If you are the 17A guardian for your developmentally disabled adult child, or other adult, you may have also designated successors in the event of your own death or disability, and did so at the time you petitioned the Surrogate Court to act as guardian.  These successors are called Standby Guardians.  If you decide to appoint a series of standby guardians at the time you petition, they are called the 'alternate standby guardian' and 'second alternate standby guardian'.

The purpose of appointing alternate guardians is to provide continuity of health care decision-making for your developmentally disabled family member, without constant court involvement.

Unfortunately, for years, the Surrogate’s Court law stated that upon the death or disability of the original guardian, the standby guardian had only 60 days to file required paperwork with the Surrogate’s Court to confirm their appointment, usually by filing a copy of a death certificate or proof of incapacity of the guardian.

Far too many families could not meet this seemingly feasible time frame.  When the guardian died, the families were dealing with that loss, and the needs of the developmentally disabled family member.  As a result, standby guardians were required to file new petitions – as if none had previously been filed – in many counties in New York State.

Now, the NYS legislature has amended section 1757(2) of the Surrogate Court Procedures Act so that standby guardians (or alternates, or second alternates) have 180 days within which to notify the court and have the assumption of duties as 17A guardian confirmed by the Surrogate Court.  

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Beth’s Special Needs Bookshelf, provided by The Law Office of Beth Polner Abrahams, is a monthly review of books that may be helpful to families of loved ones with special needs.

You are invited to leave comments on the blog site at:http://BethsBookshelf.wordpress.com

and to recommend other books for us to consider for review on this monthly blog.

To receive an email alert whenever a new book review is posted, send an email to info@BPAbrahamsLaw.com or call (516) 741-9175.

The Law Office of Beth Polner Abrahams is located at One Old Country Road, Suite 235, Carle Place, New York 11514. For more information, please visit us at www.bpaSNTlaw.com.

The first featured book is:

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In the last blog, I began introducing the tools you can use for organizing your own ‘loose-leaf’ with important estate and health care documents. Today’s blog focuses on the seemingly simple location of keys, combinations and passwords.

Where are your documents?
Places for Safekeeping

These tools are part of your estate planning. To schedule a legal consultation for a full estate plan review, contact my law office directly.

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In my Winter 2010 newsletter, ‘When Elder Law Comes Home’ (click here to read), I discussed ways to organize your personal and estate planning information, and to plan all-important family discussions about your estate.

In this installment, and continuing in more detail on my blog in the coming weeks, I will be introducing tools and worksheets to enable your family and/or persons involved with your life to know your life data. This goes beyond where your paperwork is kept and who has access to the keys to your safe deposit box or vault.

It also involves the people to be notified when you die, regarding your burial wishes and religious preferences, status of your bank accounts, location of important documents that will help close-out your home and business obligations (i.e., mortgage / rent, phone bills, utilities, memberships), and other money-related matters.

The best plan, after all, is confidence in the future regarding your own wellbeing and that of your family. Getting organized is the first step!

Part I: Your Life Data
Information to record in a special book kept in a safe place in your home:

More info coming in my next blog ...

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A few days after my mother, Louise, celebrated her 80th birthday, she landed in the hospital and required unexpected surgery. This was a surprise to everyone including Mom. I am pleased to report that my Mom is doing very well – and now I would like to share a brief story.

Prior to surgery, Mom needed a pre-op procedure that required anesthesia. Coming out of the anesthesia and seeing my father and me standing by her bedside, she managed to whisper, ‘Health care proxy.’

“Why do you need your health care proxy, Mom?” I asked, and looked at the nurse, who shook her head, not comprehending.

Then I realized that as her concerned daughter, I hadn’t stopped off at my office to get Mom’s copy of her health care proxy on my way to the hospital. While we really didn’t need the document because Mom was in charge the entire time she was in the hospital, here's the bottom line: I had taught my Mom well about being prepared for all health-related emergencies, but I forgot my own counsel.

To my readers: As part of our basic client service, my office scans and preserves your estate planning document file, including your health care proxy. If you, your doctor, or a hospital need that form emailed, simply telephone my office at (516) 741-9175 or email your request to info@BPAbrahamsLaw.com. We will reply promptly.

Watch my upcoming blogs for tools and worksheets to help you and your family organize important healthcare and estate documents. Being organized today ensures peace of mind for those who care about you, in advance of a crisis.

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Starting June 1, 2010, all Medicaid applications will use a new two-part application form that it is larger, making it easier to read and to write-in the required information.

Part 1: Access New York Health Care collects general information for all types of Medicaid, Child Health Plus and Family Health Plus.

Part 2: Supplement A is required if the applicant is age 65 years or older; or, certified blind or disabled; or, not disabled but suffering from a chronic illness; or, in a nursing home and in need of long term care; or, in a hospital or other similar setting and requiring nursing home care.

While you are not required to apply in person for Medicaid – a practice used for many years in New York City for persons applying for nursing home care – please note that great care must be taken when having applications and supporting documents delivered to a local New York State DSS office.

