Healthcare Proxy

estate planning lawyer in New YorkIt is suggested today that seniors living in America have healthcare proxies. A healthcare proxy allows an individual to designate another person to help him or her make decisions regarding healthcare in the event he or she becomes incapable of making those decisions. Healthcare proxies are designed to allow a person when they are cognizant of the potential issues they may face to authorize someone else to make decisions reflecting their wishes should they be incapacitated and unable to make those decisions on their own. These decisions deal with medical treatment and medical procedures.

The Principal

The person making the healthcare proxy is called the principal. The person the principal nominates to help him or her make decisions is called the agent. The principal can appoint one or more individuals to act as his or her agents. The way the law is set up in New York, the principal nominates one person to act as his or her agent and if that one person does not serve or cannot serve then a successor agent is authorized to serve.

Ultimate Decisions

The ultimate decision an agent makes with a healthcare proxy is whether to turn off a life support machine when it is certified by the principal’s physician that he or she is brain dead and will never be able to recover. These life support machines which are keeping bodies functioning for brain dead individuals are prolonging death and not prolonging life.estate planning attorney

Advanced Directives

lawyer who handles estate planningLiving Will

Living wills should not be confused with last wills and testament. Living wills do not provide for the disposition of assets after death. Living wills are designed to state an individual’s preference with regard to medical treatment should they be unable to communicate or direct their doctors or family members concerning their wishes. This prevents loved ones from being in a difficult position with regard to making decisions concerning someone else’s health and welfare without any input from them. A living will can state that in the event the individual is declared brain dead, no artificial respiration or mechanical life supporting machines should be used to keep them alive. It is thought that if an individual is brain dead, medical measures to keep the body functioning do not prolong life, but rather prolongs death. In addition, living wills spell out the types of medical care an individual wants if they are unconscious, develop mental issues, or are simply unable to communicate their desires concerning their medical treatment.

The Living Will and the Terry Schiavo Case

A number of years ago there was a case which received a lot of national attention involving a 26 year old woman, Terry Schiavo. Terry had a heart attack. She lapsed into a coma and spent 15 years in what doctors described as an irreversible, persistent vegetative state. Terry could not communicate in any way, form or manner concerning her wishes regarding her medical care. Terry’s husband felt she would not want to continue living in a vegetative state. He requested the feeding tube attached to her body be removed and she be allowed to die a natural death. Terry’s parents strongly disagreed with this decision. They brought a legal proceeding to stop the feeding tube from being removed. There was extensive legal proceedings involving significant amounts of money through lower courts and appeals courts regarding the Terry Schiavo case. In the end, the husband was successful. The feeding tube was removed and Terry died a natural death.

Conclusion

An individual never knows when something catastrophic is going to happen to him or her. Using the advanced directive of a living will can avoid the type of problems that existed in the Terry Schiavo case.

estate planning attorneyElliot S. Schlissel is a member of the National Academy of Elder Law Attorneys.

Doctor Assisted Suicide

Attorneys for a group of terminally ill individuals have taken legal action to prevent prosecution of physicians who provide assistance in dying to terminally ill, mentally competent individuals. The attorneys have sued 5 district attorneys and the attorney general for the State of New York to stop them from prosecution of physicians who provide assistance in dying to terminally ill patients. Kathryn Tucker, the Executive Director of the Disability Rights Legal Center, represents the plaintiffs. She recently stated “this case is about letting the patient, the individual, choose how they will cross the threshold to death when faced with the final ravages of terminal illness.”

Presently under New York law, terminally ill, mentally competent New York residents can opt to withdraw life prolonging medical procedures to hasten their death. Examples of medical assistance they can refuse to take involve the utilization of ventilators and feeding tubes. They can also ask for drugs to keep them in a deep sleep while they slowly die of hunger and thirst.

