By Bernard A. Krooks, Certified Elder Law Attorney
Many celebrities have passed away recently, including David Bowie, Aretha Franklin, and Luke Perry, among others. Some had done proper estate planning prior to their death, while others had not.
While we all know (although some of us don’t like to admit it) that we are going to die someday; sometimes, people get sick before they die, and, other times, we die suddenly. In this column, we have often emphasized the importance of not only estate planning for the disposition of your assets upon your demise, but also lifetime planning to account for your wishes in the event you become incapacitated either mentally or physically prior to death. That planning should encompass and consider who you would like to make medical and financial decisions for you in the event you are no longer able to do so yourself.
Sometimes, death arrives with plenty of warning and there is time to get your affairs in order. Other times, there is no warning. Proper estate and lifetime planning hopefully accounts for both scenarios. However, having an estate plan doesn’t always mean things go smoothly, and when things go smoothly, it’s not always because there was an estate plan.
For example, let’s look at a recent celebrity death, that of Luke Perry. Last month, the Hollywood star died in California at the age of 52 from a massive stroke. At the end, he was removed from life-sustaining treatment with his loved ones by his side. No legal battles, no court involvement, and no family fighting. If this had happened in New York, it’s also quite likely that no court proceeding would have been required for such a decision, primarily because Perry’s loved ones appear to have agreed with the course of action.
When it comes to health-care decisions for an incapacitated person in New York, a health care proxy and a living will are your best options. This way, you have appointed someone to make decisions for you when you can no longer make them yourself and you have reduced to writing what those wishes are when it comes to certain end-of-life situations. While this does not guaranty that your wishes will be honored, it greatly enhances the likelihood that they will be and that’s the best we can hope for.
New York law provides a hierarchy of surrogate decision-makers for you if you have not appointed one yourself. First on the list is a court-appointed guardian, followed by a spouse (if not legally separated) or domestic partner, an adult son or daughter, a parent, an adult brother or sister, and a close friend, in that order.
Once the decision-maker has been identified, that person is then supposed to follow the patient’s wishes, if known. The only reason a court should get involved is if there is a disagreement about who should be the decision maker or the decisions that person makes.
Since Luke was not married at the time of his death, under New York law, had it applied, his former spouse and fiancé could have been considered close friends (assuming the fiancé did not qualify as a domestic partner), if included at all; his children, Jack and Sophie, would have been the main decision makers, and because there are two of them, they would have had to agree on treatment. This is a very difficult decision to make for anyone, especially such young adults. Thus, they could have declined, leaving the decision to Luke’s mother, followed by his siblings.
In Perry’s case, we may never know who, or what group, made the actual decision. That hardly matters. What does matter is your family’s dynamics and whether, should something tragic occur, you have left sufficient direction to help them through it. Do you have advance directives in place? Luke Perry’s untimely death reminded us: it’s time to get your advance directives completed and signed.