Being a caregiver often entails a lot of a planning and organizing. However, unexpected events can and do happen which add further stress to an often already difficult and emotional time. Having in place the necessary legal documents allows the caregiver to take appropriate action on behalf of their loved one.

Be aware that these documents are a starting point for caregivers. Often, more planning is necessary to make sure that the elderly or disabled person’s assets are protected and that they receive the long-term care they need.

The most important documents are the Power of Attorney and the Health Care Proxy.


Power Of Attorney

Your loved ones may be capable of making all of their own decisions regarding their finances, however, that ability may change. If the person you care for names you as their agent under a Durable Power of Attorney, you will be able to make decisions about their finances and affairs on their behalf, even if they lose mental capacity.

Any decisions that an Agent makes under a Power of Attorney are legally required to be in the best interests of the principal.

In the absence of a Power of Attorney, often the only recourse is to have a guardian appointed through an expensive and time-consuming guardianship court proceeding. The guardian appointed may be an independent person unrelated to the family and who you do not even know.

Often a caregiver is left in a position of trying to seek out the best benefits for their loved one. A properly executed Power of Attorney will allow the caregiver to take the best possible action for their loved one, which may include accessing Medicaid benefits.


Health Care Proxy

When you execute a Health Care Proxy, you name someone – the Agent – to make decisions for you. However, unlike the Power of Attorney, the Health Care Proxy goes into effect only if you are not able to make decisions about your health care yourself.

If there comes a time that your loved one is unable to make their own medical decisions, having a Health Care Proxy in place means that someone who knows their wishes can ensure that those wishes are followed. If they have not named someone, they run the risk that a court may ultimately choose a guardian to make those decisions for them

If you live in New York and the person for whom you are caring becomes incapacitated and does not have a Health Care Proxy, there is a safeguard. The NY Family Healthcare Decisions Act has a prioritized list of who can act as a surrogate for an incapacitated person who is in a general hospital or nursing home. However, the person who would be authorized under the Act may not be the one your loved one would have chosen.

Different states may have different laws. It is therefore advised to check with an eldercare attorney in your area.

If you are an Agent under your loved one’s Health Care Proxy, it is vital for you to know their wishes. The discussions can be difficult, and sometimes those decisions differ from the ones you would make yourself. But by having the discussions ahead of time, you will know what to do if the need arises.


Other Documents to be Aware Of


Living Will

This allows your loved one to leave specific written instructions that explain their health care wishes, in particular their end-of-life wishes. This can be a problem, because a Living Will is usually open to interpretation that can cause conflict within a family.

Reasonable people can disagree when faced with language such as “If I am permanently unconscious with no reasonable expectation of recovery, I do not want heroic measures to be taken merely to prevent me from dying.” Given such ambiguous guidance, what should a caregiver do when their loved one has a stroke or is on a ventilator?

You may feel one way about treatment and your siblings may be strongly opposed. Writing instructions down can be helpful as a guide, but treatments and circumstances change.

As elder attorneys, we feel having a Health Care Agent who knows your wishes and who is empowered to act according to them is the safest route. The Living Will is problematic, and we counsel people to avoid them.


Do Not Resuscitate Order (DNR)

This allows your loved one to state whether they wish to have cardiopulmonary resuscitation (CPR) in an emergency treatment.

If your loved one is in a health care facility, the facility can provide a Hospital DNR Order. If your loved one is outside a health care facility, for example, at home they may obtain a Non-Hospital DNR Order from their doctor.

There are also Medical Orders for Life Sustaining Treatment (MOLST) forms to be aware of. These forms allow doctors to record your loved one’s preferences regarding CPR, mechanical intervention and other life sustaining treatments.

You can find more detail about Health Care Proxies, Living Wills, and Do Not Resuscitate orders on the New York State website, under “Planning Your Health Care In Advance.”

Ultimately, if you as a caregiver have the ability to make decisions for your loved one’s financial affairs as a Power of Attorney and medical affairs as a Health Care Proxy, and know what their wishes are, you will save yourself a lot of stress and be in the best position to help your loved one at a time when they will really need your help.





Heather O’Neill for many years has focused her practice in Trusts and Estates, Guardianship, and Probate and Administration.   She brings solid experience, compassion, and a lively personality to the Lamson & Cutner team.  Heather graduated from the University of North London, receiving her law degree (LL.B.) with Honors in 1991. She graduated from the Inns of Court School of Law in London in 1992.  After practicing law in London for several years, she moved to the United States and was admitted to the New York State Bar in 1997.

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