lpds manual - nov 2013 revision - volunteers of legal service

Prepared by Diane Lutwak, Esq., Director, VOLS Elderly Project, with thanks to Stephanie

Hamberger, JD (NYLS 2013), and Hakim Effiom-Dauw, Skadden 1L Scholars Program

Participant, for their assistance.

ELDERLY PROJECT

Training Manual

Preparation and Execution of Life Planning

Documents

For Individuals of Limited Means

i

Table of Contents

INTRODUCTION ....................................................................................................................................................... 1

OVERVIEW OF VOLS ELDERLY PROJECT ................................................................................................................... 1 OVERVIEW OF LIFE PLANNING DOCUMENTS (“LPDS”) ............................................................................................. 1 REASONS FOR PREPARING LIFE PLANNING DOCUMENTS ........................................................................................... 2 GOVERNMENT ENTITLEMENT/BENEFIT PROGRAMS ................................................................................................... 3 BRIEF DESCRIPTION OF THE MEDICAID PROGRAM ..................................................................................................... 4

ETHICAL ISSUES ...................................................................................................................................................... 5

CONFIDENTIALITY ..................................................................................................................................................... 5 CLIENTS WITH DIMINISHED CAPACITY ...................................................................................................................... 6

CLIENT INTERVIEWING & CROSS-CULTURAL LAWYERING ................................................................... 8

CLIENT INTAKE INTERVIEW ....................................................................................................................................... 8 CROSS-CULTURAL LAWYERING ................................................................................................................................. 8

PLANNING FOR INCAPACITY: POWER OF ATTORNEY ............................................................................... 9

OVERVIEW ............................................................................................................................................................. 9 WHO ARE THE PLAYERS? .......................................................................................................................................... 9 KEY ELEMENTS OF A POWER OF ATTORNEY ............................................................................................................ 10 POWER OF ATTORNEY SIGNING ISSUES .................................................................................................................... 11 STATUTORY GIFTS RIDER ................................................................................................................................ 12 TERMINATION/REVOCATION OF POA & SGR ............................................................................................... 12

PLANNING FOR INCAPACITY: HEALTH CARE DIRECTIVES ................................................................... 13

HEALTH CARE PROXY.............................................................................................................................................. 13 LIVING WILL ............................................................................................................................................................ 15 OTHER HEALTH CARE RELATED DOCUMENTS AND POINTS OF INFORMATION......................................................... 16

PLANNING FOR DEATH: LAST WILL & TESTAMENT ................................................................................. 18

OVERVIEW ............................................................................................................................................................... 18 INTERVIEWING THE CLIENT ............................................................................................................................ 18 WHO ARE THE PLAYERS? ......................................................................................................................................... 19 BASIC ELEMENTS OF A WILL: .................................................................................................................................. 20 TYPES OF BEQUESTS .......................................................................................................................................... 21 MISCELLANEOUS OTHER PROVISIONS AND CONSIDERATIONS ................................................................................. 22 WILL EXECUTION ............................................................................................................................................... 23 WHERE TO KEEP THE ORIGINAL WILL ..................................................................................................................... 24 PROBATING THE WILL.............................................................................................................................................. 24 CHALLENGING A WILL ............................................................................................................................................. 24

PLANNING FOR DEATH: NON-PROBATE PROPERTY ................................................................................. 24

PLANNING FOR DEATH: DISPOSITION OF REMAINS ................................................................................. 25

APPOINTMENT OF AGENT FOR CONTROL OF DISPOSITION OF REMAINS ................................................................... 25 CREMATION ............................................................................................................................................................. 25

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DONATING BODY TO SCIENCE ................................................................................................................................. 26 PRE-PAID, PRE-NEED, IRREVOCABLE FUNERAL ARRANGEMENTS ........................................................................... 26

LPDS TRAINING MANUAL—ACRONYMS USED ............................................................................................ 28

© November 2013 Volunteers of Legal Service, Inc. Page 1

Introduction

Overview of VOLS Elderly Project

The VOLS Elderly Project provides legal services to Manhattan residents aged 60 and over who

have limited income and assets, by:

Conducting monthly legal advice clinics at 10 to 12 senior centers in various locations

around Manhattan;

Counseling case managers and social workers employed by social service, long-term care,

and other community-based agencies that provide services to elderly Manhattan residents;

Conducting legal information seminars for seniors, senior center staff, and other advocates;

Coordinating the provision of free legal services to elderly Manhattan residents by attorneys

wishing to provide pro bono assistance, and providing training to these attorneys.

Overview of Life Planning Documents (“LPDS”)

Planning for Incapacity

Powers of Attorney

Health care directives:

- Health Care Proxies

- Living Wills

- Medical Orders (DNR/MOLST)1

Planning for Death

Last Will & Testament

Appointment of Agent to Control Disposition of Remains

Pre-Need Burial Arrangements/Funeral Contracts

Avoiding probate of assets through joint ownership or naming of beneficiaries on bank

accounts and other financial products; joint ownership of real property; life insurance; etc.

Note: All of these LPDs except for “Living Wills” are statutory in New York State.

1 The last page of this Training Manual contains a list of each abbreviation used in this manual.


Reasons for Preparing Life Planning Documents

Planning for Incapacity

Absent a durable POA/HCP/LW, a guardianship petition under Article 81 of the NYS Mental

Hygiene Law may need to be filed in State Supreme Court to secure appointment of a guardian

of the person and/or property of an incapacitated person. Availability of free legal services is

very limited for family members seeking to commence MHL Art 81 proceedings, which are

prohibitively costly for people of limited means and too complex for most people to pursue

without legal assistance.

Absent a HCP/LW, specific wishes are not likely to be carried out, especially with regard to end-

of-life health care treatment choices.

Planning for Death

Absent a Will, real or personal property including bank accounts and household possessions will

be distributed according to the laws of intestacy, which may be contrary to the decedent’s

wishes.

Absent an “Appointment of Agent for Disposition of Remains,” an individual’s personal choices

and wishes with regard to burial or cremation may not be carried out.


Insurance-Based

Cash Benefits

- Federal Social Security Retirement (SSR)

- Federal Social Security Disability (SSD)

Insurance-Based

Healthcare Coverage

- Medicare: Federal program; limited coverge with high monthly premiums, deductibles and co-payments

Needs-Based

Cash Benefits

- Federal Supplemental Security Income (SSI) based on age or disability

- State/local public assistance

Needs-Based

Healthcare Coverage

- Medicaid: Federal-State-Local program

- In NYS, considerably more extensive than Medicare and is the number one payor for long-term care (nursing home and home care)

Government Entitlement Programs

Government Entitlement/Benefit Programs

Insurance-Based and Needs-Based

Insurance-based – monies are deducted from workers’ paychecks to pay for these benefits

Needs-based – available to those meeting certain eligibility criteria including income and

asset limitations, without any inquiry into whether contributions were made from wages

Cash Benefits and Health Care Coverage


Brief Description of the Medicaid Program

Medicaid is a joint federal-state entitlement program created by federal law. States have a right

to federal contributions to state expenditures, and individuals have a right to payment for

qualifying medically necessary services.2 Federal law requires all participating states to provide a

minimum level of “mandatory services.” Generally speaking, New York's Medicaid program is

comprehensive health care coverage, including doctor's visits, hospitalizations, prescription

drugs, ambulette service, personal care attendants at home, nursing home stays, and more.3

Eligibility for Medicaid depends on an applicant's income, assets (also known as resources),

immigration status, residence, and category. There are different categories of Medicaid (with

different financial eligibility rules); which one applies to a particular individual depends on

factors such as whether the applicant has minor children, is disabled, or has reached age 65.4

Different financial/budgeting rules apply for Medicaid coverage in the community and in

institutional settings (nursing homes)

In the community, there is a “Spend down”/“Excess income” program for those with high-

cost medical needs that are not otherwise covered by Medicare and/or long-term care

insurance (which many cannot afford)

For community-based home care services, which enable the elderly and disabled to live in

their homes by providing help with ADLs, MA allows disabled program participants to join a

Pooled Income Trust and to use their excess income to pay non-medical bills for rent,

utilities, etc.

