Advance Directives How-To*

Advance Directives How-To*

Templates and instructions for drafting: wills, standby guardian, living will, healthcare proxy, and appointment of agent to control disposition of remains


Definition & Instructions for Client on Advanced Directives

You have just signed a number of legal documents.  These instructions are to help explain these legal documents and what to do with them.  We recommend that you follow these instructions in order to make sure that your wishes as stated in these documents are carried out and that the documents will be available when needed. 

You should keep these documents together and in a place that is easy to find.  It is also helpful to keep other important documentation in the same place as these documents, such as: bank accounts, credit cards, lease agreement, emergency contact information, and information about any property you may own.  Do not write on documents after they have been given to you.  If there are corrections or changes, please contact Manhattan Legal Services.

  1. Will - You have been given an original and one copy of your Will. The original Will should be given to the first individual who was named as your Executor.  We have also given you information for your Executor to help them through this process.  The copy of the Will should be retained by you with your important papers.  Do not unstaple the original Will.
  2. Guardianship Forms - You have been given an original and one copy of your Standby Guardianship form. The original should be given to the first individual who was named as the Guardian or Caretaker of your child or children.  You should let your Alternate Guardian know that the document exists and that the original is with the person you named as the Primary Guardian.  You should keep the copy with your important papers.

            If it becomes necessary for your Standby Guardian to act, your physician will have to sign either the physician’s determination of incapacity or the physician’s determination of debilitation.  A Standby Guardianship is temporary and only lasts for sixty days.  In order to continue to act as guardian, the standby guardian must file a petition in Court for approval of his or her appointment within sixty days of the start of his or her authority to act.

  1. Living Will - You received an original and three attorney-certified copies of your Living Will. If you have a physician who regularly takes care of you, you should give your physician one of the attorney-certified copies of the Living Will to be placed in your medical files.  Another attorney-certified copy should be given to the first individual who was named as your Healthcare Proxy.  You may give the extra copy to any individual who was named as your alternate Healthcare Proxy, or you can keep the extra copy on your refrigerator door.  Emergency medical professionals are trained to look at the refrigerator for this important document.  You should keep the original with your important papers.
  2. Healthcare Proxy - You received an original and three attorney-certified copies of your Healthcare Proxy. If you have a physician who regularly takes care of you, you should give your physician one of the attorney-certified copies of the Healthcare Proxy to be placed in your medical files.  Another attorney-certified copy should be given to the first individual who was named as your Healthcare Proxy.  You may give the extra copy to any individual who was named as your alternate Healthcare Proxy, or you can keep the extra copy on your refrigerator door.  Emergency medical professionals are trained to look at the refrigerator for this important document.  You should keep the original with your important papers.
  3. Power of Attorney - You received four originally executed copies of the Power of Attorney. The individual(s) named as your agent(s) must sign the Power of Attorney and have his/her signature notarized before it is effective. Once fully executed, you should give one Power of Attorney form to the individual named to act as your agent.  If you have a regular bank account, you may want to give a Power of Attorney form to the bank so that the bank is aware that someone may act on your behalf with respect to your account.  The remaining Power of Attorney forms should be held by you with your important papers. 
  4. Appointment of Agent to Control Disposition of Remains – You received one original for yourself. Your agent (and any successor agent) must sign and date the document on page 2 for it to be valid.  Once your agent signs and dates the document, you should make a copy for yourself and give either the copy or the original to your agent and retain the other with your important documents.

Advance Directives Worksheet

Name:

Address:

Previously Executed Documents:

Executor:

Second Executor:

Family:

Minor Children:

Preferred Guardian:

Second Preferred Guardian:

 

Property:

Specific Items to Individuals:

Who Gets Residuary Estate:

Healthcare Proxy:

Second Proxy:

Power of Attorney:

Person to Handle Remains:

Funeral Arrangements or Wishes:


Will Template

I, NAME, residing in the County and State of New York, (a) make, publish and declare this to be my Last Will and Testament and (b) revoke all Wills and Codicils made before by me.

            FIRST: I request that my enforceable debts, and my funeral and administrative expenses, be paid as quickly as possible.

            SECOND [Optional if Client Has Specific Gifts]:  

I give my _____________________ to my [father/partner/friend/etc.] [NAME “A”].  

I give my _____________________ to my [father/partner/friend/etc.] [NAME “B”]. 

            SECOND/THIRD: 

[Option 1]

  1. I give all of my other property of any kind to my [father/partner/friend/etc.] [NAME “A”], if [NAME “A”] is alive when I die. If [NAME “A”] is not alive when I die, and my [father/partner/friend/etc.] [NAME “B”] is alive when I die, then I give all of my other property of any kind to [NAME “B”].
  2. If all of the people named in the above paragraph A die before me, I give the entirety of my estate to my Executor to keep or distribute in my Executor's sole and unreviewable discretion.

