like to happen to your e-mail or Facebook account when you die. Granting your Executor the power to access and distribute your “digital assets” is a good place start however, the same problems with practicality arise with this as does granting this authority in a power of attorney.

Secondly, many websites have their own rules regarding what happens to your account whether or not you plan. In most cases you are bound to their rules because of that pesky “user agreement.” For example, when a Facebook user passes away, their family or friends may fill out a form for the decedent’s profile to be “memorialized".  This memorializing takes them out of the public search results, and seals their profiles from any future log-in attempts, while leaving “the wall” open for family and friends to pay their respects. But Google requires an authorized representative for a person’s estate to apply to get access to a Gmail account and such application does not guarantee that the representative will receive their requested access. 

Lastly, another problem with accessing or passing “digital assets” to your family and friends is that you may not actually own that asset. The “user agreement” rears its ugly head again with many agreements providing only a license to use the property and not actual ownership thereof. For example, if you think you can bequeath your iTunes account to your spouse, you may be mistaken since you likely only have the right to use the software during your lifetime, but this right expires at your death. Therefore, it is important to review these agreements to determine what you actually own and what you only can use.

-By Nancy Burner, Esq.

Question:  My mother is a resident of Florida and owns a condominium and several financial accounts in her sole name. She also owns a summer home in New York that is titled in her sole name.  If she were to pass away, what is the procedure to transfer her New York home after her death?

 Answer: Real estate is governed by the laws of the state where it is located. Therefore, if a person dies owning real estate in two different states, the Executor would have to probate the Last Will & Testament in the decedent’s home state and commence an “ancillary” probate proceeding in the State where the other real property is located.  In your mother’s case, her estate would first be probated in the Florida courts.  The ancillary proceeding would be commenced in the county in New York where her summer home is located.

The term “ancillary proceeding” refers to a probate or administration proceeding that is required in addition to the primary probate or administration proceeding that will take place in the decedent’s home state. Typically an ancillary proceeding is necessary because a decedent owns real estate located outside of their home state. An ancillary proceeding could also be necessary if the decedent owned personal property, such as a car, boat, or airplane that is registered and titled outside of their home state. The laws of the state where the real estate property is located will govern what will happen to the property that is located in its borders. 

An ancillary proceeding necessitates additional costs, including court filing fees and attorneys' fees.  Another drawback of an ancillary proceeding is when a person dies “intestate”, meaning that the person died without a Will. Since intestacy laws vary among the fifty states, it is possible that the heirs (or beneficiaries) could be different in each state proceeding. 

Your mother could avoid an ancillary estate proceeding by creating a revocable trust and titling her assets in the name of the trust.  Upon her death, the trust would govern the distribution of the real and personal property to her beneficiaries and her estate would not be subject to the expense and inconvenience of probate proceedings in two states. 

                                                            By: Nancy Burner, Esq. & Kera Reed, Esq.

Q:  What happens to my social media accounts (Google, Facebook and Twitter) when I pass away?

A:  Google may be able to provide the contents of the Gmail account to an authorized representative of a deceased person’s estate. The process involves two steps, the first is an application and the submission of Court documents by the appointed estate representative. The second step is the review process by Google, where after the submission of the proper paperwork and months of waiting, Google will determine if they will allow the estate representative access to the Gmail account. Having been appointed as a representative of the estate does not guarantee that you will receive access to the Gmail account.

             When a Facebook user passes away, Facebook allows their profile to be “memorialized".  This memorializing takes them out of the public search results, and seals their profiles from any future log-in attempts.  This leaves the wall open for family and friends to pay their respects. Memorializing the account restricts profile access to confirmed friends only.      

            Facebook’s policy surrounding deceased user accounts require family or friends to fill out a Memorialization request form. This form requires documentation to be provided to Facebook to confirm a user's death, before the profile is officially memorialized. Once that is completed, the user will no longer show up in Facebook's suggestions. Information like status updates will not show up in Facebook's news feed, which is the stream of real-time user updates that is Facebook’s most popular feature. If relatives prefer not to have the profile stand as an online memorial, Facebook will remove the account altogether.

            Twitter’s policy allows a person authorized to act on the behalf of the estate or a verified immediate family member of the decedent to have an account deactivated. Twitter requires proof of death along with a signed statement by the estate representative or family member to deactivate the account.

