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Health Care Proxies, Powers Of Attorney And Statutory Gifts Riders


In this scary time of worldwide pandemic, legal protections for your healthcare decisions and your financial life are extremely important. The way to ensure that your healthcare choices are known by your loved ones and are able to be followed by them is to execute a Health Care Proxy. The way to ensure that your financial life can be maintained by those that you trust is to execute a Power of Attorney with a Statutory Gifts Rider. If you do not have these documents in place and you become incapacitated- either physically or mentally- the courts will step in and a guardian will be appointed for you, at a cost of more than $15,000. This means that a stranger with whom you have no connection may be in control of all of your healthcare and financial decisions for the rest of your life.

A Health Care Proxy (HCP) appoints someone to make your healthcare decisions for you if you are unable to speak or act for yourself. Someone needs to be able to give the approval for you to have surgery, choose your hospital or other facility, and act in your best medical interest.

A Health Care Proxy should always be done by an attorney. Forms that you get from the doctor’s office or that you download online- even from the NYS Health Department- often do not contain the required HIPAA federal disclosure that allows healthcare providers to release health information to your representative. Also, HCPs now contain what used to be called “living will” provisions, which means that you give specific instructions as to how you want to be treated if you are terminally ill with no meaningful chance of recovery, especially if you do not want to be put on life support. If you are brought in by ambulance you will be put on life support no matter what. Therefore, updated HCPs contain language allowing your agent to remove you from life support after the number of days that you specify if you are terminal and have no chance of meaningful recovery, to avoid situations where the hospital keeps you on life support for 90 days, needlessly running up huge medical expenses to be paid for by your estate. The HCP allows you to ensure that if you are seriously ill and unable to speak for yourself, you will be treated according to your wishes.

A Power of Attorney (POA) allows someone else to maintain your finances -pay bills, file taxes, argue with your insurance carrier over claims, etc.- if you are laid up and can’t do these things for yourself. Without the POA, no one is legally able to do these things for you- not even your spouse!

The Statutory Gifts Rider (SGR) is an additional document that gives the person that is your POA agent the ability to set up a trust to protect your assets if you are older and need long term care, then to apply for free health care aides to care for you at home instead of going into a nursing home. Also, in NY, Medicaid requires that your POA have the SGR in order to protect your income when they make an application for your free long-term care aides.

To be fully protected, you must have the most current versions of all of these 3 documents in place in order to have the people that you trust in charge if you are disabled. With these documents in place, you can avoid having a stranger appointed as your guardian in an expensive and intrusive court proceeding.