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Powers of Attorney
A power of attorney is a document giving someone else the power to do what normally only you yourself could do. It allows another person to act for you as if he or she were you. There are different kinds of powers of attorney, and they can be made specific or general. For example, you can give specific power to another person to collect your mail from the post office or to sign checks on your bank account, and those will be the only things that the person can do in your place. Or you could sign a general power of attorney to allow the person to do anything you could normally do yourself. A power of attorney enables someone else to pay your rent, deposit your paychecks, or do other necessary things you may be unable to. A 'durable' power of attorney allows someone to do these things even if you become very ill and are incapacitated. However, the power of attorney goes into effect as soon as you sign it and deliver it to your attorney-in-fact, so you must be very sure that you trust the person you are authorizing to do things for you.
A power of attorney is no longer in force once a person is deceased. A will is not valid until you have died. The two instruments work together to make sure that another person can act on your behalf at all times.
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Probate
Probate is the process of proving a will valid in court. The Surrogate's Probate Court must scrutinize a will to ensure its validity. Once this is done, the court issues letters testamentary to the executor of the will; he or she may then act on behalf of the estate. This process takes time and usually requires the assistance of an attorney.
If the estate if valued under $10,000, it may be eligible for small estate administration rather than probate. This process is easier than probate and may take much less time.
If there is no will, a similar process is used, but there is nothing to guide distribution of the assets of the estate. Instead, the court will grant letters of administration to an individual who steps forward voluntarily to take care of the estate, and the property is distributed to the next of kin. This process is burdensome for the person who steps forward, and he or she may be required to post a bond for the value of the estate.
If there are minor children and no surviving parents, unless you have taken affirmative steps to provide for guardianship of your children, the executor or administrator is responsible for the children until the Surrogate's Court makes a guardianship determination.
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Medical Powers of Attorney
You may want to give someone else the power to make decisions about your medical care if you become unable to do so. We suggest that you execute a medical power of attorney that authorizes another individual, your health care proxy, to make medical decisions for you in the event you cannot make them yourself. This document also asks that the person you name be given visitation rights in the hospital and access to your medical records. Under most circumstances, your next of kin would have these powers automatically, but if you would like to have a non-family member act on your behalf, you should have a medical power of attorney. There is no law in New York that requires doctors or hospitals to respect a medical power of attorney, but we find that there is usually no problem with a non-family member participating in medical decision-making once that wish is communicated by a patient to a physician.
You also have a right to refuse any kind of medical treatment you don't want. To make a statement in advance about when you would not want extraordinary treatment, you can execute a document which is often called a 'living will.' In this document, you can indicate what treatments you would or would not want under particular circumstances. You can say, for example, that you would not wish to be kept alive on a respirator if your medical condition is irreversible. You can also indicate that you do not want your agent to authorize certain treatments.
If you don't have anyone to act as health care proxy, you should still sign a medical directive. Many physicians and other health care personnel will try to be guided by carefully expressed wishes in a medical directive (living will); you have a much better chance of realizing your wishes if you express them in writing in advance. Of course, the best guarantee is to sign a medical directive in conjunction with a health care proxy in which you name a sympathetic person as your health care agent.
Finally, you can have an order entered in your medical chart called a "Do Not Resuscitate" (DNR) order. This means that if your heart or breathing stops, you do not want cardiopulmonary resuscitation administered to start them again. These orders can be made effective both inside and outside the hospital setting.
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Discrimination and Your Rights
New York City law prohibits discrimination on the basis of sexual orientation, as do the cities of Rochester, Ithaca, Alfred, Brighton, Buffalo, Syracuse, East Hampton, Troy, and Watertown, along with Suffolk and Tompkins Counties. Most of these laws offer only minimal protection to public or municipal employees, and do not apply at all to those employed in the private sector. It is important to check the local law if you suffer discrimination and live in any of these areas. People with symptomatic HIV or AIDS working in areas without local laws prohibiting discrimination based upon sexual orientation -- or with laws that do not cover their employer -- re still protected by state and federal laws prohibiting discrimination on the basis of disability or perceived disability.
New York State, New York City, and federal law prohibit discriminatory practices against people who have disabilities or who are perceived to have a disability. AIDS and HIV seropositivity are treated as disabilities by state, city, and federal law. As long as you are reasonably capable of performing your job, you can't be fired.
Neither can your employer refuse you a promotion, demote you, or force you to work apart from other employees because you have AIDS. Any of these would be discriminatory treatment because of your disability. Since it is well established that the virus that causes AIDS cannot be transmitted through workplace contact, there is no reason to treat employees with AIDS any differently from others. So long as you can do what's reasonably required of you, you are entitled to be treated like any other employee.
