Important Facts: Living Wills and Healthcare Proxies

As part of a comprehensive estate plan, there are a number of documents your Long Island estate planning lawyer will suggest. Among these include a living will and a healthcare proxy. Though these documents sound like they address similar issues, they are very different and should be used in conjunction with each other.

What Is A Living Will?

A living will contains your written instructions for what life-saving care you want or do not want if you are at the end of your life. This document should include key points such as if you wish to be resuscitated, kept on life support, or allowed to die naturally, without artificial means such as a ventilator. Here are some specific examples:

I do not want Cardiopulmonary Resuscitation (CPR).
I want my healthcare provider to issue a Do Not Resuscitate (DNR) order (an order written in my medical records that CPR is not to be administered to me).
I do not want mechanical respiration.
I do not want artificial nutrition and hydration.
I do not want antibiotics.
I do want maximum pain relief, even if it may hasten my death.

The living will comes into play when you cannot make your wishes clearly known and serves as specific guidance for your health care proxy agent relieving them from having to make difficult decisions on their own.

Although not required in New York, we recommend that everyone over the age of 18 have a living will. Common circumstances where it would be useful to create or update your living will include when:

You want to clearly communicate your desired end-of-life care
You are traveling out of New York State
You are facing the possibility of hospitalization or surgery
You are getting older
You are in declining health
You have been diagnosed with a terminal illness
You are preparing to move into an assisted living or community care community
You want to ensure that if anyone challenges your wishes, there will be evidence to support your instructions

Regardless of why you have made or updated your living will, witnesses and notarizations are required as a best practice for protecting your document in the event that its validity is doubted or contested by a third party. While each state has different rules, in New York the document needs the signature of two witnesses. A witness should be at least 18 years old and different from the healthcare agent named in your Healthcare Proxy.

What Is A Healthcare Proxy?

If you are incapacitated and unable to make medical decisions on your own behalf, you need to have a designated individual to make decisions for you. It’s important to do this in advance of an emergency situation. This person, who is called either a healthcare agent, a surrogate, or a representative, is designated through a healthcare proxy form to make medical decisions on your behalf if you become incapacitated. Ideally, you and your healthcare agent should have discussed your wishes while you are in good health so they won’t need to improvise your healthcare decisions in an emergency.

Your healthcare agent can also decide your wishes in the face of your changing medical conditions. You should be aware that hospitals, doctors and other medical professionals are legally obligated to follow your healthcare agent’s decisions as if they were your own. It’s entirely up to you how much or how little authority you want to give to your healthcare agent. Here are some questions we are frequently asked about a healthcare proxy:

Why should I choose a healthcare agent?

Doctors and other medical professionals look to family members for guidance about healthcare decisions when the patient is too sick to make his own decisions. But family members can’t stop treatment, even when they believe that is what you would want. By designating an agent, you can control your medical treatment by giving your agent authority to stop treatment when he or she decides that is what you would want or what is in your best interest under the circumstances.

How can I give my agent written instructions?

Unless you limit the authority of your healthcare agent, they will be able to make any treatment decisions that you could have made yourself. Your agent can agree that you should be treated, can choose among different treatments, and also decide that no treatment should be provided at all.

What if my healthcare agent isn’t available when decisions must be made?

It’s always a good idea to appoint an alternate healthcare agent to decide for you if your healthcare agent is not able to act on your behalf when decisions must be made.

Can you explain again the difference between a living will and a healthcare proxy?

A living will, although not required in New York, is a document that contains specific instructions about your wishes for end-of-life treatment under certain circumstances. In contrast, the healthcare proxy allows you to choose a healthcare agent to make treatment decisions on your behalf.

For example, a healthcare proxy can allow you to give your healthcare agent the power to:

Be allowed first priority to visit you in the hospital;
Receive any of your personal property that was recovered at the time of your emergency or incapacitation by hospital personnel or law enforcement and
Authorize medical treatment and surgical procedures.

A major difference is that in contrast to a living will, a healthcare proxy does not require you to know and articulate in advance all the medical decisions that may possibly arise. Instead, your healthcare agent can interpret your desires as medical circumstances change and is empowered to make decisions you could not have known would have to be made. The healthcare proxy is useful both for decisions to receive treatment and for decisions to stop treatment.

Contact A Long Island Estate Planning Lawyer

A capable, experienced Long Island estate planning lawyer can help you address these often highly sensitive issues and adopt a plan that will give you comfort that your desires are properly addressed when the time comes. Contact the law firm of Davidow, Davidow, Siegel & Stern, LLP at 631-234-3030.