A popular question that I receive from those clients who I classify as the “foresight type” (my favorite clients by the way!) is about health care decisions, and whether they should prepare a healthcare proxy or a living will. The answer is always the same, and that is to completely retain as much control as possible over your healthcare decisions in the event of an incapacity you really need BOTH of the documents. While both deal with directives to your family and the treating medical professionals in the event that you cannot make your own healthcare decisions (discussed in more depth below), the tenor and purpose of both documents is slightly different, and by using both documents to their maximum legal ability you can alleviate a ton of stress that would otherwise be placed on your family and ensure that you are receiving the care that you desire, even if you can’t physically ask for it.
Health Care Proxy
1) A health care proxy allows you (the principal) to appoint someone else (the health care agent) to make health care decisions for you if you become incompetent. You can also appoint a successor health care agent, who can act only if your primary agent cannot act. Routine decisions and
decisions regarding life-sustaining treatment may be made using a health care proxy, but your health care agent will not be able to withhold artificial nutrition or hydration unless your intention to do so has been clearly expressed in the health care proxy itself, or in more detail in a separate living will or medical order for life sustaining treatment. In addition, the law also permits you to state your wishes concerning organ donation in your health care proxy.
Living Will
2) A living will is a document that sets forth your intentions concerning health care, particularly with respect to artificial life-sustaining procedures. In a living will, you can set forth your intention to forgo certain life-sustaining measures, such as artificial nutrition or hydration (which may be imposed if you are unable to eat or drink on your own) or mechanical respiration (which may be imposed if you cannot breathe on your own). Other types of treatments that you may decide to forgo include, but are not limited to, cardiopulmonary resuscitation (if your heart stops beating), antibiotic treatment, saline injections (to prevent dehydration), and pain relief (beyond a stated maximum amount). The living will sets forth your intentions concerning these important issues in the event that you, at some future point, become unable to make these decisions for yourself.
So now that we have basics, let’s get to the practical use of the documents, by answering the following questions:
At what point does a health care proxy or living will become effective?
A health care proxy becomes effective when your attending physician determines, to a reasonable degree of medical certainty, that you, as the principal, lack capacity to make your own health care decisions. If a decision to withhold life-sustaining treatment is involved, the attending physician must consult with a second physician to confirm that you lack capacity. If you are using a living will to decide in advance that certain life-sustaining treatments should not be used, you should also decide when and how a determination should be made that you are in a condition in which artificial life-sustaining methods should be withheld. For example, your living will might provide that artificial life-sustaining methods should be withheld if your attending physician determines that you have suffered a substantial and irreversible loss of mental or physical capacity, and that there
is no reasonable expectation of recovery. Other specific guidelines can also be outlined in a living will.
Who can I appoint as my health care agent?
You can appoint almost any adult to serve as your health care agent. Often, health care agents are the spouse, children, brothers, sisters, or other relatives or close friends of the principal. It is important to choose someone you trust, someone who understands your health care concerns, and someone you believe will actively and effectively carry out your health care wishes. There are some exclusions about who may serve as a health care agent but in general very few people are excluded from doing so. For example, if you live in a residential health care facility or hospital, the operator,
administrator, or employee of that facility or hospital cannot serve as your health care agent (unless that operator, administrator or employee is related to you by blood, marriage or adoption). Also, absent a relationship to you by blood, marriage or adoption, any doctor affiliated with your residential health care facility or hospital cannot serve as your health care agent. In addition, an individual who is already serving as a health care agent for ten or more principals cannot be your health care agent unless such person is your spouse, child, parent, brother, sister, or grandparent. It may not be in your best interest to appoint any treating physician to be your health care agent but such a determination will eventually be left to the principal choosing his or her agent.
What if I don’t prepare these documents? Can anyone then make these decisions for me if I am not able to make them myself?
New York passed the Family Health Care Decision Act, which became effective June 1, 2010. The law allows the appointment of a spouse or domestic partner, adult child, parent, adult sibling or close friend to be designated as a surrogate with authority to make medical decisions for an individual not able to make their own decisions concerning their health care. This includes the right to withhold or withdraw life sustaining treatment, including artificial nutrition and hydration. The law is effective only if the patient is in a hospital, nursing home or hospice setting. The law fills in some gaps if an individual does not have a health care proxy; however, because of the delays inherent in deciding who is an appropriate surrogate under the Family Health Care Decision Act, it is preferable for all individuals to have a health care proxy. Additionally, and I cannot stress this enough, without designating ONE person to make your decisions for you if you cannot do it yourself (Healthcare Proxy), or letting your family know your opinion on artificial life sustaining treatment (Living Will) you are opening the door for differing family opinions, expensive legal battles, and long term family animosity.