What Every Attorney Needs to Know About Estate Planning

What Every Attorney Needs to

Know About Estate Planning

Frederick J. Gawronski

Partner, Colligan Law LLP

Estate Planning Breakdown

 Intestacy

 Joint Ownership

 Contract

 Wills

 Trusts

Intestacy: A failure to plan is a plan to fail

EPTL 4-1.1: Descent and distribution of decedent’s estate

(a) If a decedent is survived by:

(1) A spouse and issue, fifty thousand dollars and one-half of the residue to the spouse, and the balance thereof to the issue

by representation.

(2) A spouse and no issue, the whole to the spouse.

(3) Issue and no spouse, the whole to the issue, by representation.

(4) One or both parents, and no spouse and no issue, the whole to the surviving parent or parents.

(5) Issue of parents, and no spouse, issue or parent, the whole to the issue of the parents, by representation.

(6) One or more grandparents or the issue of grandparents (as hereinafter defined), and no spouse, issue, parent or issue of

parents, one-half to the surviving grandparent or grandparents of one parental side, or if neither of them survives the decedent, to

their issue, by representation, and the other one-half to the surviving grandparent or grandparents of the other parental side, or if

neither of them survives the decedent, to their issue, by representation; provided that if the decedent was not survived by a

grandparent or grandparents on one side or by the issue of such grandparents, the whole to the surviving grandparent or

grandparents on the other side, or if neither of them survives the decedent, to their issue, by representation, in the same manner as

the one-half. For the purposes of this subparagraph, issue of grandparents shall not include issue more remote than grandchildren of

such grandparents.

(7) Great-grandchildren of grandparents, and no spouse, issue, parent, issue of parents, grandparent, children of

grandparents or grandchildren of grandparents, one-half to the great-grandchildren of the grandparents of one parental side, per

capita, and the other one-half to the great-grandchildren of the grandparents of the other parental side, per capita; provided that if

the decedent was not survived by great-grandchildren of grandparents on one side, the whole to the great-grandchildren of

grandparents on the other side, in the same manner as the one-half.

Joint Ownership

EPTL Article 6

 Real property

 Joint Tenancy with Right of Survivorship

 Tenancy-in-Common

 Tenancy by the Entirety

 Life Estate with Remaindermen

 Vehicles and Boats

 Investment Accounts

 Bank Accounts

Distribution by Contract

 Transfer on Death Accounts (TOD)

 Life Insurance

 Retirement Accounts

 Annuities

Wills

EPTL Article 3

 Direct distribution of assets at death with Surrogate’s

Court supervision

 Parties: Testator, Executor, Guardian, Trustee,

Beneficiaries, Alternates

 Execution of wills

 EPTL Article 3, Part 2

 Testator and both witnesses must be over 18

 “of sound mind”; no undue influence

Trusts

EPTL Article 7

 During life or at death

 Parties: Trustee, Settlor/Grantor, Beneficiary

 Distributions of income and principal

 Limitations

 NYS: no self-settled trusts

Contact Information

 Frederick J. Gawronski

 fgawronski@colliganlaw.com

 716-885-1150

Page 1

LAST WILL AND TESTAMENT

JOHN Q. PUBLIC

I, JOHN Q. PUBLIC, of Cheektowaga, New York, declare this to be my Will and

revoke all prior Wills and Codicils.

1. Personal Information, Debts

1.1 Personal Information. I am married to JULIE Q. PUBLIC (“ Julie”). We have two

(2) children, JAMES Q. PUBLIC (“Jim”) and JOANN Q. PUBLIC (“Joann”). My children may

be referred to in this Will either by their first name or as a “Child” or collectively as “Children”.

1.2 Debts. I direct that all my just debts and funeral expenses be paid as soon as

practicable after my death.

2. Personal Property

2.1 If Julie is Living. If Julie is living at my death, I give her the rest of my Personal

Property (as defined in Section “2.3”, below).

2.2 If Julie is not Living. If Julie is not living at my death, then my Personal Property

shall be divided among my Children who are living at the time of my death as they shall agree.

In the event they shall not agree, my Executor shall determine the division in as nearly equal

shares as practicable.

(a) Any of my Personal Property which is not desired by my Children shall be

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sold and the proceeds distributed as part of my Residuary Estate.

