The call I dread most is not about a death. It’s about a crisis in the space between life and death. The call comes from a spouse, a child. There’s been an accident—a bad one, on the Long Island Expressway. Their loved one is in a hospital in Manhattan, unconscious, and the doctors are asking about end-of-life decisions. But there is no health care proxy. The bank won’t let the spouse access accounts to pay the mortgage because their name isn’t on them. There is no power of attorney. In that moment, a family’s private medical crisis becomes a public legal problem, and the next step is often a petition to a court.
For decades, my work has been to prevent these calls. We design plans not for the certainty of death, but for the uncertainty of life. A car accident is a sudden, brutal reminder that incapacitation can precede death by days, weeks, or even years. The most critical questions are not about the accident itself, but about who has the authority to act when you cannot.
The Authority to Act During Incapacity
When a person is incapacitated without a plan, the family’s only recourse is often a guardianship proceeding. This means petitioning a New York court to have someone appointed as the legal guardian of the incapacitated person. It’s a public affair. In a courtroom.
A judge, not you, will decide who is best suited to manage your financial and personal affairs. The process is slow, costly, and can be deeply stressful for a family already in crisis. The court will require accountings and maintain oversight until the person either recovers or passes away. This is the state’s default plan for anyone who failed to create their own.
The alternative is deliberate planning. A Durable Power of Attorney is a document where you designate an “agent” to handle your financial matters. This person can pay your bills, manage your investments, and run your business affairs. It’s “durable” because it remains effective even if you become incapacitated. Similarly, a Health Care Proxy appoints an agent to make medical decisions on your behalf, based on your wishes. These two documents are the foundation of any contingency plan. They keep your family out of court and allow your trusted appointees to manage your affairs privately and efficiently.
Stewardship of Assets When You Can’t
Managing your life is about more than just paying the bills. What happens to your business? Your investment portfolio? Your rental properties? A well-drafted power of attorney gives your agent specific powers to handle these complex assets. Without it, a business could falter, or an investment opportunity could be lost while the family waits for a court to appoint a guardian.
For individuals with significant or complex assets, a Revocable Living Trust is often a better instrument. When you create and fund a trust, your assets are retitled in the name of the trust. You remain in full control as the trustee. The critical element for contingency planning is naming a successor trustee. If you become incapacitated, your chosen successor—perhaps a spouse, an adult child, or a corporate fiduciary—can step in immediately to manage the trust assets. There is no court involvement. No delay. The transition is seamless.
This is stewardship. It is the prudent and intentional act of ensuring the things you’ve built are protected by people you trust, especially when you are at your most vulnerable.
When an Accident Turns Fatal
If an accident is fatal, the focus shifts from managing your life to settling your affairs and distributing your legacy. If you die without a will, you are considered “intestate.” Your legacy is not guided by your wishes, but by a rigid state formula.
New York’s Estates, Powers and Trusts Law (EPTL) § 4-1.1 dictates exactly who inherits your property. For example, if you are survived by a spouse and children, your spouse inherits the first $50,000 of your assets plus one-half of the remainder. Your children inherit everything else. This formula does not consider the specific needs of your children, your spouse’s ability to manage finances, or any other personal factors. The state makes the decision for you.
A will is your directive to the Surrogate’s Court, naming an executor to carry out your instructions. A trust can bypass the court process of probate entirely, allowing for a private and often faster administration of your estate. Both are instruments of intent. They replace the state’s cold formula with your personal, deliberate plan for the people and causes you care about.
The aftermath of a car accident is chaotic. The last thing a grieving family needs is a legal and financial crisis on top of their personal tragedy. A thoughtfully prepared estate plan is one of the most profound acts of care you can provide for them.
The first step is to confirm who you have named—or failed to name—to act on your behalf in a crisis. My firm can conduct a review of your existing powers of attorney and health care directives to ensure they are current with New York law and reflect your intentions.
