Every New York elder law estate plan should likely include a Power of Attorney and Health Care Proxy. These documents allow another person to handle a variety of legal, financial, and medical affairs on your behalf in the event of disability. Our New York elder law attorneys know that preparing for all possible contingencies is the main purpose of this planning, and so inclusion of these documents remains essential.
Some residents are less familiar with the importance of these decision-making tools and may assume them to be unnecessary in their particular case. They may believe that their friends or family members will step up and handle affairs appropriately without the need for formal legal documents. Unfortunately, that assessment is misguided because very often family disagreement arises among these individuals under the stress of dealing with the disability–setting the stage for conflict without prior delegation of decision-making power. The director of a local public aging services center explained that “the last thing you want is if you age and lose capacity, to become a pod in a power struggle between your kids or your grandkids.” On top that, even if one’s family members do not disagree on any financial or medical issue, the law will not automatically grant these powers to a certain friend or family member. In many cases, the disability requires court intervention to appoint a guardian which is a situation that should always be avoided.
Failure to provide this legal clarity ahead of time can have wide ranging effects. For example, KFBB News reported late last week on one man who is facing felony kidnapping charges after allegedly taking his 92-year old mother out of her long-term care facility and bringing her into another state without permission. The man was not his mother’s Power of Attorney. The family was confused about the local elder care laws, and the man assumed he had the right to move his mother. He didn’t. He is now awaiting extradition to face possible criminal sanctions for his conduct. It is likely that the man would not be facing any charges at all had a Power of Attorney been drafted.
While kidnapping charges in these circumstances are rare, all families have much to gain from ensuring that there will not be legal confusion in the event of a disability. In addition, it is important to have professional help with the creation of these legal documents. Experienced attorneys can explain what specific powers are useful to include. These are powers that otherwise might be forgotten and left out, such as the right to change beneficiaries on IRA’s, annuities, and insurance policies, to create a trust, or make gifts.
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