(b) Any decision, division or other action taken by my Executor pursuant to this

Article shall be conclusive upon all persons interested in my estate and all others dealing with it.

2.3 Definition. As used in this Article, “Personal Property” shall mean all property that

is not real estate and whose value is in its own substance or uniqueness, such as furniture,

jewelry or a coin collection, but it does not include cash, documents or other papers which are

only evidence of intangible property rights.

3. Residuary Estate

3.1 Definition. I dispose of the rest, residue and remainder of my property, of whatever

nature and wherever situate, which I may own or have the right to dispose of at the time of my

death (my “Residuary Estate”), as follows.

3.2 Disposition.

(a) If Julie is living at my death, I give my Residuary Estate to her.

(b) If Julie is not living at my death, I direct that my Residuary Estate be divided

equally among my Children, per stirpes.

4. Taxes

4.1 Non-Apportionment. All transfer, estate, inheritance, succession and other death

taxes (including interest and penalties on those taxes) payable by reason of my death, whether in

respect of property passing under this Will or otherwise, shall be paid without apportionment

from my Residuary Estate as an expense of administering my estate.

4.2 Deductions. My Executor may elect to claim any administration expenses of my

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estate as an income tax deduction rather than an estate tax deduction. To the extent this is done,

no compensating adjustment shall be made between income and principal.

5. Executor

5.1 Appointment.

(a) I appoint Julie as Executrix of this Will.

(b) If Julie fails to qualify or ceases to act, then I appoint Joann as Executrix in

her place.

5.2 Bond. No Executor acting under this Will shall have to furnish a bond or other

security in order to act.

6. Fiduciary Powers

6.1 General Powers. I authorize my Executrix in carrying out her responsibilities under

this Will to exercise in her sole discretion all powers conferred by law upon executors or set forth

in this Will:

(a) To retain any property of whatever nature and wherever located;

(b) To invest and reinvest in any property without restriction to investments

permitted to fiduciaries by the law of New York or any other jurisdiction;

including credit, as seems advisable;

(d) To distribute in kind or money, or partly in each, including undivided

interests, and without having to make pro rata distributions of specific assets;

(e) To employ others and to pay for their services and expenses from assets

under the fiduciary's responsibility; and

(f) To allocate receipts and expenses between principal and income.

Page 4

7. Other Provisions

7.1 Distributions.

(a) Distributions of income and principal may be applied for the benefit of the

beneficiary or paid to any person who has either formal responsibility for the beneficiary, in

whatever capacity he holds that responsibility, or is in fact looking after the welfare of the

beneficiary.

(b) Unless otherwise specified in this Will, where property is disposed of to

“Children” as a class, the Children shall take per stirpes.

7.2 30-Day Survivorship. If any beneficiary under this Will dies within 30 days after

my death, its provisions shall take effect as though that beneficiary had predeceased me.

7.3 Virtual Representation. If a party to a proceeding concerning my estate is under a

disability and there is a party to such proceeding who has the same interest as the person under a

disability, then — pursuant to SCPA 315(5) — it shall not be necessary to serve the person under

a disability.

7.4 Beneficiary Under Age 21. If a beneficiary who is not yet 21 is entitled to any part

of my property under this Will, whether principal or income, I authorize my Executor to dis-

tribute that beneficiary's property either to the beneficiary, his legal guardian or to a custodian for

the beneficiary under the uniform gifts to minors law of either the state in which the beneficiary

or custodian resides or any other state of competent jurisdiction.

7.5 Descriptive Titles. The use of descriptive Article and Section titles (bold and

underlined, respectively) are for purposes of convenience only and are not intended to be

interpreted as part of this Will.

Page 5

BEFORE WITNESSES, I, JOHN Q. PUBLIC, have signed my name to this Will on

_________________________________, 2021.

WE, whose names are hereto subscribed, DO CERTIFY that JOHN Q. PUBLIC, the

Testator, subscribed his name to this instrument in our presence and in the presence of each of us,

and at the same time, in our presence and hearing, declared the same to be his LAST WILL AND

TESTAMENT, and requested us and each of us to sign our names thereto as witnesses to the

execution thereof, which we hereby do in the presence of the Testator and of each other, on the day

of the date of said Will, and write opposite our names our respective places of residence.

residing at

1. Children's Trust

1.1 Creation. If a Child has not yet attained the age of _______ years, then his or her

Share of my estate shall be held, IN TRUST, as a separate trust for such Child's benefit (a

“Child's Trust”) and administered as set forth in the remainder of this Article.