Transfer-of-asset rules exist for institutional but not community Medicaid

For long-term institutional care in nursing homes, which in NYC cost approximately

$11,000/month, the resident pays the nursing home all income except for a $50/month

Personal Needs Allowance (except where there is a community spouse), and Medicaid pays

the balance, after the resident has spent down savings to the Medicaid asset limit of $14,400

plus a pre-paid, irrevocable burial contract (in any amount).

2 See 42 U.S.C. § 1396 et seq., 42 C.F.R. § 430 et seq.

3 http://www.wnylc.com/health/entry/1/

4 http://www.wnylc.com/health/entry/1/

http://www.wnylc.com/health/entry/1/

http://www.wnylc.com/health/entry/1/


Ethical Issues

Confidentiality

Who is the Client?

VOLS Elderly Project clients are the seniors themselves who wish to draft and execute various

LPDs, not the third parties (family members, home attendants, case workers, etc.) that may call

in for and attend appointments with them. It is critical to meet with the client alone to, at a

minimum, explain the rules of confidentiality and ascertain whether the presence of any third

parties raises questions of undue influence or elder abuse.

Elder abuse – any form of mistreatment that results in harm or loss to an older adult - is

epidemic in our society. Types of elder abuse include physical, emotional, financial, sexual and

neglect by a caregiver. People who are especially vulnerable are the physically frail, the

mentally impaired and the isolated.

Making decisions about which person to name as agent under a POA or HCP, or beneficiary or

executor under a Will, requires the client to consider honestly and openly what are potentially

complex family dynamics. The burden of insisting on a private meeting should not be placed

upon the client.

PRACTICE TIP: First meet with the client alone, whether this means leaving others in the

waiting room when you bring the client in to your office, or asking the others to step out when

you arrive for a home visit. Well-meaning family members should be advised that this is done in

all cases as a precaution, and no family members should be personally offended.5

5 See “Why Am I Left in the Waiting Room – Understanding the 4 C’s of Elder Law Ethics,” ABA Commission on

Law & Aging (2003).

Rule 1.6 of the NYS Attorneys Rules of Professional Conduct: “Confidentiality of

Information”

“A lawyer shall not knowingly reveal confidential information” without informed consent.

“Confidential information” is defined by the rule to mean, “Information gained during or

relating to the representation of a client, whatever its source, that is (a) protected by the

attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed,

or (c) information that the client has requested be kept confidential.”


Clients with Diminished Capacity

Voluntary choice of a competent adult is a core value and ethic in law, medicine, and other

realms of life. Our society seeks to protect those who lack capacity to make choices and care for

themselves.

What Is Capacity?

Capacity consists of four decision-making abilities:

Appreciation, Understanding, Reasoning, and Expressing Choice

Practical tools and techniques have been developed for ascertaining a

client’s capacity and to guide the practitioner in asking probing and

open-ended questions and avoiding questions calling for an

acquiescent response. An excellent guide is the “Assessment of

Capacity for Everyday Decision-Making” (ACED) developed by Dr.

Jason Karlawish, MD and Dr. James Lai, MD, which provides

guidelines for a structured conversation/interview with the client,

designed to evaluate the four categories of decision-making abilities.

See also the ABA/APA’s “Assessment of Older Adults with

Diminished Capacity: A Handbook for Lawyers” (2005).

Chronologic age is one of the chief risk factors for developing

cognitive impairments.

A diagnosis of dementia, brain damage or mental illness may be

relevant, but non-determinative of an individual’s actual abilities and

functional capacity.

Rule 1.14 of the NYS Attorneys Rules of Professional Responsibility: “Client With

Diminished Capacity”

Part (a): “When a client’s capacity to make adequately considered decisions in connection

with a representation is diminished, whether because of minority, mental impairment or for

some other reason, the lawyer shall as far as reasonably possible, maintain a conventional

relationship with the client.” Part (b) goes on to say: “When the lawyer reasonably believes

that the client has diminished capacity, is at risk of substantial physical, financial or other

harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer

may take reasonably necessary protective action, including consulting with individuals or

entities that have the ability to take action to protect the client and, in appropriate cases,

seeking the appointment of a guardian ad litem, conservator or guardian.”

Capacity

Understanding

Appreciation

Reasoning

Expressing Choice


Other short-term and long-term factors that can produce signs of incapacity include anxiety,

grief, depression, bereavement, pain, side effects of prescription medications, time of day,

hearing or vision loss, low education level, etc.

Comment #6 to Rule 1.14 of the NY Rules of Professional Conduct says, “In determining the

extent of the client’s diminished capacity, the lawyer should consider and balance such

factors as: (i) the client’s ability to articulate reasoning leading to a decision; (ii) variability

of state of mind and ability to appreciate consequences of a decision; the substantive fairness

of a decision, and (iii) the consistency of a decision with the known long-term commitments

and values of the client. In appropriate circumstances, the lawyer may seek guidance from

an appropriate diagnostician.”

Separate and distinct legal definitions of capacity exist for the creation/execution of the

various LPDs:

POAs: “‘Capacity’ means ability to comprehend the nature and consequences of the act of

executing and granting, revoking, amending or modifying a power of attorney, any provision in a

power of attorney or the authority of any person to act as agent under a power of attorney.” NY

GOL § 5-1501(3).

HCPs: “For the purposes of this section, every adult shall be presumed competent to appoint a

health care agent unless such person has been adjudged incompetent or otherwise adjudged not

competent to appoint a health care agent” (or unless a court has appointed a guardian of the

person under Article 81 of the NY MHL Law or Article 17-A of the SCPA). NY PHL §

2981(1)(b).

Wills: Testator must:

(1) Understand the nature and consequences of executing a will;

(2) Know the nature and extent of the property being disposed of; and

(3) Know the natural objects of his/her bounty and relationship to them.

See In re Estate of Kumstar, 66 N.Y.2d 691, 692 (1985), citing In re Will of Slade, 106 A.D.2d

914, 915 (4th

Dep’t 1984).

Trusts: Same standard of capacity as is needed to make a valid contract (higher than to execute

a Will); analysis focuses on whether an individual could comprehend the nature of the

transaction and be able to make a rational judgment concerning the particular transaction. See In

re Estate of Rosen, 17 Misc.3d 1103A (Kings Co. Surr. Ct. 2007).

