Life Planning

The Law   Health Care Proxies and Living Wills    Glossary   Powers of Attorney
Designation of Person in Parental Relationship   Appointment of Guardian of Child by Parent in His/Her Will
Last Wills and Testaments

The Law

Illness and death, for clear reasons, are not the fun parts of life. But they are parts of life that should be planned for, for at least two reasons. The first is to give you a sense of relief or accomplishment in knowing that you have prepared for the worst case scenarios in documenting your wishes. The second is to not burden your loved ones with decisions that you should have made, such as in a Living Will.

New York's General Obligations Law ("GOB") Article 5, Title 15, contains the law governing powers of attorney. Public Health Law Article 29-C addresses health care agents and proxies. Designating another adult, other than the other parent, to step into the parental role is governed by GOB Article 5, Title 15-A. Appointment of a Guardian by a Parent is found in Domestic Relations Law Article 6. The Estates, Powers and Trusts Law ("EPTL") contains the law that governs Wills and Trusts, with the Surrogate's Court Procedure Act providing additional law on estate proceedings. All of these laws can be read at the New York State Legislature's website. Along with the statutory law found in New York State, common law (also known as case law) serves to interpret and explain the intent of the legislature in the formation of the statutory law. Such interpretations and explanations receive the full force and effect of law in their jurisdictions and, as a result, must be understood and followed.

There is no statutory authority for living wills in New York State. However, the State’s highest court recognized their validity in The Matter of O’Connor, 72 NY 2d 517, 531 NE 2d 607, 534 NYS 2d 886 (1988). In O’Connor, the New York State Court of Appeals held that life-sustaining treatment could be withheld from a terminally ill patient “upon clear and convincing evidence that the patient intended to decline the treatment under the circumstances.” Id. The Court further stated that the “ideal situation” would be one in which the patient had memorialized his or her wishes in a written document while competent, thus evidencing the seriousness with which the individual was making the decision. It is important to note that the Court stopped short of stating that the only proof of clear and convincing intent is a written document, thus leaving the door open for allowing oral expressions of intent as well. Id.

All these documents must meet the legal requirements on the date they are executed. Laws change. People move from state-to-state. But the document will continue to be valid.

Health Care Proxies and Living Wills

"Advance Directives" are Health Care Proxies, Living Wills, Do Not Resuscitate Orders ("DNRs"), and Medical Orders for Life Sustaining Treatment (MOLST). The NYS Attorney General's Office has a comprehensive guide, Advance Directives: Making Your Wishes Known and Honored, which should be read for an understanding of this area of the law.

Note: Health Care Proxies and Living Wills address health care decisions. Although those health care decisions will have an impact on finances, a Power of Attorney is nevertheless needed to address financial decisions. Health Care Proxies, like Powers of Attorney, terminate with the death of the principal.

If an incapacitated person does not have a health care proxy, Public Health Law §2994-d(1) determines who makes the health care decisions for the incapacitated person. That law states that:

One person from the following list from the class highest in priority when persons in prior classes are not reasonably available, willing, and competent to act, shall be the surrogate for an adult patient who lacks decision-making capacity. However, such person may designate any other person on the list to be surrogate, provided no one in a class higher in priority than the person designated objects:
(a) A guardian authorized to decide about health care pursuant to article eighty-one of the mental hygiene law;
(b) The spouse, if not legally separated from the patient, or the domestic partner;
(c) A son or daughter eighteen years of age or older;
(d) A parent;
(e) A brother or sister eighteen years of age or older;
(f) A close friend.

If this default on decision-making is not what you would want for yourself, and/or you want to make clear what your wishes are on medical care, then a Health Care Proxy and a Living Will should be made.

Sometimes a Health Care Proxy is combined with a Living Will. In this example, the Living Will portion is in bold type, and directs that certain life saving procedures are to be declined should the principal have a terminal illness and be in the condition described in paragraph 1. The Living Will tells the person's agent and others when, in his/her opinion, his/her life is not worth saving. A person may feel that his/her life is only worth saving if he/she can talk to family or friends; wake up from a coma; feed, bathe or take care of him/herself; be free from pain; and/or live without being hooked up to machines. A person may feel that his/her life is always worth saving no matter how sick he/she is. A person may be unsure, and can state that.

Forms and Additional Information:
Health Care Proxy (publication of NYS Department of Health)
Living Will
Additional Information in Drafting a Health Care Proxy and Living Will
Nonhospital DNR Order (publication of NYS Department of Health)
Medical Orders for Life Sustaining Treatment (MOLST) (publication of NYS Department of Health)
Affirmation Concerning Death Penalty

What is the difference between a Health Care Proxy or Living Will and the MOLST form? A Health Care Proxy and a Living Will are traditional advance directives for adults 18 years of age and older. These documents are completed when a patient has capacity to do so and only apply when medical decision–making capacity is lost. To complement the use of traditional advance directives and facilitate the communication of medical orders impacting end–of–life care for patients with advanced chronic or serious illness, the Medical Orders for Life–Sustaining Treatment (MOLST) program was created. The MOLST contains specific and actionable medical orders that transition with the patient across health care settings. Health care proxies and living wills typically contain more general instructions, and cannot be followed by EMS providers in an emergency. In contrast to a health care proxy, the MOLST applies as soon as a patient consents to the orders in it and a physician, or nurse practitioner signs it. It is not conditional on a determination that a patient has lost medical decision–making capacity. The MOLST program is based on the belief that patients have the right to make their own health care decisions, including decisions about life–sustaining treatment, to describe these wishes to health care providers and to receive comfort care while wishes are being honored. See MOLST FAQs.

A good practice is for the principal to discuss the Living Will with his/her doctor, making sure that the Living Will is written well enough so that there is no confusion about what the principal is directing.

If not otherwise directed, the agent may decide whether the principal dies in a hospital or at home, and whether to call in a spiritual leader. Possible additions/modifications:
If I am dying, it is important for me to be at home/in the hospital/I am not sure.
Religion or spirituality is not/is important to me.
My religion is ___________, and I attend/am a member of church/synagogue/mosque/society/association.

Unless an autopsy is required by law, such as in criminal cases, the agent also decides whether or not an autopsy is needed absent direction from the principal.

A section on burial/cremation and funeral service wishes may be added into the document. Why is this a good idea? Because people are reading the Health Care Proxy and/or Living Will at a time when a burial/cremation and funeral services may have to be arranged. While the Last Will and Testament may also address such items, often the Last Will is not read until after the funeral.

The original Health Care Proxy should be given to the agent. Several originals can also be made so that an alternate agent also is given an original. Copies should be placed in the records of the principal's doctor(s) and hospital.

Healthcare Proxies: Appointing People with the Power to Make Healthcare Decisions for Others, Albany Law School Government Law Center.

The Family Care Decisions Act: A Summary of Key Provisions by Robert N. Swidler (New York State Bar Association)

Glossary

A right to government benefits based upon the programs's standards and requirements. Some government programs are based on income limits and/or financial resources.A party who is entitled to notice of certain legal proceedings, where the person or their property interests, or someone they are supposed to protect, may be effected by the outcome of the proceeding.Drugs, medical devices, or procedures that can keep individuals alive who would otherwise die within a short, though usually uncertain, time. Also known as life-sustaining treatments.