1.2 Income. The Trustees may pay over all or part of the net income from a Child's

Trust to the Child. Any income not so used shall be accumulated and added to principal

annually.

1.3 Principal.

(a) The Trustees may, in their absolute and uncontrolled discretion, pay all or

part of the principal of a Child's Trust to the Child in such amounts as they deem necessary to

provide for the Child's support, education, and general welfare. In exercising this discretionary

power, the Trustees shall take into consideration the Child's other sources of income and/or

capital resources.

(b) The Trustees shall make the following distributions upon a Child attaining the

following ages:

(1) One-third (1/3) of the principal balance when the Child attains the

age of ____________ years.

(2) One-half (1/2) of the principal balance when the Child attains the

age of ____________ years.

taken into consideration when calculating the amount (if any) due to a Child under subsection

“(b)”.

(d) If, upon the Survivor's death, a Child has already attained one (or both) of the

ages set forth in subsection “(b)”, then the Child shall receive the amount (or amounts) which

would have been paid upon his or her attaining that age.

1.4 Termination.

(a) A Child's Trust shall terminate when the Child attains the age of

___________ years, at which time the remaining principal and undistributed income of the trust

(the “Remainder”) shall be distributed to the Child.

(b) In the event a Child dies prior to attaining the age of ________ years, then

the Remainder of his or her trust shall be distributed to his or her children. If there are no

children, then the Remainder shall be distributed to my surviving issue; provided, however, that

if there is a Child's Trust created by this Will for the benefit of a recipient, then his or her share

shall be added to the principal of that trust.

1.5 Meaning of Education. I have provided in this Will that my Trustees may distribute

funds for the “education” of a Child. Without limiting my Trustees’ discretion, it is my intent

that education include all formal education through graduate school, whether private or public,

including trade and vocational training, lessons and training in the arts, athletics or otherwise.

Distributions for education may include the reasonable cost of room, board, books, and supplies.

New York State Bar Association

New York Statutory Short Form Power of Attorney, 8/18/10, Eff. 9/12/10

2010 N.Y. Laws ch. 340 Page 1 of 6

POWER OF ATTORNEY

NEW YORK STATUTORY SHORT FORM

(a) CAUTION TO THE PRINCIPAL: Your Power of Attorney is an important document. As the

“principal,” you give the person whom you choose (your “agent”) authority to spend your money and

sell or dispose of your property during your lifetime without telling you. You do not lose your

authority to act even though you have given your agent similar authority.

When your agent exercises this authority, he or she must act according to any instructions you

have provided or, where there are no specific instructions, in your best interest. “Important

Information for the Agent” at the end of this document describes your agent’s responsibilities.

Your agent can act on your behalf only after signing the Power of Attorney before a notary

public.

You can request information from your agent at any time. If you are revoking a prior Power of

Attorney, you should provide written notice of the revocation to your prior agent(s) and to any third

parties who may have acted upon it, including the financial institutions where your accounts are

located.

You can revoke or terminate your Power of Attorney at any time for any reason as long as you

are of sound mind. If you are no longer of sound mind, a court can remove an agent for acting

improperly.

Your agent cannot make health care decisions for you. You may execute a “Health Care

Proxy” to do this.

The law governing Powers of Attorney is contained in the New York General Obligations Law,

Article 5, Title 15. This law is available at a law library, or online through the New York State Senate

or Assembly websites, www.senate.state.ny.us or www.assembly.state.ny.us.

If there is anything about this document that you do not understand, you should ask a lawyer of

your own choosing to explain it to you.

(b) DESIGNATION OF AGENT(S):

I, JOHN Q. PUBLIC

123 A STREET

CHEEKTOWAGA, NY 14225

(name of principal)

hereby appoint:

(address of principal)

JULIE Q. PUBLIC

123 A STREET

CHEEKTOWAGA, NY 14225

1422114225____________________________________

(name of agent)

(address of agent)

______________________________

_____________________________________

(name of second agent)

(address of second agent)

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2010 N.Y. Laws ch. 340 Page 2 of 6

as my agent(s).

