Tag: health care proxies

Capacity and Health Care Proxies

On August 22, 2012, in Estate planning, by John A. Weber IV, ESQ.

Capacity and Health Care Proxies

Most people know that a court may void a will if it believes that its creator was cognitively impaired when the will was written or signed. Essentially, if a court believes that a person could not have understood the will that the person signed, then the court will declare the will void. The same standard applies to powers of attorney. However, the legislature has adopted a different standard for Health Care Proxies. Section 2981(1)(b) of New York’s Public Health Law provides:

For the purposes of this section, every adult shall be presumed competent to appoint a health care agent unless such person has been adjudged incompetent or otherwise adjudged not competent to appoint a health care agent, or unless a committee or guardian of the person has been appointed for the adult pursuant to article seventy-eight of the mental hygiene law or article seventeen-A of the surrogate’s court procedure act.

This means that the competency determinations for health care proxies is different than for wills and powers of attorney. For example, imagine that a person signs a health care proxy, power of attorney, and will on the same day. Because the rules for determining competency are different, it is possible that a court will decide that the person had capacity to sign the health care proxy, while lacking capacity to sign the power of attorney and will, even though the three were signed on the same day. Under this law, a health care proxy’s challenger bears the burden of proving incompetence. In the absence of evidence showing incompetency, no evidence of competency need be offered.

Of course, this does not mean that every health care proxy is valid. The presumption established by law can be overcome with the right evidence.

If you have any questions about this or other legal issues, call the Law Firm of Vaughn, Weber & Prakope, PLLC today at 516-858-2620 to schedule a free consultation.

Elder Law

On August 21, 2012, in Elder law, Estate planning, Litigation, by John A. Weber IV, ESQ.

Elder Law Issues

Legal Issues as we age

Certain legal issues become increasingly urgent as we age.  We become more concerned with providing for our families in our absence, for instance.  And we become more concerned with our health and autonomy.  Proper planning and the right legal documents can address these concerns by helping to ensure that our values and wishes are respected as we age.

The issues we face in advanced age can be roughly divided into the following categories:

Capacity:  Illness and injury can rob us of our ability to make decisions for ourselves.  If a Court believes that an illness or injury has significantly impaired an individual’s cognitive ability, it may assign a guardian to make decisions on that person’s behalf.  The guardian’s task is to act in the best interests of the individual they are assigned to.  But without knowledge of a person’s history, values, and philosophy, the guardian may inadvertently make decisions that go against that person’s wishes, even if the guardian’s intentions are good.

With the proper legal documents, we can avoid having decisionmaking power over our lives handed to strangers.  By appointing health care proxies and granting powers of attorney to people they trust, seniors can ensure that the decisions affecting them are made by people that know their values and respect their wishes.

Estate Planning:  Individuals can minimize tax and even medicare liability by creating trusts, giving gifts, and taking other steps to manage their property.  Additionally, state law distributes property to descendants in a particular way, which may not reflect the wishes of the deceased.  By collaborating with an estate planning attorney, individuals can ensure that their property is disposed of in harmony with their own unique concerns and goals.

Benefits:  Many elderly individuals depend upon government benefits to help them make ends meet.  Veteran’s benefits, Social Security, Medicare and other government programs can be very complex.  Some benefits can even be lost if recipients don’t apply within certain time frames.  Elderly individuals may need to consult with an attorney in order to ensure that they receive what they are entitled to.

Abuse:  Unfortunately, the elderly are often targets of fraud or other forms of abuse.  Seniors may appear weak or vulnerable to those who are looking to take advantage of someone.  But with legal representation, such abuses can be prevented, or, at the very least, compensated.

Obviously, these elder law issues aren’t entirely unique to the elderly.  Anyone could become incapacitated by an illness.  And anyone with significant assets should consider drafting estate planning documents such as wills or trusts.  Nevertheless, these issues become more pressing, and more interrelated, as we age.

If you are having any elder law issues that you need assistance with, call the Law Firm of Vaughn, Weber & Prakope, PLLC 516-858-2620 to speak with an attorney.

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