Term	Meaning
Abatement	The plan by which testamentary gifts shall be applied to pay the estate bills. Unless a contrary plan for abatement is indicated by a New York State testator in his or her will, or through wording showing preferences for one beneficiary over another, New York State’s plan for abatement is as follows: 1. Intestate Property (that property which has not been disposed of by a will); 2. Residuary Dispositions; 3. General/Demonstrative Dispositions; 4. Specific Dispositions; and 5. Dispositions to a surviving spouse, which qualify for the estate tax marital deduction. EPTL §13-1.3.
Account or Accounting	Financial report filed in court of all financial transactions; listing all amounts received and funds disbursed, and reconciling the amounts.
Acknowledgment	After signing a legal document, the person then confirms to a notary public that he/she has signed it.
Adeem	To revoke or satisfy by ademption.
Ademption	The failure of a gift of personal property (a bequest) or of real property (a devise) to be distributed according to the provisions of a decedent's will because the property no longer belongs to the testator at the time of his or her death or because the property has been substantially changed. In New York, if the decedent does not own the item specifically gifted at the time of death, then the gift fails. EPTL §3-4.3 An exception to this would occur where the specifically gifted property is lost or damaged and insurance proceeds are payable to the estate as a result. EPTL §3-4.5. Additionally, if the committee or conservator of an incapacitated person transfers the specifically gifted property prior to death, in which case, the traceable proceeds pass to the beneficiary. EPTL §3-4.4.
Ademption by Extinction	When the personal or real property is substantially changed or is not part of the testator's estate when he/she dies.
Ademption by Satisfaction	When the testator, during his or her lifetime, gives to his or her heir all or part of the gift he or she had intended to give by Will.
Administrator	The Personal Representative in an estate proceeding in which there is no will. Administrators are usually the closest next-of-kin as determined by state law. The Administrator settles the Estate according to New York's laws of intestacy.
Adult	Any person who is eighteen years of age or older or has married.
Affidavit	A statement signed and sworn to under oath and notarized by a notary public.
Affirmation	Similar to an affidavit, but not sworn to. A person signs that the assertions are true under penalty of perjury.
Agent	(1) A person who does something on behalf of a principal. (2) A person granted authority to act as attorney-in-fact for the principal under a power of attorney, and includes the original agent and any co-agent or successor agent. Unless the context indicates otherwise, an "agent" designated in a power of attorney means "attorney-in-fact". An agent acting under a power of attorney has a fiduciary relationship with the principal.
Anti-Lapse Statute	Unless the will provides otherwise, when a testamentary benefit is provided for issue or brothers or sisters of a testator, the default rule is that the bequest does not lapse. For instruments executed prior to September 1, 1992, the benefit would pass to the surviving issue of the deceased, per stirpes. EPTL §3-3.3(a)(] ). In the case of instruments executed on or after September 1, 1992, the issue of a deceased take by representation. EPTL §3-3.3(a)(2).
Artificial nutrition and hydration	Tube feeding that can be provided through the nose to the stomach. A tube may also be surgically inserted through the belly wall to the stomach or small intestine. An IV (intravenous tube) may be inserted through the skin to a blood vessel.
Beneficiary	A person who has a present or future interest in an estate.
Benefits from governmental programs or civil or military service	Any benefit, program or assistance provided under a statute or governmental regulation, including social security, medicare and medicaid.
Bequeath	To give or leave by Will. Applies to personal property. A testator, to give real property to someone in a testamentary provision, devises it. Bequeath is sometimes used as a synonym for devise, and in most cases, that does not cause a problem in interpreting a Will. Nevertheless, EPTL §3-1.2 states that "Every estate in property may be devised or bequeathed."
Blood transfusions	The injection of blood into a person's veins.
Bond	An agreement that secures payment of any damages; insurance. If a Will does not waive the requirement of a bond, the personal representative may have to post a bond in order to protect interested parties against possible negligence, fraud, or embezzlement. The bonding premium is based on the total value of the probate assets. The premium is an administration expense chargeable to the estate. An insurance agent can help to arrange this coverage. In some circumstances the Court can waive the requirement of a bond.
Breathing machine or ventilator	The machine pumps air into the lungs and breathes for the person. A person is not able to talk while on this machine.
Capacity	The ability to comprehend the nature and consequences of the act of executing and granting, revoking, amending or modifying a power of attorney, any provision in a power of attorney, or the authority of any person to act as agent under a power of attorney.
Cardiopulmonary resuscitation	Measures, as specified in regulations promulgated by the commissioner, to restore cardiac function or to support ventilation in the event of a cardiac or respiratory arrest. Cardiopulmonary resuscitation shall not include measures to improve ventilation and cardiac function in the absence of an arrest.
Certified Copy	A copy of a document signed and certified as a true copy by the officer to whom the custody of the original document is entrusted. A certified copy has a "rasied seal" on it.
Charity, bequeath or devise to	It is critical that the correct corporate name of the charity be identified and confirmed. If the local organization is an affiliate of a national organization, which is to receive the it? If there are to be restrictions on use of the property, they must be stated. If the charity may refuse the gift due to the restrictions, name an alternate beneficiary.
Chattel	An item of tangible movable or immovable property except real estate and things (such as buildings) connected with real property.
Close friend	Any person, eighteen years of age or older, who is a close friend of the patient, or a relative of the patient (other than a spouse, adult child, parent, brother or sister), who has maintained such regular contact with the patient as to be familiar with the patient's activities, health, and religious or moral beliefs, and who presents a signed statement to that effect to the attending practitioner.
Codicil	A supplement to a will, either adding to, taking from or altering its provisions or confirming it in whole or in part by republication, but not totally revoking such will.
Coma	a sleep-like condition resulting from impairment of the brain stem. Often used to include all possible degress of impaired consciousness or unresponsiveness with the absence of eye opening.
Comford Care	Treatment or care which does not restore health but relieves pain, or eases (but not reverses) the dying process.
Commission	Compensation received by an Executor or Administrator, which is a percentage of the value of the Estate and is set by statute. The Commission is taxable income and must be reported on a personal income tax return.
Compensation	Money. Under a power of attorney, reasonable compensation may be authorized to be paid to the agent from assets of the principal for services actually rendered by the agent. The compensation received by an agent is also taxable income.
Conflict of Interest	Term used in connection with fiduciaries and their relationship to matters of private interest or gain to them. Generally, refers to a clash between public interest (public officials and fiduciaries) and a party's own personal interest. Fiduciaries should not act where they have a conflict of interest.
Court Order	A directive of the Court that is signed by the judge.
Court Order & Judgment	Court decision that encompasses both a Court Order and a Judgment.
CPR or cardiopulmonary resuscitation	Cardio=heart. Pulmonary=lungs. Resuscitation=to bring back. This may involve: pressing hard on one's chest to keep blood pumping; electrical shocks to jump start the heart; and/or the injection of medicines in one's veins.
Creator	A person who makes a disposition of property.
Decedent	A person who has died.
Decision-making capacity	The ability to understand and appreciate the nature and consequences of proposed health care, including the benefits and risks of and alternatives to proposed healthcare, and to reach an informed decision.
Decree	Judgment or Order of a Court of Equity.
Demonstrative Disposition	A testamentary disposition of property to be taken out of specified or identified property. Example: "I direct that all of my shares of General Electric Co. common stock be sold and that the sum of Ten Thousand Dollars ($10,000) from such sale proceeds shall be paid to my granddaughter, [name]". If abatement occurs, demonstrative dispositions receive the same priority as specific dispositions.
Designation of Clerk	Signed statement by a petitioner/guardian and sworn to before a notary, which is required to be filed in court, naming the Clerk of the Court as agent for service of process in case the petitioner/guardian cannot be located and personally served with legal process.
Developmental disability	A developmental disability as defined in subdivision twenty-two of §1.03 of the mental hygiene law.
Devise	To leave real property (real estate) to someone by the terms of a will.
Dialysis	A machine that cleans one's blood when one's kidneys stop working.
Disposition	A transfer of property by a person during his/her lifetime or by will. There are four types of dispositions: specific, demonstrative, general, and residuary.
Distributee	A person entitled to take or share in the property of a decedent under the statutes governing descent and distribution. May be known as "heirs," "heirs at law," or "next of kin." These are the relatives of the testator who must receive formal "service" of the filing of the petition for probate. These are the people who can "object" to the Will.
Domestic partner	A person who, with respect to another person: (a) is formally a party in a domestic partnership or similar relationship with the other person, entered into pursuant to the laws of the United States or of any state, local or foreign jurisdiction, or registered as the domestic partner of the other person with any registry maintained by the employer of either party or any state, municipality, or foreign jurisdiction; or (b) is formally recognized as a beneficiary or covered person under the other person's employment benefits or health insurance; or (c) is dependent or mutually interdependent on the other person for support, as evidenced by the totality of the circumstances indicating a mutual intent to be domestic partners including but not limited to: common ownership or joint leasing of real or personal property; common householding, shared income or shared expenses; children in common; signs of intent to marry or become domestic partners under paragraph (a) or (b) of this subdivision; or the length of the personal relationship of the persons. Each party to a domestic partnership shall be considered to be the domestic partner of the other party. "Domestic partner" shall not include a person who is related to the other person by blood in a manner that would bar marriage to the other person in New York state. "Domestic partner" also shall not include any person who is less than eighteen years of age or who is the adopted child of the other person or who is related by blood in a manner that would bar marriage in New York state to a person who is the lawful spouse of the other person.
Domicile	That place which is a fixed, permanent, and principal home to which a person wherever temporarily located always intends to return.
Do Not Resuscitate (DNR) Order	See Public Health Law Article 29-B.
Dower	The concept of dower came from English common law. Traditionally, dower is a portion of a man’s estate guaranteed to a wife when she is widowed to ensure that she does not fall into poverty after her husband dies. The practice continues today without the same restrictions on gender, and is known as an "elective share," which a surviving spouse may opt for instead of what he/she would receive under the Will. Every state in America has a provision in its laws to protect an individual whose spouse dies from being left with nothing.
Due Process	The right to receive adequate notice of a proceeding involving oneself or one's property along with an adequate opportunity to respond.
Effect	Relates to the legal consequences attributed under the law of a jurisdiction to a valid testamentary disposition.
Emancipated minor patient	A minor patient who is the parent of a child, or who is sixteen years of age or older and living independently from his or her parents or guardian.
Enjoin	An order of the court requiring or directing a person to abstain or desist from doing some act. See also Injunction.
Entitlement
Estate	Depending upon the context, "estate" may mean: (a) The interest which a person has in property. (b) The aggregate of property which a person owns.
Estate Taxes	A tax levied on the net value of the estate of a deceased person before distribution to the heirs. Also called death tax. If the estate is subject to federal and/or state estate taxes, a return must be filed and the taxes paid within nine (9) months of the date of death. If it is filed late or incorrectly, there may be penalties assessed. The unwary Executor or Administrator may be personally liable for such penalties. Note that the Estate Tax Return and Income Tax Return are separate and distinct taxes and many estates are subject to both.
Estate Tax Waiver	Issued by the NYS Department of Tax and Finance, which permits the transfer of property from the Estate to the recipient free of any Estate tax liability.
Execute	Following the guidelines set down in the law for completing a document that is legally enforceable. This may include procedures such as having witnesses to your signature.
Executor	The Personal Representative in a probate proceeding. The Executor need not be a relative of the deceased. The designated person may be a relative, friend or trusted advisor. In fact, the Executor may not be a person at all - financial institutions and some corporations are qualified to serve. Once the Will is admitted to probate, the Executor is appointed and may proceed to administer the estate. Note that before the Will is probated, the person named as Executor has no authority to act. The Executor must ensure that the decedent's objectives and goals, as stated in the Will, are faithfully carried out.