If you designate more than one agent above, they must act together unless you initial the statement below.

( ) My agents may act SEPARATELY.

If any agent designated above is unable or unwilling to serve, I appoint as my successor agent(s):

_________________________

_____________________________________

(name of successor agent)

(address of successor agent)

________________________

_____________________________________

(name of second successor agent),

(address of second successor agent)

Successor agents designated above must act together unless you initial the statement below.

( ) My successor agents may act SEPARATELY.

You may provide for specific succession rules in this section. Insert specific succession provisions here:

(d) This POWER OF ATTORNEY shall not be affected by my subsequent incapacity unless I have

stated otherwise below, under “Modifications”.

(e) This POWER OF ATTORNEY DOES NOT REVOKE any Powers of Attorney previously

executed by me unless I have stated otherwise below, under “Modifications”.

If you do NOT intend to revoke your prior Powers of Attorney, and if you have granted the same

authority in this Power of Attorney as you granted to another agent in a prior Power of Attorney, each agent

can act separately unless you indicate under “Modifications” that the agents with the same authority are to

act together.

(f) GRANT OF AUTHORITY:

To grant your agent some or all of the authority below, either

(1) Initial the bracket at each authority you grant, or

(2) Write or type the letters for each authority you grant on the blank line at (P), and

initial the bracket at (P). If you initial (P), you do not need to initial the other lines.

I grant authority to my agent(s) with respect to the following subjects as defined in sections 5-1502A

through 5-1502N of the New York General Obligations Law:

( ) (A) real estate transactions;

( ) (B) chattel and goods transactions;

( ) (C) bond, share, and commodity transactions;

( ) (D) banking transactions;

( ) (E) business operating transactions;

New York State Bar Association

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2010 N.Y. Laws ch. 340 Page 3 of 6

( ) (F) insurance transactions;

( ) (G) estate transactions;

( ) (H) claims and litigation;

( ) (I) personal and family maintenance: If you grant your agent this authority, it will allow the agent to

make gifts that you customarily have made to individuals, including the agent, and charitable

organizations. The total amount of all such gifts in any one calendar year cannot exceed five

hundred dollars;

( ) (J) benefits from governmental programs or civil or military service;

( ) (K) health care billing and payment matters; records, reports, and statements;

( ) (L) retirement benefit transactions;

( ) (M) tax matters;

(____) (N) all other matters;

( ) (O) full and unqualified authority to my agent(s) to delegate any or all of the foregoing powers to

any person or persons whom my agent(s) select;

( ) (P) EACH of the matters identified by the following letters: ______________________________.

You need not initial the other lines if you initial line (P).

(g) MODIFICATIONS: (OPTIONAL)

In this section, you may make additional provisions, including language to limit or supplement

authority granted to your agent. However, you cannot use this Modifications section to grant your agent

authority to make gifts or changes to interests in your property. If you wish to grant your agent such

authority, you MUST complete the Statutory Gifts Rider.

(h) CERTAIN GIFT TRANSACTIONS: STATUTORY GIFTS RIDER (OPTIONAL)

In order to authorize your agent to make gifts in excess of an annual total of $500 for all gifts

described in (I) of the grant of authority section of this document (under personal and family maintenance),

you must initial the statement below and execute a Statutory Gifts Rider at the same time as this instrument.

Initialing the statement below by itself does not authorize your agent to make gifts. The preparation of the

Statutory Gifts Rider should be supervised by a lawyer.

( ) (SGR) I grant my agent authority to make gifts in accordance with the terms and conditions of the

Statutory Gifts Rider that supplements this Statutory Power of Attorney.

(i) DESIGNATION OF MONITOR(S): (OPTIONAL)

If you wish to appoint monitor(s), initial and fill in the section below:

( ) I wish to designate ____________________, whose address(es) is (are) ______________________,

as monitor(s). Upon the request of the monitor(s), my agent(s) must provide the monitor(s) with a copy of

the power of attorney and a record of all transactions done or made on my behalf. Third parties holding

records of such transactions shall provide the records to the monitor(s) upon request.

