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LIVING WILL and HEALTH CARE PROXY
INTRODUCTION
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
state) or
(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 agent’s 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.