Planning for the Unexpected: Which Documents Are Right For You?

submitted by Christopher Phillips, Esq.

Planning for the future is important.  Life can change in the blink of an eye, so it is important to think ahead and find ways to look after yourself and your affairs.  The decision to put documents in place is a personal one.  The content below provides general information regarding common advanced planning documents to help you decide whether one of them is right for you.

Power of Attorney

What is a Power of Attorney?  A Power of Attorney is a document that gives another person (or persons) the authority to make particular decisions and take certain actions on your behalf.  You are the “Principal.”  The person to whom you give this authority is the “Agent.”

What Does a Power of Attorney Accomplish?

With a Power of Attorney, the Agent has the authority to do some of the following for the Principal:

  • Open and close bank accounts;
  • Cash checks;
  • Buy and sell things;
  • Sign certain documents for the Principal;
  • Apply for public benefits (Medicaid, Medicare, SNAP, Social Security, etc.);
  • Bring and defend lawsuits on behalf of the Principal;
  • Manage the Principal’s retirement and investment accounts;
  • Pay medical bills and access certain health records;
  • Help file tax returns (Federal, State, Local).

The Power of Attorney document must specify the powers granted to the Agent.

What Does a Power of Attorney NOT Accomplish?

Under a Power of Attorney alone, an Agent may NOT do the following things for the Principal:

  • Change Beneficiaries on Bank Accounts, Retirement Accounts, and Life Insurance Policies (see discussion of Statutory Gifts Rider below);
  • Make Medical Decisions (see discussion of Healthcare Proxy below);
  • Manage Property after Principal’s Death (See discussion of Last Will & Testament below).

Does a Power of Attorney Take Away My Power to Make Decisions?  No.  When you sign a Power of Attorney, you still have the right to make decisions for yourself.  By signing the document, you are simply sharing your ability to act with someone else.  As long as you are capable of making decisions, the other person must follow your direction at all times.

Can I Change My Power of Attorney?  Yes.  You can revoke your Power of Attorney, as long as you are of sound mind.  The Principal may revoke the Power of Attorney based on the terms in the document or by delivering a revocation document to the Agent.


Power of Attorney Frequently Asked Questions

Question:  Right now, I am fully capable of managing my own affairs.  Should I wait to execute a Power of Attorney until I need it?

Answer:  The decision to complete a Power of Attorney is an individual choice.  However, completing this document while you are still capable of managing your own affairs prepares you for unexpected life events such as a sudden accident or medical crisis.

Question:  If something happens to me where I can’t pay my bills or manage my money, but I do not have a Power of Attorney, will the law select someone to do it for me?

Answer:  No.  If you become incapacitated and unable to care for yourself, there will not be a default decision-maker for your property.  If this happens, someone will have to bring a Guardianship proceeding on your behalf, which can be a very lengthy and expensive process.

Question:  When may a Power of Attorney Agent start to act?

Answer:  Unless drafted otherwise, as soon as the document is complete.  Once the Principal and Agent both sign the Power of Attorney, the Agent can begin under the document.  The Agent need not wait until something happens to act (unless provided otherwise).

Question:  Does it matter whom I select to act as my Agent?

Answer: Yes.  When selecting a Power of Attorney Agent, the Principal should carefully chose an Agent who is trustworthy and honest.  Although your Agent is obligated to act according to your wishes and best interest, he or she may have great freedom to act in your place.  It is crucial that you choose someone whom you trust to be your Agent.

  • Tip: Before choosing an Agent, ask yourself some of the following questions:
    • Do I trust this person?
    • Does this person understand my feelings and goals in life?
    • Is this person willing to do the work and spend the time handling my affairs?
    • Is this person available to visit me or to keep in contact with me by phone?

Question: Does my Power of Attorney Agent have to be a relative?

Answer: No.  A Power of Attorney can appoint any legally competent adult as an Agent.  However, as mentioned above, it is important to make sure that the Agent is a trustworthy and honest individual.

Question:  May I appoint more than one Agent under the same Power of Attorney?

Answer:  Yes.  The Power of Attorney can appoint multiple Agents, typically using one of the following two arrangements: (1) more than one Agent who can act at the same time; or (2) a second Agent who takes over only if the first Agent cannot or will not act.

  • Note: If the Power of Attorney allows more than one Agent to act at the same time, there may be confusion or conflict. In this situation, the Agents may need to act together on every transaction.  Speaking to a lawyer before making this decision can help you decide whether it is wise to appoint more than one Agent.

Question:  Do I need to hire a lawyer to complete a Power of Attorney?

Answer:  No.  A Principal can execute a Power of Attorney without the assistance of a lawyer.  However, working with a lawyer will help ensure that the document and execution process conforms to the law.


Health Care Proxy

What is a Health Care Proxy?  A Health Care Proxy is a document that allows you to select someone else to make decisions about your health care, in the event that you cannot make those decisions yourself. You are the “Principal,” and the person whom you appoint is the “Agent” (or Health Care Agent).