PRACTICE TIP: Capacity is a continuum which changes over time. VOLS carefully screens

cases before referring them, but given the advanced ages and various health problems of many

VOLS clients, please contact VOLS if you have any concerns after meeting a prospective client.


Client Interviewing & Cross-Cultural Lawyering

The importance of developing non-judgmental, assumption-avoiding techniques for Careful Client Interviewing and an awareness of Cross-Cultural Lawyering6 cannot be over-emphasized.

Client Intake Interview

A confidential client intake interview is a critical phase of legal representation, which provides

an opportunity to:

Establish rapport

Get to know your client so that you can provide effective and appropriate counseling

Assess your client’s capacity

Screen for the possible presence of elder abuse

Discussions of (potential) future incapacity and (inevitable) death are not easy ones, even for

people who have signed up to have their LPDs drafted. Family dynamics inevitably need to be

explored and should be done in a culturally sensitive manner.

PRACTICE TIP: Review with client in person all basic facts including: Correct spelling of full

names (make copies of client’s ID, and ask about nicknames, former names, “stage” or “pen”

names, etc.); marital status; family tree; income; assets/ resources; etc.

PRACTICE TIP: Start by asking open, non-leading questions that do not suggest answers to your

client, and use leading questions when needed to clarify answers and move the interview along.

Cross-Cultural Lawyering

(Almost) every attorney-client relationship is a cross-cultural one. Culture and cultural

awareness play a significant role in communication, problem-solving, and rapport building.

A leading voice on the topic of cross-cultural lawyering is that of CUNY Professor Susan

Bryant, who wrote The Five Habits: Building Cross-Cultural Competence in Lawyers. 7

One of the Five Habits which Bryant calls “Degrees of Separation & Connection,” encourages

lawyers to develop an awareness of the similarities and differences between themselves and each

client and the impact they may have on the communications between them. Another, called

“Parallel Universe Thinking” stems from the idea that cultural norms and practices may result

in multiple interpretations of the same actions; this habit focusses on the need to avoid

assumptions and consider alternative explanations for clients’ words and actions.

6 These are topics worthy of their own seminars of a minimum length of three hours each!

7 8 CLINICAL L. Rev. 33 (2001), by Law Professors Susan Bryant at CUNY and Jean Koh Peters at Yale.


Planning for Incapacity: POWER OF ATTORNEY

OVERVIEW

A “Power of Attorney” is a revocable, written document by which a Principal with capacity

designates an Agent to act on his or her behalf during the Principal’s lifetime. In New York,

Powers of Attorney are regulated by the General Obligations Law, Article 5, Title 15 as

amended eff. 9/1/09 & 9/12/10. POA forms are now much more complex than they were prior to

the 2009 and 2010 amendments; they may take extensive time to explain, review, and execute.

Older forms, if executed properly on the form in effect at time of signing, are still in effect.

PRINCIPAL’S TRUST IN THE AGENT IS KEY: A POA is a powerful document; while it

does not diminish the Principal’s powers, clients should be cautioned about the potential for

misconduct by an untrustworthy agent.

PRACTICE TIP: The exact language of the statute must be used for a POA to be considered a

statutory form; without it, there is no guarantee that banks and others will accept it.

Who Are the Players?

PRINCIPAL – The Principal is the person designating agency under a POA to another person.

At VOLS, the Principal is the client. Principals must be a minimum of 18 years of age.8

AGENT – The Agent is the person receiving the powers under a POA from the Principal. This is

usually a relative or close friend of the Principal. An Agent acting under the POA has a fiduciary

relationship to the Principal.9 There is no age minimum for an Agent, but the person chosen

should be someone of suitable age and discretion. It is generally speaking inappropriate and

unethical for the Principal’s social worker or caseworker to be appointed as Agent under a POA.

CO-AGENT - A Principal may designate two or more persons to act as Co-Agents. Unless the

Principal provides otherwise in the POA, Co-Agents must act jointly. The Principal must initial

the POA form if s/he wants Co-agents to be able to act separately, which may be recommended

for VOLS clients - requiring Co-Agents to act together could create logistical problems if they

are not able to agree, or to be in the same place at the same time. Unless the Principal provides

otherwise in the POA, if a vacancy occurs because of the death, resignation, or incapacity of a

Co-Agent, the remaining Agent or Agents may continue to act for the Principal.10

8 See GOL §5-1501.

9 See GOL §5-1501

10 see GOL §5-1508


SUCCESSOR AGENT – A Principal may designate one or more Successor Agents to serve,

who may act if the original Agent(s) “is unable or unwilling to serve.” Unless the Principal

provides otherwise in the POA, a Successor Agent has the same authority as that granted to an

initial Agent. A Principal may provide for specific succession rules.11

MONITOR - A person appointed in the POA to have the authority to request, receive, and seek

to compel the Agent to provide a record of all receipts, disbursements, and transactions entered

into by the Agent on behalf of the Principal. Principals are more likely to appoint a Monitor

when they have considerable assets.12

Key Elements of a Power of Attorney

NAMES – Use full names of the Principal-client and Agents, and ensure the spelling is correct.

DELINIATED POWERS – The Principal can choose to give the Agent limited or broad

powers; given life’s unpredictable nature (Principal may not own now but may inherit real

property or may win the lottery) and the need for flexibility, it is often a good idea to give the

Agent broad powers (write out letters A, B, C, etc. through O; not “A – O”).

REVOCATION - By explicit language in the document, the POA does not automatically

revoke prior POAs. The Principal can address this in the “Modifications” section (see below).

DURABILITY - By explicit language in the document, the POA is DURABLE; that is, it is not

affected by the Principal’s subsequent incapacity. The Principal can opt out of durability by

including a “Modification” terminating POA upon incapacity (see below).

OPTIONAL MODIFICATIONS – Optional modifications include:

- POA revokes one or more specific POAs or all prior POAs

- POA does not survive incapacity (non-durable)

- “Springing” language (POA effective only upon incapacity as per Principal’s doctor).

NOTE: Many elder law attorneys recommend avoiding this whenever possible.

- As an alternative to “springing” language, once the Principal and the Agent(s) sign the

POA, it can then be held either by the client (as long as the Agent knows where it is and

can access it when needed) or the Principal’s attorney who will release it to the Agent

pursuant to the Principal’s instructions upon occurrence of a specified contingency.

STATUTORY GIFTS RIDER – The Principal must initial box “H” for the SGR (see

below)!

11 see GOL §5-1508

12 see GOL §5-1501


PRACTICE TIP: Unused “Optional” provisions of the form should not be deleted; instead,

words like “Not Applicable” or “None” can be added - for example, next to subsection “J”

(Compensation of Agents) and subsection “I” (Designation of Monitors”).

PRACTICE TIP: Best practice is to use a form comparable to the Power of Attorney Template

on the NYS Bar Association’s website. VOLS can provide a Word version upon request.

Power of Attorney Signing Issues

Various sections must be initialed by the Principal, including section “H” when an SGR

accompanies the POA (see below). Initials are required, not an “X” or a”√” or a “☺”.

