Wills, Trusts, Asset Protection and Special Education
Wills, Trusts, Asset Protection and Special Education

Planning for Incapacity

“Better to have, and not need, than to need, and not have.” ~Franz Kafka

No one likes to think about what would happen should disaster fall. The reality of the matter is that as you approach your “golden years,” legal decisions need to be made about many aspects of your life. These decisions not only help prevent other people from doing things you might not like done to you, but also protect your family and loved ones by giving them guidance in the care you would like to receive.

The important thing is that such planning really must take place BEFORE it is too late to plan.

New York takes the view that an individual is mentally incapable when he or she is unable to understand the implications of the document they are signing. While this sounds like a rigid black-and-white line exists (either the individual is mentally capable or not), the reality of the matter is that legal capacity is a variable issue that is best determined in the presence of an elder law attorney. Such determination is typically seen from two sides: the individual’s abilities (which may change from day to day) and the level of understanding required of the document to be signed (a contract requires a greater understanding than a Will).

Antony M. Eminowicz, Esq is experienced in planning for clients so as to eliminate most or all of the hassle and stress involved in making decisions during a period of incapacity. As a bare minimum, the documents that everybody should have include:

  • Durable Power of Attorney
  • Health Care Directive
  • Living Will



Durable Power of Attorney


One of the first questions any elder law attorney will ask a client is whether there is an effective Durable Power of Attorney in place. Typically, a proposed plan that can be put in place for your benefit will depend on the presence of such a document, and will very often turn on the language used in it.

In a nutshell, a Durable Power of Attorney is the cornerstone to any elder law planning exercise. This document enables your appointed agent to act on your behalf in financial matters, whether you are capable or not.

In New York, there is no automatic right for a spouse or a child to make decisions on behalf of an individual. Without a Durable Power of Attorney in place, the reality is that a Guardianship petition will have to be made to the court for authority to manage an individual’s affairs. This is a costly, complicated, bureaucratic process that can best be avoided with the preparation of a Durable Power of Attorney.

Extreme care must be taken in the language used within a Durable Power of Attorney. New York requires express statements, not typically included in a standard form, to enable the implementation of a Medicaid-planning or estate-planning strategy.

The Law Office of Antony M. Eminowicz, Esq will help ensure that all potential issues are discussed that enable you to make an informed and educated decision. For further information on the Durable Power of Attorney please click here for a podcast presented by this firm.


Health Care Proxy


A Health Care Proxy is a document that allows you to designate a person to make health care decisions for you if you cannot make them for yourself. These decisions can involve the management of your health care in order to keep you healthy. They can also involve the termination of life support.

In New York, there is a standardized Health Care Proxy form that allows an individual to appoint one agent and one alternate. As with the Durable Power of Attorney, deciding whom to select as agent can be difficult. Preferably, a person should consider someone who is well informed enough to manage the health care system. Given the large-level bureaucracies that exist among New York’s health care institutions, the health care agent should be patient, yet persevering, as it can take time and effort to make sure that the right level of care is being provided to the individual.


Living Will


A Living Will is a written statement that expresses your desires with regard to health care treatment if you become mentally and/or physically incapable of expressing those desires. It can include, but need not be limited to, instructions concerning the termination of life support. The Living Will and Health Care Proxy typically go hand in hand. On the one hand there is the appointment of someone to act on your behalf. On the other hand you have the expression of your own wishes regarding health care treatment.

Unlike the Health Care Proxy, there is no Living Will form in New York. There is also no statute in New York that governs the Living Will. Provided, however, that there is ‘clear and convincing’ evidence of any individual’s wishes, then those wishes should be honored. An elder law attorney who is knowledgeable in this area can help to prepare a document that provides clarity to your wishes.