Download and Complete a NYS Health Care Proxy Form

On March 4th, Skyer Law proudly announced that Valerie Zaloom Buccino, an attorney with over 26 years of experience in Wills, Special Needs Trusts, Guardianships and Estate Planning, joined our firm.

It’s hard to believe it was only a few weeks ago, but since then our world has shifted and we are all facing new worries and concerns. We are receiving a large number of inquiries about Valerie and her services, not only from our clients, but also from grandparents of our children and families outside our client community. In response, we are planning a free teleconference in early April to answer some of your most pressing estate planning questions specific to this health emergency; the date and how to register will be announced in a future email and on our blog.

In the meantime, Valerie wants to make sure that our clients know about one important thing that we can all do right now—completely free and without the need for a legal consultation: Download and complete a NYS Health Care Proxy form.

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Helpful Information About Health Care Proxy Forms

by Valerie Zaloom Buccino

A Health Care Proxy is used to appoint someone you trust to act as your agent in making health care decisions for you should you ever be unable to make decisions for yourself. If you become incapacitated, hospitals and doctors must follow your agent’s directions as if they were your own. It can also be used to document your wishes with regard to organ and tissue donation. A New York Health Care Proxy will be honored in most other U.S. states. 

You may designate any competent adult to be your agent and alternate agent. But before you designate any person, make sure you discuss this choice with them and that they understand and are comfortable carrying out your wishes. 

The form also gives you the option of appointing an alternate agent in case your first agent is unavailable or unable to act. Given the current situation, in which many household members may become ill, I strongly recommend designating an alternative agent. It is wise for one of the two agents to not be currently living in your home. Make sure that each person you name gets a signed copy of the document (emailing a scan is fine for now). If you change your mind about any of the details, simply notify your agents and/or complete a new health care proxy form.

You do not need a lawyer to fill out a NY Health Care Proxy Form, and it does not need to be notarized. However, New York State law requires that it be witnessed by two people who are not among the agents you name.

It is my belief that due to this extraordinary health emergency, witnessing a Health Care Proxy via video conference will be acceptable. This should be done in a manner similar to the instructions provided in the Governor’s Executive Order concerning notarization of documents. However, if you are able to arrange for two people who are not the people you named as agents to safely witness your signature, then do it in person. If the logistics of witnessing are unsafe or impossible at the moment—complete the form and sign it anyway. (It is quite possible that in the coming days and weeks, the Governor’s Office will use his emergency powers to clarify how to properly execute these documents while abiding by social distancing requirements. We are tracking this closely. However, making your wishes known shouldn’t wait. When this health emergency ends, you can re-execute the document in the usual way. 

People Over Age 18 with Developmental Disabilities & Health Care Proxies

If you have an adult child with developmental disabilities and you do not have a guardianship order in place that provides for medical decision-making, then your child (and any other adult children you have) should also complete their own health care proxy form, if possible. 

New York State law says that adults must be “competent” in order to execute a Health Proxy Form, meaning that they must be able to understand what they are signing. This doesn’t mean they need to understand every legal term or implication—most people don’t. It means that they must be able to understand that they are giving permission for someone they trust to make decisions for them concerning their health, if they cannot.

However, if your adult child is unable to understand the form well enough to sign it, the NY Family Health Care Decisions Act still provides for a rank-order list of who can make medical decisions: the incapacitated person’s guardian; spouse or domestic partner; adult child; parent; sibling; or close friend. The reason we prefer not to rely on this is that even if you, the parent or guardian, are “first” on this list, the authority of someone acting without a health care proxy is more limited.  If you are in this situation, a lawyer like me should discuss guardianship with you at another time.  

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 Valerie Zaloom Buccino has 26 years of experience in estate planning, special needs trusts, and guardianship legal services. Her particular expertise is working with families with special needs children. To schedule a consultation, please call 212-532-9736 or email Ben Foley at info@skyerlaw.com Consultations are free for current/active clients. 

Upcoming Event: Autism Advocacy Panel at Shrub Oak International School 4/16

Shrub Oak International School is hosting a panel discussion about the educational and legal rights of individuals with special needs as part of their ongoing professional series on special education issues. Shrub Oak has assembled an impressive selection of top New York special education attorneys, including Skyer Law partner Greg Cangiano.

The event is being held on Tuesday, April 16th from 7:00pm-8:30pm and includes an informal reception with light refreshments and a Q&A.

Shrub Oak International School is located in Mohegan Lake, NY. RSVP to events@shruboak.org or call (914) 885-0110, ext. 739, for more information. 

Touring School Placement Offers

Image: An empty elementary school classroom with desks, a white board, and posters on the walls. 

You’ve had your IEP meeting, and now you are waiting patiently for your placement offer from the Department of Education.

If your child is receiving special education services for the first time, a school placement offer must come within 60 school days of when you provided consent to evaluate your child. If your child is already receiving special education services and you have had an annual IEP review meeting, it will simply arrive sometime before the first day of school.

But if the placement offer doesn’t arrive with enough time for a parent to arrange a visit to tour the proposed placement, or if no placement letter arrives at all, or if the placement site refuses to allow you to tour—share this with your attorney or advocate. Some Impartial Hearing Officers view a district’s refusal to allow a parent to observe a proposed placement as evidence that it is not appropriate.