Executrix	Feminine of Executor.
Exemption for the Benefit of the Family	Property which is excluded from being included in a decedent's Estate, and is instead automatically deemed the property of the surviving spouse and/or dependent children. EPTL §5-3.1.
Fair Market Value	The fair market value is the price at which the property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or to sell and both having reasonable knowledge of relevant facts. The fair market value of a particular item of property includible in the decedent's gross estate is not to be determined by a forced sale price. Nor is the fair market value of an item of property to be determined by the sale price of the item in a market other than that in which such item is most commonly sold to the public, taking into account the location of the item wherever appropriate. I.R.S. Regulation §20.2031-1. As to the value of publicly traded stock, the IRS regulations require the mean price between the opening and close of the day – not the closing price.
Feeding tube	A tube used to feed someone who cannot swallow. The tube is placed down the throat into the stomach. It can also be placed by surgery.
Fiduciary	A person who meets the description, in this part, of a "personal representative" or who is designated by the creator or by the court to act as an assignee for the benefit of creditors, or a committee, conservator, curator, custodian, guardian, trustee or donee of a power during minority. A fiduciary holds a position of trust and confidence, and has a duty to act loyally and in good faith at all times.
Formal Validity	Relates to the formalities prescribed by the law of a jurisdiction for the execution and attestation of a will.
General Disposition	A testamentary disposition of property not amounting to a demonstrative, residuary or specific disposition. A gift of a dollar amount. It comes out of the general estate after payment of tax, debts and expenses of the estate. Since the gift does not look to any specific property, it does not adeem if the nature of the assets change.
Generation Skipping Tax (GST)	The federal GST tax applies when the testator has made transfers exceeding the federal extension amount to any person who is more than one generation below the person making the gift. The distribution has "skipped" a generation. The New York State generation skipping transfer tax was repealed effective April 1, 2014.
Giving Security	Filing with the court a bond from a surety/insurance company.
Guardian ad litem (GAL)	A person appointed by the court in a proceeding that is in litigation, to protect the interests in the litigation of an infant, incompetent, or missing or absent person, or anyone else who is under a disability, who is a party to, or interested in the litigation. The Guardian ad litem's function is to protect the interests of a person who is under a disability, as relating to the litigation.
Health care agent	A health care agent designated by an adult pursuant to Public Health Law Article 29-C.
Health care decision	Any decision to consent or refuse to consent to health care.
Health care guardian	An individual appointed by a court, pursuant to Public Health Law §2994-r(4), as the guardian of a minor patient solely for the purpose of deciding about life-sustaining treatment pursuant to Public Health Law Article 29-CC.
Hearing	A proceeding in court with definite issues to be tried and determined by the judge, in which witnesses testify. The parties may present evidence, call witnesses, cross-examine witnesses, and may be represented by counsel.
Heir	A person who inherits or has a right of inheritance in the property of another following the latter's death. Inheritance may be by relationship, descent, Will or legal process. Compare with Legatee, a term for one who inherited by Will, and Heirs at Law, a term for one who inherits pursuant to law.
Heirs at Law	Persons who inherit pursuant to law. Statutory heirs. EPTL 2-1.1 provides that whenever used in a statute or instrument, unless a contrary intention is expressed therein, the term "heirs", "heirs at law", "next of kin" or any term of like import means the distributees, as defined in 1-2.5.
Hospice Care	A formal system of care for individuals who have a life-limiting illness that is no longer responsive to curative treatment and life expectancy is approximately six months or less. It is provided by certified hospice agencies, and is covered by most insurance plans including Medicare. Care focuses on symptom management needs and the quality of life of the patient. It is provided wherever the patient is located.
Incapacity	To be without capacity.
Incompetent	A person judicially declared to be incapable of managing his affairs.
Individual Retirement Account (IRA)	Two main types: (1) Traditional IRA, which allows the participant to contribute pre-tax dollars and pay taxes on withdrawal in retirement. (2) Roth IRA, which allows the participant to contribute post-tax dollars and withdraw money, including the earnings (such as interest and dividends), tax-fee in retirement. Both IRAs provide for the participant to name a beneficiary. If no beneficiary is named, the Last Will or intestate rules will determine who receives it. An inherited IRA may be cashed in, without the 10% early withdrawal penalty, but nevertheless included in the beneficiary's income if a traditional IRA. If a spouse, the spouse also has the option to treat the IRA as his/her own. Tax law in this area is subject to change, and depends on the relationship of the beneficiary to the participant/decedent, so always check the IRS website for current information. See also SEP IRA and Simple IRA.
Infant or Minor	A person who has not attained the age of eighteen years, provided, however, that such definition shall not be applicable to any provision relating to the New York Uniform Transfers to Minors Act, nor to EPTL Section 13-3.4.
Injunction	A remedy issued by a court order, forbidding a party to do some act or restraining him/her in the continuance thereof.
Intangible Property	Also known as incorporeal property. Property which a person or corporation can have ownership of and can transfer ownership to another person or corporation, but has no physical substance. Examples are business goodwill, brand identity, and intellectual property.
Intent	Design or purpose. A usually clearly formulated or planned aim. The person must intend to create any of the documents named on this webpage (e.g., if a person does not intend for the document to be his/her Last Will & Testament, it is not). Additionally, a finder of fact, such as a judge, will look for "intent," that is what the person meant to convey, in any writing that is ambiguous.
Interested Party
Internal Revenue Code	The United States Internal Revenue Code of 1986, as amended, including any corresponding provisions of any subsequent federal tax code.
Interpretation	The procedure of applying the law of a jurisdiction to determine the meaning of language employed by the testator where his intention is not otherwise ascertainable.
Intestate	Not having made a will before one dies.
Intrinsic Validity	Relates to the rules of substantive law by which a jurisdiction determines the legality of a testamentary disposition, including the general capacity of the testator.
Issue	(a) Unless a contrary intention is indicated issue are the descendants in any degree from a common ancestor, and they include adopted children.
Joint Account	Generally, a bank account in the joint names of two persons. The joint bank account is usually with rights of survivorship, in which case, on the death of one party, the account automatically reverts to the survivor.
Joint Will and Testament	A single testamentary instrument which contains the wills of two or more persons, is executed jointly by them, and disposes of property owned jointly, in common, or in severalty by them. A joint will is designed to prevent the surviving person from changing his or her mind concerning what should happen to the couple’s property after the first spouse to die. EPTL §13-2.1(b).
Judgment	Determination by the Court after a trial or hearing.
Jurisdiction	The power of a court to adjudicate matters concerning the subject matter in a given case. This also includes the geographic area in which a court has the power to hear and determine.
Kinship	Those wo are of the same family (relationship by blood or adoption).
Last Will and Testament	Title given to the Will that directs disposition of property.
Legacy	Personal property that is given to a party named in a Will.
Legal Process	Legal papers and pleadings, such as a Petition, Notice, subpoena, etc.
Legatee	The person to whom a disposition in a Will is given; a person who takes personal property under a Will.
Life Support System
Lifetime Trust	An express trust and all amendments thereto created other than by will and does not include; a trust for the benefit of creditors, a resulting or constructive trust, a business trust where certificates of beneficial interest are issued to the beneficiary, an investment trust, voting trust, a security instrument such as a deed of trust and a mortgage, a trust created by the judgment or decree of a court, a liquidation or reorganization trust, a trust for the sole purpose of paying dividends, interest, interest coupons, salaries, wages, pensions or profits, instruments wherein persons are mere nominees for others, or a trust created in deposits in any banking institution or savings and loan institution.
Living Trust	Another term for Lifetime Trust.
Marshalling Assets	The act by the fiduciary of locating, safeguarding, transferring, and bringing together the various assets of the Estate.
Medicaid	A form of pubic assistance created to pay for the medical and nursing home care of persons who otherwise do not have adequate resources with which to pay for their own care. There are strict requirements as to a person's resources and income to be eligibie for Medicaid benefits.
Medicare	A federally funded, federally administrered health insurance program health insurance program designed primarily to guarantee health care to the elderly and the disabled. All persons over the age of 65 who have paid social security taxes are entitled to participate.
Medical Orders for Life Sustaining Treatment (MOLST)	A medical order documented in specific format - usually on bright pink paper, that is completed by the patient or his/her health care agent and the doctor. It documents the patient's wishes regarding life sustaining treatment, such as cardio-pulmonary resuscitation (CPR), intubation and mechanical ventilation, feeding tubes, intravenous fluids, and antibiotics and makes those decisions actual medical orders that will travel with the patient from home, to hospital and any other medical settings. MOLST is an alternative form for patients to document their end-of-life care preferences and to assure that those preferences are made known to health care providers across the health care delivery system. Unlike the Nonhospital Order Not to Resuscitate, the MOLST form documents DNI orders and orders regarding other life-sustaining treatment, in addition to DNR orders. MOLST should be honored by EMS agencies, hospitals, nurs-ing homes, adult homes, hospices and other health care facilities and their health care provider staff. Chapter 197 of the Laws of 2008 authorized the MOLST form to be used statewide as an alternative form for nonhospital DNR and/or DNI and allowed EMS providers to honor this form in all counties in New York State.
Monitor	A person appointed in a power of attorney who has the authority to request, receive, and seek to compel the agent to provide a record of all receipts, disbursements, and transactions entered into by the agent on behalf of the principal.
Mutual Wills	Separate Wills mirroring each other, usually executed by a married or committed couple. In the common law, a binding promise never to revoke or alter a testamentary disposition was less readily implied in the case of two mutual wills than in the case of a single joint will. Therefore, if mutual Wills are intended to be binding on each other, contractual language is needed. See Schloss v. Koslow, 20 AD 3d 162 (2nd Dept. 2005).
Non-Hospital Do Not Resuscitate Order	Issued by a physician based on the patient's wishes. t is the responsibility of the physician to determine, at least every 90 days, whether the order continues to be appropriate, and to indicate this by a note in the person's medical chart. The issuance of a new form is not required, and under the law theorder should be considered valid unless it is known that it has been revoked. The order remains valid and must be followed, even if it has not been reviewed within the 90-day period.
Non-Statutory Power of Attorney	A power of attorney that is not a statutory short form power of attorney.
Operation of Law	An occurrence which automatically creates a legal result, even without the intent of the parties. Ex: Death of a principal revokes a power of attorney.
Palliative Care	Specialized medical care for people with serious chronic or acute life-threatening illness. The goal is to improve the quality of life for the patient, family, and caregivers. Palliative care has three main areas of focus: advance care planning; improved care coordination and communication; and improved pain and other symptom management. It is offered at any time during a serious illness. It is not limited to end-of-life care. Examples of serious illness include heart disease, congestive heart failure, cancer, diabetes, kidney failure, respiratory disease such as COPD, HIV/AIDS, Alzheimer's disease, Parkinson's disease, amyotrophic lateral sclerosis (ALS) and multiple sclerosis (MS). Get Palliative Care (getpalliativecare.org).
Palliative Care Information Act	NYS Public Health Law §2997-c (effective 2011). Patient Rights (NYS Department of Health).
Per Capita	A disposition or distribution of property is per capita when it is made to persons, each of whom is to take in his own right an equal portion of such property.
Persistent Vegetative State (PVS)	A state of permanent unconsciousness that is irreversible. It may take one to six months or more to confirm a PVS diagnosis. Patients in PVS have had the center in the brain that controls thinking, speaking, hunger, and thirst destroyed. PVS patients do retain reflexes such as random eye or muscle movements, yawning, and response to touch or sound. However, they do not feel pain. It includes patients with the appearance of wakefulness but excludes those who are more deeply comatose with eyes closed.
Person	The term "person" includes a natural person, an association, board, any corporation, whether municipal, stock or non-stock, court, governmental agency, authority or subdivision, partnership or other firm and the state.
