Advanced Planning Documents

The documents outlined below are the more common advance planning documents. They appoint another to act in the place of the maker, and more importantly, state the maker’s intentions in the event the maker becomes incapacitated and unable to state intent or to act. These documents can avoid litigation to appoint a guardian, to determine one’s desires regarding end of life decisions, or the disposition of one’s assets.

Agent for Disposition on Remains: a document that states one’s wishes for funeral and disposition and appoints an agent to ensure that those wishes are carried out.

Do Not Resuscitate Order: a written order that directs healthcare providers not to attempt cardiopulmonary resuscitation (“CPR”) in the event the patient suffers cardiac or respiratory arrest. The order is made by an individual with capacity and becomes effective upon his or her subsequent incapacity, as determined by the patient’s physician and confirmed by a second physician.

Durable Power of Attorney: a document that appoints another person to act immediately for all matters so designated other than healthcare. Such matters can include banking, managing, selling or purchasing real property, and engaging in long term care planning. Person executing the power of attorney must have sufficient capacity to appreciate the extent of the authority they are giving.

Principal: person appointing another to act for him/her

Attorney in Fact (can also be referred to as the Agent): the person who receives the appointment

Health Care Proxy: document that appoints another to make health care decisions for the individual in the event the individual is unable to make his/her own decisions.

Living Will: A formal written statement of a person’s wishes regarding medical treatment in the event the individual is not expected to regain a quality of life.

Family Health Care Decisions Act: Law that allows certain individuals to make health care decisions. Applies only in limited circumstances. Best to have a Health Care Proxy appointed.

Life Estate: commonly used to protect real property, but can be present in trusts and wills. A life estate transfers the property to someone else, reserving to the transferor ownership for the transferor’s life. The person(s) to whom the property is transferred has a “remainder interest”, which becomes effective only on the death of the transferor. However, the transferee’s consent will be needed to mortgage or sell the property. The life estate makes the transferor responsible for the upkeep of the property and payment of real property taxes. This allows the transferor to keep his/her real property tax exemptions (although a new application will be required). Upon the death of the transferor, the property will pass to the transferee by the terms of the life estate language.

Preneed Funeral Account: This account is established with a funeral home. Most are portable, so if you move, the account can be moved as well. These accounts allow for prepayment of many items associated with a burial, from the casket or cremation to the funeral, to the limos, the flowers, the burial plot, grave opening etc. The benefit of these accounts is they remain revocable and usually interest bearing until an individual applies for Medicaid at which point they have to become irrevocable. When irrevocable, they are not countable resources for Medicaid purposes, and no transfer penalty is imposed when they are created.

Last Will and Testament: a Will dictates how one’s property is to be disposed of after death. A Will also states who you want to administer that property. A properly drafted Will can also provide significant tax savings, make provisions for an ill spouse or a disabled or minor beneficiary, and appoint a guardian for dependent minor children. In the absence of a Will or other testamentary dispositions, the laws of the State of New York will determine who inherits your property.

Pourover Will: used in conjunction with a trust, it provides for all assets not already in the trust to be transferred to and disposed of by the trust.

Trust: a flexible document that can be tailored to meet the individual needs of its Creator. For example, a Trust can contain clauses that provide for control of the Creator’s assets, protect assets from being counted for Medicaid purposes or supplement the government benefits of a disabled beneficiary, among other purposes. See Trust definitions below for more information.