But let’s assume that the placement offer arrives with plenty of time to schedule a visit and that the site is welcoming and happy to accommodate a tour. You grab a notebook and a pen and head out the door for the visit with an open mind—but what are you there to observe exactly?

First, let’s talk about what you see. The person conducting the tour may have a route in mind that will no doubt include the classroom, but you should also ask to see (as applicable):

·         All spaces your child will be educated in (for ST, OT, PT, and any other pull-out related services and specials like art, gym, music, etc.)

·         Nursing and counseling offices

·         The hallways during the transition between classes

·         The cafeteria during lunch time

·         The playground at recess

·         Arrival/Dismissal (or you can do this on your own standing outside the school)

What observations you make note of and what specific questions you ask will necessarily be tailored to the unique needs of your child and the type of program you are touring. We’ve put together a list of general questions to give you some ideas.

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·         Can my child’s IEP be implemented at this site? Does the school offer the class type/ratio listed on your child’s IEP? Can the school offer the related services your child is mandated for (number of sessions per week, correct length of sessions, group vs individual sessions, push-in vs pull-out)? Can the school serve all the health and physical management needs listed on your child’s IEP?

·         Is the staffing appropriate? Is the staff trained to accommodate your child’s communication, health, behavior, and safety needs? If there is more than one teacher, are both teachers there all day? What role do classroom paras play? Is there special education support during ‘specials,’ like music or art? Who will be with your child during lunch and recess, for bathroom trips, to and from the bus, and between classes?

·         Is the peer group appropriate? Enrollment obviously changes a little from year to year, but based on the current peer group: What are the behavior management needs in the classroom and how are they managed? What is the age range? Where is the class academically in terms of math and reading? How many students have IEPs? How many students total? What classifications do children in the class have? How many children are verbal? What behavioral or social expectations will your child have to meet to be successful in this class? Will your child have access to other kids who make sense as learning peers?

·         Is the physical classroom space appropriate? Is the classroom large enough to accommodate the students and children comfortably and safely? Is there light? Is there a sensory break space? Are there appropriate seating and work spaces for your child? Where is the bathroom in relation to the classroom? What kinds of toys, books, puzzles, and other materials are in the classroom and do they make sense for your child’s level of functioning? What physical modifications are made for children with adaptive, sensory, and physical differences? If 1:1 related services are provided in the classroom, where does that take place?

·         What other settings will my child be educated in? If related services are pull-out, are those rooms appropriate (noise, equipment, etc.)? Will your child be able to get adaptive physical education or regular PE outdoors or in a gymnasium, and how many other children will be using that space when your child is there? If your child moves between classrooms for different subjects, where are those rooms in the building and does someone accompany your child? Will your child be using elevators and stairwells? How many students are in the halls between classes?

·         What methodology and modifications are used in the classroom? Is there a specific methodology the teacher uses? How does the teacher modify curriculum or organize the classroom to support the students?

·         What common spaces will my child use and how? How big is the school? How many students are in the building in total? What is the age range of the students in the building? Where will your child eat snacks and meals, how will they get there, and who will supervise them? If there is a cafeteria, how many other students eat at the same time? Where is bus line-up and how is that managed? Where is recess, how is it supervised, and how many other students will have recess with your child?

·         Are there safety concerns? What is the school’s safety record (injuries, elopement, etc.)? How many exits does the building have and how are they secured? How are halls, stairwells, closets, elevators, windows, etc. supervised and secured? How are allergies managed?

·         Is the school accessible? Can your child physically navigate this environment as independently as they are capable of?

·         What are the inclusion opportunities?  For self-contained placements, what opportunities are there for your child to interact with mainstreamed peers? Will your child participate in all school functions, extra-curricular opportunities, and school trips?

·         How far from my home is the school and how long will it take my child to get here?

After you have toured, you will need to decide if you want to accept the district’s placement offer. If you decide to reject it, you should consult with your attorney or advocate about your next steps.

Register Now for “How to Survive an Impartial Hearing" on December 1st

We are less than a month away from Skyer Law's How to Survive an Impartial Hearing conference—and there is still time to register. If you are a special education parent, clinician, therapist, teacher, school administrator, or any other person who might be called to testify at a due process impartial hearing, then this free half-day conference is for you. 

At some point in a special education student’s schooling years a family may face an impartial hearing. For the parents, as well as the educators, clinicians, therapists, and the school administrators who care about that child’s educational progress (and may be called to testify), this is often stressful news—and that’s understandable. There is a lot is on the line.

On December 1st, a distinguished group of special education lawyers from the Law Offices of Regina Skyer & Associates will demystify the impartial hearing process by staging a mock hearing of a tuition reimbursement case. We will also take time to discuss some of the critical laws and procedures and answer as many audience questions as time allows.

Coffee/juice and light refreshments will be served. Registration is required as space is limited.

When: Friday, December 1st, 8:30 AM – 1:30 PM
Where: The Forchelli Center, Brooklyn Law School, 205 State Street, Brooklyn, NY
Questions? Email ekaiser@skyerlaw.com