No matter how healthy you are, it is possible that, due to an injury or illness, you will become incapacitated at some point in the future. When you are incapacitated, you cannot make certain decisions for yourself, communicate your wishes regarding medical care, or generally take care of yourself. Some people, due to pre-existing health conditions, are at an elevated risk for becoming incapacitated.
Fortunately, there is a way to plan for incapacity through estate planning. Many estate planners use an advanced health care directive to outline the medical treatment they wish to receive if they become incapacitated. An advance directive can include a Living Will, health care proxy, or both.
What Happens if You Do Not Have an Advanced Directive?
The most prominent concern if you do not have an advance directive is that your family and medical team will not know the treatments you wish to receive if you become incapacitated. Do you want to receive artificial nutrition if you cannot eat? Would you want to be resuscitated if your heart stops beating after you fall into a coma? Do you want your organs to be donated? These are matters you probably have opinions about, and nobody else might ever know about those preferences if you do not create an advanced directive.
In the absence of an advance directive, you might need a guardian to be named for you. This can be a long and stressful process for your family members. To start off the guardianship process for an incapacitated person, someone needs to petition the court for guardianship. The court will then appoint an evaluator to investigate the facts of the case and determine the need for a guardian. This process could get messy if family members disagree on the best choice for guardianship.
There is a process, unique to New York, that allows someone to make certain medical decisions for incapacitated people if that person did not create an advance directive. The Family Health Care Decisions Act (FDCDA) allows a surrogate to be named in order to direct medical treatment of an incapacitated individual. Still, this process can be extremely complicated and stressful for family members.
Planning Ahead Is Critical
There is no guarantee that you will ever be in an incapacitated state for any length of time. Many people—young and old, healthy and otherwise—do become incapacitated at some point. If it happens to you, do you want to be kept alive at all costs? Or, would you rather your medical team focus on palliative care? Without communicating your preferences ahead of time with your family AND creating an advance directive, your doctors will not know. Even if a loved one knows your preferences regarding end-of-life care, he or she might not be able to use that information if you do not appoint that person as your health care proxy.
Your advance directive might include a health care proxy, Living Will, or both. A New York estate planning attorney like Danielle Browne will be able to help you determine the best arrangement for you. Let's talk soon.
