By Caroline Cercone and Elisabeth Hall
Many people are taking either a first or second look at their estate planning needs since the beginning of the coronavirus pandemic. This health crisis has made the need for proper planning even more essential. Fortunately, there are many great general resources available for interested persons to review. Just a few of these sources are the New York Legal Assistance Group, AARP, The National Law Review, Financial Advisor, and Kiplinger.
While such general sites provide a great starting point, it’s important to remember that estate planning documents are generally governed by state laws. This article focuses on resources available to New Yorkers. Below are a few legal documents that you might want to consider. Of course, this is general advice and you will want to consult a legal professional to put your plan into action.
- Health Care Proxy: The health care proxy allows you to appoint a trusted friend or family member to make health care decisions for you in case you are unable to do so on your own. By appointing a health care proxy, you permit a trusted person to make decisions, or act as your “agent.” This person then
follows your pre-determined directions regarding your healthcare wishes. You can make the directions as detailed or as discretionary as you want. New York State’s Department of Health has great resources available regarding this important document. You can find a free health care proxy, courtesy of the New York Department of Health, here.
- Living Will: The living will gives you the opportunity to describe in detail the medical treatments you would or would not want if you became terminally ill or incapacitated. This document can be of great help to a friend or family member – particularly one named as your health care agent. Most living wills provide directions to health agents on topics like artificial nutrition or medical ventilation. This is especially important during the pandemic because ventilators are frequently used in the treatment of severe coronavirus cases.
What types of directions can you make in a living will? The list is endless. It’s important to consider each of the questions below before an incurable or irreversible condition affects your ability to make decisions for yourself. Some of the most common topics to consider are:
- Do you want cardiac resuscitation (CPR)?
- Would you want mechanical respiration (use of a ventilator)?
- Are you interested in receiving water and nutrition by artificial means?
- Are you comfortable receiving antibiotics and/or pain relief?
A living will can be as detailed or open-ended as you want. Some people choose to make specific directions, while others allow their family members and health care agent the freedom to make the most appropriate decision at the time it is warranted. The choice is up to you. Great information on this topic, including necessary documents, are provided on New York’s Department of Health website under “Advance Care Planning and Advance Directives FAQ.” You can find a sample living will form here.
- Power of Attorney: The Power of Attorney is a very important and powerful tool. It is a legal
document that lets you give another person or persons the right to take control of your finances and property. It is used while you are still living, but in a position where you cannot conduct important business on your own behalf. As the document’s “Principal,” you designate a single or multiple “Agents” to act for you. Because of this document’s importance, it is recommended that it only be created with the assistance of an experienced attorney. Important information on what a Power of Attorney document is, and who can benefit from it, can be found here. ou can find a free Power of Attorney New York Statutory Short Form here.
- Last Will and Testament: A last will and testament (typically referred to as a will) is a legally binding document directing the disposition of your property when you die. While not desirable to think about, death is inevitable. It’s important to be satisfied about how and to whom your property will be divided after you pass away. If you do not have a will when you die, your property will be distributed according to New York State’s laws of intestacy. Often, these do not reflect one’s personal wishes.
Married Couples with Children
All too often, we get busy with family life and do not take the time to consider how our property will be distributed upon our death. Did you know that the property of New Yorkers who die while married and with children will not all go to a spouse (even if children are minors)? According to New York’s intestacy laws, the first $50,000 and then only 50% of your estate is distributed to a spouse. The other 50% is split evenly with your children. If your children are minors, then the court appoints a guardian for each minor. The guardian(s) will be paid from your estate as well.
This can have a devastating impact on your family’s finances after your death. If your spouse was to only receive $50,000 and the remaining 50% of your estate, could he or she continue to provide adequately for the family? In many cases the answer is unfortunately “no.” Drafting a will supersedes the laws of intestacy and allows you the freedom to distribute your property as you wish.
Unmarried with No Children
Many times, single persons do not see the need for a will. Singles feel they do not have anyone to protect. But, this is not true. Did you know that if you are unmarried and have no children, your parents will inherit your estate under New York’s intestacy laws? Again, making your wishes legally binding in a will both carries out your wishes and gives you peace of mind. Find more information from the New York State Unified Court System here.
In closing, while there are many important legal documents to consider, the ones listed above are essential. The COVID-19 pandemic is a global health crisis and has affected individuals in unanticipated ways. By creating or updating the above documents, you can be assured that both your health and financial needs are met.
Please note: Consultation with an estate planning attorney is crucial to proper drafting and execution of these important planning documents.
Caroline Cercone, Student Attorney
COVID Response Legal Clinic
JD, Class of 2022
Elisabeth Hall, Student Attorney
COVID Response Legal Clinic
JD, Class of 2021