Personal Delivery	Personal service of legal papers to a party by actually delivering the legal papers to the person.
Personal Property	Any property other than real property, including tangible and intangible things. Tangible personal property is that which is "used" and has an intrinsic value. Intangible personal property is simply evidence of a value. For example, furniture would be tangible property, but a stock certificate would be intangible. No statute specifically defines tangible personal property and case law must be looked to when certain assets might be tangible or intangible.
Personal Representative	A person who has received letters to administer the estate of a decedent, namely an Administrator or an Executor. The term does not include an assignee for the benefit of creditors, or a committee, conservator, curator, custodian, guardian, trustee or donee of a power during minority. Pursuant to SCPA §707(1), in order to be named as a personal representative of a decedent’s estate, one must meet the following requirements: Be eighteen years of age or older; competent; a New York State domiciliary or a non-domiciliary resident of the State; not convicted of a felony; and not otherwise disqualified because of deceitfulness, carelessness, substance abuse, lack of cognition, or other reasons which make him or her unfit for the position. Further, it is within the court’s discretion to determine the eligibility of those individuals to act as personal representatives who are unable to read or write the English language. SCPA §707(2).
Per Stirpes	A per stirpes disposition or distribution of property is made to persons who take as issue of a deceased ancestor in the following manner: The property so passing is divided into as many equal shares as there are (i) surviving issue in the generation nearest to the deceased ancestor which contains one or more surviving issue and (ii) deceased issue in the same generation who left surviving issue, if any. Each surviving member in such nearest generation is allocated one share. The share of a deceased issue in such nearest generation who left surviving issue shall be distributed in the same manner to such issue.
Pet Trust	A trust set up for the care of a pet following the owner's disability or death. Pet Trust Primer (ASPCA).
Physician-Patient Privilege	Right of a patient to exclude from evidence any communication made by the patient to his/her physician. NYS CPLR §4504. Only the patient can voluntarily waive the privilege.
Power of Attorney	A written document, other than a document referred to in GOB §5-1501C of this title, by which a principal with capacity designates an agent to act on his or her behalf.
Precatory Bequest	The heir is given an amount of money and requested (not directed) to contribute that amount to charity. The individual beneficiary then makes a voluntary contribution which entitles him or her to an income tax deduction for the gift to charity. Example: "If my wife [name] survives me, I give and bequeath the sum of Ten Thousand Dollars ($10,000) to her. It is my wish and hope, but I do not direct, that she make a donation in my memory to [charity name and location]. If my wife does not survive me, I give such amount to that organization for its general uses and purposes."
Preliminary Letters	Under some circumstances in an estate proceeding, it may be necessar for the prospective personal representative to seek preliminary letters of appointment from the court to allow him/her to address certain estate administration issues while the estate proceeding is pending. For example, if there are distributees who cannot be found or if the court's docket is very crowded, it could take months to secure the appointment of the personal representative. In issuing a preliminary letter, the court may require the prospective personal representative to post a bond or limit the actions that he/she may take.
Presumption of Death	Under common law, applied throughout the country, there is presumption of death after a person has been missing for seven years, and is used for purposes of collecting benefits, such as life insurance. NYS EPTL §2-1.7 provides a presumption of death after three years, though an earlier death may be presumed by a specific peril of death. However, EPTL §2-1.7 should not be applied to a person who is a known recluse.
Principal	An individual who is eighteen years of age or older, acting for himself or herself and not as a fiduciary or as an official of any legal, governmental or commercial entity, who executes a power of attorney.
Probate Proceeding	Probate is the court process where the terms of a will are approved by a judge, and the decedent's assets, property and possessions are given out to the named beneficiaries after debts are paid off. The proceeding is begun by the filing of the will, a certified death certificate, and a petition with the Surrogate's Court Clerk in the county in which the decedent was living when he/she died..
Property	Anything that may be the subject of ownership, and is real or personal property.
Pro-Rata	Proportionately; according to a certain rate, percentage, or proportion.
Qualified Domestic Relations Order (QDRO or DRO)	A judgment, decree, or order for a retirement plan to pay child support, alimony, or marital property rights to a spouse, former spouse, child, or other dependents of a retirement plan participant. A QDRO must comply with the Employee Retirement Income Security Act (ERISA), which is a federal law. New York law also applies. It is usually used to divide retirment funds in a divorce, in which case the non-participant spouse is entitled to share based on number of years of marriage.
Real Property	Land or any estate in land, including leaseholds, fixtures and mortgages or other liens thereon. Unless specifically provided otherwise, the beneficiary receives real property subject to liens and mortgages. EPTL§3-3.6.
Record	Information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
Remainder	What is left over, remains. In a decedent's estate, it is what is left over after any funeral expenses, executor's commission, taxes, other expenses, and specific dispositions are accounted for. Known as the residuary estate.
Remainderman	The person who inherits or is entitled to inherit property upon the termination of the estate of the former owner. Usually this occurs due to the death or termination of the former owner's life estate, but this can also occur due to a specific notation in a trust passing ownership from one person to another.
Representation	By representation means a disposition or distribution of property made in the following manner to persons who take as issue of a deceased ancestor: The property so passing is divided into as many equal shares as there are (i) surviving issue in the generation nearest to the deceased ancestor which contains one or more surviving issue and (ii) deceased issue in the same generation who left surviving issue, if any. Each surviving member in such nearest generation is allocated one share. The remaining shares, if any, are combined and then divided in the same manner among the surviving issue of the deceased issue as if the surviving issue who are allocated a share had predeceased the decedent, without issue. Unless a contrary intention is expressed in a will executed on or after September 1, 1992, a disposition of property to "issue" means the issue take by representation.
Representative Payee	One who receives payments from agencies, such as the Social Security Administration, on behalf of another. The person entitled to receive the benefits can designate anyone to be the representative payee (without appointing a guardian).
Residuary Estate	In the law of Wills, any portion of the testator's estate that is not specifically devised to someone in the Will, or any property that is part of such a specific devise that fails. It is also known as a residual estate or simply residue.
Respirator	Also called a ventilator, refers to a mechanical device that uses a tube through the nose or throat to assist breathing.
Retirement Savings Plan	Several types: (1) 401(k) - offered by private sector employers; allows employees to contribute a portion of their salary to the plan on a pre-tax basis. (2) 402(b) - offered by schools, churches and non-profits; allows employees to contribute pre-tax dollars. (3) 457 - offered by government employers; employees may defer compensation on a pre-tax basis. (4) Solo 401(k) - designed for self-employed individuals and small business owners; allows them to contribute to the plan as both an employer and an employee. (5) Thrift savings plan - offered to federal employees and military members; allows them to invest in a variety of funds. (6) Defined benefit pension plan; provides a guaranteed monthly benefit to employees based on a formula that takes into account their salary and years of service. (7) Cash blance plan - hybrid pension plan that cobmines features of a defined benefit plan and a defined contribution plan. Plans (1) through (5) allow for the naming of a beneficiary to inherit the remaining funds in the account, while (6) and (7) are dependent on the terms of the plans.
Return Date	The date that a response to the particular paper served is "returnable." Not all return dates require appearances in person. A return date may just require submission of written responses by that date.
SEP IRA	A retirement savings plan designed for self-employed individuals and small business owners that allows them to contribute to the plan on a tax-deferred basis.
Sign (verb)	To place any memorandum, mark or sign, written, printed, stamped, photographed, engraved or otherwise upon an instrument or writing, with the intent to execute the instrument, writing or electronic record. May also include an electronic signature as that term is defined in §302(3) of the state technology law, where permitted.
Small Estate	Personal property of a domiciliary or non-domiciliary which is valued at $50,000.00 or less (Surrogate's Court Procedure Act §1301). Such does not include property which is covered by the Exemption for the Benefit of the Family.
Social Security	A program administered by the Social Security Administration of the federal government. It provides monthly benefits to eligible retirement workers and certain members of their families when the worker and certain members of their families when the worker retires (Social Security retirement), becomes severely disabled (Social Security Disability), or dies (Social Security Survivors Benefits). It is not based on financial need.
Simple IRA	A retirement savings plan designed for small businesses with fewer than 100 employees that allows both employers and employees to contribute to the plan.
Specific Disposition	A specific disposition is a disposition of a specified or identified item of the testator's property. May be personal or real property.
Step-Up Basis	The current tax laws provide for an increase (or "step-up") in basis to the fair market value (FMV) of assets owned by the decedent at death. IRC §1014(a) provides that the basis of property acquired from a decedent is its fair market value at the date of death, so there is usually little or no gain to account for if the sale occurs soon after the date of death. (Remember, the rules are different for determining the basis of property received as a lifetime gift). This step-up in valuation of the assets in the estate upon date of death can be very important to avoid capital gains taxation for the estate or heir. For example, a decedent may have purchased real estate decades ago for $15,000.00 and made $35,000.00 in improvements, totalling a basis of $50,000.00. If the decedent had sold that property in his/her lifetime for $100,000.00, he/she would have had to pay capital gains tax on $50,000.00 ($100,000.00 sales price minus $50,000.00 basis), unless excluded from capital gains tax for being a principal residence. Since the decedent did not sell it in his/her lifetime, it is part of his/her estate, and it gets a step-up basis to whatever the value is on date of death. If the value is $100,000.00, the estate or an heir can sell the property for such, and willl have no capital gain, and thus no capital gains tax to pay on any of the sale proceeds.
Subpoena	A directive of the Court, requiring a person to appear in court and testify and/or provide certain documents.
Supplemental Security Income	A federal program which provides monthly payments to individuals on the basis of need to poor persons who are aged, blind or disabled. It is administered by the Social Security Administration, but is not otherwise connected to the Social Security program. There are strict requirements as to a person's income level and resources.
Surety	A company which issues a bond.
Surrogate	The judge in Surrogate’s Court. Depending on the county within which the surrogate serves, the position will be gained either through election or appointment.
Tangible Property	Property which may be felt or touched. It must be corporeal, but it may be real or personal. A house and a horse are, each, tangible property. The term is used in contradistinction to Intangible Property.
Testamentary Disposition	A testamentary beneficiary is a person in whose favor a disposition of property is made by will.
Testate	Having made a valid will before one dies.
Testator	A person who has made a will or given a legacy.
Third Party	A financial institution or person other than a principal or an agent.
Trusts for Pets	A trust for the care of a designated domestic or pet animal. NYS EPTL Article 7, Part 8 applies.
Undertaking	An obligation, which contains an agreement by a surety, to pay the required amount (as relatin gto a surety bond).
Validity	See formal validity and intrinsic validity.
Venue	The particular county or geographical area, in which a court with jurisdiction may hear and determine a case. It relates also to the county which either party may require a case to be tried, and should not be confused with jurisdiction.
Will	An oral declaration or written instrument, made as prescribed by EPTL Section 3-2.1 or 3-2.2 to take effect upon death, whereby a person disposes of property or directs how it shall not be disposed of, disposes of his body or any part thereof, exercises a power, appoints a fiduciary or makes any other provision for the administration of his estate, and which is revocable during his lifetime. Unless the context otherwise requires, the term "will" includes a "codicil".
Will Substitute	Instruments of ownership that provide benefits (on the death of the decedent) by operation of law and may be transferred to a beneficiary, without referring to what may be contained in a Will. Examples of Will substitutes are: trusts, life insurance, joint ownership of property, joint bank accounts.
Writing	Includes handwritten, typewritten and printed matter.