(j) COMPENSATION OF AGENT(S): (OPTIONAL)

New York State Bar Association

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2010 N.Y. Laws ch. 340 Page 4 of 6

Your agent is entitled to be reimbursed from your assets for reasonable expenses incurred on your

behalf. If you ALSO wish your agent(s) to be compensated from your assets for services rendered on your

behalf, initial the statement below. If you wish to define "reasonable compensation", you may do so above,

under "Modifications".

( ) My agent(s) shall be entitled to reasonable compensation for services rendered.

(k) ACCEPTANCE BY THIRD PARTIES:

I agree to indemnify the third party for any claims that may arise against the third party because of

reliance on this Power of Attorney. I understand that any termination of this Power of Attorney, whether the

result of my revocation of the Power of Attorney or otherwise, is not effective as to a third party until the

third party has actual notice or knowledge of the termination.

(l) TERMINATION:

This Power of Attorney continues until I revoke it or it is terminated by my death or other event

described in section 5-1511 of the General Obligations Law.

Section 5-1511 of the General Obligations Law describes the manner in which you may revoke

your Power of Attorney, and the events which terminate the Power of Attorney.

(m) SIGNATURE AND ACKNOWLEDGMENT:

In Witness Whereof I have hereunto signed my name on the ____ day of ____________, 20__

PRINCIPAL signs here: ====> ______________________________________

STATE OF NEW YORK )

) ss:

COUNTY OF ____________ )

On the ____ day of _________, 20__, before me, the undersigned, personally appeared

_________________________, personally known to me or proved to me on the basis of satisfactory

evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me

that he/she executed the same in his/her capacity, and that by his/her signature on the instrument, the

individual, or the person upon behalf of which the individual acted, executed the instrument.

Notary Public

(n) IMPORTANT INFORMATION FOR THE AGENT:

When you accept the authority granted under this Power of Attorney, a special legal relationship is

created between you and the principal. This relationship imposes on you legal responsibilities that continue

until you resign or the Power of Attorney is terminated or revoked. You must:

(1) act according to any instructions from the principal, or, where there are no instructions, in the

principal's best interest;

(2) avoid conflicts that would impair your ability to act in the principal's best interest;

(3) keep the principal's property separate and distinct from any assets you own or control, unless

otherwise permitted by law;

New York State Bar Association

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2010 N.Y. Laws ch. 340 Page 5 of 6

(4) keep a record or all receipts, payments, and transactions conducted for the principal; and

(5) disclose your identity as an agent whenever you act for the principal by writing or printing the

principal's name and signing your own name as "agent" in either of the following manners:

(Principal's Name) by (Your Signature) as Agent, or (your signature) as Agent for (Principal's

Name).

You may not use the principal's assets to benefit yourself or anyone else or make gifts to yourself or

anyone else unless the principal has specifically granted you that authority in this document, which is either

a Statutory Gifts Rider attached to a Statutory Short Form Power of Attorney or a Non-Statutory Power of

Attorney. If you have that authority, you must act according to any instructions of the principal or, where

there are no such instructions, in the principal's best interest.

You may resign by giving written notice to the principal and to any co-agent, successor agent, monitor

if one has been named in this document, or the principal's guardian if one has been appointed. If there is

anything about this document or your responsibilities that you do not understand, you should seek legal

advice.

Liability of agent: The meaning of the authority given to you is defined in New York's General

Obligations Law, Article 5, Title 15. If it is found that you have violated the law or acted outside the

authority granted to you in the Power of Attorney, you may be liable under the law for your violation.

(o) AGENT'S SIGNATURE AND ACKNOWLEDGMENT OF APPOINTMENT:

It is not required that the principal and the agent(s) sign at the same time, nor that multiple agents

sign at the same time.

I/we, _________________________, have read the foregoing Power of Attorney. I am/we are the

person(s) identified therein as agent(s) for the principal named therein.

I/we acknowledge my/our legal responsibilities.

Agent(s) sign(s) here: ==> ____________________________________________

==> ____________________________________________

STATE OF NEW YORK )

) ss:

COUNTY OF ___________ )

On the _____ day of ___________, 20__, before me, the undersigned, personally appeared

____________________, personally known to me or proved to me on the basis of satisfactory evidence to

be the individual whose name is subscribed to the within instrument and acknowledged to me that he/she

executed the same in his/her capacity, and that by his/her signature on the instrument, the individual, or the

person upon behalf of which the individual acted, executed the instrument.

