The Listen to Lawrence Letter: Clarifying Health Care Proxy Language

DAVIDOWLAW Blog Post

Dear Clients and Friends:
My readers are educated as you’ll see below and I hope I have something to do with that! I received the following email which will definitely allow me to explain the specifics of the Health Care Proxy in further detail. Continuing the dialogue is so helpful and I welcome all challenges!
READER STATEMENT:
Hi Lawrence,
Today’s “Listen to Lawrence” letter has an error. (Horrors!!)
It is still necessary to write on the Proxy Form something like what’s on my and my wife’s forms: “I have discussed my wishes with my agent and substitute agent and each knows my wishes concerning artificial nutrition and hydration.”
There is proposed NYS legislation that would eliminate this requirement, but it has not been enacted (and who knows if or when that will happen).
Although it’s certainly useful to specify one’s wishes on this matter in a Living Will, the Proxy form is the only way to be sure. (And, of course, even then you can’t be completely certain, since efforts by Proxy agents are sometimes disregarded by hospital and nursing home staff.)
MY RESPONSE:
My reader makes a good point, although I would not call it an “error,” as I was really making another point. Let me explain. The Health Care Proxy legislation provides that if you want your agent to be able to make ANY decisions regarding nutrition and hydration, then they must “know your wishes” in this regard. Well, as discussed in my prior LETTER, we really do not want to get into any real details as to what you want or don’t want on the health care proxy form (perhaps inherently limiting the broad powers in the health care proxy), so we don’t say anything in the health care proxy, but instead, put that detail into the LIVING WILL. My point was that all the details and instructions will be in the LIVING WILL.
However, we take a very sneaky approach, and we ALWAYS put into the health care proxy that “I have discussed my wishes with my agent and substitute agent and each knows my wishes concerning artificial nutrition and hydration.”  Well, that says it all without saying anything at all. The information then to withhold nutrition or hydration is in the agent’s head. But if ever challenged, the more specific direction will be found in the Living Will. As a practical matter, the doctors will now listen to the health care proxy on all matters of nutrition and hydration because the agent purportedly knows your wishes, even though the health care proxy provides no direction or other proof of what you would have wanted. Nifty huh?
So, there is no error in my prior LISTEN TO LAWRENCE LETTER (although I am more than capable of errors and will admit to them on those rare occasions 😊), because we still do not put your wishes concerning nutrition and hydration in your Health Care Proxy, but we do put language into it that effectively gives the agent the authority to make these decisions. Got it?
Thank you reader for your further clarification and for continuing this important discussion. Also, thank you for the information about the proposed legislation to simplify all this (something I did not know) and for correctly pointing out that hospitals and nursing home staff sometimes disregard what a proxy has to say.
I hope this helps! Please forward this information to your friends and relatives to share these informative answers to some very commonly asked questions.
And, if anyone you know would like to receive this
Listen to Lawrence Letter, just have them email me at
info@davidowlaw.com and I’ll add them to the list!
As always, please send me your questions. If you are thinking about it, others are probably too, so my answers will no doubt help you and many others.
Let’s stay connected.
Stay safe!
Until next time…
peace, health and happiness,
Lawrence Eric Davidow