LIVING WILL and HEALTH CARE PROXY
Today's advanced medical technology may result in the possibility of being subjected to various invasive medical procedures, particularly life support systems, which may serve no purpose other than to prolong the process of dying.† But each of us has the right to state his or her wishes in this regard, now, while our faculties are still in command and when our judgement will not be challenged.† This statement of your wishes can be made most effectively through two documents, called: A ALiving Willand a AHealth Care Proxy.
WHAT IS A LIVING WILL?
A Living Will is a legal document in which you, as an adult who is now competent, can state your wishes regarding your future health care.† It is used by those persons who want to express their feelings about the withholding or the withdrawing of life-sustaining treatment that prolongs the process of dying.† Many persons want to make clear their objection to unwanted medical measures in advance; others wish to state that they favor measures to have all available kinds of life-sustaining treatment administered.
The Living Will is intended to anticipate the situation wherein you might† be in an incurable or an irreversible mental or physical condition, with no reasonable expectation of recovery.† Your instructions are usually intended to apply if you are in any of the following states:
(a)†††† a terminal condition;
(b)†††† permanent unconsciousness (persistent vegetative
(c)††††† conscious but with irreversible brain damage and
will never regain the ability to make decisions
and/or express your wishes.
The Living Will can also be used to provide for any expression whatsoever of your wishes as to health care and treatment.† A Living Will is sometimes called an Advance Directive for Health Care, or a Health Care Declaration
WHAT IS A HEALTH CARE PROXY?
A Health Care Proxy is a document which allows you, as a competent adult, to appoint another person as agent to make decisions for you regarding your health care in the event you lose your decision making capacity or the ability to understand and appreciate the nature and consequence of health care decisions.† The Proxy can be general and apply to all medical decisions, or it can impose limitations and spell out specific instructions.† Some states may limit its applicability in certain situations
IS THE HEALTH CARE PROXY RECOGNIZED IN NEW YORK?
Yes, Public Health Law (Section 2980 et seq.) specifically recognizes the Health Care Proxy and establishes a procedure to allow you the principal to appoint someone you trust, often a family member or a close friend, to make decisions about your health care treatment on your behalf if you are no longer able to do so
WHEN DOES THE APPOINTMENT OF THE HEALTH CARE PROXY BECOME EFFECTIVE?
Your agent's authority to make health care decisions under the proxy law is activated only upon a determination by your attending physician, to a reasonable degree of medical certainty, that you have sustained loss of your capacity to make such health care decisions.† Your health care agent cannot act under the proxy until such determination has been made.
SHOULD YOU EXECUTE BOTH A LIVING WILL AND A HEALTH CARE PROXY?
Yes.† The Living Will is an expression of your attitudes and wishes about your health care.† This instrument is especially important if you do not have a person to appoint as your Health Care Proxy, or if the person you have appointed is not available.† The Health Care Proxy is important because it names the agent you select to make decisions on your behalf if you cannot do so you would want to have your health care agent communicate the views expressed in the Living Will to your physician to be sure the physician understands your wishes.
In New York State, the Health Care Proxy is statutorily recognized.† By specifically providing in the Health Care Proxy statute that a person can specify his or her wishes in a separate document, it appears that the New York Legislation invites persons to also write a Living Will.
CAN YOU APPOINT MORE THAN ONE PERSON TO ACT AS AGENT AT THE SAME TIME?
The New York State Department of Health has stated that each person can appoint only one agent.† While it is not clear that the statute was intended to have this result, most commentators have concluded that the statute precludes more than one agent acting at the same time and recommend that only one person be authorized to act.† The statute does allow for the appointment of an alternative agent and you can and should provide in the Proxy for another person to act if the person you have appointed is unable, unwilling or unavailable to act as your health care agent
CAN YOUR HEALTH CARE AGENT MAKE ALL MEDICAL DECISIONS FOR YOU WHEN AUTHORIZED?
Yes.† Your agent can make decisions in accordance with your wishes, including your religious and moral beliefs, if known to your agent, or, if your agent does not know your views, in accordance with your best interests.† However, in regard to the administration of artificial feeding (nutrition or hydration), your agent must have specific knowledge of your wishes, otherwise the agent has no authority to make decisions regarding these procedures.† You should express your views on these matters - just as to other questions - in your Living Will, or in the Proxy itself.† While your views on this subject could also be expressed orally, because of the clear and convincing evidence rule, it is better to put them in writing.† It is important to discuss your views and wishes with your agent.
WHEN DOES THE HEALTH CARE AGENT HAVE THE AUTHORITY TO DECIDE TO WITHHOLD OR WITHDRAW LIFE-SUSTAINING TREATMENT?
Your agentís power to make such a decision comes into effect only after your attending physician and a second physician give written opinions that you lack decision making capacity.† If you are hospitalized and lack of capacity results from mental illness, then the second opinion must be that of a Board Certified psychiatrist or neurologist.† In certain other cases the second opinion must be that of another relevant specialist.
WHAT IF YOU CHANGE YOUR MIND AND WANT TO REVOKE OR CHANGE YOUR LIVING WILL OR HEALTH CARE PROXY?
Periodic reviews are important to ensure that the documents you have signed are still in accord with your wishes.† You can modify or revoke your Living Will or Health Care Proxy or appoint a different agent at any time, by destroying the document or by executing a new one.† You should also notify your agent, your attorney, your physician or any other health care provider and anyone who has a copy of your change or revocation.† You should notify each of these parties of your change or revocation both verbally and in writing.† Keep a record of who has copies of existing documents to make revocation or amendment easier.
WHEN DOES THE HEALTH CARE PROXY EXPIRE?
Unless you indicate otherwise, the Proxy will remain in effect until your death.† If you wish, you can state a date, or the occurrence of any condition, on which to terminate the Proxy
HOW MANY COPIES SHOULD YOU SIGN?
You may execute more than one original copy of the Health Care Proxy, although the New York State Department of Health has advised that photocopies are acceptable.† Originals or photocopies may be given to your physician, your health care agent, your alternate agent, your attorney or other advisor, close family members, and, of course, one for yourself.
As to the Living Will, you may also execute more than one copy and should provide originals or photocopies to the same individuals.† It is recommended that you carry a wallet card giving information about the existence and location of your Health Care Proxy and Living Will.† If you have executed a Health Care Proxy, it may not be necessary to give your physician a copy of the Living Will.† But you will want to have your health care agent communicate the views expressed in the Living Will to your physician to be sure the physician understands your wishes. If your physician or the hospital questions that the agent is acting contrary to your wishes, the agent could then show that your wishes were expressed to the agent in your Living Will.
ARE WITNESSES NECESSARY?
Yes. You as principal should sign the Health Care Proxy in the presence of two witnesses, who must also sign and give their names and addresses.† In fact, the New York statute requires that the witnesses state that the principal appeared to execute the Proxy willingly and free from duress.† In New York, the person designated as agent or alternate agent may not act as a witness and special witness requirements apply in health care facilities.† Note that some states (not new York) require notarization as well as witnesses.† Also, some states bar certain persons from acting as witnesses and some states require a statement that the witnesses knew the principal.
It is also good practice to have two independent witnesses to the execution of your Living Will, if that is a document separate from your Health Care Proxy.