In most cases, it is illegal for your employer to ask you to take the HIV antibody test. It would be unlawful for your employer to treat you any differently because of your HIV test results, and therefore it is almost always unlawful to require you to take the test in the first place. It is certainly unlawful for a potential employer to require you to take an HIV antibody test prior to making an offer of employment.
If you still want to work but cannot really work full time, try to arrange an alternative. If your employer is aware of your condition, you might simply approach the person in charge of personnel and explain that, in light of your disability, you would like to have more flexible hours or be shifted to less strenuous activity than you currently have. Because the law regards you as a disabled person, the law places a responsibility upon the employer to accommodate your disability to the extent such accommodation is reasonable. For instance, if you worked for a firm of 900 employees and you asked to switch your working hours from 9-5 to 10-4, it is doubtful that this would impose an undue hardship on such a large employer and such an accommodation would probably be reasonable. However, if you were a key designer in a three-person design firm and you asked to be switched to a different position, this might be considered unreasonable; the small firm might be unable to respond to such a request without firing someone from another position or creating another salaried position. In short, you can ask that adjustments be made, but they must be within reason.
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Discrimination in the Workplace -- Steps to Take
If your employer fires you or treats you unfairly, you have a right to reinstatement to your job with back pay or to compensation for discriminatory treatment. The New York State Division of Human Rights and the New York City Commission on Human Rights both prosecute such cases. In addition, the Equal Employment Opportunity Commission (EEOC) is charged with enforcing the Americans with Disabilities Act, a federal statute protecting those with disabilities from discrimination. The GMHC Legal Services Department relays our cases to those agencies, and we then represent the GMHC client as an advocate if necessary.
Discrimination is not difficult to prove. Often, the employee's termination occurs immediately after it is discovered that he or she has AIDS or is HIV-positive. In other cases, a pattern of harassment begins at that point. However, if the employee has a good work history, it can usually be shown that whatever explanation the employer offers for the termination is merely a pretext. Also, it is often possible to show that the employee in question has been treated worse than other employees with similar records, which also demonstrates discrimination.
If you suffer discrimination because you are HIV-positive or have AIDS, you can go to court. Under New York State law, you can choose whether you wish to go directly to court or to file a complaint with one of the agencies mentioned above. In GMHC's experience, it is usually cheaper and faster to seek the assistance of one or more of the agencies. They are usually able to obtain a settlement with an employer without going through the full legal process. Under the federal Americans with Disabilities Act, you are required to file a complaint with the Equal Employment Opportunity Commission (EEOC) prior to filing a lawsuit in court. The federal Rehabilitation Act, which prohibits discrimination against people with disabilities by employers who receive federal funds, requires an administrative complaint to be filed with the agency providing the federal funds to the employer prior to allowing suit in court.
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Discrimination in Housing and Health Care
As far as housing is concerned, you cannot be evicted from your apartment because you are HIV-positive or have symptomatic HIV or AIDS. The law absolutely prohibits it. Housing is also protected under the state and city discrimination laws. In addition, federal law (the Fair Housing Amendments Act of 1988) protects people who are handicapped, which includes any stage of HIV infection. No one can evict you, refuse to rent you an apartment, refuse to renew your lease, or harm you in any way because of your HIV-related condition. If that happens, you have the same right to file a discrimination complaint with the state or city agency as you would for employment discrimination, or to sue in federal court under the Fair Housing Act.
State, city, and federal laws also prohibit discrimination in 'places of public accommodation.' This basically means that if a service is offered to the general public, it cannot be denied to a person who is disabled because of HIV disease. Public accommodations include hotels, restaurants, stores, theaters, and most other such places.
Public accommodation laws cover doctors and dentists as well. Most places where health care is given are considered 'public accommodations' under the law, and some courts have interpreted this to include doctors' and dentists' offices as well as hospitals and clinics. So long as health care workers who follow standard protective procedures are not endangered by treating people with AIDS, they are not legally allowed to withhold treatment.
Even if you live in a state where AIDS discrimination is not illegal, the federal law offers protection. Federal law prohibits discrimination because of handicap (which, like disability, includes HIV infection and AIDS) by the federal government, by organizations receiving federal assistance, and by employers who have contracts with the federal government. Thus, if you work for (or receive services from) a federal agency, or for a business that receives federal aid (including most hospitals, social service agencies, colleges, and universities), this law applies to you. The courts have indicated that people with AIDS and people who are HIV-positive but healthy, are considered to be 'handicapped' under this law.