[Option 2]

            I give all of my property of any kind to my Executor to distribute in my Executor's sole and unreviewable discretion. I have told my Executor my wishes but I understand that my Executor may keep or distribute the property as they decide.

THIRD/FOURTH:

  1. I appoint as my Executor [NAME and RELATION]. If [Name of Executor] stops acting or fails to act as my Executor, I appoint [NAME and RELATION]. If [Name of Executor] stops acting or fails to act as my Executor and [Name of Secondary Executor] stops acting or fails to act as my Executor, I authorize [Name of Secondary Executor] to appoint a person to act as my Executor. There must be a petition for court approval that is in writing and filed with the court responsible for probate.
  2. Any Executor of my estate will not be required to get and/or post bond for the faithful performance of their duties as an Executor of this Will. Any Executor may quit acting as my Executor by asking the court in writing for permission to do so and then receiving the court's permission.

            FOURTH/FIFTH: In performing their duties as my Executor, my Executor will have all of the powers necessary to handle and distribute my property that I would have if I were living.

            FIFTH/SIXTH: If, when I die, any of my children are still minors, I appoint [NAME and RELATION] as the guardian of the person and the property.  [NAME of Guardian] will serve without bond.  If [NAME of Guardian] for any reason cannot serve as guardian or stops serving as guardian, I appoint [NAME and RELATION] as successor guardian.

            IN WITNESS WHEREOF, I have hereto set my hand and seal this _____  day of [Month], [Year].

                                                ______________________________________(L.S.)

This document, consisting of 2 pages,

including this page, was signed, sealed,

published and declared by [NAME] as [NAME]’s

Last Will and Testament in our presence and hearing,

and we, at [NAME]’s request, sign our names

below while in [NAME]’s presence and in the

presence of each other as witnesses this ___ day

of [MONTH], [YEAR].

 

Witness Signature: ____________________             Witness Signature: ____________________

Print Name: _________________________              Print Name: _________________________

Address: ____________________________             Address: ____________________________

____________________________________            ____________________________________

Date: _______________________________             Date: _______________________________

 

STATE OF NEW YORK          )

: ss.:

COUNTY OF NEW YORK      )

 

Each of the undersigned, individually and severally, being duly sworn, deposes and says:

 

The preceding document was signed in our presence and sight by [NAME], the within-named testator, on the ___th day of [Month], [Year], at [Address].

 

At the time of signing that document, [NAME] declared the document to be [NAME]’s Last Will and Testament.

 

Each of us signed our names as a witness at the end of [NAME]’s Last Will and Testament, at the request of [NAME], in [NAME]’s presence and sight and in the presence and sight of each other. At the time of signing that document, [NAME] was over the age of eighteen years and, in my opinion, of sound mind, memory and understanding and not under any duress or in any respect incompetent to make a Will.

 

In my opinion, [NAME] could read, write and converse in the English language and was not suffering from any physical or mental impairment that would affect [NAME]’s capacity to make a valid Will. The document was executed as a single, original instrument and was not executed in counterparts.

 

I knew [NAME] at the time of signing and make this affidavit at [NAME]’s request.

 

I reviewed and examined the signatures of [NAME] and the undersigned on the Last Will and Testament at the time this affidavit was made.

 

The Last Will and Testament was executed by [NAME] and witnessed by each of the undersigned under the supervision of [Name of attorney], an attorney-at-law.

 

                                                                                    __________________________________

 

                                                                                    __________________________________

 

                                                                                   

 

 

Severally sworn to before me

this ___th day of [Month], [Year].

 

_________________________

Notary Public

 

 


Standby Guardianship Template

DESIGNATION OF STANDBY GUARDIAN

PURSUANT TO SCPA § 1726

 

I, ______________________, hereby designate___(name, address, phone)___________ ____________________________________________________________________________ as standby guardian of the person and/or property of my child[ren]:_(name, DOB)___________ ______________________________________________.

 

The standby guardian's authority shall take effect if and when either: (1) my doctor concludes I am mentally incapacitated, and thus unable to care for my child[ren]; or (2) my doctor concludes that I am physically debilitated, and thus unable to care for my child[ren], and I consent in writing, before two witnesses, to the standby guardian's authority taking effect; or (3) upon my death.  I also understand that my standby guardian's authority will expire sixty days after it starts, unless my standby guardian has petitioned the court to be appointed as guardian.

 

In the event the person I designate above is unable or unwilling to act as guardian for my child[ren], I hereby designate _____________________________________________________

__________________________________________, as standby guardian of my child[ren].

 

I understand that I keep my parental rights even after the start of the standby guardian's authority, and I may revoke the standby guardianship at any time.

