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Planning for Incapacity

What can I do for my small business to plan for incapacity?

What is a Living Will?

Is a Living Will valid in New York?

What is a "Health Care Proxy"





Q: What can I do for my small business to plan for incapacity?

One of the best things you can do is create a written "disaster plan" for your business that the family can refer to in the event of an emergency. This plan should refer to both short term and long term strategies. In the short term, the plan should identify and notify customers, creditors, and suppliers. It should also prioritize actions to be taken, and suggest who should be in charge of them. In the longer term, the plan should select a manager, define the relationship among the business, family, and estate trustees, and also provide a plan for selling the business.


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Q: What is a Living Will?

A Living Will is a document that expresses what kind of medical care you want and don’t want if your condition is “terminal” and you are unable to express your wishes at the time a medical decision needs to be made.


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Q: Is a Living Will valid in New York?

New York does not recognize a living will by statute in the same way that New York does recognize a health care proxy or a Do-Not- Resuscitate Order. However, that does not mean that a living will is without any effect in New York. The New York Court of Appeals, the highest court in New York, has indicated that in the absence of a health care proxy, a person seeking to withdraw or withhold life sustaining treatment on behalf of someone who no longer is able to make such a treatment decision must demonstrate by clear and convincing evidence the person's wishes regarding such treatment. The court has said that a "living will" can effectively indicate the person's "seriousness of purpose" and demonstrates that the person's wishes are more than just "casual remarks." Moreover, there are state regulations in New York which require that each patient's medical records include information regarding whether the patient has provided written or oral advance instructions about treatment to the medical facility or organization responsible for the patient's care. The facility is required to evaluate the instructions other than the health care proxy and DNR. In some cases the facility may seek a court determination that the instructions, such as a living will, meet the legal standard of clear and convincing evidence.


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Q: What is a "Health Care Proxy"

A Health Care Proxy lets you name someone to make decisions about your medical care, including decisions about life support, if you are unable to do so yourself.


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The Law Office of Martin Hersh, Esq. assists clients with Elder Law & Estate Planning needs in Liberty, Middletown, Newburgh, Goshen, Kingston, and Wurtsboro, and just about every town or village within Sullivan County, Orange County and Ulster Counties in New York State.

The material presented on this site is included with the understanding and agreement that the Law Office of Martin Hersh is not engaged in rendering legal or other professional services by posting said material. The services of a competent professional should be sought if legal or other specific expert assistance is required.



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