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Estate planning documents you should have

September 2020
It’s often not until we are facing an upcoming surgery or unexpected medical emergency that we realize we need to get our affairs in order. Most people do not want to talk about their own death, let alone plan for it. However, despite the perceived unpleasantness of this topic, there are several estate planning documents everyone needs to have regardless of age or stage of life.

The first document we should all have is a Health Care Proxy to make health care decisions for you in the event you cannot make them for yourself. Your Health Care Proxy should state your feelings about life support, organ donation and all medical treatments (including hydration and feeding tubes).

This will help to ensure your wishes will be carried out if you cannot make health care decisions for yourself. Without a Health Care Proxy, a court-appointed guardian may have to be appointed to manage health issues.

This is not only lengthy and expensive, but can cause a delay in making necessary medical decisions. The appointment of a Heath Care Proxy is the only way to ensure an individual’s wishes will be honored in regards to medical treatment and/or organ donation.
The next item everyone should have is a Living Will. This document allows you to conclusively express your directions concerning the continuation of life support and other life-sustaining treatment (including nutrition, hydration and feeding tubes) in the event you are declared to be brain dead or in a persistent vegetative state.

A Living Will prevents your family members and doctors from making decisions contrary to your wishes. Without such a document, your family and physicians would be left to guess what you would prefer in terms of treatment.

The next crucial item to have is a Power of Attorney. This document allows you to appoint someone to make financial decisions on your behalf in the event you are unable to make financial decisions for yourself.

In New York State, the person you appoint is referred to as your “agent.” This individual is charged with the duty to manage your property and assets during your lifetime. Many people are under the misconception the Power of Attorney continues after you pass away. This is not true, as your Agent under the Power of Attorney may only act while you are alive.
The Power of Attorney expires when you pass away. It is similar to the Health Care Proxy in that there is no longer a need for a long and costly proceeding to appoint a guardian to manage your finances once it is executed. Your signature on the Power of Attorney lets an attorney know who you trust to take care of your finances.

The final document everyone should have is a Last Will & Testament. This document allows you to direct to whom your assets will pass upon your demise. If you do not have one, New York State law directs your assets to be distributed to your family members in accordance with the state’s order of priority.

You may wish for your assets to pass to your domestic partner, a friend or a charitable organization. Without a Last Will & Testament, those wishes would not be honored. This document also provides your loved ones with your wishes pertaining to the appointment of a guardian for your minor children or the arrangement for the continued care of a cherished pet.

If you are a New York State resident and have specific wishes with regard to the final disposition of your remains (cremation vs. burial, etc.), it is strongly recommended you also execute an Appointment of Agent to Control Disposition of Remains – in addition to the basic estate planning documents mentioned above.

This document not only appoints the person who will take care of your final wishes and arrange for your final resting place, but it also allows you to state your specific wishes with regards to your final resting place.

If you do not have an Appointment of Agent to Control the Disposition of Remains, New York State’s Public Health Law defines who has the right to control and make decisions regarding the disposition of your remains.

Specifically, the surviving spouse has the responsibility followed by the domestic partner, the adult children, parents, siblings, etc. The only way to ensure your final wishes are known and respected by all is to execute the Appointment of Agent so there are no questions as to your wishes.

If you have any questions about the matters discussed in this article, please contact your Legal Service Plan’s National Legal Office at 800-292-8063.