The type of antidiscrimination law that applies to you depends on where you live. In New York City, you may have a choice, and you should probably talk to a lawyer about which law provides the best protection. In many places, however, there are no laws, or only weak ones, protecting people who are HIV-positive or who have AIDS, and federal laws may provide the only protection.
No matter what the final outcome, you cannot be punished for bringing suit. Retaliatory action against you for filing a complaint is also against the law.
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Confidentiality
In New York and several other states, it is illegal to test anyone for HIV antibodies without first getting the person's written consent. Before you can be tested you are entitled to an explanation of what the test means, what procedures are used, and why it may be useful to know your antibody status in order to begin medical treatment if you do test positive. You also must be given information on how to be tested anonymously, and to whom your test results can be given if you aren't tested anonymously. Once you have received all this information, you must then agree in writing to be tested.
Insurance companies can require you to take an HIV antibody test, and they do not have to give you counseling about the test before or after. They do, however, have to give you written information about the test and have you sign a consent form.
Many employers handle insurance claims internally, in which case your insurance claims are filed with someone at your company. Also, an employer may get information from its insurance company about medical claims filed by employees in order to monitor health insurance costs. Any such information should be kept confidential by the people who receive it. If adverse action were taken against you because of information that an employer received in such a manner, you would have a claim of unlawful discrimination or a claim for breach of confidentiality.
In most cases, information about your diagnosis can only be passed on if you agree in writing to release the information. Your doctor can, however, give the information to other people who need it to provide your health care, and to insurance companies for reimbursement purposes. Otherwise, any health or social service provider usually must respect the confidentiality of any information pertaining to your disease or your HIV status.
Under certain circumstances, your sexual partner can be told your HIV status. If there are people with whom you've had unsafe sex or shared needles, you should personally tell them that you have tested positive for HIV antibodies and that they may have been exposed. If you refuse to tell those individuals, your doctor can contact them directly; if you prefer, you can give the information to someone from the Health Department who can contact your sexual or needle-sharing partners. In either event, your identity cannot be revealed; your partner can only be told that he or she may be at risk because of sexual or drug-use activity.
If you learn that you were given an HIV antibody test without knowing it, or if your HIV status was released without your consent, you can file suit. Either of these actions would, except in a few circumstances, be against the law in New York State. You can file a complaint with the New York State Department of Health, which will then investigate your complaint and decide whether the law was violated. If so, the state can impose fines of up to $5,000 for each violation. It is also possible to sue the person who breached your confidentiality for damages.
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Landlord/Tenant
Your landlord can't evict you if he or she learns you are HIV-positive. Such discrimination is illegal (see Discrimination). Nor can your landlord evict you from an apartment because of your disability, so long as you pay the rent. If your apartment is not rent controlled or stabilized, however, your landlord could try to evict you when your lease is up. But the eviction process can be a lengthy one, and often you will be able to stay in the apartment for quite a while.
Roommate situations depend upon whose name appears on the lease. If your roommate's name is the only name on the lease, then he or she has the right to ask you to leave, but must give you thirty days written notice. If you refuse, your roommate cannot simply put your belongings out on the street. He or she must go to court and get an eviction order. Otherwise, it would be a 'forcible ejectment,' and you would have the right to get back into the apartment.
Even if you have lived with your lover for ten years, if the lease has always been in your name, currently you cannot force a landlord to put a new name on the lease. But this law may soon change for family members, including lovers. Even if the law does not require your landlord to add a lover's name to the lease, you may be able to negotiate with your landlord for the following reason: If a tenant in a rent-stabilized apartment were to move out, the landlord would be able to raise the rent on that apartment at a 'vacancy rate' as opposed to a 'renewal rate' (which is the rate increase applied each time a lease is renewed). The vacancy rate of increase is higher than the renewal rate. Additionally, with a new tenant, a landlord may charge another fee. If you offer your landlord some or all of the money that would be gained by vacating the apartment, you may be able to get a new lease in both of your names. This would mean breaking your old lease and signing a new one jointly as though you were coming into the apartment for the first time.
Certain family members, including your husband, wife, or children, may remain in a rent controlled or stabilized apartment. Under a recent court decision in New York, your lover may also be able to keep your rent controlled apartment. In that particular case, the court said that if two people, gay or straight, are in a relationship that is long-term and characterized by an emotional and financial commitment and interdependence, they should be considered family and one should be allowed to retain a rent-controlled apartment after the other dies, regardless of who was the legal tenant. This principle has been extended to rent-stabilized apartments. Except for apartments subject to this kind of government regulation, however, your interest in your apartment ends at your death and a person who is not on the lease has no right to stay there, although your estate may keep the apartment for a reasonable time to wind up your affairs.
