Emergency Estate Planning During a Hospitalization

I was prepared to write a regular estate planning article tied into Independence Day with July Fourth and fireworks references – fitting for this time of year. Then, a few days before the article’s due date, I entered a New York City hospital with an advance directive prepared for a client.

This was not my first time visiting a client in a hospital with the approval and supervision of the client’s immediate family on the patient’s behalf. In fact, this has been a common occurrence for most of my career. New York law specifically states that, “Every patient shall have the right to have private communications and consultations with his or her physician, attorney and any other person.”

Hospitals still have the ability to control the access, flow, and timing of patient visitation as it pertains to a patient’s safety and well-being. Good practice dictates that a family member seeks to communicate with the social work staff or hospital administrator prior to the attorney visit to ensure there will be no issues, especially in situations where a patient’s illness has adversely affected their energy level and usual communication abilities.

A plan for witnesses and notarization is also part of the process. The goal is to have a Power of Attorney executed that would allow family funds to be protected in the face of mounting long-term care costs.

Advance Directive signings can create anxiety among hospital staff. Advance Directives include Powers of Attorney, Health Care Proxies, Living Wills, and HIPAA forms.

Fears of unscrupulous lawyers taking advantage of incapacitated patients are not unfounded. However, our presence is designed to be flexible. Should a patient not have the capacity to execute a document, we – as licensed professionals – will not allow that document to be executed.

Things get tricky when a patient has received a medical diagnosis that calls their capacity into question. For elder care attorneys, New York’s case-by-case approach has shown that mild dementia symptoms do not automatically disqualify an individual from executing advance directives. We have our observation protocols and list of questions to establish that an individual has enough legal capacity to sign. 

Many hospitals and health care facilities draw a line in the sand when staff is made aware of a dementia diagnosis. No legal documents will be signed by that patient in their building. At that point, the advocacy of the patient’s loved ones and the assistance of legally authorized representatives will not be honored.

Superseding a hospital’s decision requires either a court order or the removal of that patient from their facility.

Timing is everything. An adversarial relationship between hospital staff and a patient’s family may prevent important documents from being properly executed, necessitating a lengthy Article 81 Guardianship proceeding that may cost 20 times what the Advance Directives cost. In the meantime, proper Medicaid planning cannot be completed and many thousands of dollars will be spent that could have been saved by the family.

All in all, a total lose-lose scenario.

So, now that you have the context, here is the story: Upon entering the hospital and passing through the metal detectors, I was asked to identify myself and the patient I was visiting by hospital intake. I explained who I was and my purpose. The patient’s family had communicated the day prior with hospital staff as to the reason for my visit.

Hospital intake then pointed me toward the NYPD office on the first floor. NYPD staff were shown my driver’s license and Attorney Secure ID as well as the proposed Advance Directive.

I called our client’s son to let him know what was happening. Within 10 minutes, I was told that I would be escorted by a NYPD officer to the Risk Management Office. The officer and I rode the elevator up to the correct floor. We walked to Risk Management and I entered the office, coming face to face with an unsmiling bureaucrat.

I explained my purpose again, and was told that the patient had an unfavorable diagnosis and I was not allowed to visit the patient’s room even with the son’s approval. I was also not allowed to conduct my own evaluation of the patient’s legal capacity. The same NYPD officer who escorted me up the elevator was now called upon to escort me back down.

In the hospital lobby, the patient’s son and I discussed the situation and came to only one conclusion – get his mom out of there before it’s too late.

To know that your ability to receive proper legal support during the most difficult period of your life is controlled by a few hospital employees should send shudders down everyone’s spines. 

The best way to avoid hospital interference is to have your estate planning documents and Advance Directives completed before a hospitalization. If you do not have advance directives – get them.

Alan D. Feller, Esq., is managing partner of The Feller Group, located at 572 Route 6, Suite 103, Mahopac. He can be reached at alandfeller@thefellergroup.com.