Notary Public

New York State Bar Association

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2010 N.Y. Laws ch. 340 Page 6 of 6

(p) SUCCESSOR AGENT’S SIGNATURE AND ACKNOWLEDGMENT OF APPOINTMENT:

It is not required that the principal and the SUCCESSOR agent(s), if any, sign at the same time, nor

that multiple SUCCESSOR agents sign at the same time. Furthermore, successor agents can not use this

power of attorney unless the agent(s) designated above is/are unable or unwilling to serve.

I/we, _________________________, have read the foregoing Power of Attorney. I am/we are the

person(s) identified therein as SUCCESSOR agent(s) for the principal named therein.

Successor Agent(s) sign(s) here: ==> ____________________________________________

==> ____________________________________________

STATE OF NEW YORK )

) ss:

COUNTY OF ____________ )

On the _____ day of __________, 20___, before me, the undersigned, personally appeared

___________________, personally known to me or proved to me on the basis of satisfactory evidence to be

the individual whose name is subscribed to the within instrument and acknowledged to me that he/she

executed the same in his/her capacity, and that by his/her signature on the instrument, the individual, or the

person upon behalf of which the individual acted, executed the instrument.

Notary Public

NOTICE: The powers granted by this document are broad and sweeping.

They are authorized in Article 29-C of the Public Health Law, which expressly permits

the use of any other or different form of health care proxy desired by the parties concerned.

HEALTH CARE PROXY

I, JOHN Q. PUBLIC do hereby appoint:

JULIE Q. PUBLIC

123 A STREET

CHEKTOWAGA, NEW YORK 14225

716-111-1111

as my health care agent to make any and all health care decisions for me, except

to the extent I state otherwise.

FIRST: This health care proxy shall take effect in the event that I become unable to make

my own health care decisions.

SECOND: I direct my agent to make health care decisions in accordance with my wishes

and instructions as stated below or as otherwise known to him/her. I also direct

my agent to abide by any limitations on her authority as stated below or as

otherwise known to him/her.

NOTE: Although not necessary, and neither encouraged nor discouraged, you

may wish to state instructions or wishes, and/or limit your agent's authority.

Unless your agent knows your wishes about artificial nutrition and hydration,

your agent will not have the authority to decide about artificial nutrition and

hydration. If you choose to state instructions, wishes or limitations, please do so

below.

I affirm that I do not draw a distinction between nutrition and hydration

and any other kind of life-sustaining treatment; and expressly authorize my agent, in

his/her unrestricted discretion, to direct that nutrition and hydration be withdrawn or

withheld when my agent believes that it is in my best interest to do so.

I understand and consent to the above instructions: ______

INITIALS

THIRD: In the event that JULIE Q. PUBLIC is unable, unwilling, or unavailable to act as

my health care agent, then I appoint:

JAMES Q. PUBLIC

234 B STREET

WEST SENECA, NEW YORK 14224

716-222-2222

as my health care agent in his/her place.

FOURTH: I designate my agents named herein, to be my personal representatives in

compliance with Federal HIPPA Laws and regulations. I authorize all medical

providers who have treated me to release my medical records of such treatment

to my agents(s) designated herein. I consent to the release of all my medical

records to my agents designated herein.

FIFTH: I understand that, unless I revoke it, this proxy will remain in effect indefinitely

or until the date or occurrence of the condition I have stated below:

NOTE: Complete the following only if you do not want this health care proxy to

be in effect indefinitely.

This proxy shall expire: INDEFINITE — no expiration date .

IN WITNESS WHEREOF, I have hereunto signed my name on

, 2017.