Powers of Attorney

Note: Powers of Attorney address financial decisions. Because the individuals chosen will have to coordinate your care, it is important to pick agents for your Health Care Proxy and Power of Attorney who will get along. That can be accomplished by having the same individual(s) be agent(s) on both. A Power of Attorney, like a Health Care Proxy, terminates with the death of the principal.

As stated earlier, the laws of the State of New York can be found at this link.

General Obligations Law (GOB) §5-1513 provides a statutory short form power of attorney and states that "the use of the ... form in the creation of a power of attorney is lawful, and, when used, and executed in accordance with subdivision one of section §5-1501B of this title, it shall be construed as a statutory short form power of attorney in accordance with the provisions of this title." A Power of Attorney document can be created by simply cutting and pasting the provisions of §5-1513, and adding the required acknowledgement clauses. Note that while none of statutory language can be changed or reorganized, additions may be made in the "Modifications" section, and the documents may be "prettied up" with a change in font and spacing. §5-1501B simply requires that the Power of Attorney "be typed or printed using letters which are legible or of clear type no less than twelve point in size, or, if in writing, a reasonable equivalent thereof. " §5-1501(2)(o) states that "[a] mistake in wording, such as in spelling, punctuation or formatting, or the use of bold or italic type, shall not prevent a power of attorney from being deemed a statutory short form power of attorney, but the wording of the form set forth in section §5-1513 of this title shall govern." To be considered a statutory short form Power of Attorney, the only changes permitted to the form are in the modifications section, Part G.

Changes in the law became effective on June 13, 2021, adding new provisions related to gifts and repealing GOB §5-1514 which was a separate form for certain gift transactions. The principal's signature now requires witnessing by two disinterested witnesses in addition to a notary public (the notary public may serve as both notary and one of the witnesses), and the agent's signature requires witnessing by a notary public.

Power of Attorney effective June 13, 2021: PDF format; Word format.

As stated on the Power of Attorney form, the principal and agent are referred back to the law for clarification of the powers listed in (f)(A) through (N).

GOB does not contain a requirement that the Monitor be notified of his or her appointment, nor does the Monitor have to accept such position.

Again, the "Modifications" section is the one place in the document where the principal can add his/her own specifications, but it has limitations. GOB §5-1503. Sample Modifications

Note that, as provided in GOB §5-1501B, "[a] power of attorney executed pursuant to this section is not invalid solely because there has been a lapse of time between the date of acknowledgment of the signature of the principal and the date or dates of acknowledgment of the signature or signatures of any agent or agents or successor agent or successor agents authorized to act on behalf of the principal or because the principal became incapacitated during any such lapse of time." What is necessary is for the principal to sign first, because an agent cannot accept something that has not yet been given. The date on which the agent signs is the date that the Power of Attorney is formed, just as any contract comes into existence once there is an offer and acceptance (and consideration between the parties). For example, if the principal executes the Power of Attorney on January 1st and it is mailed to the agent for the agent to sign (offer), which the agent does on February 1st (acceptance), the Power of Attorney is created as of February 1st, and it is still valid even if the principal became incapacitated on January 15th.

Section (d) of the statutory power of attorney form makes it "durable" and "non-springing" unless the principal declares otherwise in the modification section. A durable power of attorney differs from a traditional power of attorney in that it continues the agency relationship beyond the incapacity of the principal. The two types of durable power of attorney are immediate and "springing." The first type takes effect as soon as the durable power of attorney is executed. The second is intended to "spring" into effect when a specific event occurs, such as the disability of the principal. If the principal wants a traditional power of attorney, s/he would indicate in the modification section that the power of attorney terminates upon his/her incapacity. If the principal wants the power of attorney to be durable, but to not spring into effect until a specific event occurs, the principal would declare in the modifications section that the agency does not go into effect until such event. No matter which option is chosen, as section (a) states, the principal does not lose his/her authority to act even though he/she has given the agent similar authority. The authority to act is lost when the principal is incapacitated or dies.

