Articles Posted in Advanced Directives

shutterstock_199873709-300x200New Yorkers, as well as people throughout the world, are dealing with the health and financial effects of the COVID-19 pandemic. As in many past emergency and life-changing situations, thoughts are focused on a person’s future well-being. In particular, having practiced in the New York trusts and estates and estate planning area for 40 years, I have encountered similar environments created by events such as 9/11 and Hurricane Sandy.

This article is meant to provide some reassurance and guidance going forward. As I have talked about in many posts in the New York Probate Lawyer Blog, preparing an estate plan is important. Such a plan, which should include advance directives, provides a documentary guide for the disposition of assets upon death and for life-time, health care and financial management. These documents include a Last Will and Testament, Living Will, Health Care Proxy, Living Trust and Power of Attorney.

If such a plan has not been instituted, the time to consider and implement these papers can take place going forward. If there is an emergency situation call my office now and we can attempt to assist.

Estate litigation occurs on a daily basis in Manhattan, Brooklyn, Nassau and other New York Surrogate’s Courts in counties across the state. The variety of the issues that are the subject of dispute often appear to be endless and usually present rather interesting problems. New York estate lawyers confront many complex issues and provide assistance to their clients in attempting to resolve these matters that can disrupt and delay estate settlement.

Estate court cases occur throughout the United States and it is helpful to review a few current controversies since the situations presented can easily relate to a New York decedent.

In one recent incident a Missouri attorney has been accused of murdering her father in a very unusual manner. As reported in an article by Martha Neil posted on October 2, 2012 in the ABA, the attorney apparently shot her father, but after he survived being shot, the attorney used a forged health care proxy to have life saving treatment for him discontinued.

Under Section 2981 of the New York Public Health Law a person can appoint a health care agent by preparing a Health Care Proxy. The statute, along with companion statutory provisions, contains many specific provisions regarding the process to create the proxy. For example, it must be “signed and dated by the adult in the presence of two adult witnesses who shall also sign the proxy.” PHL sec 2981 2(a).

It should be recognized that a Health Care Proxy relates to health care decisions. In New York an individual can also appoint an agent to make financial or property decisions. However, to do so a different document called a Power of Attorney must be prepared and executed in accordance with the statutory rules beginning at New York General Obligations Law section 5-1501.

New York estate planning lawyers typically discuss with clients the benefits of having a Health Care Proxy and Power of Attorney as part of their estate and financial planning papers. As can be seen from the case of the Missouri attorney and her father, it is also important to select as an agent a person that can be trusted and will act in the principal’s best interest.

A different set of circumstances was recently reported regarding a father who sued his daughter when she questioned his handling of her trust. As reported by Barbara Ross and Bill Hutchinson in an article in the New York Daily News on October 23, 2012 a Manhattan attorney sued his daughter for libel after she filed a request with the Manhattan Surrogate’s Court to have him provide an accounting of her trust.

New York estate and Surrogate’s Court laws provide that all fiduciaries, whether they are Executors, Administrators or Trustees, are obligated to provide an accounting of their activities. The Court can require a fiduciary to account and a beneficiary can request that the fiduciary be compelled to account. Surrogate’s Court accounting proceedings can be very complicated since the fiduciary may have had many financial transactions over many years and the advice of estate attorneys and also accountants is generally very helpful.

I have represented many clients in connection with fiduciary accounting proceedings including individuals who are preparing and filing accounting papers and beneficiaries who are reviewing the accountings. When an interested party disapproves of the actions of the fiduciary, the common procedure is to file objections to the accounting with the Court and the interested party may fully investigate all financial transactions and present the objections to the Court at a hearing.

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Brooklyn and Nassau estate attorneys, as well as those assisting their clients throughout all parts of New York State, are often confronted with a myriad of issues relating to Powers of Attorney, Health Care Proxies, Article 81 Guardianship and estate settlement.

In a typical situation, an individual may have prepared a Last Will while at the same time preparing a New York Power of Attorney and a Health Care Proxy. The New York Probate Lawyer Blog has previously discussed the importance of preparing advance directives such as a Power of Attorney and Health Care Proxy by which others can be appointed to handle a person’s property and health care issues in case of illness or incapacity.

All parties involved in these matters should be particularly aware that agents appointed in a Power of Attorney and Health Care Proxy have similar fiduciary duties to act appropriately as do Court appointed fiduciaries such as Article 81 Guardians and Executors and Administrators. In many instances, questionable conduct by these lifetime agents may end up being reviewed by a Court in a Guardianship Proceeding or in proceedings in the New York Surrogate’s Court after the appointing person dies. Issues regarding property transfers, expenditure of funds, and the change of names or beneficiaries on bank accounts, life insurance and retirement funds can result in disputes that overlap lifetime and post death periods.