The Principal’s signature must be acknowledged before a notary public in the manner

prescribed for the acknowledgment of a conveyance of real property.

Use an interpreter and prepare an Affidavit of Translation when the Principal has limited

English language skills.

Each Agent must sign the original POA and have his/her signature acknowledged by a

notary in order for the POA to become effective as to that Agent. Agents may but do not

have to sign at same time as Principal; can sign when the need arises to act under the

POA. Some elder law attorneys require Agents to go elsewhere to have their signatures

notarized, especially if there is any possible conflict of interest or where Agents have

concerns which should be addressed by their own lawyers.

ORIGINAL document is what matters (or an attorney-certified copy pursuant to CPLR

2105). Upon request by an entity the Agent is doing business with on behalf of a Principal,

the Agent should be prepared to show original, and to turn over, if requested, only a copy.

PRACTICE TIP: Use blue ink pens for signatures (and initialed sections) to help distinguish

original POA from copies.

PRACTICE TIP: Give client (or client’s agent) the Consumer Financial Protection Bureau’s 24-

page booklet “Managing Someone Else’s Money--Help for Agents Under a Power of Attorney”,

available at: http://www.consumerfinance.gov/blog/managing-someone-elses-money/

How many originals should be executed? It depends. Some practitioners routinely execute at least three: one for client, one for (each)

Agent, one for attorney’s file. Important to keep a record of whom each original is given to.

Who keeps the original(s)? It depends. The Agent must have it in order to act – but the Principal or attorney can keep it until

a future time when it is needed; the attorney should always retain at least a fully executed file

copy (and one copy of this and all other LPDs executed should be scanned to VOLS, assuming

that the retainer agreement with the client allows for this).

http://www.consumerfinance.gov/blog/managing-someone-elses-money/


STATUTORY GIFTS RIDER

►SGR is required if the Principal wants the Agent to be able to gift more than an aggregate total

of $500/year, i.e. for Church tithing, other customary gifting to family/friends/charities and for

Medicaid planning for anyone whose income is above the basic Medicaid limit and/or who may

need to transfer funds or property.13

►The Principal must initial box “H” on the POA if there is an accompanying SGR!

►As with the POA, unused “OPTIONAL” provisions of the SGR should not be eliminated;

instead insert “NONE” or “NOT APPLICABLE” as appropriate.

►The Principal’s signature on the SGR must be acknowledged by a notary and witnessed by

two persons who are not named in the POA as permissible recipients of gifts. Statute says the

notary can be one of the two witnesses.

►SGR Modifications to Consider – critical for potential future Medicaid planning:

(1) Authority to create/amend/revoke/join inter vivos trusts (living trusts);

(2) Authority to make gifts consistent with the Principal’s past gifting patterns;

PRACTICE TIP: Under the “you never know what will happen” theory of life planning (such as

a future inheritance/winning the lottery/etc.), best to include the SGR in most cases with the

recommended modifications.

TERMINATION/REVOCATION OF POA & SGR

Termination

POA/SGR terminates upon (a) the death of the Principal; (b) the death/resignation/incapacity of

the Agent if there is no Co-agent or Successor Agent who is willing and able to serve; or

(c) revocation by the Principal.

Revocation

The Principal can revoke the POA/SGR by:

(1) Executing a simple signed & dated written statement of revocation; or (2) Executing a new POA/SGR that includes a statement in the “Modifications” section that the

prior POA/SGR is revoked; and (3) Giving notice to all concerned (this is critical!).

13 Governed by GOL §5-1514


Planning for Incapacity: HEALTH CARE DIRECTIVES

Patient self-determination and informed consent are fundamental elements of medical care in the

United States. A person with capacity to make medical decisions may consent to a specific

medical order prior to losing capacity, including an order to withhold or withdraw life-sustaining

treatment. If the capacity to make medical decisions is lost, securing informed consent and

carrying out a patient’s wishes raise complex legal and ethical issues, especially when end-of-life

is near and decisions must be made about whether or not to provide life-sustaining treatment.

We are all encouraged to make decisions concerning life-sustaining treatment in advance so that,

in the event we lose decision-making capacity, our wishes can be honored.14

►New York’s key health care advance directives are the Health Care Proxy and Living Will15

.

►Clients should be encouraged to consult with their doctors, family, friends, and clergy about

their health care planning choices, which may be influenced by religious and moral beliefs. The

American Bar Association’ website includes a helpful “Consumers Tool Kit”:

http://www.americanbar.org/groups/law_aging/resources/consumer_s_toolkit_for_health_care_a

dvance_planning.html See also www.agingwithdignity.org.

Health Care Proxy

What is a HCP?

A Health Care Proxy is very much like a durable, springing POA except it allows the agent

(“proxy”) to make medical – not financial - decisions on behalf of the Principal. HCPs in New

York are governed by PHL Article 29-C. The NYS Department of Health distributes the

statutory form; use of this exact form is not mandatory, but health care providers are familiar

with it. No rights are given up – HCP operates as a “springing” power, only providing the Agent

with authority to act in the future in the event the Principal is unable to communicate with his/her

doctor due to incapacity. The HCP may be used by the Agent inside and outside of hospital

settings. Just one Agent can be appointed (no co-agents), plus one or more successor Agents. It

is generally speaking inappropriate and unethical for the Principal’s social worker or caseworker

to be appointed as Agent under a HCP.

14 The 1991 federal Patient Self-Determination Act, 42 U.S.C. § 1395 cc(f) requires hospitals, nursing homes,

hospice programs and home health agencies to inform patients about their decision-making rights, ask them about

advance health care directives, and document those directives in their medical records. 15

These forms are easily available to the public on the internet on various government agency websites as well as on

the NYS Bar Association’s website at:

www.nysba.org/Content/NavigationMenu/PublicResources/LivingWillHealthCareProxyForms/Living_Will_and_H

eal.htm

http://www.americanbar.org/groups/law_aging/resources/consumer_s_toolkit_for_health_care_advance_planning.html

http://www.americanbar.org/groups/law_aging/resources/consumer_s_toolkit_for_health_care_advance_planning.html

http://www.agingwithdignity.org/

http://www.nysba.org/Content/NavigationMenu/PublicResources/LivingWillHealthCareProxyForms/Living_Will_and_Heal.htm

http://www.nysba.org/Content/NavigationMenu/PublicResources/LivingWillHealthCareProxyForms/Living_Will_and_Heal.htm


Why is a HCP Needed?

Agent under HCP can make decisions to withhold or withdraw life-sustaining treatment even

where patients have not left clear and convincing evidence of their wishes. The Agent must

make decisions in accordance with the Principal’s wishes, or if the Principal’s wishes are not

reasonably known and cannot be ascertained with reasonable diligence, in accordance with the

Principal’s “best interests.” It is important for the Principal to talk to his/her Agent(s) about

wishes, most importantly with regard to withholding or providing “heroic” measures. These are

hard conversations, which most people prefer to avoid.16

►Recommended to put in a separate “HIPAA” form explicit language authorizing release to the

agent named in the HCP of information protected by HIPAA (not to put it in the HCP itself).

What are the Key Features of a HCP?