             If you are active online and have social media accounts it is important review the privacy policies and the terms and conditions of each website where you have a presence. You may also want to consider updating your will and power of attorney to include instructions regarding the access to and management of your social media and online accounts in the event of your death or incapacity.

            By: Nancy Burner, Esq. & Kera Reed, Esq.

            In addition to traditional healthcare advance directives, such as a Healthcare Proxy and Living Will, the MOLST form is another directive one can execute to ensure their end-of-life wishes are followed.

 MOLST stands for “Medical Orders for Life-Sustaining Treatment.” It was originally piloted in Onondaga and Monroe Counties in May 2006.  In July 2008, after a successful pilot program, the MOLST program was implemented on a permanent, statewide basis.   The Department of Health updated the form in June of 2010 to make it more user-friendly and to make it in compliance with the Family Health Care Decisions Act in addition to other provisions of Chapter 9 of the Laws of 2010 that went into effect on June 1, 2010. Despite the fact that the MOLST form has been around for several years, many patients do not avail themselves to it. In fact, many physicians and social workers still do not know it exists.

 Unlike a Living Will which can be prepared well before the end of your life, the MOLST form is a medical document traditionally executed when the patient wants to avoid or receive any or all life-sustaining treatment, is in a long term care facility or requires long-term care services and/or may die within the next year.  It is intended to assist health care professionals in discussing and developing treatment plans that reflect the patient’s wishes.   The program is based on the idea that communication between you as a patient (or your legal surrogate) and your health care providers will result in informed medical decision-making.  A licensed physician must verify that the treatment plan accurately represents the patient’s wishes in light of their prognosis and sign the form. Once executed, all health care professionals must follow the orders designated by the patient from one location to another, unless a physician examines the patient, reviews the orders and changes them.

 The MOLST form itself, is four pages long and bright pink to ensure that it can be found easily in an emergency.   It documents medical orders regarding life-sustaining treatments such as Cardiopulmonary Resuscitation (CPR), intubation, mechanical ventilation, artificial hydration and nutrition.   The form can be used to limit medical interventions like cardiopulmonary resuscitation (CPR) or to clarify a request for specific treatments.   Through this document, you can include directions about other types of medical procedures that you may or may not want to receive.

 The end product of this dialogue between the patient and their medical providers is a completed MOLST form that will aid physicians, nurses, health care facilities and emergency personnel in fulfilling patient wishes regarding life-sustaining treatments. While there are several ways patients can document their life-sustaining treatment preferences, The MOLST form is the only authorized form in New York State for documenting both nonhospital DNR (Do Not Resuscitate) and DNI (Do Not Intubate) orders. Moreover, because the form is intended to follow the patient, it is used and recognized in a variety of health care settings. For example, if a patient was transferred from a hospital to a nursing home the form would follow them, thus ensuring that their medical wishes are conveyed and respected consistently across care settings.

The MOLST form is intended to complement Health Care Proxy and your Living Will; not replace them.  A Health Care Proxy is a document by which you designate an agent to make decisions for you in the event you become unable to make them for yourself.  A Living Will is a document through which you communicate your end-of-life wishes should an irreversible, terminal condition make it impossible for you to do so.  Both are executed ahead of time and become effective when you lose decision-making capacity.   The MOLST form is effective as soon as you execute it and it does not hinge on your incapacity.   It does however, take the place of both in-patient and non-hospital DNR orders.   It should be noted that the MOLST form can be executed by a designated Health Care Proxy or other surrogate with legal decision-making authority.   

 An executed MOLST form should be reviewed and updated periodically and if your level of care changes, you experience a substantial change in health status or if your treatment preferences change.

 The MOLST form is an excellent addition to the many advance directives available to people in New York State. It should be noted however, that the form is primarily a tool for those who are very ill and are likely near the end of their lives.

-By Nancy Burner, Esq.

Q: When is an estate subject to the New York State estate tax?

