Designating a Health Care Proxy is a vital part of a New York elder law estate plan. Earlier this month The New Old Age, the New York Times blog, discussed efforts by one local family to enact legislation to offer an “enhanced” Health Care Proxy to aid those who are taking care of elder loved ones.
The effort is being spearheaded by a New York nurse who is helping to care for her 91-year old mother. As the woman discovered, without proper legal documentation it is often difficult for concerned family members to act as a health care advocate and decision-maker for their older relatives. For example, the woman got the idea for a change in the law after having trouble dealing with her mother’s mail-order pharmacy company. The pharmacy had sent a different color pill than normal, and the daughter wanted to check that the change was intentional. However, the company would not answer even basic questions without the consent of the woman’s mother, because laws protecting patient privacy are strict.
The woman’s mother suffers from Parkinson’s disease, is hard of hearing, and talks slowly. However, she remains mentally sharp and is not legally incapacitated. Family members often have difficulty assisting older adults with financial and health case decisions unless the individual is officially deemed incapacitated. As the nurse leading the lobbying effort explained, “Family members and others should be able to help frail seniors or younger people navigate the health care system without abandoning them to its complexities or taking over as guardians.”
The enhanced proxy would allow seniors to designate someone–such as a family member, friend, or doctor–to help with health care decisions at any time. The senior would retain ultimate control and would have the power to revoke at any time.
Regardless of the outcome of this legislative effort, a Health Care Proxy remains an essential “first step” in the New York elder law estate planning process. Along with a Power of Attorney, having a Health Care Proxy helps to avoid the appointment of a legal guardian if a loved one loses decision-making capacity. The cost, time, and risk associated with guardianship court proceedings should be avoided if at all possible. By taking the time to visit a New York elder law attorney, a family can ensure that they will have control over decisions about their loved one without judicial interference.
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