It’s very common for aging parents to name their children as health care proxies or agents under a Power of Attorney (POA). Children know their parents well, care deeply about their well-being, and are committed to honoring their wishes, which makes them a natural and trusted choice.
However, if these children live out of state, this decision will only create legal and medical complications that may result in unexpected delays, court interventions, and threats to one’s life. As a result, to circumvent such problems, proper estate planning is absolutely crucial. It is important to understand that naming an out-of-state child as your health care proxy or POA in New York is problematic, and that there are other, more effective alternatives.
Understanding Health Care Proxy and Power of Attorney: What You Need to Know
Before we get into the risks, it is important to understand what both of these documents are. A health care proxy is a legal form that permits someone else to make your medical decisions if you become incapacitated. Your proxy, the individual you appointed to make your decisions, would work with the doctors to ensure that your treatment aligns with your wishes. They take on the task of advocating for you when you are unable to make decisions due to cognitive decline or serious illness. Without this document, doctors wouldn’t know who to take direction from, and there would be potential for the court to have to intervene.
On the other hand, a power of attorney (POA) gives someone the power to manage your financial and legal affairs. This person would handle your bills, manage your real estate, and deal with government agencies, all on your behalf. These two documents are crucial to estate planning and preparing for your long-term needs. While naming your child may seem like the most obvious choice, you must first evaluate whether that is realistic to ensure that you are making the best possible choice for yourself in the long run.
Why Naming an Out-of-State Child Can Lead to Serious Complications
Having an out-of-state Power of Attorney (POA) or health proxy poses several risks that can be dangerous in emergencies. While the risk of distance may sound obvious, it often gets overlooked while planning. Occasionally, companies will require the POA to be present in person to verify their identity if the paperwork was notarized out of state.
If your daughter is across the country, it will be difficult for her to get to you on time, which again creates unnecessary obstacles. In terms of an out-of-state health proxy, it is best if this individual can be at your location immediately. Naming a health proxy that may be unavailable and even just physically a journey away can threaten your life.
Another risk to consider is the time difference. For example, let’s say you suffered a stroke and are rushed to the hospital. Your doctors need to get in touch with your proxy, your daughter in San Francisco, to authorize treatment. Your daughter is three hours behind and isn’t answering her phone. Although this time difference doesn’t seem like a big deal, even a delay of just a few hours may impact your health and care. With a POA, similar issues will arise. Certain transactions require immediate response. For example, you are selling a home and your daughter needs to submit paperwork immediately, but again isn’t answering the phone. This causes major complications to your estate and financial planning and may severely impact your finances.
Another risk of naming an out-of-state child is their unfamiliarity with New York laws. There are state-specific rules involving signing requirements and specific language that needs to be used by a POA. If the POA isn’t aware of these strict demands, there will be added expense, time, and stress. The child may apply their own understanding of these documents in terms of their state laws to these New York documents, which may invalidate their legality.
Being a health care proxy or POA can be very stressful, especially if you are living a life in another place, attempting to manage someone’s care remotely. The child has to coordinate with local professionals and only has technology as their form of communication. This can be very overwhelming and lead to the child doing a poor job, and also puts a great burden on them.
Another detail to consider is that your out-of-state child may not understand your daily routines and schedules. This gap in knowledge may become a serious problem when it comes to answering questions that are not answered in legal documents. They may not fully understand your diet and physical capabilities as well as they should, being that they are the ones needing to make well-informed decisions. This may put the elder at risk.
All of these risks can result in court intervention. This can become extremely expensive, time-consuming, and often leads to an undesired result. If the proxy or POA isn’t responsive or simply can’t be present when needed, the court may appoint a temporary guardian. This may be a local relative that isn’t close to the elder and, therefore, wouldn’t be the best scenario. The appointment of a proxy and POA is to avoid court intervention and delays, which is why effective planning is crucial.
As much as you may want your child to be involved in your long-term care, it is important to recognize that this distance causes serious logistical problems and barriers that will be detrimental to you in the future.
Smarter Choices: Appointing a Local Co-Agent for Quick, Reliable Support
There are other options that allow you to still keep your child involved in your planning. We recommend appointing a local co-agent, someone who lives close by and can step in quickly for emergencies. What’s nice about this option is that you can still involve your out-of-state child as a secondary agent. If there is a state of emergency where you need someone to advocate for you or be present in person right away, your co-agent would limit delays. If you don’t want to involve your family or simply don’t have a trusted person nearby, we recommend going down a different path. You may appoint a professional fiduciary to make decisions on your behalf. You might want to choose an attorney or financial professional to fulfill this role. This option would be best if you don’t want to put the burden on your family. Not only that, but a professional fiduciary is someone who is extremely qualified, which should give you peace of mind that someone is always available to help you.
What you Should Do Next
It is time to take a look at who you have listed as your health care proxy and POA. If you had a medical emergency tomorrow and that person wouldn’t be able to show up and be there for you, you must take the steps to change it. Don’t wait until something happens to find out that your child wasn’t answering their phone and there wasn’t someone you trust making your decisions. By then, it will be too late.
Take action today to ensure your documents are effective and that you are well-prepared for any situation. Call (718) 333–2394 today to speak with the Law Office of Inna Fershteyn to save your family from future stress and chaos.