Why You Need a Health Care Proxy and a Living Will

December 9, 2004

A recent Nassau County Supreme Court case highlights the importance of having a Health Care Proxy and a Living Will. A Health Care Proxy is the approved document in New York which appoints an agent to carry out your wishes for health care in the event you are not able to communicate your wishes to your doctor. It usually states that your agent knows your wishes but may or may not state those wishes in detail. Without such a document, you may be kept alive no matter what, even if it involves extraordinary measures including surgery, blood transfusions, etc. A Living Will is a document which articulates your wishes specifically and can be used as a backup to the Health Care Proxy in the event of a dispute.

In the instant case, Roger Russell brought an action to resume artificial nutrition for his aunt, margaret Russell, after her court appointed guardian authorized the withdrawal of her feeding tubes. Mrs. Russell was residing in a nursing home suffering from advanced Alzheimer’s disease, breast cancer and the effects of a prior stroke. She was unable to express her wishes about her healthcare.

In 1999, Mrs. Russell executed a Health Care Proxy appointing her nephew to act as her agent to make health care decisions. In 1991, a previous proxy stated that she did not want “heroic measures” taken to save her life and did not wish to “receive artificially administered feeding or fluids”. In 1995, Mrs. Russell expanded on the 1991 proxy by executing a Living Will stating she did not want cardiac resuscitation, tube feeding or antibiotics and wanted maximum pain relief. In January of 2000, appointment of Mr. Russell as Mrs. Russell’s agent under her Health Care Proxy was revoked when the judge issued a restraining order against him for “financial and personal” abuse of Mrs. Russell.

Thereafter, authority to discontinue the feeding tube was given to Mrs. Russell’s court appointed guardian. Mr. Russell brought an action to challenge the court’s decision. Justice Frank S. Rossetti denied Mr. Russell’s aaction and allowed the feeding tube to be discontinued based on a review of her wishes stated in both of her health care proxies and her living will.

This case highlightsthe interaction of Health Care Proxies and Living Wills and the importance of having both documents. It should be noted that states such as Florida honor Living Wills rather than Health Care Proxies. If you travel, copies of both should be taken with you. A knowledgeable Elder Law attorney can prepare these documents for you to ensure they will contain all appropriate language to effectuate your health care decisions.