 A:         For New York State residents, an estate is subject to the New York estate tax if the total “gross taxable estate”, plus the decedent’s adjusted taxable gifts made during their lifetime, exceeds $1,000,000.  Your “gross taxable estate” consists of the assets which you have an interest in at death, even if the asset does not pass by virtue of your last will & testament. The adjusted taxable gifts consist of gifts made above the federal gift tax exemption (currently $14,000). New York does not have a gift tax and no tax is imposed on gifts made during your lifetime. This means is that you can give away money during your lifetime without incurring New York estate tax at your death. 

             For a decedent that is a not a resident of New York, an estate is subject to the New York estate tax if it includes real estate or tangible personal property located within the state of New York and the “gross taxable estate” combined with the adjusted taxable gifts, exceeds $1,000,000. A nonresident pays New York estate tax on a pro rata basis based on the percentage of the decedent’s property located in New York.

If the “gross taxable estate” exceeds $1,000,000 the estate may not actually owe any tax, because allowed deductions may reduce the value of the taxable estate below the $1,000,000 threshold. Regardless of whether or not the estate ends up owing any tax, a tax return must be filed if the gross estate plus the decedent’s lifetime gifts exceed $1,000,000.

             If the estate is subject to New York estate tax, the return must be filed and the tax must be paid within nine months of the date of death.  The estate is granted a six month extension to file, however, an estimated tax payment must be made within nine months. If the return is not timely filed and the tax is not paid with in the nine months, the estate is subject to interest and penalties for the late filing and/or payment.  

             New York estate tax rates range from 5.6% for estates just over $1,000,000 to 16% for estates over $10,000,000. For an estate valued at $2,000,000 the New York estate tax is approximately $100,000.00.

             It is also important to note that for 2013 estates valued at less $5,250,000 are only subject to New York estate tax, while estate valued at over $5,250,000 are subject to both New York estate tax and Federal estate tax, with the Federal estate tax rate set at 40%.

             If you believe that your estate may be subject to estate tax, there are several estate planning strategies available that you can implement now to either reduce or eliminate your estate’s tax liability at your death.

            By: Nancy Burner, Esq. & Kera Reed, Esq.

Medical Advanced Directives

Question:  I am 56-years-old and suffering from lung cancer.  As a result my family members have been pressuring me to execute “advance directives” to assist them as my health deteriorates.   What are my options with regard to medical advance directives?  How do these documents work?

Answer:   “Advance directives” are document that you can execute that will ensure that your personal care wishes will be known and honored, including your desire to continue or end life-sustaining treatment,  when you are no longer in a position to speak for yourself.   These documents are appropriate for everyone over 18, not just the ill or elderly.  Having them in place is the best way to ensure that your wishes are carried out should you lose the capacity to make your own decisions.   Health related advance directives include the Health Care Proxy, a Living Will, Do Not Resuscitate Order (DNR) and more recently the Medical Orders for Life-Sustaining Treatment (MOLST) form.   

A Health Care Proxy allows you to designate a primary agent (and any number of successor agents) to make Medical decisions on your behalf in the event you become unable to make decisions for yourself.   Your agent’s decision-making ability hinges on your incapacity.  Meaning, medical professionals will only turn to your Proxy if you are unable to make your own decisions.  By executing a Living Will, you can communicate your wishes with regard to your end-of-life care.   A Living Will typically include your desires with respect to life-sustaining treatments like artificial hydration and nutrition or mechanical respiration. Do Not Resuscitate Orders (DNRs) are specific to cardiopulmonary resuscitation (CPR).  These are typically executed upon entry to a hospital.

Another, advance directive is called the MOLST form. The form itself is four pages long and bright pink (so that it can be found easily in an emergency).   It documents medical orders treatments such as CPR, intubation, and mechanical ventilation.   You can include directions about other types of medical procedures that you may or may not want to receive. The MOLST form must be signed by a physician who is licensed in New York State.   The idea behind the program is that the MOLST form accompanies you from one health care setting to another.   For example, if you were transferred from a hospital to a nursing home the form would follow you, thus ensuring that your medical wishes would be conveyed and respected consistently across care settings. 

So long as you are competent, you have the right to accept or refuse medical treatment.  Your decisions with respect to your health care are going to rest upon your personal values and beliefs.  While, it may be difficult for you to think about, you would be providing your loved ones with the tools they will need when difficult decisions about your health care and medical treatment need to be made.

By: Nancy Burner, Esq. and Robin Burner Daleo, Esq.