►Only one Agent may be appointed (with one or more others as successors).

►All available telephone numbers and other contact information for Agent(s) should be listed.

►HCP must be signed and dated by the Principal in the presence of two witnesses, neither of

whom may be a named Agent or successor Agent. No notary public is needed.

►HCP contains a section regarding organ donation wishes, with an additional signature line.

►For health care decisions about artificial nutrition and hydration (nourishment and water

provided by feeding tube/ intravenous line), agent must “reasonably know” principal’s wishes.

Where this is the case, the following language can be inserted under “Optional Instructions”

(Section 4): “I have discussed my wishes with my health care agent [and alternate agent(s)] and

they know my wishes including those about artificial nutrition and hydration.”

►Copies are as good as original – give client at least 6 copies: one for each agent and doctor;

one to put on refrigerator or other similar location in the client’s home.

16 Recommended Viewing: The diner scene in “The Savages” (2007), a film written and

directed by Tamara Jenkins about two siblings (Laura Linney and Phillip Seymour Hoffman) and

their aging father (Philip Bosco), in which the daughter broaches the topic of end-of-life choices:

“In the event that um…something should happen, how do you want us to…um…”. Her brother

interrupts and blurts out, “Dad, what if you’re in a coma? Do you want a breathing machine?”

Sister exclaims, “John!” Father, confused, first asks, “What kind of a question is that?” Then, he

pauses, realizing what they’re talking about, and mumbles, “Unplug me.” Son asks, “What?”

Father yells in a loud voice, drawing the attention of everyone in the diner: “Pull the plug!”

See http://www.imdb.com/title/tt0775529/

http://www.imdb.com/title/tt0775529/


Living Will

A Living Will is a document which expresses a Principal’s wishes with respect to certain kinds

of medical treatment in the event of incapacity and a terminal or chronic illness. It can cover

views/wishes on nutrition (feeding) and hydration (fluids), pain medication, and life-prolonging

machines such as respirators. A LW can express wishes to continue to receive treatment as well

as to discontinue treatment. A LW is not as flexible as a HCP (it is hard to draft a document that

provides specific instructions with regard to all possible future events), but is especially

important and useful for someone with clear ideas about his or her wishes but no one to appoint

as HCP. A LW can be executed in addition to a HCP and given to the agent (but not to medical

personnel) for guidance. When both a HCP and LW are prepared, every effort should be made to

avoid inconsistencies or conflicts between the two documents.

►The LW, unlike the other Life Planning Documents, has no governing statute. Rather, LWs

are recognized through case law. As with the HCP, in New York State there is a standard LW

form, available to the public on various websites including that of the NYS Bar Association.

►Execution is the same as for a HCP: The Principal signs before two witnesses; no notary

needed.

►As with the HCP – copies are as good as the original. The Client should be provided with

sufficient copies to distribute to Agents and doctors; where there is both a HCP and a LW, many

elder law practitioners recommend that the LW not be distributed to medical personnel.

Interplay of HCP & LW

There has been recent discussion in the Elder Law community about how the New York State

HCP and LW forms work together, for people who do have in their lives an appropriate person

or persons to name as agent(s) under a HCP form. While there certainly is room for debate and

differences of opinion, the following can be considered as current “best protocols”:

(1) In order to avoid ambiguity, it is best not to put any specific instructions in section #4

of the standard NYS Department of Health HCP form, but to instead state “My agent

knows my wishes” in this section.

(2) For someone who has a trusted person or persons to name as agent(s) under a HCP,

the LW form is unnecessary and potentially could cause problems for the Agent(s)

acting under the HCP as the language of the LW may be considered

ambiguous. (Reasonable minds may differ as to the meaning of phrases like “little or

no chance of recovery.”)

(3) Some people who execute a HCP feel it is still important to also execute a LW, in

order to reinforce their statements of their wishes about end-of-life care that they have


given to their Agent(s) through conversations. In this situation, while copies of the

HCP form should be distributed to all Agents and medical personnel in the

Principal’s life, the LW should be given only to the Agent(s) and the Agent(s) should

be instructed that the LW is for their eyes only and should not be shown to any

medical personnel.

(4) Some people who execute a HCP feel it is still important to also execute a LW in

case the Agent or alternate Agent(s) appointed under the HCP cannot be located

when needed.

(5) For those people who execute both a HCP and a LW as per (3) and (4) immediately

above, it is recommended to insert the following language at the top of the LW form:

“This declaration is intended to serve as a guide to assist my duly appointed health care

agent in making medical decisions on my behalf. However, it is not intended to limit my

health care agent’s sole discretion to interpret this document and to make medical

decisions in good faith after full consideration of my medical condition and prognosis. If

my health care agent is unable to serve for any reason, my attending physicians shall

comply with my directions.”

Other Health Care Related Documents and Points of Information

2010 Family Health Care Decisions Act (PHL Art. 29-CC)

Before NYS enacted the FHCDA, no one had the right to make health care decisions for another

incapacitated adult absent a HCP/LW. The FHCDA establishes a hierarchy of family members,

friends, and others to make health care decisions – including the decision to withhold or

withdraw life-sustaining treatment - where a patient lacks decisional capacity and did not leave

prior instructions or execute a HCP appointing an agent for health care decisions. The FHCDA

is effective only for patients who are in general hospitals and residential health care facilities

(nursing homes); it does not apply for at-home care.

DNR Orders

NYS Law provides that where there is no direction from the individual or surrogate health care

decision-maker under a HCP or under the FHCDA, there is a presumption for resuscitation.

A DNR Order instructs medical personnel not to undertake resuscitation measures for a patient

who has a terminal condition; or who is permanently unconscious; or for whom resuscitation

would be medically futile or would impose and extraordinary burden on the patient in light of the

patient’s medical condition and the expected outcome of resuscitation for the patient.

A DNR Order is prepared and signed by the patient’s attending doctor and applies only when a

patient is in cardiac or respiratory arrest – i.e. when a patient has no pulse and/or is not breathing.


►In the hospital setting, the DNR Order has been replaced in large part by the FHCDA (above).

►The non-hospital DNR Order directs emergency medical services and hospital personnel not to

attempt cardiopulmonary resuscitation on someone suffering from cardiac or respiratory arrest.

MOLST – Medical Orders for Life Sustaining Treatment

A MOLST form is signed by a patient’s physician and contains the patient’s medical orders for

life-sustaining treatment. The MOLST is generally for patients with serious health conditions,

and is completed based on the patient’s current medical condition, values, wishes, and the

MOLST instructions. MOLSTs are recorded on a portable, easily identified form (bright pink),

based upon conversations between the physician and patient (or patient’s health care Agent)

regarding prognosis, benefits and burdens of life-sustaining treatment, and the patient’s personal

goals for care.

Studies have shown that the MOLST process is useful in initiating conversations about end-of-

life care, preventing unwanted resuscitations, and hospitalizations and documenting a range of

treatment options.

These orders are effective both in the community and in health care facilities, and are intended to

accompany the patient from one setting to another.