Third parties must honor a statutory short form power of attorney. As long as the form is properly executed, third parties cannot refuse to honor it without “reasonable cause.” One basis for a “reasonable” refusal is the agent’s refusal to provide an original or certified copy of the power of attorney. (Because documents can get destroyed or lost, consider executing multiple originals.) Other grounds for refusal include actual knowledge by the third party of the principal’s incapacity at the time of execution, or where the third party has made a good faith referral of the principal and the agent to the local adult protection services unit. The law also allows a third party to require the agent to execute an acknowledged affidavit stating that the power of attorney remains in full force and effect. A special proceeding is now available to compel the acceptance of a power of attorney by a third party where the third party has refused to accept it.

How does an agent sign for a principal? GOB §5-1507(1)(a) provides the answer: "In any transaction where the agent is acting pursuant to a power of attorney and where the hand-written signature of the agent or principal is required, the agent shall disclose the principal and agent relationship by: (1) signing "(name of agent) as agent for (name of principal)"; or (2) signing "(name of principal) by (name of agent), as agent"; or (3) any similar written disclosure of the principal and agent relationship." Section (1)(b) provides that "[a] third party shall incur no liability for accepting a signature that does not meet the requirements of this subdivision."

A principal, unless s/he is incapacitated, has the right to revoke a Power of Attorney. Divorce, as well as annulment, revokes a Power of Attorney unless the Power of Attorney expressly provides otherwise. GOB §5-1511(2)(c). A Power of Attorney also terminates on the death of the principal. GOB § 5-1507(2) therefore provides that:

When the agent engages in a transaction on behalf of the principal, the agent is attesting that:
(a) the agent has actual authority to engage in the transaction;
(b) the agent does not have, at the time of the transaction, actual notice of the termination or revocation of the power of attorney, or notice of any facts indicating that the power of attorney has been terminated or revoked;
(c) if the power of attorney is one which terminates upon the principal's incapacity, the agent does not have, at the time of the transaction actual notice of the principal's incapacity, or notice of any facts indicating the principal's incapacity.
(d) the agent does not have, at the time of the transaction, actual notice that the power of attorney has been modified in any way that would affect the ability of the agent to engage in the transaction, or notice of any facts indicating that the power of attorney has been so modified.

§ 5-1507(3) provides that "[t]he attestation of the agent pursuant to subdivision two of this section is not effective as to any third party who had actual notice that the power of attorney had terminated or been revoked prior to the transaction." So, if for example, the bank teller knows that the principal has died, yet lets the agent withdraw funds, the bank may be liable.

Statutory Short Form Power of Attorney (pre-June 13, 2021 changes): In pdf format.
Springing Power of Attorney (pre-June 13, 2021 changes): In Word format and in pdf format.

The federal government does not have to recognize state forms. In that regard, to give someone a Power of Attorney/Declare a Representative for the Internal Revenue Service, one must use IRS Form 2848.

Designation of Person in Parental Relationship

GOB §5-1551 sets forth the power of a parent to designate another person to be in a parental relationship to his/her child for educational and/or health care decisions. The law states:

A parent of a minor or incapacitated person may designate another person as a person in parental relation to such minor or incapacitated person pursuant to sections [2164] and [2504] of the public health law and sections [2] and [3212] of the education law for a period not exceeding six months provided that there is no prior order of any court in any jurisdiction currently in effect that would prohibit such parent from himself or herself exercising the same or similar authority, and provided further, that, in the case where a court has ordered that both parents must agree on education or health decisions regarding the child, a designation pursuant to this subdivision shall not be valid unless both parents have consented thereto. Such designation shall be in the form prescribed by section 5-1552 of this title, and may be presented to any school, health care provider or a health plan that requires such designation by either the parent or the designee.

GOB §5-1552 mandates what must be on the form designating another person to be in this parental relationship in order for the designation to be valid:

  1. Designations in general. A designation of a person in parental relation pursuant to this title shall be in writing and shall include: the name of the parent, the name of the designee, the name of each minor or incapacitated person with respect to whom such designation is made, the parent's signature, and the date of such signature. The designation may specify a period of time less than six months for which such designation shall be valid unless earlier revoked by such parent pursuant to section 5-1554 of this title, provided that any designation specifying a period of more than thirty days shall also conform to the provisions of subdivision two of this section.
  2. Designations for more than thirty days. A designation specifying a period of more than thirty days shall also include: an address and telephone number where the parent can be reached, an address and telephone number where the designee can be reached, the date of birth of each minor or incapacitated person with respect to whom such designation is made, the date or contingent event on which the designation commences, the written consent of the designee to such designation, and a statement that there is no prior order of any court in any jurisdiction currently in effect prohibiting such parent from making the designation. A designation specifying a period of more than thirty days shall be notarized.
  3. Designations not specifying a time period. If no time period is specified in a designation, it shall be valid until the earlier of revocation or the expiration of thirty days from the date of signature if the designation does not meet the requirements of subdivision two of this section, or six months from the date of commencement specified therein if the designation meets the requirements of subdivision two of this section.

As the law states, a parent having sole custody of his/her child can grant this parental relationship to another adult, provided there is nothing in the order of custody that states that the other parent must agree on education and health decisions. If the other parent has that right, or if the parents are still together, or if the parents are separated but there is no order of custody, then both parents must agree on designating another person. The thirty days or less period tends to come up when the parent(s) is going on a trip on which the child is not coming along. Or it may be that the parent and child move in with a grandparent, and the parent wants to be able to have the grandparent take the child to the doctor's or meet with his/her teachers. Note that no matter the situation, no parent is ceasing to be the parent. The parent is simply sharing the power to make educational and health care decisions for a period not exceeding six months at a time.

GOB § 5-1553 sets forth how the scope of the designation may be limited: "A designation pursuant to this title may specify: the treatment, diagnosis or activities for which consent is authorized; any treatment, diagnosis or activity for which consent is not authorized; or any other limitation on the duties and responsibilities conveyed by the designation."

Form: Parental Appointment of Your Child's Caregiver for 30 days or less (NYS Unified Court System)
Form: Parental Appointment of Your Child's Caregiver for 12 months or less (NYS Unified Court System)

If not using one of the forms above, a parent may handwrite or type on a piece of paper, the date, and that "I, (name of parent), herein grant to (name of the designee --- other adult), the right to make educational and health care decisions concerning my daughter/son, (the name of the child), for (time period)." Parent signs. Of course, the parent may also include anything limiting the scope of the designation.

If the period is to be for more than thirty days, then on a sheet of paper, a parent handwrites or types the date, and that "I, (name of parent) residing at (address of parent) with a phone number(s) of (phone number(s)), herein grant to (name of designee), residing at (designee's address) with a phone number(s) of (phone number(s)), the right to make educational and health care decisions concerning my daughter/son, (the name of the child), Date of Birth: (birthday). No prior order of any court in any jurisdiction currently in effect prohibits me from making this designation." The parent signs before a notary public. The notary public needs to sign in a "jurat," which is "Sworn to before me this ____ day of _______, 20___. ___________________________ (signature of notary public). Notary Public, State of New York. My commission expires: _____________." The parent can specify a period not greater than six months, or by law, it will be deemed to be valid for six months provided that all the information required by § 5-1552(2) is present in the designation. The designee must sign in acceptance of this designation, stating "I, (name of designee), accept this designation." And again, the parent may also include anything limiting the scope of the designation.

GOB § 5-1555 states the effects of the designation:

  1. A designee shall possess all the powers and duties of a person in parental relation pursuant to sections [2164] and [2504] of the public health law and sections [2] and [3212] of the education law, unless otherwise specified in the designation.
  2. A designation shall not impose upon a designee a duty to support pursuant to section [413] of the family court act.
  3. A designation shall not cause a change in the school district of residence of the child for purposes of the education law, and during the period of validity of the designation, the child shall be presumed to be a resident of the school district in which the parent resided at the time the designation was made.
  4. A designation shall terminate and be deemed revoked upon the death or incapacity of the parent who signed the designation.
  5. The decision of a designee shall be superseded by a contravening decision of a parent.
  6. A person who acts based upon the consent of a designee reasonably and in the good faith belief that the parent has in fact authorized the designee to provide such consent pursuant to the provisions of this title, may not bedeemed to have acted negligently, unreasonably or improperly in accepting the designation and acting upon such consent; provided, however, that any such person may be deemed to have acted negligently, unreasonably or improperly if he or she has knowledge of facts indicating that the designation was never given, or did not extend to an act or acts in question, or was revoked.
  7. No provision of this title shall be construed to require designation of a person in parental relation as provided in this title where such designation is not otherwise required by law, rule or regulation.

A presumption is an attitude adopted in law or as a matter of policy toward an action or proposal in the absence of acceptable reasons to the contrary. In this matter, the law makes a presumption that the designation does not change the child's school district from that of the parent at the designation was made. However, if the parent has moved out of the district since the designation was made, it may be necessary to rebut the presumption, particularly if the designee is not in the original school district.