 

Signature:    ___________________________________________________________________

Address:      ___________________________________________________________________

        ___________________________________________________________________

Date:           ___________________________________________________________________

 

I declare that the person who executed this document is personally known to me and appears to be of sound mind and acting of their free will. The person who executed this document signed this document in our presence.  I further declare that I am at least eighteen years old and am not the person designated as standby guardian.

 

Witness Signature: ____________________             Witness Signature: ____________________

Print Name: _________________________              Print Name: _________________________

Address: ____________________________             Address: ____________________________

Date: _______________________________             Date: _______________________________

 

ACCEPTANCE AND ASSUMPTION BY STANDBY GUARDIAN:  I hereby accept this appointment.

 

SIGNED this _____ day of _____________, __________.

                                                       (Month)             (Year)

____________________________________________________


Living Will Template

INSTRUCTIONS RELATING TO MEDICAL TREATMENT

AND DEATH -- REFUSAL OF FURTHER CARE

 

(“LIVING WILL”)

 

TO:      My Family, My Lawyer, Any Treating Physician and Any Hospital, Nursing Home, Hospice or Other Health Care Facility in Which I Should Become a Patient and Any Individual Who May Become Responsible for My Health, Welfare or Affairs.

 

I, [NAME], am of sound mind and make this statement as an instruction to be followed if I become permanently unable to participate in decisions regarding my medical care. These instructions reflect my firm and considered commitment to refuse medical treatment under the circumstances described below.

 

  1. Now, while I am fully lucid and competent, I exercise my right to refuse medical and surgical treatment in the event that I become incompetent and my condition becomes as described in the following paragraph. I exercise this right even though this REFUSAL of treatment will result in my death. I do not fear death itself as much as the indignities of deterioration, dependence and hopeless pain.

 

  1. If at any time I become incompetent and my attending physician determines that:

(1) I am in an irreversible coma or persistent vegetative state; or

(2) I have been continuously unconscious for a period of one week, and I have suffered severe, irreversible brain damage which will make me permanently incompetent; or

(3) my condition is terminal, incurable and irreversible and my death is likely to occur relatively soon, then, as of that time,

I refuse all further treatment of me by artificial means and devices, including procedures for nutrition and hydration, and all further therapeutic or emergency care that may prolong the process of dying.

I consent to the placement in my medical records of an order not to resuscitate (as defined in section 2961 of the Public Health Law) at the time of this refusal.  

I recognize that my decision may cause me pain, so I direct that all available medication for the relief of pain and for my comfort be given to me, even if it causes me to become unconscious and/or shortens my life.

 

  1. I give my treating physician the power to determine when this REFUSAL takes effect and to honor this REFUSAL with or without the approval, and even over the express objections, of one or more members of my family. I only ask that my physician makes this decision using the best medical judgment.

 

  1. I am exercising my right to refuse medical and surgical procedures, although this decision will speed up my death. I have executed this REFUSAL after careful consideration. I hope that you who care for me will feel morally obligated to follow its instruction. I recognize that this appears to place a heavy responsibility on you, but I make this REFUSAL to relieve you of such responsibility and place it on myself.

 

  1. During any period of treatment, I direct my physician and all medical providers or staff to refer to me by the name of _________________________, and to use my preferred pronouns ____________________________, and to maintain my appearance consistent with my gender identity, regardless of whether I have obtained a court-ordered name change, changed my gender marker on any identification document, or undergone any transition-related treatment.

 

IN WITNESS WHEREOF, I sign my name to these INSTRUCTIONS RELATING TO MEDICAL TREATMENT AND DEATH -- REFUSAL OF FURTHER CARE, this ____ day of [Month], [Year].

____________________________________ (L.S.)

 

 

I, whose name is signed below, certify [NAME], the above-named individual, signed their name to this document and declared it to be their INSTRUCTIONS RELATING TO MEDICAL TREATMENT AND DEATH -- REFUSAL OF FURTHER CARE while in my presence and while competent and lucid. At [NAME]’s request, I sign my name below while in [NAME]’s presence and in the presence of the other attesting witness signed below.

 

Witness Signature: ____________________             Witness Signature: ____________________

Print Name: _________________________              Print Name: _________________________

Address: ____________________________             Address: ____________________________

Date: _______________________________             Date: _______________________________

 

 


Healthcare Proxy Template

HEALTH CARE PROXY

I, [NAME], residing at [ADDRESS], pursuant to Article 29-C of the Public Health Law of the State of New York, hereby appoint as my health care agent to make any and all health care decisions for me, except to the extent I state otherwise:

NAME

ADDRESS

PHONE

 

(OPTIONAL) or, in the event that the above-listed individual is unable, unwilling or unavailable to act as my health care agent,

NAME

ADDRESS

PHONE.

