Determining Incapacity in New York

Many people believe that estate planning is primarily a tool to minimize taxes by the state and ensure that your assets are passed on to the people you want them to go to. However, an important part of estate planning is ensuring that when you are incapacitated that your wishes will be respected and that you are taken care of when you cannot adequately express your wishes or provide for yourself. But how exactly is that decision made in New York? Who decides when you are incapacitated and when you will need someone else to make your decisions for you?

Your Living Will or Healthcare Directive Can Dictate The Terms of Your Incapacity

The best option for setting forth standards to decide when you are incapacitated is making sure that you are the one dictating the terms of your own incapacity. This can be accomplished through your living will, also known as a healthcare directive. Your living will traditionally acts to provide those making your healthcare decisions with your wishes as to how you would like to be treated in medical situations where you cannot give consent.

Your living will can also be used to set out the terms of your incapacity, that is, the time when you are no longer capable of making decisions on your own and require someone to step in and make those decisions for you. For example, your healthcare directive could specify that in order to be determined to be incapacitated, your attending physician must provide in writing a statement that you are now incapacitated, or if there is some doubt as whether or not you are incapacitated such as in cases where there may be a head injury or a degenerative neurological disease, that you must be examined by multiple doctors and they must be in agreeance.

New York Family Health Care Decisions Act and Other Considerations

Even if you have a living will that sets out procedures for determining incapacity, certain scenarios may still act as a determination of your incapacity. For example, if a New York court has legally determined that you are incapacitated or you are under Guardianship, you are legally incapacitated for all intents and purposes.

New York has also enacted the Family Health Care Decisions Act, which creates a set of procedures that go into place in determining whether or not a person is incapacitated. It also sets out a decision making process to elect someone as a healthcare surrogate or proxy in the event that an incapacitated person does not have one elected to make healthcare decisions for them.

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