reason these two documents are placed together is because,
together, they fill in a most important gap in a person's
life. When you are alive and well, you can make your own health
care and financial decisions. When you die, your Last Will
and Testament will transfer your property according to your
wishes. But there is an important gap. The gap occurs when
you are still living (and therefore your Will has not been
activated), but are incompetent or incapacitated, and are
unable to take care of your finances and make your own health
care decisions. These two documents are meant to fill in the
The Health Care Proxy appoints a person whom you trust
to make any and all health care decisions for you, in the
event you are unable to verbalize your wishes yourself.
The Power of Attorney appoints a person whom you trust
to make any and all financial decisions, and pay your bill,
in the event you are unable to manage your financial affairs
yourself. Together, the documents will ensure that in the
event you become incompetent, you will have people whom
you trust to make your healthcare and medical decisions
and to take care of your finances, pay your bills etc.
The year 2005 Changes
Under the HIPAA (Health Insurance Portability and
Accountability Act) law, no one but an individual
himself may access medical evaluations, reports and records.
These documents are absolutely necessary for a representative
to carry out his duties.
Most Health Care Proxies, handed out by not-for-profit organizations,
or free when you are admitted at a hospital, do not take into
consideration or provide for the HIPAA laws.
An attorney specializing in this field will counsel you
on the law and how to bypass the HIPAA provisions in your
Health Care Proxy.
Considerations before visiting your attorney (Regarding
the Health Care Proxy):
- Whom do I trust to carry out my wishes. Will this person
be strong enough to "pull the plug" on life
support and sign a Do Not Resuscitate order, if those
are my wishes.
- Am I in constant contact with this person, so that
he will know when I have become incapacitated or ill.
- Does this person know my wishes.
- Does this person stand to gain by my dying.
- Does this person live locally.
Regarding Power of Attorney:
- Does this person live locally.
- Does this person have enough money to live comfortably,
so that he will not be tempted to take my money.
- Does this person have a good business head.
- Does this person know about investing.
- Does this person have enough time to review my monthly
bills and pay them.
- Health Care Proxy: A document which
appoints a Health Care Agent whom you would like to make
health care and medical decisions for you in the event
you become incompetent or incapacitated and cannot state
what you yourself want.
- Power of Attorney: A document which
sets forth whom you would like to make financial decisions,
sign checks, pay bills etc. on your behalf.
- Durable Power of Attorney: Generally,
when one becomes incompetent, his legal documents become
invalid or unenforceable. A Durable Power of Attorney
has a provision which states that the document will not
become ineffective if the creator of the document becomes
- Living Will: New York does not have
Living Will statutes and laws. In states that do have
these laws, a person can create a document which sets
forth in detail what health and medical procedures he
wants performed, in the event he become incapacitated
or unable to state his wishes at the time.
- Attorney in Fact: The person appointed
under a Power of Attorney to take care of your finances
or certain financial transactions.
- Health Care Agent: The person appointed
under a Health Care Proxy to make health care and medical
decisions for you in the event you become incapacitated
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