2011 Palliative Care Information Act (PHL § 2997-c)

►“Palliative Care” is defined as health care treatment, including interdisciplinary end-of-life

care, and consultation with patients and family members, to prevent or relieve pain and suffering

and to enhance the patient’s quality of life, including hospice care.

►The PCIA is New York’s patients’ rights law which recognizes a clearly defined right of

terminally ill patients to receive information and counseling about their palliative care and end-

of-life options. The law requires medical providers to offer terminally ill patients information

and counseling about the range of options appropriate to the patient; the prognosis, risks, and

benefits of the various options; and appropriate palliative care and end-of-life options such as

hospice programs and pain and symptom management medications.


PLANNING FOR DEATH: Last Will & Testament

Overview

A Last Will & Testament is a formal document with formal execution requirements. If the

decedent dies intestate – leaving no Will - EPTL § 4-1.1 dictates who inherits, depending upon

whom the decedent is survived by. If a Will is not drafted and executed properly, those who

would inherit under the rules of intestacy may challenge it.

Examples of Intestate Distribution:

(1) If a spouse and issue17

[children, grandchildren, etc.], $50,000 + ½ to spouse, balance to

issue “by representation”;

(2) If a spouse and no issue, the whole to the spouse;

(3) Issue and no spouse, the whole to the issue by representation;

(4) One or both parents and no spouse and no issue, the whole to the surviving parent(s)

► Intestacy extends only to first-cousins-once-removed (“great grandchildren of grandparents”).

INTERVIEWING THE CLIENT

Know your client! Conduct a thorough information-gathering session with the client alone.

► Attorney won’t know until meeting with the client how complicated (or not) any particular

case will be. Important to gather full financial and personal information in order to understand

the client’s needs and draft appropriate documents.

► Each client’s estate plan, from the initial client meeting through the Will execution, has the

potential for a Will contest, regardless of whether any red flags emerge during the process.

Taking precautions with every client should reduce the likelihood of a Will contest.

► Assist client in creating a complete list of next-of-kin who are potential distributees/heirs.

PRACTICE TIP: Review marital status carefully – spouse has right of election and can sue estate

for minimum elective share (larger of $50,000 or 1/3 of the estate).

PRACTICE TIP: When working with a married couple, both of whom want Wills prepared, they

must understand that there can be “no secrets” among the three of you. If a conflict develops

after the representation begins, the attorney must withdraw from assisting both spouses.

17 “Issue” means “descendants in any degree from a common ancestor” (EPTL § 1-2.10) and includes half- &

whole-blood relatives; relatives conceived prior to death but born after; adopted children (EPTL § 4-1.1(b), (c) &

(d). Issue does not include step-children or adopted-out children.


► Avoid assumptions! For example, when client tells you:

(1) s/he is or was married, ask for details: dates and jurisdictions of any and all marriages

and divorces;

(2) s/he was never married, this does not mean they don’t/didn’t have any children;

(3) s/he wants to leave everything to a cousin, ask for details (child of your mother’s

brother?), as the “cousin” could be a more distant relative.

PRACTICE TIP: It is helpful to draw a FAMILY TREE, including when possible dates of birth

and complete contact information for all family members. While it may not all go in the Will, it

will be helpful to the Executor handling the probate or estate administration process to have this

information together in one place and likely will be harder for that third party to identify and

locate these people at a later date. (Surrogate’s Court requires “due diligence”.)

► Ask client to bring to the interview:

(1) A list of tangible personal property s/he wants to devise in specific bequests; someone

with an extensive list and a trusted friend or family member can have the Will

provide for distribution of those personal possessions by that person according to a

separate list that the testator draws up, with discretion to be exercised as needed.

(2) A full list and documentation of all assets with approximate values (bank accounts,

pension and retirement plan benefits, life insurance policies showing beneficiaries,

contents of safety deposit box at bank or residence, shares of stock in a cooperative,

condominium, or other real property); best to review documents to see exactly how

title is held (individually, joint tenancy with rights of survivorship, tenants by the

entirety, tenancy in common), and counsel client about options for changing title if

feasible and appropriate.

(3) Originals of any prior Wills – to be destroyed upon executing a new Will.

PRACTICE TIP: VOLS Elderly Project is for elderly Manhattan residents of limited means who

cannot afford to pay an attorney. VOLS has no strict income limit, but assets should be under

approximately $40,000, other than the home (if any).

► Ask clients about their overall health, medical conditions, and medications.

Who are the players?

TESTATOR – the person making the Will.

BENEFICIARIES/DISTRIBUTEES – whomever the Testator wants to name; only a legal

spouse cannot be left out of a Will (entitled to an elective share of the greater of $50,000 or 1/3

of the net estate, unless lived apart for many years and gave no support).


EXECUTOR/EXECUTRIX – responsible person to collect/distribute probate property in

accordance with Will; executor can be a beneficiary – even can be the sole beneficiary. Does not

have to be a lawyer - can hire one if needed. Client should consult and choose someone willing

and able to serve. Cannot be: A minor; an incompetent; a non-domiciliary non-citizen; a felon;

someone otherwise unfit for the role.

GUARDIAN – for beneficiaries who are minor children.

WITNESSES – two are needed, and they cannot be anyone named in the Will.

INTERPRETER – if client has limited English language proficiency. Ideally, the interpreter is

not one of the witnesses and not the lawyer handling the Will execution ceremony.

LAWYER – Lawyer (hard to draft & execute a Will without one!); lawyer also can be a witness.

NOTARY – to notarize the witnesses’ “self-proving Affidavit”; can be the lawyer (if lawyer is

not acting as a witness).

Basic Elements of a Will:

WRITTEN – Generally speaking, a Will must be written.18

PLAIN LANGUAGE – Use clear, simple everyday language to spell out client’s wishes.

ORIGINAL – The ORIGINAL Will must be produced at the time of probate (otherwise, there is

a presumption that the Will was destroyed); there should be only one ORIGINAL.

TESTAMENTARY CAPACITY – Testator must have “testamentary capacity” (see discussion

above); a relatively low threshold under common law: Testator must know the “nature and

extent of property being distributed and natural objects of my bounty.”

PUBLICATION – Testator must declare to the witnesses that the document is his/her Will.

SIGNATURE – A Will must be signed by the Testator at the end of the document. A Testator

who can only make an “X”, or cannot sign due to physical limitations, can be accommodated.

WITNESSED – A Will must be witnessed by two people who are not mentioned in the Will.

SELF-PROVING AFFIDAVIT OF WITNESSES – In addition to signing the Will below the

Testator’s signature, the witnesses also should sign a “self-proving affidavit,” which is notarized

and attached to the Will, to minimize likelihood of being called to testify in court as to the due

18 NY does not recognize an oral (“nuncupative”) Will unless it is made by a member of the Armed Forces while in

actual military or naval service during war or armed conflict, or by a mariner while at sea. Note that these Wills

become invalid one year after the testator’s discharge from the Armed Forces and three years after the mariner

makes the Will at sea. EPTL § 3-3.2(b).


execution of the Will if it is challenged. The “self-proving affidavit” form can be adjusted to

reflect specific circumstances of a signing, if, for example the Testator signs with an “X”; needs

to have the Will read aloud and/or translated to him/her due to a vision impairment or lack of

facility in the English language; etc.

