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Are Your Legal Documents in Order?

At the start of the year, we are all planning our futures. What we cannot plan of course is when we will die and when we will become unable to care for ourselves. We therefore need to plan ahead for both possibilities and get our legal documents in order.

For the possibility of incapacity, we need to plan in two areas, to care for ourselves and to manage our money. The rest of this discussion applies to New York State but there are similar rules in every state

In arranging care for ourselves, we need to allow someone to make both ordinary and extraordinary health care decisions. Two different documents cover each. A Health Care Proxy allows you to name a agent and alternate agents to make any and all health care decisions for you in the event you cannot Should you wish your agent to withdrew or withhold artificial feeding and hydration, you must expressly so state. Everyone over age 18 should have one.

A living will allows you to state your wishes about life/ death decisions. Everyone should have one, but less important if you have trusted person to name as a health care agent, since he or she can make those decisions for you. New York has no living will form. Any one w ho has “ clear and convincing” evidence of your wishes, can make these decision for you. The best way to ensure that your agent or family have such evidence is to write it down.

We also need to ensure that our money is properly managed. You may put someone else’s name on your accounts or use a power of attorney, which allows you to name an agent to make finanical decisions for you. It goes into effect when signed and survives incapacity, but does not survive death. The agent has only the powers that you give him or her. While you are competent, you retain the right to handle your financial affairs yourself. There is a new form effective September 1st. If you have one it is still good, but a review to see if the new one better suits your needs would be advisable. If you are considering transferring assets in order to have Medicaid pay for your care, your Power of Attorney must expressly grant that authority to the agent.

For those who are on or may be qualifying for Medicaid, another document to consider is a special or supplemental needs trust. This type of trust will allow your assets to be preserved to pay for the other expenses. There are also other types of trusts. A trust is hybrid document, which can be used both during your life and upon death. Whether you need one depends on your personal situation.

Upon our deaths, we need to make sure that our money goes where we wish it to. The document needed for this is a will. Everyone should have one unless all of your holding are joint, or transfer upon death to named persons. If any of the forgoing apply, then those assets are not transferred pursuant to a will. When you do or renew your will, it is advisable to review those other documents to ensure consistency.

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About the Author

Sonya Mittelman, Law office of Sonya Mittelman
1920 Hobart Avenue
Bronx, NY 10461

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