As to revocation of a designation, § 5-1554 provides that:

  A parent may revoke a designation by notifying, either orally or in writing, the designee or a school, health care provider, or health plan to which the designation has been presented, or by any other act evidencing a specific intent to revoke the designation. A designation shall also be revoked upon the execution by the parent of a subsequent designation. Revocation by one parent authorized to execute such a designation shall be deemed effective and complete revocation of a designation pursuant to this title. A designee who receives notification from a parent of any such revocation shall forthwith notify any school, health care provider or health plan to which a designation pursuant to this title has been presented. A parentmay directly notify any such school, health care provider or health plan of the revocation, in which case the failure of the designee to notify such entities of the revocation shall not make revocation ineffective.

Appointment of Guardian of Child by Parent in His/Her Will

Guardianship of minor children in New York is divided between guardian of the "person" and guardian of the "property". The parent of the child has the right to be the guardian of the person of his/her minor child without Court approval. However, Court approval is required even if a parent is to be appointed guardian of the "property" of a minor child.

If the deceased individual left minor children who have no surviving parent, a guardian of the "person" must be appointed for the minor children by the Surrogate’s Court as soon as possible. The nomination of the guardian included in the testator's will is given great weight. In addition, if the testator left funds directly to the minor children, a guardian of the property of the minor children will be needed. The court will complete a background check on the nominated guardian before making an appointment. Further, it may be necessary to request an expedited or temporary appointment of a guardian for the reason that minors cannot receive medical treatment or enroll in school without the consent of a parent or guardian.

In the event that the Will does not give the minor child his or her "intestate" share then the Court will appoint a guardian ad litem to examine the Will and supporting document on behalf of the minor child. The guardian ad litem reviews the documents to be sure that they appear to be in order and that no objection to the Will should be made on behalf of the minor child. The guardian ad litem will be appointed even if the natural parent of the child is surviving.

Domestic Relations Law §81, entitled "Appointment of guardians by parent," states that:

  A married woman is a joint guardian of her children with her husband, with equal powers, rights and duties in regard to them.
  Upon the death of either father or mother, the surviving parent, whether of full age or a minor, of a child likely to be born, or of any living child under the age of eighteen years and unmarried, may, by deed or last will, duly executed, dispose of the custody and tuition of such child during its minority or for any less time, to any person or persons. Such surviving parent may appoint a guardian or guardians of the person and of the property of the infant and in making such appointment shall not be limited to the appointment of the same person or persons in both capacities.
  Either the father or mother may in the life-time of them both, by last will duly executed, appoint the other the guardian of the person and property of such child, during its minority.
  Either the father or mother may in the life-time of them both by last will duly executed, and with the written consent of the other duly acknowledged, appoint the other and a third person to be the guardians of the person and property of such child during its minority, and in making such appointment shall not be limited to the appointment of the same person or persons in both capacities. Such consent must have as part thereof a sworn statement that the consenting parent in so consenting, is motivated solely by the welfare of the child or children, the guardianship of whom is the subject of such consent, and that such consenting parent has not received and will not receive any consideration for such consent, and such consent may be revoked by such consenting parent at any time prior to the death of the other, by filing in the office of the county clerk of the county in which said other then resides, a written revocation of such consent, subscribed and acknowledged by the person so revoking, with proof of service of a copy thereof on such other parent in the manner provided for service of a summons.
  An appointment of a guardian of the person and property of an infant made by duly executed last will of his father or mother shall be valid and effective if at the time the will is admitted to probate the other parent shall have died or the surviving parent be an adjudicated incompetent.
  If both parents die under circumstances which render it difficult or impossible to determine which of them died first and both of them left last wills appointing the same person as guardian, the appointment shall be valid and effective.
  If both parents die under circumstances which render it difficult or impossible to determine which of them died first, leaving last wills appointing different persons as guardians, the surrogate's court shall determine which of the appointments will best serve the welfare of the child and issue letters of guardianship accordingly.
  If at any time during the minority of the infant the surviving parent becomes competent to serve as guardian, he may apply to the court which issued letters of guardianship to the guardian appointed by will for a decree revoking such letters and the court shall on such application make such order or decree as justice requires.
  A person appointed guardian in pursuance of this section shall not exercise the power of authority thereof unless such will is admitted to probate, or such deed executed and recorded as provided by SCPA 1710.

Section 82 pertains to the powers and duties of such guardians; §83 to the duties and liabilities of all general guardians; §84 to the guardianship of a married minor; and §85 to investment of trust funds by a guardian.

How does one state an appointment of a guardian in a Will? Examples: "I hereby nominate and appoint _______________, as testamentary guardian of the person and the estate of any minor children which may survive me. The guardian is/is not required to post bond." "I hereby nominate, constitute and appoint, __________________of __________________ (address), as testamentary guardian of the person and estate of any minor children which may survive me. This appointment shall be effective only if my spouse shall have died or shall have been adjudicated an incompetent prior to the time of my death. If my spouse and I should die under circumstances which render it difficult or impossible to determine which of us died first, then I direct that it shall be presumed that I predeceased my spouse and that the person appointed in her last will and testament as guardian as my minor children be given effect."

Last Will and Testaments

New York State has neither a statutory Will form nor a statutory Will act which allows for a “fill-in-the-blank” type of Will, as it has for Powers of Attorney. The statutory law just sets forth basis requirements.

The greatest volume of litigation in Surrogate's Court stems from deficiencies in Will drafting or estate planning.

An adult over 18 years of age can make a Will in New York if he/she is of sound mind and memory. EPTL §3-1.1. Under case law, it is well settled that “sound mind and memory” has three basic components. The testator must: 1) Understand the nature and consequences of executing a Will; 2) Know the nature and extent of his or her property; and 3) Know the “natural objects of his or her bounty” or his or her relatives. In the Matter of Kumstar, 66 NY 2d 69, 487 NE 2d 271, 496 NYS 2d 414 (1985); In Re Olga Slade,106 AD 2d 914, 483 NYS 2d 513 (4th Dept.1984). The New York City Bar Association posted some examples of when a person may or may not have legal capacity to make a Will.

With limited exception, the Will must be written. The person making the Will, known as the testator, must sign the Will in the presence of at least two witnesses who also must each sign in the presence of the other. The witnesses have thirty (30) days to sign the Will, and they must also print their names and addresses with their signatures (though the lack of an address does not invalidate the Will). The witnessses should not otherwise be mentioned in the Will. The witnesses do not have to know what it says in the Will, only that the testator told them that it was his/her Will and that they saw the testator sign it. EPTL §3-2.1. To fully understand what a witness is attesting to, read Affidavit of Attesting Witness. Best practice: This form should be filled out, and signed by the witnesses in front of a notary public, and attached to the Will, to save the trouble of having the witnesses sign such a statement when the Will is probated.

A notary public is not required for the signing of a Will by a testator in New York State. However, having the Will notarized, in addition to being witnessed by two other individuals, might make it valid in another state that requires notarization.

Oral Wills, also called nuncupative Wills, and holographic Wills, are accepted from members of the armed forces, their spouses and companions if they accompany them into areas of armed conflict, and mariners. The making of a nuncupative Will by the testator and its provisions must be clearly established by at least two witnesses. EPTL §3-2.2(a)(1). A Will is holographic when it is written entirely in the handwriting of the testator, and is not executed and attested in accordance with the formalities prescribed by §3-2.1. EPTL §3-2.2(a)(2).

The New York State Unified Court System provides some basic information about Last Wills and Testaments. As to the concern about overcoming the presumption that there has been an alteration to a Will becauser the staples were removed at some point (sometimes happens when persons make photocopies), consider having a footer on each page identifying the document, the page number, and a space for the testator to initial. (If the Will is continually in the possession of an attorney who supervised the execution, this is not an issue.)

Only interlineations (crossing out and adding in to the body of the Will) that are honored are those that are witnessed like the rest of the Will. And it is better to redo a Will than to add a codicil if a codicil revokes a bequest to someone, as that person then has the right to contest the codicil. Do not make a duplicate Will. Have only one original. If one executes five originals, for example, then all five will have to be probated, and if one's survivors cannot find the fifth original, the presumption is that the Will was revoked.

Why make a Will? If someone dies without a Will, that person dies "intestate," and the estate is managed and transferred pursuant to New York State law. Such may not conform to that person's wishes. For example, where there is a surviving spouse and children, New York divides the estate among them. If there are none of these surviving, other members of the person's family may become entitled to part or all of the estate. Also, if there is no Will, a Court may decide who will care for any minor children and their property if the other parent is not able to care for them or is unavailable. If someone is not married in the eyes of the law or lives in a "non-traditional relationship" and does not have a valid Will, his/her partner will not inherit under New York State's laws of intestacy. In this case, without a Will, the partner will, in all probability, not inherit anything. In addition, a Will allows one to give specific things to people of one's choice.

Who can a testator give property to? Any person having capacity to acquire and hold such property (see definition of "person" above). See EPTL §3-1.3 for capacity issues related to unincorporated associations. In the case of bequest to charity, the correct corporate name of the charity must be identified and confirmed. (In New York State, non-profits are organized under the non-profit corporation law.) If the local organization is an affiliate of a national organization, which is to receive the gift?

Most Wills specify what would happen if a beneficiary predeceases the testator. If the Will is silent on the topic, the children of the person mentioned in the Will get the share, but only if that person’s children are the testator's grandchildren or nephews/nieces. EPTL §3-3.3.