REVOCABLE – A Will is revocable by a Testator with capacity, and can be revoked by an act

of burning, tearing, cutting, cancellation, or other mutilation or destruction performed by the

testator, or by another person at the direction of the testator. Additionally, under New York law,

execution of a subsequent Will revokes all prior Wills. If after executing a Will the testator

executes a later Will which revokes or alters the prior one, a revocation of the later Will does not

automatically revive the prior Will.

TYPES OF BEQUESTS

Specific Bequest – disposition of a specified item of property, using a clear description

of the property and designation of the beneficiary (“my Rolex watch to my son John X. Smith,

Jr.”; “my pewter box currently on my bedside table to my friend Mary Q. Jones”).

Demonstrative Bequest – direction to make payment to a beneficiary out of a

specified or identified fund or property (“I direct that my 1995 Honda Accord be sold and from

the proceeds thereof I bequest the sum of $2000 to my brother Paul if he survives me”).

General Bequest – does not designate the source of its payment; payable out of the

general assets of the probate estate remaining after payment of debts, administration expenses,

and specific and demonstrative bequests

Charitable Bequest – a cash bequest to a 501(c)(3) charity; make sure to use the proper

corporate name and address of the organization. Many charities include suggested language for

bequests on their websites. (“Google it!”)

Residuary Bequest – a disposition of all or a portion of the residuary estate (the probate

estate remaining after payment of debts, administration expenses, and specific/demonstrative/

general legacies). Even if a Testator believes that entire probate estate is disposed of by way of

specific/general legacies, a residuary bequest – with at least one alternate - should be included to

avoid intestacy as to omitted or after-acquired assets.

Ademption – occurs when a bequest does not take effect because the property listed in a

specific or demonstrative bequest is not in existence at death.

Per Stirpes – estate is divided at the nearest generation to the decedent where there is issue

then living, with equal shares to both (1) the surviving members of that generation and (2)


deceased members of that generation who left surviving issue. The shares of those deceased

members leaving issue are each then similarly divided to their issue.

Per Capita – a disposition or distribution of property is per capita when it is made to persons

each of whom is to take in his or her own right an equal portion of such property

By Representation – equal division at each generational level where there are issue then

living: First, estate is divided in same manner as a per stirpes bequest (at nearest generation to

decedent where there are issue then living, with each surviving member in such nearest

generation allocated one share). Then, at each generational level where there are issue then

living, the remaining shares are combined and then divided in the same manner among the

surviving issue of the deceased issue as if the surviving issue who are allocated a share had

predeceased the decedent without issue. Intestate dispositions are “By Representation”.

Lapsed Bequest – occurs when the beneficiary predeceases the Testator. Lapsed bequest

fails to take effect.

Anti-Lapse Rules – where a testamentary disposition is made to issue or to a sibling of

the Testator without expressly stating that the disposition is conditioned on beneficiary’s

survival, and where beneficiary dies during Testator’s lifetime leaving issue surviving such

Testator, the disposition does not lapse but vests in such surviving issue, by representation.

Phrases to Use with Caution (If at All): “to my issue in equal shares per

stirpes”19

and “IN WITNESS WHEREOF”20

Miscellaneous Other Provisions and Considerations

“Boiler plate” provisions are often included regarding (1) payment of debts (note that if

Testator leaves essentially no money, debts die with him/her); (2) devisees who are minors;

(3) devisees who receive or are likely to receive means-tested government benefits such as

SSI and Medicaid; (4) simultaneous death.

PETS - Pets can be provided for in the Will.

Include sufficient alternate/back-up beneficiaries (perhaps a favorite charity) to provide for

possibility that named beneficiaries may predecease. Ask the question: “What if …?”

19 As applied to a given set of facts, this phrase could create an impossibility, as per stirpes can result in different

issue receiving different (unequal) shares. 20

Immediately above the Testator’s signature line, some Will forms in circulation use the phrase “In Witnesses

Whereof”; this is incorrect and the correct phrase is “In Witness Whereof.” A discussion of the archaic nature of

this phrase can be found in Mellinkoff’s Dictionary of American Legal Usage 253-54 (1992), in which the phrase

“In witness whereof” is included on a list of “written formalisms” that are “flourishes of a style long dead “ which

“should be liquidated – not replaced, liquidated.” See www.michbar.org/journal/pdf/pdf4article760.pdf


Gifts to minors can be directed into a trust or be paid to a parent or guardian.

“Exclusion” clause: Conveys that Testator did not merely forget about someone who was

intentionally left out of a Will.

Gifts to devisees who are disabled and in receipt of (or likely to receive in the future) needs-

based benefits like Medicaid and SSI, bequests should be left to them in trust.

Include Affidavit of Translation and/or Affidavit of Reading as needed. Translator should

not also act as a witness.

WILL EXECUTION

►Formalities must be followed for the execution of a Will and best practice is to follow a script.

Testator must declare that the document is his/her Will, that it expresses his/her wishes, and that

s/he wants the people present to be his/her witnesses.

►No person who stands to benefit under the Will, even indirectly, should be present.

►Before signing, engage the Testator in a dialogue (“have a chat”), in the presence of the

Witnesses, so that all are satisfied that the Testator is competent.

►If you have any concern about testamentary capacity, family members who are beneficiaries

insisting upon being in the room, etc., DO NOT GO FORWARD. Trust your instincts and

postpone to avoid being a party to the execution of a Will that might be challenged.

►Will must be signed at the end by Testator in front of 2 witnesses who sign below the Testator.

►Some practitioners have the Testator sign or initial each page of the Will.

►No correction fluids ( i.e. “Wite-Out”® ) should be used!

►No stapling the Will until it is fully executed! Once stapled, the staples should not be

removed, and clients should be advised of this prohibition (as well as the prohibition against

changing the Will by hand on their own).

PRACTICE TIP: Affidavit of Attesting Witnesses assumes that the Testator reads and speaks

English and is not suffering from a physical disability such as blindness. If this assumption does

not apply for one reason or another, make sure to adapt the Affidavit accordingly.

PRACTICE TIP: Follow the same routine or script for every Will-signing ceremony, so that you

need not have an independent recollection of a particular execution in order to testify that the

proper “testamentary formalities” were adhered to.


Where to Keep the Original Will

Some lawyers have storage areas for holding their clients’ originals Wills (VOLS does not)

Testator can keep it (“in metal box under my bed”) and give copies to Executor and others

Give to Executor

File with the Surrogate’s Court ($45 fee)

NOT a good idea to keep it in a bank-held safety deposit box, which will not be accessible

immediately after the Testator’s death when needed

Probating the Will

A Will does not become legally effective and the estate will not be distributed until the Will has

been probated: its validity must be proved before the Surrogate’s Court and any objections to the

probate by interested parties have been heard. Note that simplified procedures exist under the

SCPA for Small Estates (up to $30,000 in personal property; any real property which the

decedent may own is not included and does not interfere with the administrator’s ability to

follow the simplified procedures for the decedent’s personal property).

