Julie Stoil Fernandez is a co-founding partner of Finkel & Fernandez, LLP, which specializes in elder law. Photo courtesy of Julie Stoil Fernandez

Op-Ed: Failing to Plan is Planning to Fail

By Julie Stoil Fernandez
Eagle Op-Ed Contributor

Examples of abuse and predation are prevalent in Queens. Every day scammers and schemers target senior citizens as well as younger people with impaired cognition.

Individuals who fail to plan for their own potential impairments diminished capabilities also face future consequences.

But the financial and emotional damage they incur are avoidable with the help of an attorney.

Consider these examples:

A 68-year-old unmarried professor suffers a stroke that affects her memory and cognition and makes her more vulnerable to exploitation.

One day, she allows a transient man who is 20 years younger to share her bed, accompany her to ATM machines until he drains her accounts and intimidate her home attendants until they refuse to return to the house. The professor will not appoint her only child to assist her in a Durable Power of Attorney because she fears that her boyfriend will leave her if her money and apartment are no longer available to him.

A 37-year-old mother has an aneurysm during childbirth and survives but remains in a persistent vegetative state. Because she never executed a Health Care Proxy or Living Will to determine her wishes and intentions, her parents and husband spend the next 18 years litigating in Court, arguing over whether the removal of life support is in her best interests.

An 86-year-old unmarried and childless man is transported to a hospital after he fell at home. He is next transferred to a nursing home 10 miles away. His impaired memory prevents him from making any rehabilitative gains and the treatment team at the nursing home determines that he can not supervise himself at home. They say he requires long-term care.

But because he never executed a Durable Power of Attorney or a Health Care Proxy, he has no one to direct the nursing home.

Instead of returning to his large, comfortable home and using his money to pay for home care, he languishes in the nursing home, an environment he never chose to live in. The long-term stay depletes his savings.

Those are just three examples gleaned from the hundreds of cases our firm has handled, and a tiny fraction of the thousands of cases litigated in guardianship proceedings each year in the county Supreme Courts around New York.

Many of the catastrophic circumstances that lead to guardianship proceedings would have been entirely avoidable if the subjects, prior to suffering from events or disease that influence cognitive changes, met with an attorney for estate planning, which would include the execution of advance directives such as a Durable Power of Attorney, a Health Care Proxy and a Living Will.

In a better-informed world, we would treat the execution of these documents as a rite of passage to enter adulthood, much like registering to vote or applying for a driver’s license.

Instead, most of us fail to address these matters at all, causing those who become disabled or mentally impaired to suffer from neglect, exploitation and abuse until someone alerts the authorities to their plight.

With no one authorized to act on their behalf, people who are at risk for or who suffer from various mental impediments usually become the subjects of guardianship proceedings, in which Adult Protective Services, nursing home administrators or warring family members face off. Each party seeks the appointment to access the funds of the “Alleged Incapacitated Person” and obtain authorization to act on the person’s behalf by the state Supreme Court.

By the time these cases surface, the disabled individuals have already suffered personal harm or financial exploitation and are no longer in a position to advocate for the conditions under which they wish to live. Their court-appointed guardians, who have little working knowledge of their wards, must apply substituted judgment to make life decisions on their behalf.

When a guardianship proceeding commences on behalf of an “Alleged Incapacitated Person,” that person’s money and assets generally pay the attorneys and the court appointees at the conclusion of the case because, the reasoning goes, the proceeding has been brought before the Court in “the best interests of the individual” who has failed to plan ahead.

These fees can amount to thousands of dollars and can deplete the individual of the funds needed they pay for their own care.

Yet, without an advance directives in place, there is no other payment choice.

Many people have an understandable aversion to thinking about and signing these documents.
It is difficult to commit decisions to paper and no one wants to imagine themselves unable to stand up and speak out for themselves.

But this avoidance only puts us at a higher risk of having unwanted, expensive and even exploitative decisions made for us.

We often interpret the term “estate planning” to mean the preparation of documents designed to control the distribution of property after a person dies — a “Last Will and Testament.”

However, proper estate planning also provides an opportunity to analyze and protect available assets for use during a person’s lifetime. It empowers people to devise strategies to ensure that they remains in their home and live as independently as possible. It also enables peopleto appoint trusted parties to serve as future advocates.

In my opinion, the most important advance directives are the Durable Power of Attorney, the Health Care Proxy and the Living Will.

A Durable Power of Attorney is a document with the Principal appointing one or more Agents to handle financial matters. The document becomes active once the Agent signs onto the document, and will remain in effect after the Principal (owner of the finances) becomes incapacitated.

Be aware that the Durable Power of Attorney is only as good as the Agent appointed. It is important to consider who, among family members and friends, can be trusted with money, is capable of following instructions, understands you, and will abide by your wishes. Your Agent should have these qualities over and above being the most loved or the closest of people to you. More than one Agent can serve at a time – with authority to act together or separately.

A Health Care Proxy is a document in which you may appoint a Proxy (Agent) to make substituted health care decisions for you, should you become unable to make them yourself temporarily or permanently. Only one agent may serve at a time. Absent a Health Care Proxy, in New York State, a relative can be authorized to make substituted health care decisions under the Family Health Care Decisions Act – but only in the following order: A Legal Guardian, a spouse, any children (equals to each other) 18 years or older, a parent, a brother or sister 18 years or older, a close friend.

A Living Will is usually drafted with the Health Care Proxy. The Living Will contains personalized instructions with respect to end-of-life care and treatment in a witnessed document. It establishes the Principal’s wishes regarding the administration, withholding, or withdrawal of treatment when the Principal’s medical condition is irreversible or terminal, and the Principal is no longer able to articulate his or her desires. It also address pain management and other procedures to which the Principal wishes to have administered or denied. The Living Will assuages the guilt and confusion that often accompanies the decision to withdraw or administer treatment, and insures that the Agent is acting based on the clearly expressed instructions of the Principal.

While it can be difficult to commit to these decisions about your future, failing to do so will likely result in losing the opportunity to both assert your wishes about how your care and finances should be managed, and to authorize proper people to act on your behalf. Remember that knowledge is power, and that a good estate planning attorney will help you wield that power effectively, and most importantly – in your best interest!

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