 

This Health Care Proxy will take effect if my attending physician determines that I am unable to make my own health care decisions.

 

I intend that my health care agent be my personal representative within the meaning of, and have all of the same rights as I would have under, the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), 42 USC 1320d and 45 CFR 160-164.

 

I direct my agent to make health care decisions (i) in accordance with my wishes and instructions as my agent knows or as stated in any “Living Will” that I have signed or may sign and (ii) in accordance with my best interests if my wishes are not known and cannot be determined with reasonable effort.

 

I authorize my agent to visit me in the event of my illness and to make decisions about who may visit me.  I also authorize my agent to bar individuals from visiting me, if my agent determines that the visits of such individuals would make me unhappy or cause me pain.

 

I direct my agent to instruct any healthcare provider, medical staff, or other person to address me by my name _________________________ and preferred pronouns of ______________, and to preserve to the fullest extent possible an appearance consistent with my gender identity.

 

I authorize my agent to remove me from any hospital to my home or to any other hospital, even if it is to another State.

 

I understand that, unless I revoke it, this health care proxy will remain in effect indefinitely and will not be affected by my subsequent disability or incompetence.

 

All terms used herein shall have the same meaning as when used in said Article 29-C of the Public Health Law.

 

IN WITNESS WHEREOF, I have signed my name here to this HEALTH CARE PROXY, this _______ day of ____________, _______.

                            

_________________________________ (L.S.)

                                                                                   

 

I declare, on this _____ day

of MONTH, YEAR, that [NAME]

is personally known to me and appears

to be of sound mind and acting

willingly and free from duress; [NAME]

signed this document in my presence

and I am not the individual

appointed as agent by this document.

 

Witness Signature: ____________________             Witness Signature: ____________________

Print Name: _________________________              Print Name: _________________________

Address: ____________________________             Address: ____________________________

____________________________________            ____________________________________

Date: _______________________________             Date: _______________________________

 


Appointment of Agent to Control Disposition of Remains Template

APPOINTMENT OF AGENT TO CONTROL DISPOSITION OF REMAINS

(Pursuant to Section 4201 of the Public Health Law of New York State)

 

I, [NAME], [ADDRESS], being of sound mind, willfully and voluntarily make known my desire that, upon my death, the disposition of my remains shall be controlled by [NAME OF AGENT], residing at [ADDRESS], who can be reached at [TELEPHONE NUMBER].  If that individual is unable or fails to act as my agent, then I appoint [NAME], residing at [ADDRESS], who can be reached at [TELEPHONE NUMBER], to act as my agent to control the disposition of my remains.

 

I appoint this person as my agent solely with respect to the disposition of my remains.

 

SPECIAL DIRECTIONS: Set forth below are (1) any special directions limiting the power granted to my agent and (2) any instructions or wishes that I want to be followed in the disposition of my remains:

 

I request that my remains be cremated (or buried at ___, donated to ______, etc.) [and that my appearance for such disposition be consistent with my gender identity, regardless of whether I have obtained a court-ordered name change, changed my gender marker on any identification document, or undergone any transition-related medical treatment].
 

I have [not] entered into a prepaid agreement for merchandise or services related to my funeral subject to Section 453 of the General Business Law.  [If yes, name of funeral firm]

 

DURATION: This appointment becomes effective upon my death.

 

PRIOR APPOINTMENT REVOKED: I revoke any prior appointment of any person to control the disposition of my remains.

 

RESPECTFUL REMEMBRANCE:  After my death, I direct all coroners, funeral home employees, healthcare providers, and participants in any memorial service to refer to me by the name of _________________________, and to use my preferred pronouns of ______________, regardless of whether I have obtained a court-ordered name change, changed my gender marker on any identification document, or undergone any transition-related medical treatment.

 

SIGNED this _____ day of _____________, __________.

                                                                               (Month)                         (Year)

____________________________________________________ (L.S.)

 

STATEMENT BY WITNESSES:  I declare that the person who executed this document is personally known to me and appears to be of sound mind and acting of their free will. The person who executed this document signed this document in my presence.

 

Witness Signature: ____________________             Witness Signature: ____________________

Print Name: _________________________              Print Name: _________________________

Address: ____________________________             Address: ____________________________

____________________________________            ____________________________________

Date: _______________________________             Date: _______________________________

 

ACCEPTANCE AND ASSUMPTION BY AGENT:  I have no reason to believe that there has been a revocation of this appointment to control disposition of remains.  I hereby accept this appointment.

 

SIGNED this _____ day of _____________, __________.

                                                                               (Month)                         (Year)

____________________________________________________