On another front, for families applying for SSI, my office is hearing anecdotal reports of disturbing events related to this process when there is a pay back SNT­ – specifically that documents are being misplaced, lost and delayed before they are forwarded to the Social Security regional office (Long Island’s regional office is in New York City).

If you apply for SSI for your developmentally disabled child who has a pay back supplemental needs trust, we strongly urge you to obtain a signed acknowledgment of receipt of each of the documents you deliver to the Social Security worker when you arrive for your interview and appointment.

If your documents end up lost or delayed, and your adult child requires Medicaid for medical care or OMRDD program slots, contact my office immediately to discuss certifying your child as disabled under NYS regulations for Medicaid and applying for medical assistance pending the determination on SSI.  We are here to help your adult child with special needs get the assistance he or she deserves.

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For decisions to withhold or withdraw life-sustaining treatment – including feeding tubes – the new Family Health Care Decisions Act does not require the appointment of a guardian. It is important to note that when a patient has no family or friends to serve as a guardian (nor as a Surrogate), the hospital or nursing home often asks the court to appoint an ‘independent’ guardian – frequently an attorney or social worker who has never met the patient and may not have a medical training background.

Now, under the new law, the medical facility can bring a legal proceeding to ask a court to determine that withholding or withdrawing life-sustaining treatment is medically appropriate – specifically, that the patient’s death will occur within six months whether or not treatment is provided; or, that the patient is permanently unconscious; or that the provision of treatment would involve such pain, suffering or other burden that it could reasonably be considered inhumane or extraordinarily burdensome to provide such treatment because the patient has an irreversible or incurable condition.

The entire Family Health Care Decisions Act is complex and lengthy. It also covers the rights of patients and family to object to treatment, the steps required by Surrogates if Do Not Resuscitate orders (DNRs) are needed, and the creation of Ethics Review committees to assist in the review of end of life decisions under the new law.

My office provides legal representation in guardianship and health care proceedings under the new law. However, it is hoped that the new law will facilitate health care decision-making within the family – rather than the court system – when decisions must be made for patients in a hospital or nursing home.

Remember, a health care proxy for a competent adult – or a 17A guardianship for a developmentally disabled person – is the best way for you and your loved ones to plan ahead, in case difficult medical decisions are ever needed.

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An important part of the recently enacted Family Health Care Decisions Act is how it addresses health care decisions for adults in a hospital or living in a nursing home but without any family or friends, or guardian. Sadly – but not infrequently – seniors or persons with disabilities end up in a hospital or nursing home and have no connection to anyone in the community at large.

I have often been appointed as a court representative to meet with these individuals to see if there is anyone who is ‘connected’ to this person so that the individual’s wishes can be determined for medical decisions. Still, the court has been hampered by New York State Court of Appeals decisions, which forbid anyone – including a court-appointed guardian – from making end of life decisions when the patient’s wishes could not be determined. Tragically, for some of these patients, unnecessary and invasive and sometimes painful treatment continued until death.

The new law creates the opportunity to avoid court proceedings and to permit medical Surrogates to make difficult end of life decisions for persons without family, or friends, and essentially serve as health care Surrogates.

The section of the law, Health Care Decisions for Adult Patients without Surrogates, creates a new framework for addressing ongoing medical treatment (‘routine medical treatment’), invasive medical treatment, such as surgery (‘major medical treatment’) and end of life decisions for these patients.

The new law permits an attending physician to decide about routine medical treatment if the hospital or nursing home has determined that the patient lacks medical decision-making capacity (discussed in my prior blogs). For major medical treatment, the recommendation by the attending physician must be made in consultation with the hospital staff responsible for the patient’s care and at least one other physician must agree with the suggested treatment or surgery. If the patient is in a nursing home, the medical director must be consulted and agree with the treatment.

To be continued...

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Yes, change is here! Our office has moved...

One Old Country Road, Suite 235 | Carle Place, New York 11514 | MAP

But our phone, fax, website and email are the same:Phone: 516-741-9175 • Fax: 516-741-9444 • Email: info@BPAbrahamsLaw.com

To be sure you find us easily, here is our new travel and parking info:

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New York law presumes that a child under the age of 18, who is not emancipated, lacks legal capacity, including the ability to make informed medical choices and sign a health care proxy. Parents (or legal guardians) are empowered to make all routine or major medical decisions – but until the Family Health Care Decisions Act, no end of life decisions could be made without a legal proceeding.

In 2003, a highly publicized case, Matter of A.B., involved the parents of a minor child who had suffered a brain seizure and lapsed into a persistent vegetative state. The parents were required to go to court to obtain permission to remove life support. The parents had the support of the medical staff, and the court proceeding – which involved a two-day hearing and the appointment of a representative for the minor (a ‘guardian ad litem’) – did result in the court granting the authority to make this end of life decision.

As the court noted, “To have your minor child die is every parent’s worst nightmare. To have to make the decision to terminate your own child’s existence is beyond most people’s comprehension. However, notwithstanding this, most parents are capable of making a considered decision in their grief…with the help of the child’s medical providers.”

The newly passed Family Health Care Decisions Act in New York State addresses the treatment of minors concerning end of life decisions. The law has strict requirements:

Under the new Family Health Care Decisions Act, what determinations must the physician make regarding end of life decisions for a patient?