When is the Health Care Proxy Activated?  A Health Care Proxy is activated when the attending physician determines that the Principal is “incapacitated,” or unable to make your own health care decisions.  Therefore the Health Care Agent may not act until the physician states that the Principal “lacks the capacity” to make their own health care decisions.

How is Incapacity to Make Health Care Decisions Determined?  The attending physician must find to a reasonable degree of medical certainty that you lack the capacity to make health care decisions.  In order to activate the Health Care Proxy, the physician must also do the following:

  • Document, in writing in your medical record, the (1) cause), (2) nature, (3) extent, and (4) probable duration of your incapacity;
  • Communicate their decision to you, orally and in writing, and in a manner that you understand;
  • Inform the Agent of their determination.

What If a Principal Disagrees with the Physician’s Determination of Incapacity?  If a Principal disagrees with the physician’s determination of incapacity, the Principal’s objection overrules the physician’s decision.  This means that the Health Care Professional must follow the Principal’s wishes, unless a court finds otherwise.

Can I Change My Health Care Proxy?  Yes.  Any competent adult can revoke or change their Health Care Proxy.  To revoke a Health Care Proxy, the Principal must communicate their intent to revoke the document in writing, orally, or by any other act showing the intent to revoke.  The Principal must direct the communication either to the Health Care Agent or Health Care Provider.


Health Care Proxy Frequently Asked Questions

Question: Can the Health Care Agent under a Health Care Proxy help manage my property as well?

Answer: No.  In order for the Health Care Agent to also help manage your property, you will need to execute a separate Power of Attorney document.  Please note that you may select different individuals to act as Health Care agent and Power of Attorney Agent.

Question: If something happens to me where I cannot make my own medical decisions, but I do not have a Health Care Proxy, will the law select someone to act on by behalf?

Answer: Yes.  If you are incapacitated in New York State, but do not have a Health Care Proxy, the Family Healthcare Decisions Act will appoint one of the individuals, in the following order:

  • Legal Guardian
  • Spouse or Domestic Partner
  • Adult Child
  • Parent
  • Brother or Sister
  • Close Friend (age 18 or over who presents a signed statement showing regular contact with patient).

For more information on how to have conversations regarding health care proxies, living wills, and other advance care planning, see the recent blog post by Staff Paralegal, Tracey Casseus, entitled Advance Care Planning: What You Need to Know About Health Care Proxies.


Last Will & Testament

What is a Last Will & Testament? A Last Will & Testament (or “Will”) is a document that governs the distribution of an individual’s property after their death.  The individual who makes the Will is the “Testator,” and those receiving property from the Will are the “Beneficiaries.”

Does a Power of Attorney Take the Place of a Will?  No.  A Power of Attorney ends upon an individual’s death.  A Will does not take effect until an individual’s death.  Therefore, a Power of Attorney and a Will never operate at the same time.


Last Will & Testament Frequently Asked Questions

Question: Does a Will govern all of my property?

Answer: Not necessarily.  A Will only controls the disposition of “probate” assets.  Probate assets include certain real property, bank accounts, stocks, and personal property.  Non-probate assets (those not governed by a Will) include some of the following: jointly-owned property (with rights of survivorship), assets with valid beneficiary designations (such as life insurance policies or payable on death accounts), and property held in trust.

Question: What happens to my property when I pass away without a Will?

Answer: If you pass away without a Will, the law has a default structure in which your property will pass.  The laws of intestate succession (intestacy) specify this default structure.  A “decedent” is an individual that passes away without a Will.  Under intestacy, the following individuals receive property from the decedent’s estate:

  • Spouse and Issue* = the spouse gets $50,000 and one-half of the remaining value of the estate. The Issue receive the other one-half of the remaining estate.
  • Spouse and No Issue = the whole estate goes to the spouse.
  • Issue and No Spouse = the whole estate is distributed amongst the issue.
  • No Spouse, No Issue, Living Parents = the whole estate goes to surviving parent(s).
  • No Spouse, No Issue, No Living Parents = the whole estate goes to the “issue of the parents” (meaning your siblings, or nieces and nephews as the case may be).
  • No Spouse, No Issue, No Living Parents, No Living Issue of Parents = the estate is split in half and passes to the decedent’s paternal and maternal grandparents (or their issue), down to “great-grandchildren of grandparents.”
  • Escheat to the State = if there are genuinely no living relatives as described above, the decedent’s property will then pass to New York State,

*”Issue” include children, grandchildren, and other descendants you may have.

Question:  Do I need to hire a lawyer to complete a Will?

Answer:  No.  A Principal can execute a Will without the assistance of a lawyer.  However, working with a lawyer will help ensure that the document and execution process conforms to the law.

Questions?  Income-eligible individuals age 50 years and up who self-identify as LGBTQ+ can contact Christopher Phillips at (716) 853-3087, ext. 283, to discuss any questions regarding advance planning and potential representation.  For other questions, please call our main intake line at (716) 853-3087.

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