Challenging a Will

The grounds for challenging a Will are as follows (and note that they do not include, “you left

me out!” other than for a spouse who has the right to an elective share):

Lack of testamentary capacity

Technical error - improper/invalid execution

Undue influence, especially where there is any hint of diminished capacity

Fraud

Mistake (“Mom thought I was dead”)

Duress

Divorce decree or other contract

Who raises these grounds? Generally, someone left out of the Will.

PLANNING FOR DEATH: Non-probate Property

Non-probate property passes to the named beneficiary outside the Will. Examples of non-

probate property include:

Life Insurance proceeds (although the estate can be named as beneficiary)

IRAs and other retirement accounts with named beneficiaries


Trusts – revocable or irrevocable

In Trust For/Payable on Death Bank Accounts (aka “Totten Trust”)

Jointly-held bank accounts with rights of survivorship (CAUTION: this arrangement gives

each joint tenant a present legal right to withdraw ½ the balance); sometimes these are set up

as “convenience accounts,” so that joint tenant can pay bills; client may not realize s/he has

given the joint account holder a currently effective gift of ½ the balance

Jointly-held real property and other interests, with rights of survivorship

►Client may benefit from counseling about (a) changing title (if possible to do so) if current

arrangements do not effectuate the client’s intent and (b) other ways to avoid probate.

PLANNING FOR DEATH: Disposition of Remains

Appointment of Agent for Control of Disposition of Remains

Section 4201 of the NYS Public Health Law states who is in charge of a funeral if no directive

exists. The statute creates a hierarchy, starting with the person designated in a written instrument

drafted and executed under the statute, followed by surviving spouse, surviving domestic partner,

any child of the deceased aged 18 or older, surviving parents, siblings, guardian under SCPA

Art. 17-A or MHL Art. 81, an heir under EPTL § 4-1.1, a duly appointed fiduciary of the

decedent’s estate, a close friend or relative “who is reasonably familiar with the decedent’s

wishes,” the county public administrator, “or any other person acting on behalf of the decedent.”

►The language of the “written instrument” referred to in PHL § 4201 is included in that statute.

►Execution requirements of the PHL § 4201 “Disposition of Remains” (aka “Control of Body”)

form are similar as for the HCP and LW: The Principal must sign before two witnesses, with no

notary required. In addition, the Agent must sign, but not until the time to act arises.

►It is appropriate and ethical for a Principal’s social worker or caseworker to be appointed as

agent under a Disposition of Remains form, and this is a good option for clients who have no

close family or friends (as long as the social worker/caseworker consents).

►If the principal has no one to name as agent s/he can name the County Public Administrator.

Cremation

Cremation is legal in New York and governed by Section 4202 of the NYS Public Health Law; it

is much less expensive than burial.

►Cremation does not require a coffin; “an approved container” is sufficient, and can be a simple

waterproof cardboard box. In NYS, before cremation the treating doctor must confirm there are

no implants such as a pacemaker (which will explode and must be removed).


►In New York, ashes can be scattered at sea, but not in fresh waterways; some cemeteries have

ashes-scattering sections. Other States (and some localities) may have different rules.

►The form in circulation called “Direction for Cremation” is not needed; better instead to use

the statutory “Appointment of Agent for Control …” form (see above) and specify cremation.

Donating Body to Science

The American Medical Society of New York describes whole body donation as “a generous gift

of knowledge,” given that the study of the human body has led to many major medical advances.

Many people view the donation of their body to medicine as a way of helping future generations.

Another consideration is that donating one’s body to science is even less expensive than

cremation. Ultimately, the medical school will have the body cremated – which may be a

deterring factor for some – and will cover the cost of such cremation as well as dispose of the

ashes if there is no one else to do so.

►The body must be fully intact, with no organs (other than eyes) separately “harvested”.

►There is a simple donation form available on the internet at the American Medical Schools of

New York website: http://www.amsny.org/initiatives/anatomical-donations

Pre-Paid, Pre-Need, Irrevocable Funeral Arrangements

For those who can afford to do so, purchasing a contract for a funeral and burial expenses is a

good planning tool. Such contracts are closely regulated by NYS General Business Law § 453;

however, as with the purchase of any other product or service, “caveat emptor”! Clients

should be encouraged to shop around for a reputable funeral home and seek recommendations

from family members, friends, clergy, etc.

►GBL § 453 requires, among other things, that the contract purchase funds be placed into a

separate, interest-bearing bank account (subsection 1.a), that the funeral home provide an annual

accounting of the funds (subsection 1.b) and, if the company transfers hands or goes out of

business, provide notice of transfer of the funds to another account (subsection 5.a).

►For purposes of Medicaid/SSI, as long as it is irrevocable, the purchase price of the contract

may be in any amount and the value does not count as a resource. If an individual’s irrevocable

pre-need agreement has less than $1500 designated for non-burial space items, the Medicaid/SSI

recipient is allowed to set aside a “burial fund” of up to $1500 (with interest allowed to

accumulate on that amount) in addition to the contract with the funeral home. These funds must

be kept in an account that is separate and distinct from any non-burial-fund bank accounts.

ᴭᴭᴭᴭᴭᴭᴭᴭᴭᴭᴭᴭᴭᴭ

http://www.amsny.org/initiatives/anatomical-donations


All The World’s A Stage

From William Shakespeare’s “As You Like It”:

All the world's a stage,

And all the men and women merely players:

They have their exits and their entrances;

And one man in his time plays many parts,

His acts being seven ages. At first, the infant,

Mewling and puking in the nurse's arms.

And then the whining school-boy, with his satchel

And shining morning face, creeping like snail

Unwillingly to school. And then the lover,

Sighing like furnace, with a woeful ballad

Made to his mistress' eyebrow. Then a soldier,

Full of strange oaths and bearded like the pard,

Jealous in honour, sudden and quick in quarrel,

Seeking the bubble reputation

Even in the cannon's mouth. And then the justice,

In fair round belly with good capon lined,

With eyes severe and beard of formal cut,

Full of wise saws and modern instances;

And so he plays his part. The sixth age shifts

Into the lean and slipper'd pantaloon,

With spectacles on nose and pouch on side,

His youthful hose, well saved, a world too wide

For his shrunk shank; and his big manly voice,

Turning again toward childish treble, pipes

And whistles in his sound. Last scene of all,

That ends this strange eventful history,

Is second childishness and mere oblivion,

Sans teeth, sans eyes, sans taste, sans everything.


LPDs Training Manual—Acronyms Used

ADLs = Activities of Daily Living

DNR = Do Not Resuscitate Order

EPTL = NYS Estates Powers & Trusts Law

FHCDA = NYS Family Health Care Decisions Act

FS = Food Stamps (common term for the “Supplemental Nutrition Assistance Program” aka

SNAP)

HCP = Health Care Proxy

LPDs = Life Planning Documents

LW = Living Will

MA = Medicaid

MHL = NYS Mental Hygiene Law

MOLST = Medical Order for Life Sustaining Treatment

PCIA = NYS Palliative Care Information Act

PHL = NYS Public Health Law

POA = Power of Attorney

SCPA = NYS Surrogates Court Procedures Act

SSD = Social Security Disability benefits

SSI = Supplemental Security Income benefits

SSR = Social Security Retirement benefits

VOLS = Volunteers of Legal Service, Inc.