In determining distribution of assets, there are many considerations, including: (1) Property may fall under the Exemption for the Benefit of the Family (explained above), and not be part of the Estate. Provision may be made in the Will for alternate distribution depending upon whether there is a surviving spouse or dependent children. (2) Jointly owned assets (tenants by the entirety; joint tenants with right of survivorship) transfer by operation of law upon death to the surviving joint owner(s). A Will cannot change that; the title to the property would have to be changed before death. (3) Accounts with beneficiary designations (such as bank, insurance, retirement funds, and Transfer on Death designations) transfer to the beneficiary upon death. Again, a Will cannot change that. The owner would have to change the beneficiary prior to death. (4) Life insurance proceeds are paid to the beneficiary of the policy. (5) The Executor is entitled to a fee, called a “commission.” It is based on the value of the estate, not including the specific legacies, according to the following schedule: 5% of the first $100,000, 4% of the next $200,000, 3% of the next $700,000, 2 ½% of the next $4,000,000, 2% above $5,000,000. If the Executor also benefits under the Will, it might be a good idea to have everything going to the executor/beneficiary under the specific and/or remainder portion, and waive the commission to save on income taxes. (6) The decedent's assets receive a "step-up basis" at death (see definition in Glossary, above). Note also, that while #s 2 and 3 are not part of the probate Estate, they nevertheless have to be reported on any estate tax return, and this may affect if any estate taxes are owed. All of these distributions also apply if a person dies without a Will.

Another consideration is the possibility of abatement. In all cases, all of the property of a decedent is subject to payment of administration and funeral expenses, debts of the decedent and taxes which the estate may owe. EPTL. §13-1.3. If there are not enough assets in the Estate to pay those expenses and honor all the dispositions, the following occurs (unless the Will provides for a different outcome): The expense of the estate obligations are applied to dispositions in the priority provided by the statute. EPTL. §13-l.3(c). The expenses are applied to the following shares until they are fully consumed, at which time the expenses would begin being born by the subsequent share:

i. Distributive shares which pass by intestacy (not disposed of by Will).
ii. Residuary dispositions.
iii. General dispositions.
iv. Specific dispositions.
v. Any disposition to a surviving spouse which qualifies for the estate tax marital deduction.

There is a consideration of whether to dispose of an entire estate by a series of specific bequests. The disposition of a bank account or general securities account may be defeated by future acts. Making such gifts allows an agent under a power of attorney or a guardian to manipulate the estate plan by depositing to or withdrawing from accounts specifically bequeathed.

Since title to specifically bequeathed personal property vests at death in the beneficiary, the costs of storing, shipping and insuring such property would be the beneficiary's. This result can be reversed if the client wishes, with the estate being directed to pay those costs out of the general estate assets.

In the case of bequest to charity, the correct corporate name of the charity must be identified and confirmed (check the charity's website and/or annual report). If the local organization is an affiliate of a national organization, which is to receive the gift? If there are restrictions on the use of the funds, they should be clear. If the restrictions might cause the charity to refuse the gift, an alternate should be provided. (If an estate is subject to estate tax, then the property passing outright to charity would be entitled to a charitable deduction, without limitation IRC §2055(a)(2) . Most estates are exempt from estate taxation however, either because the sum of the assets is less than the amount protected from the tax or because a marital deduction will defer the tax until the decedent's spouse dies.)

A devise or bequest to create a public park, library, playground, or building may also be limited by NYS General Municipal Law §146, which provides that a surviving spouse, child, descendant or parent may contest it if it is "more than one-half of the estate of the testator or testatrix over and above the payment of debts, liabilities, and expenses[.]"

The probate of a Will in New York does not give authority to an Executor to administer or dispose of real property in another state. Such authority must be obtained by the ancillary probate of the Will in the state where the property is located. (Likewise, personal representatives in another state must bring an anciallary proceeding in New York in order to administer or dispose of real property in this state.) To avoid the complications of ancillary probate, it may be helpful to have it pass other than by the Will. This can be accomplished by putting the property in joint ownership, by conveying it to a revocable trust or partnership or by deeding it to the ultimate beneficiaries with a life use retained by the testator.

A ‘no contest’ clause in a New York Will states that a beneficiary who unsuccessfully challenges the validity of the Will is prevented from inheriting under the Will. Testators include these clauses in their Wills in order to dissuade beneficiaries from taking action against the Estate, the idea being that no one will want to risk losing out on their inheritance by risking an unsuccessful challenge. While such clauses are allowed under EPTL §3-3.5, there are certain statutory limits to their power. There is an exception for preliminary discovery pursuant to the Surrogate’s Court Procedure Act §1404. The Surrogate’s Court, which hears all of New York’s probate and estate proceedings, provides certain discovery powers to challengers in potential contested Will case. The statute allows interested parties to obtain certain documents and to obtain pre-trial testimony of the attorney who drafted the Will. It also allows the potential challenger to obtain pre-trial testimony from the attesting witnesses, and in certain cases the executor of the Will and its proponents. Section 3-3.5 also disallows disinheritance in cases where the challenger is an infant or incompetent; is asserting that the Will is a forgery or that the Will was revoked by a later Will, provided that the contest is based on probable cause; or is merely asserting that the Will is being offered in the wrong jurisdiction. EPTL §3-3.5 also disallows disinheritance in matters where disinheritance may lead to a form of coercion, such as if the Will directs that a beneficiary be disinherited for coming forward with documents and evidence relevant to the probate proceeding or disinherited for refusing to join in a petition for the probate of a document as a last Will.

A person can be disinherited with wording such as this: "I have intentionally made no devise or bequest for________________, and I specifically direct that he receive no part of my estate whatsoever for reasons best known to myself. " However, absent a waiver (such as in a prenuptial agreement) or the surviving spouse choosing not to contest the Will, a surviving spouse cannot be disinherited or left left less than a statutory share in the Will. Spouses have an automatic right, called a "right of election,” to a percentage of the decedent’s estate in New York. Legislation enacted as of September 1, 1992 gives surviving spouses two years from the date of death to file this election with the Surrogate’s Court. The share is $50,000 or one-third of the net estate after payment of debts and expenses, whichever is greater. EPTL 5-1.1-A. This "right of election" is less than the amount a spouse would get when there is no Will. The statutory amount in that situation is $50,000.00 plus one-half of the residuary estate, if there are also issue; and the whole estate, if there are no issue. EPTL 4-1.1. The decedent’s net estate is computed by deducting the debts, administration, and reasonable funeral expenses from the gross (total) estate of thedecedent.

Right of Election Planning (Women's Bar Association of the Estate of New York)

A divorce only revokes those provisions in decedent’s Will made to the former spouse as well as any appointments to the former spouse contained therein, unless the will contains a provision expressly stating otherwise. The rest of the decedent’s will remains intact. EPTL §5-1.4.

In the event that the decedent married after the creation of his/her Will, it will not be revoked. The surviving spouse will take his/her share of the decedent’s estate as if the decedent died intestate unless a provision was made for the surviving spouse in a written antenuptial agreement. EPTL §5-1.3.

If it is necessary for the personal representative to operate and manage a business for any period of time during estate administration or as an asset of a trust, then it is important that specific authority be given the personal representative to manage the business and that some method of compensation, apart from fiduciary commission, is allowed for.

Sample Documents:

A simple Last Will and Testament, that could be printed entirely on one piece of paper, front and back, in Word format and pdf format.
Will with Family Trust Provision
Affidavit of Attesting Witnesses.
Will Drafting Questionnaire
Codicil Form

Sample Clauses for Wills

The laws of other states may provide for a separate Statement covering devise of tangible personal property. New York State law, however, does not provide for the incorporation of an outside document by reference into a Will. On the other hand, New York State law does provide for codicils to a Will. “A codicil is a supplement to a will, either adding to, taking from or altering its provisions or confirming it in whole or in part by republication, but not totally revoking such will.” EPTL §1-2.1. Thus, one cannot write a Will which states "see such and such document for my wishes as to the disposition of such and such property," but after the Will is written and executed, a codicil may later be drawn up that refers back to the Will. Note that the language of the Will and Codicil are read together, so they cannot conflict. And the Codicil should be safely stored with the Will. The testator can also provide in the Will that the items are bequested to a single trusted individual with a precatory request that the individual distribute those items in accordance with the wishes of the client which will be provided in a separate writing. Because the assignment is so personal to the beneficiary under the Will, it is important that the Will also provide that the anti-lapse statute not apply to this bequest. In any event, if there is a separate list, or if the decedent had marked on items as to who they are to go to, the personal representative may distribute them in accordance with the decedent's wishes when there are no objections from any heir.

The original of a Will should be kept in a safe and accessible place. Members of one's family or other interested individuals need to know where it is kept so that they can get it when it is needed. A copy of the Will, in most circumstances, will not suffice - the original is needed. The original Will may also be filed, for a fee, with the Surrogate's Court Clerk.

If one puts the original of the Will in a Safe Deposit Box, it may take some time to retrieve the Will as banks seal the box upon notice of death unless the box is jointly possessed.

EPTL §3-4.1 provides the procedures by which an existing Will can be revoked. Along with the writing or creation of a new Will, an existing Will can be revoked by a physical act caused by the testator, such as ripping up and throwing out an original Will. Further, the Will may be revoked by a physical act of a third party at the testator’s direction and in his/her presence and in the presence of at least two witnesses. A revocation of a Will revokes any and all codicils to it.