A recent lawsuit entitled Kaufman v. Kaufman, in New York State Supreme Court, New York County, provides an excellent example of the problems and issues that can arise in these situations. Kaufman involved two brothers, Allen and Kenneth, both of whom were appointed as agents in a Power of Attorney by their father, Hyman. Allen and Kenneth were also Co-Trustees under family trusts. Hyman, who had suffered a brain injury, had been in a nursing home for a number of years.

Allen petitioned the Court for an accounting and requested among other things, that Kenneth be removed as attorney-in-fact under the power of attorney and as a trustee for violating his fiduciary duties. As recounted by the Court, Allen claimed that Kenneth was “refusing to share financial information, failing to provide a complete record of financial transactions, and using Hyman’s assets for personal and business purposes.”

Following a review of the parties assertions, Justice Donna Mills in a decision dated August 4, 2011, directed Kenneth to provide an accounting of his activities pursuant to New York General Obligations Law Section 5-1505. This Statute, entitled “Standard of Care: fiduciary duties; compelling disclosure of record”, requires in paragraph 2(3) an agent under a power of attorney “to keep a record of all receipts, disbursements, and transactions entered into by the agent on behalf of the principal and to make such record and power of attorney available to the principal or to third parties at the request of the principal”
It is apparent that issues involving fiduciary duties and the safeguarding or misuse of assets can overlap from the lifetime stage to a post death estate settlement controversy. Suppose Hyman had died prior to the resolution of the Supreme Court case. In such event, questions regarding the propriety of Kenneth’s acts might need to be resolved in the Manhattan Surrogate’s Court as part of the administration of Hyman’s estate.

I have counseled clients, both fiduciaries and beneficiaries, in many situations similar to those raised in Kaufman. The appointment of lifetime agents, as well as executors and trustees, requires thorough consideration and the problems faced by the fiduciaries and those whose interests they are protecting can arise and require resolution in many different forums.

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Family gatherings around the holidays can make it clear that a loved one will need assistance to maintain his or her independence, or may even require an assisted living facility or a nursing home.

Frequently, a New York power of attorney will be granted to friend or family member who agrees to help with an aging loved one’s affairs. Too often, neither the grantor (known as the principal), nor the grantee (known as the agent) have a proper understanding of the requirements, limitations and consequences of a power of attorney.A power of attorney can be structured for a single purpose — such as disposing of a piece of property — or can grant broad powers to conduct business on a person’s behalf. It can also be limited to a specific time frame.

Additionally a Living Will is a document detailing a person’s desire as to whether or not to be maintained on life support. New York’s Health Care Proxy law provides a separate document that provides a health-care agent. And a durable power of attorney in New York will remain in effect if you become incapacitated.

In general, it is best to structure a power of attorney in such a way as to be limited beyond the scope of the desired task. Where problems frequently occur, is when a broad power of attorney is granted for a specific task, which can permit far greater uses than the principal intended.

In other cases, a power of attorney is not the best legal avenue to achieve the desired result. In all cases, the best course of action for protecting your rights is to contact a New York City probate attorney to discuss your individual needs and the available options.

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As we gather for the holidays, it may become apparent that an older loved one will need the help of an assisted living or nursing facility at some point in the not-too-distant. You may even be approached by an aging parent or guardian for advice, to become an estate administrator, or to make end-of-life decisions.

While some may consider it a morbid topic for the holidays, New York City probate lawyers urge you to take the obligation as an honor, and to assist in alleviating the burden from a loved one who is seeking to put their affairs in order. The truth of the matter is that discussing Will and estate issues, advanced directives, and other issues can relieve some of the stress from ultimately carrying out the end-of-life decisions of a loved one when the time comes.The New York Attorney General’s Office offers information on making health care decisions known in advance.

There are various types of advanced directives, including:

-Health care proxy: Allows you to appoint a health-care agent to make decisions in the event you are unable to do so.

-Living Will: Permits you to leave written instructions regarding your end-of-life care.

-A Do Not Resuscitate Order: Permits you to express your wish to forgo CPR to restart your heart or lungs should your breathing or heartbeat stop.

Each of these legal documents has a separate function. One of the most common mistakes is not executing each for its own purpose. Together, a health care proxy and a living will permit you to state your wishes and designate someone to see that they are carried out. A DNR does neither of those things but is a legal document making known your desire to avoid cardiopulmonary resuscitation.

Other complicating issues can be failure to specify an alternative health care agent in the event your first choice is unavailable, unwilling or unable to act on your behalf or in the event he or she is disqualified by the court.

These documents should be executed by you and witnesses as required by statute or custom.

Powers-of-attorneys are another option and can include:

-Nondurable Power of Attorney: Allows for the appointment of an agent for a specific task or time period.

-Durable Power of Attorney: Permits an agent to act on your behalf from execution until revocation or death. Care should be taken here because such a document can give a person wide latitude and powers of discretion over your finances, which can lead to the risk of abuse.

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