INCAPACITY PLANS IN NEW YORK

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1 INCAPACITY PLANS IN NEW YORK FOUNDATIONAL IDEAS While Creating an Incapacity Plan Will Require You and Your Attorney to Sit Down to Draft Some Specific Legal Documents, Understanding What Incapacity Is, What an Incapacity Plan Is, and How these Issues Can Affect You and Your Family Is Essential ANTHONY J. MINKO New York Estate Planning and Elder Law Attorney

2 One of the more important issues that every estate plan must address is the question of what you want to happen should you lose your ability to express yourself or make choices. The ability to make choices for ourselves is something that lies at the very heart of what we consider to be personal freedom. That we might one day lose this ability is a daunting idea, but one that is nevertheless necessary to address if you want your estate plan to be complete. In this first of our two-part series on incapacity planning, we are going to take a look at some foundational ideas. While creating an incapacity plan will require you and your attorney to sit down to draft some specific legal documents, understanding what incapacity is, what an incapacity plan is, and how these issues can affect you and your family is essential. CAPACITY AND INCAPACITY The idea of legal capacity is one that most of us take for granted on a daily basis. Each of us assume that we have the right and authority to make our own decisions. We don't, for example, have to seek a judge's approval if we want to move out of state, change jobs, or decide where we want to go for lunch. Incapacity Plans in New York Minko Law Office 2

3 While these examples might seem trivial to you, they are emblematic of the kinds of problems your family and loved ones will have to face if you should ever become incapacitated. An incapacitated person is someone who does not have the mental ability to make reasonable choices on his or her own behalf. The law presumes that every person age 18 or older in the state of New York has this requisite mental capacity. In general, unless a judge determines that you lack this ability, you are free to make choices for yourself. An incapacitated person, on the other hand, no longer has this legal authority. Instead, when a person becomes incapacitated, someone else will have to make decisions on that person's behalf. INCAPACITY PLANNING If incapacitation means a person is no longer able to make choices, incapacity plans are simply collections of tools or legal documents that allow a capable person to plan ahead for time when he or she might become incapacitated. Through an incapacity plan, capable adults can make decisions that will take effect if and when that person loses his or her ability to make choices. Incapacity Plans in New York Minko Law Office 3

4 Let's look at a common situation in which incapacity plans might be useful. Let's say that you have an aging parent. As a normal part of the aging process, people typically lose many of the abilities they had while they were younger. However, unless an elderly person experiences a significant and serious medical condition, they typically don't lose legal capacity because they retain enough of their cognitive abilities to still make choices. Contrast this with an elderly person who is diagnosed with Alzheimer's disease. As a degenerative disease, Alzheimer's typically leaves people unable to make choices or understand the consequences their choices might have. Many people suffering from Alzheimer's become incapacitated, and require someone else to make decisions on their behalf. So, if you have an aging parent who has Alzheimer's disease and who has not created an incapacity plan, it will fall to a New York Court to determine who should make decisions on your parent's behalf. On the other hand, should your parents take the time to create an incapacity plan, they can choose for themselves who they want to serve as their representatives. PLANNING TOOLS So what kind of tools will you include in your incapacity plan? The answer to this question will differ depending on a number of factors. Though we will go into Incapacity Plans in New York Minko Law Office 4

5 much more detail about the individual tools available to you in New York in our next discussion on incapacity planning, for now, what you should realize is that there are two main types of planning tools available. The first type of tool is one that allows you to choose representatives. Should you ever become incapacitated, these incapacity planning devices will give another person, or organization, the legal authority to represent you. Depending on the type of tool you create, you can give your representatives power to manage your property, financial affairs, personal affairs, and even make health care decisions on your behalf. The second type of tool that most incapacity planning tools utilized is the kind that allows you to make specific choices. With tools that allow you to make specific choices, you can make decisions that will apply when you become incapacitated. If you combine these two tools together, your representatives will have to abide by the choices you make. INDIVIDUAL PLANS, TAILORED ADVICE The idea of thinking about a future in which you were no longer able to make decisions is not a pleasant prospect. In fact, most people are so reluctant to address incapacity planning issues that they never get around to making a plan of any kind. While you are not legally obligated to creative an incapacity plan, Incapacity Plans in New York Minko Law Office 5

6 doing so can be one of the best decisions you ever make. If the time ever comes when you are incapacitated, your plan will leave clear instructions to your family members and loved ones. Without those instructions, you leave it up to the people closest to you to make decisions for you when they will be in an emotional state because you become incapacitated. The attorneys and staff at the Minko Law Office have a lot of experience assisting our clients in developing incapacity plans that meet a wide variety of needs and desires. If you haven't already begun planning efforts of your own, contact us as soon as possible so we can help you get started. Incapacity Plans in New York Minko Law Office 6

7 About the Author Anthony J. Minko As an attorney in private practice in Brooklyn, New York, Anthony J. Minko provides a wide range of estate planning services to clients throughout the New York City area. Mr. Minko creates customized estate plans that enable families to preserve their wealth and provide for the security of their loved ones both during and after their lifetime. He dedicates himself to informing the public of the need for careful attention to their specific situations, regularly presenting educational seminars addressing the growing importance of estate planning. Before forming Minko Law Office, Mr. Minko spent over four years as a trial attorney handling civil and commercial litigation in New York state and federal courts. He also served the senior community as a member of Wells Fargo Bank and the New York City Law Department. Mr. Minko is a member of the American Academy of Estate Planning Attorneys, The National Academy of Elder Attorneys, and several local and state bar associations. Minko Law Office 1766 Cropsey Avenue Brooklyn, NY Phone: (718) Fax: (718) Incapacity Plans in New York Minko Law Office 7