JOHN Q. PUBLIC

123 A STREET

CHEEKTOWAGA, NEW YORK 14225

WE, whose names are hereto subscribed, declare that the person who signed this

document is personally known to us and appears to be of sound mind and acting willingly and

free from duress. She signed this document in our presence. None of us is the person appointed

as agent (or alternate agent) by this document.

residing a

residing at

LIVING WILL

JOHN Q. PUBLIC

To my family; my Health Care Agent(s); all physicians, hospitals and health care providers; and any Court or

Judge:

After thoughtful consideration, I have decided to forego all life-sustaining treatment if:

1. I shall sustain substantial and irreversible loss of mental capacity,

AND

2. EITHER —

(a) my attending physician is of the opinion that I am unable to eat and drink without

medical assistance and it is highly unlikely that I will regain the ability to eat and

drink without medical assistance;

(b) my attending physician is of the opinion that I have an incurable or irreversible

condition which is likely to cause my death within a relatively short time.

I shall be conclusively presumed to have sustained substantial and irreversible loss of mental capacity

upon a determination to such effect by my attending physician or when a court determines that I have sustained

such loss, whichever shall first occur.

As used herein the term "an incurable or irreversible condition which is likely to cause my death within a

relatively short time" is a condition which, without the administration of medical procedures which serve only to

prolong the process of dying, will in my attending physician's opinion, result in my death within a relatively short

time. The determination as to whether my death would occur in a relatively short time is to be made by my

attending physician without considering the possibilities of extending my life with life-sustaining treatment.

I direct that this decision shall be carried into effect even if I am unable to personally reconfirm or

communicate it, without seeking judicial approval or authority. Accordingly, if and when it is so determined

that —

1. I have sustained substantial and irreversible loss of mental capacity

AND

2. I am unable to eat or drink without medical assistance and it is highly unlikely that I will

regain the capacity to eat and drink without medical assistance or I have an incurable or

irreversible condition which is likely to cause my death within a relatively short time,

all life-sustaining treatment (including without limitation administration of nourishment and liquids

intravenously or by tubes connected to my digestive tract) shall thereupon be withheld or withdrawn forthwith,

whether or not I am conscious, alert or free from pain, and no cardiopulmonary resuscitation shall thereafter be

administered to me if I sustain cardiac or pulmonary arrest. In such circumstances I consent to an order not to be

resuscitated, as that term is defined in Public Health Law Section 2961, and direct that such an order thereupon

be placed in my medical record. I recognize that when life-sustaining treatment is withheld or withdrawn from

me, I will surely die of dehydration and malnutrition within days or weeks.

I specifically request that all available medication or other measures for the maximum relief of pain and

for my comfort shall be administered to me after life-sustaining treatment is withheld or withdrawn even if I am

rendered unconscious and my life is shortened thereby.

I recognize that there may be many instances besides those described above in which the compassionate

practice of good medicine dictates that life-sustaining treatment be withheld or withdrawn and I do not intend

that this instrument be construed as an exclusive enumeration of the circumstances in which I have decided to

forego life-sustaining treatment. To the contrary, it is my express direction that whenever the compassionate

practice of good medicine dictates that life-sustaining treatment should not be administered, such treatment shall

be withheld or withdrawn from me. I similarly direct that in the event I am able to personally communicate a

decision to forego life-sustaining treatment in other circumstances than those described herein, such instructions

shall be followed to the same extent as if originally included in this declaration.

This instrument and the instructions herein contained may be revoked by me at any time and in any

manner. However, no physician, hospital or other health care provider who withholds or withdraws life-

sustaining treatment in reliance upon this Living Will or upon my personally communicated instructions without

actual knowledge that I have countermanded these instructions shall have any liability or responsibility to me, my

estate or any other person for having withheld or withdrawn such treatment.

I am in full command of my faculties. I make this living will declaration in order to furnish clear and

convincing proof of the strength and durability of my determination to forego life-sustaining treatment in the

circumstances described above. I emphasize my firm and settled conviction that I am entitled to forego such

treatment in the exercise of my right to determine the course of my medical treatment. My right to forego such

treatment is paramount to any responsibility of any health care provider or the authority of any court or judge to

attempt to force unwanted medical care upon me.

I direct that my family, all physicians, hospitals and other health care providers and any Court or Judge

honor my decision that my life not be artificially extended by mechanical means and that if there is any doubt as

to whether or not life-sustaining treatment is to be administered to me after I have sustained substantial and

irreversible loss of mental capacity such doubt is to be resolved in favor of withholding or withdrawing such

treatment.

Dated: _______________________, 2019

_________________________________________

JOHN Q. PUBLIC