Doctor Assisted Suicide

New York has a statute which prevents doctor assisted suicide. It is an E felony to “promote a suicide attempt.” This is defined as intentionally causing or aiding another person to commit suicide. In addition, there is a second statute which classifies the act of intentionally causing or aiding another person to commit suicide as a C felony, also known as second degree manslaughter. A Class C felony can be punishable by a sentence of up to 15 years in prison, and a Class E felony can be punishable by a sentence of up to 4 years in prison. This lawsuit states there is no “valid statutory basis” to prosecute doctors who provide aid in dying because a mentally competent, terminally ill patient opting for a “peaceful death” does not constitute suicide. Ms. Tucker, when interviewed, stated the law in New York creates a “chill in the environment” which may make physicians fearful of assisting patients with suicide.

Aid in dying statutes make it legal to assist patients with suicide in the States of New Mexico, Oregon, Vermont, Washington and Montana. This lawsuit seeks to bring the State of New York into this group.

Elliot S. Schlissel is an elder law attorney. He helps clients with regard to wills and estate issues.estate lawyer in New York

Is There a Right to Die?

wills, trusts, medicaid attorneyFive states in the United States recognize the right to die. In those five states, terminally ill patients can be helped to end their lives. The right to die has been referred to by the negative term “assisted suicide.” However, the new movement to help sick, frail, suffering parents end their lives is referred to as “aid in dying.” The aid in dying movement is growing in various parts of the United States.

In a recent Gallup poll conducted in May 2013, seventy percent of the individuals polled agreed that when a patient and/or their family requested it (referring to a terminally ill patient), doctors should be allowed to “end the patient’s life by some painless means.” This is a significant change in public opinion. In 1948, only thirty-seven percent of individuals polled would have agreed to end the patient’s life.

Compassion for the Elderly

There is an organization called Compassion and Choices. They receive thousands of inquiries each year with regard to legal means of dealing with end of life suffering issues. The organization takes the position providing a dying patient with an opportunity for a peaceful and dignified death is not assisted suicide. The issue, simply stated is, do patients have a right to die with dignity? Can the patient decide when he or she is prepared to die? This is a vexing and problematic issue which is impacted on by organized religion, social mores and the negative connotation of suicide.

estate planning assistance for seniorsElliot Schlissel is a member of the National Academy of Elder Law Attorneys. He has been representing clients with regard to estate planning matters, probating of wills, and drafting wills and trusts for his clients throughout the Metropolitan New York area for more than 35 years.

Estate Planning: Talking to Your Parents About Their Assets

new york wills and trusts attorneyThree-quarters of all adults have indicated they have significant problems preventing them from having reasonable, intelligent discussions with elderly family members concerning estate planning issues. In most cases, the children aren’t even prepared to bring the subject up. Unfortunately, this can cause substantial problems in handling the parents’ estates when they pass.

Healthcare Proxies and Powers of Attorney

Elderly Americans should have both healthcare proxies and estate planning powers of attorney. These documents can assist them should they become incapacitated or mentally incompetent. The use of the these two elder law planning tools can prevent bad decisions from being made with regard to helping maintain and keep parents comfortable in their home.

When a senior is able to manage his or her affairs is the best time to have these discussions. The discussions should deal with who will make financial decisions if the senior becomes unable to make them himself or herself. Studies have shown approximately half of Americans will suffer some mental loss during their senior years. There are numerous cases where seniors live in homes without electricity and heat because they forget or ignore paying their bills. In these cases, the execution of an estate planning power of attorney to a trusted child, relative or friend would help eliminate these type of problems.

Seniors Controlling Their Lives

Seniors should be the ones to initiate discussions with regard to dealing with end of life issues. A senior should pick a friend, family member or child who is both knowledgeable in handling financial matters and whom they can trust with their valuable assets.

A Simple Will

At a minimum, seniors should have a simple will. They should either advise their attorney or their loved ones what their assets are and where they are located. If the senior designates one of his or her children to assist in paying bills and handling financial affairs, this child should keep his or her brothers and sisters up to date on what he or she is doing.

estate planning for familiesElliot S. Schlissel is a member of the National Academy of Elder Law Attorneys.

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