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How to Prevent Family Conflicts in the Event of Incapacity

In today's litigious society, it has unfortunately become commonplace for siblings, family members and friends to battle for control over the finances and care of their aging parents and loved ones. While the litigation may on its surface appear to be for the authority to make day to day financial and health care decisions, sadly, often at the root of the litigation is inheritance and monetary control. It is anticipated that litigation involving aging parents will rapidly grow in direct proportion to the aging population of the United States. The largest transfer of inter-generational wealth, estimated to be approximately 10 trillion dollars, will be from the War II generation to the "baby boomers." Such a transfer will inherently generate additional conflicts and controversies. Too often I have witnessed the bitterness, resentment and destruction of relationships among parents, siblings and loved ones. The effect, best described as a "family divorce," has an impact that may be felt for generations. Fortunately, there are steps that can be taken to minimize the risk of such controversies affecting families. As is often the case, it is imperative that the potential solutions be implemented well before the problems begin to manifest themselves. Some potential solutions are:

General Durable Power of Attorney
If the general power of attorney is durable, its efficacy will continue even after the subsequent disability or incompetence of the principal. It is best to utilize a customized durable general power of attorney form which grants the agent the broadest powers to act on behalf of the principal, including, but not limited to, the powers to engage in various types of Medicaid and estate planning. The selection of the individual or individuals who will be the named agent(s) under the power of attorney is a decision of great importance. The individual selected must be someone the principal has a great deal of trust and confidence in. If the attorney-in-fact will have broad powers, including broad gifting powers, the principal should give serious consideration to the appointment of two attorneys-in-fact who will be required to act jointly to help reduce the likelihood of financial abuse, fraud and self dealing.

Health Care Proxy
The individual selected as the health care proxy is permitted by New York Law to make all health care decisions when the principal is no longer able to do so, including specifying which treatments and medical care to have administered. The principal should take the time to tell his or her agent exactly what his or her wishes are with respect to medical care and end of life decisions. The principal should also provide a copy of the health care proxy to his or her physician.

Living Will
Sometimes referred to as an advance directive or health care directive, a living will enables the principal to state his or her wishes regarding life prolonging medical treatments. While a living will is not statutorily recognized in New York, it is still additional written evidence of one's wish not to be kept alive by extraordinary measures.

Do Not Resuscitate Order ("DNR")
A DNR can explicitly specify the circumstance wherein an individual does not want to be resuscitated. I often recommend that my clients keep a pocket DNR in their wallet or purse as well as on the refrigerator. It is also a good idea to provide copies to loved ones and is especially helpful in cases where the client suffers from a chronic and persistent life threatening illness.

Burial Agent Designation Form This form allows the principal to appoint an agent to dispose of his or her remains. He or she can also specify where they wish to be buried, any wishes regarding cremation and even the location of the wake and funeral. Executing the above referenced documents will go a long way in obviating the possibility of litigation regarding end of life and burial decisions. It is imperative to take the appropriate steps as early as possible to prevent destructive clashes among family members that could have been avoided.

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Enea, Scanlan & Sirignano, LLP
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White Plains, NY 10601

Phone: 914-269-2367
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