If you get behind and remain behind in the rent, your landlord can eventually get an eviction order and have you removed from the apartment by the City Marshall. This is true even if you are disabled. The eviction process will take some time, however, and it may be prevented. You may have stopped paying the rent because you are not working and are out of funds. If so, you are probably eligible for financial assistance through government benefits programs. If you have symptomatic HIV or AIDS, the City of New York has a special program to help pay back rent and to provide rental assistance for the future. While it may take a while to get this arranged, it is almost always possible to put the eviction off long enough to get the necessary payments, if you qualify for them.
In order to evict you, your landlord must first give you written or oral notice telling you that you must pay the rent within a certain period of time (this is called a 'three-day notice'). After that, he or she must deliver to you a nonpayment petition. A petition is the kick-off time for a court action, and it requires that you go to housing court to file an answer within five days. Then, unless you and your landlord agree to settle the case, there will be a trial before a judge. The judge can order your eviction after the trial. If that happens, you must receive a '72-hour notice,' stating that the Marshall's office can evict you after 72 hours if you still have not paid the rent due. Only then can you actually be evicted.
If you do get a nonpayment petition, do not ignore it. The landlord can get a court date, and if you or your representative does not show up, your landlord will win a default judgment, meaning that he or she automatically wins the case because you failed to show up. Even in this situation, it still may be possible to keep you from being evicted, but it will be more difficult.
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Debtor/Creditor
When you have outstanding debts and are finding it difficult to pay your creditors, you have three options. Which option you choose depends on a careful assessment of your income and your expenses:
- If you have enough money to make smaller payments on your debts, you may want to negotiate an extended payment schedule.
- If you have assets or income that your creditors could take from you, then you may want to consult an attorney about filing bankruptcy.
- If you are disabled and receiving public entitlements and have no other income or assets, you could inform your creditors that you are "judgment proof." To be judgment proof means that your creditors will not be able to get anything if they try to collect on the debt.
Ignoring your debts is not the way to handle them. If you fail to pay your debts, creditors can go to court and win a judgment against you. Such a judgment can be enforced in several ways: Up to 10 percent of your wages could be garnisheed from your paycheck, your bank account could be seized, a lien could be placed on any real property you own, or certain kinds of valuable personal property could be taken and sold.
To notify creditors that you are judgment proof, you need to write a letter explaining that you have no income other than public entitlements and have no assets -- such as real estate or bank accounts -- other than from entitlements. Even if the creditors decide to pursue the debt, they will not be able to collect anything from you. Student loans and income taxes can be waived or forgiven if you inform them that you are permanently disabled and have only enough money to pay your current living expenses.
If you receive harassing calls from a collection agency, write them a letter requesting that they cease any phone contact and communicate with you only in writing. This letter will not necessarily stop the collection process, but it should stop the harassment. If you are unable to pay a debt, you are under no obligation to talk with creditors.
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Family Law
If you have children, you may want to prepare for their custody after your death. You have several choices. You can name a standby guardian. Under a new law, if you are a seriously ill parent with children under 18, you can, with court approval, name a person to act as guardian of your children. The guardianship does not go into effect until you are no longer able to care for your children, you consent for the guardianship to begin, or upon death.
Another option is to name the person you want to be guardian of your children in your will. This is not absolutely binding and must still go before a court for a final decision on guardianship; however, if the person you name is capable of caring for your children, and if your children's other parent is unavailable or not fit to care for them, your preference is likely to be respected. To be absolutely sure you should arrange a standby guardianship.
If you can't care for your children because of illness and would like them to live with a friend or relative, it is best to put your agreement in writing. If you think this is a temporary situation, you can probably just arrange with your friend or relative to care for your children, but it would be best to write a 'temporary care and custody document.' This document will help the person you have selected to care for your children should they need to be enrolled in school or need medical care. A temporary care and custody document is not a legal document and will not be recognized by a court.
If you are well but want to arrange for the formal transfer of custody now, one option to consider is an inter vivos guardianship, which means that you formally agree now -- before you become ill or die -- to name someone else as guardian of your children. You will have to go to court for approval of the guardian you have chosen.
Finally, you can agree to have your children adopted. In a guardianship, you can revoke the guardianship if you go to court. In an adoption, once it is complete you terminate your parental rights.
If you no longer live with a spouse, but were never legally divorced, it is possible that one spouse may be considered responsible for the debts of another spouse, if those debts are for necessary items like shelter or medical care. Also, a spouse normally has a right of election against the estate of the other, which means that he or she is automatically entitled to a share of the estate no matter what the will says. If you die without a will, your property would go to your spouse rather than to others whom you may prefer to have your property. However, your spouse can give up this right by signing a document called a Waiver of Right of Election.
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