If the medical decision means withholding or withdrawal of life-sustaining treatment, the Surrogate and medical staff must follow additional strict steps for making these choices.

The attending physician must determine, with another qualified physician, that:

This section of the Family Health Care Decisions Act represents a significant legislative step forward and overturns several New York State Court of Appeals cases. Those judicial cases had forbidden the removal of life support, even when doctors and family agreed, because no one could prove by clear and convincing evidence (the hardest legal standard to prove) what the patient would have wanted.

Remember that if you are the 17A guardian for your developmentally disabled or retarded family member, the New York State Legislature amended the law in March 2003 and October 2005 to permit guardians to make end of life decisions including removal or refusal of life support. The law, Surrogates Court Procedure Act 1750-b, has a detailed section on the standards and steps required by attending physicians and guardians for making these serious medical decisions which are almost identical to the Family Health Care Decisions Act. But if your 17A Letters of Guardianship pre-date 2003, your county of residence may require you to file updated medical certifications with the Surrogate’s Court in your county and receive updated Letters of Guardianship from the court.

Check with my office to see if this applies to you.

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Without a legal guardian (under Article 81 or 17A) or health care proxy, the Family Health Care Decisions Act (HCDA) creates a new ‘class’ of persons, called the “Surrogate”, who can make health care decisions for incapacitated persons.

Who is eligible to serve as Surrogate?

What health care decisions can the Surrogate make for the family member in the hospital or nursing home?

The Surrogate has the authority to make medical decisions for routine medical treatment, major medical treatment and end of life decisions.

How is this done?

First and foremost, the patient’s wishes, including religious and moral beliefs, must be followed, if known. If the patient’s wishes cannot be reasonably determined, the Surrogate must act in the patient’s best interests considering the dignity and uniqueness of the person; the possibility of preservation of life, improvement or restoration of health; relief from suffering through palliative care and pain management; and other circumstances particular to the patient.

To be continued in my next blog.

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Last week I began the discussion of an important new health care decision-making law, the Family Health Care Decisions Act (FHCDA), which permits family – called Surrogates - to make all health care decisions when the patient is in a hospital or nursing home.

A typical scenario: The patient enters a hospital or nursing home (or other type of residential care facility) and requires either routine or major medical treatment. There is neither a health care proxy nor a guardian, and the treating physician determines that the patient does not have ‘capacity’, or mental competency, to make medical decisions. Or, the patient is at the end of life and a decision must be made regarding whether to withhold or withdraw life support, including feeding tubes (‘artificial nutrition and hydration’).

New York State presumes that adults are competent to make their own medical treatment decisions. Competency to make health care decisions is generally defined as the ability to make an informed, rational decision weighing the risks and benefits of medical treatment, and the consequences of not having a medical procedure performed.

The FHCDA law creates a strict standard for the authority to make health care decisions even before a Surrogate can do so. First, there must be a medical determination as to whether the patient has capacity to make their own medical decisions. The attending physician must make reasonable efforts to determine whether a patient has capacity, and if the patient does not presently have capacity, whether the patient is likely to regain capacity in time to impact the decision.

If lack of capacity is due to mental illness, the physician making the determination of capacity must be certified by the American Board of Psychiatry and Neurology or by the American Osteopathic Board of Neurology and Psychiatry.

If the physician determines that lack of capacity is due to mental retardation or developmental disability, the certifying physician or clinical psychologist must also have been employed for at least 2 years by a facility licensed under OMRDD, or employed and certified by the Commissioner of OMRDD in specialized training with developmentally disabled persons for 3 years, or employed in certain Mental Hygiene schools under New York law.

After the physician determines that the patient does not have capacity, the patient still has the right to object to a health care decision. Then, a court order regarding legal competency is needed to override the patient’s wishes.

However, assuming no objection by the patient, the physician must next determine if there is a legal representative with the authority to make health care decisions for the patient. For example, is there a health care proxy with a designated agent? Can the agent be located? Is the agent or alternate agent able to make medical decisions? Or, is there a 17A guardian or standby guardian? Can those persons be located? Or, is there an Article 81 guardian for an incapacitated person and, if so, can they make the required medical decisions?

If any of these legal representatives can be located, no Surrogate decision maker is needed; the health care proxy or guardian may be authorized to make health care decisions.

If a Surrogate must make health care decisions, who is eligible to be designated? My next blog will cover this topic.

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On February 24, 2010, New York State Governor David A. Paterson signed into law the Family Health Care Decisions Act, amending Public Health Law by adding Article 29-CC. The law, which advocates have been seeking for more than 15 years, allows family members or ‘Surrogates’ to make health care decisions – including end of life decisions – for persons without health care proxies who are in hospitals or nursing homes.

The new law has several important implications for New York State residents:

My next several blogs will review the law and its impact on you and your family. Of course, for adults with legal capacity, the best strategy for making sure that your health care wishes are followed is to prepare and sign a health care proxy – available online through the New York State Bar Association website. Go to www.nysba.org, and click on Community Resources to download a free health care proxy form. Or, ask your doctor for the health care proxy form.

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