Health Care Proxies and Living Will FAQ's from Mirken and Gordon

Wednesday, January 6, 2021
  1. 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” or “attorney in fact” to make decisions for you regarding your health care in the event you lose your decision-making capacity or are no longer able to decide for yourself.  It can be general and apply to all medical decisions, or you can impose limitations and spell out specific instructions.  Some states may limit its applicability in certain situations.  The Public Health Law in New York was amended, effective January 18, 1991, to specifically recognize the health care proxy and establish a procedure to allow you (the “principal”) to appoint someone you trust, a family member or a close friend, for example, to decide about your health care treatment on your behalf if you are no longer able to do so.

  1. Why should I choose a health care agent?

If you become unable, even temporarily, to make health care decisions, someone else must decide for you.  Health care providers often look to family members for guidance.  Family members may express what they think your wishes are related to a particular treatment.  However, in New York State, only a health care agent you appoint has the legal authority to make treatment decisions if you are unable to decide for yourself.  Appointing an agent lets you control your medical treatment by:

  • allowing your agent to make health care decisions on your behalf as you would want them decided
  • choosing one person to make health care decisions because you think that person would make the best decisions
  • choosing one person to avoid conflict or confusion among family members and/or significant others

You may also appoint an alternate agent to take over if your first choice cannot make decisions for you.

  1. Who can be a health care agent?

Anyone over 18 years of age or older can be a health care agent.  The person you are appointing as your agent or your alternate agent cannot sign as a witness on your Health Care Proxy form.

  1. How do I appoint a health care agent?

All competent adults, 18 years of age or older, can appoint a health care agent by signing a Health Care Proxy form.  You don’t need a lawyer or a notary, just two adult witnesses.  Your agent cannot sign as a witness.

  1. When would my health care agent begin to make health care decisions for me?

Your health care agent would begin to make health care decisions after your doctor decides that you are not able to make your own health care decisions.  As long as you are able to make health care decisions for yourself, you will have the right to do so.

  1. What decisions can my health care agent make?

Unless you limit your health care agent’s authority, your agent will be able to make any health care decision that you could have made if you were able to decide for yourself.  Your agent can agree that you should receive treatment, choose among different treatments and decide that treatments should not be provided, in accordance with your wishes and interests.  However, your agent can only make decisions about artificial nutrition and hydration (nourishment and water provided by feeding tube or intravenous line) if he or she knows your wishes from what you have said or what you have written.  The Health Care Proxy form does not give your agent the power to make non-health care decisions for you, such as financial decisions.

  1. Why do I need to appoint a health care agent if I’m young and healthy?

Appointing a health care agent is a good idea even though you are not elderly or terminally ill.  A health care agent can act on your behalf if you become even temporarily unable to make your own health care decisions (such as might occur if you are under general anesthesia or have become comatose because of an accident).  When you again become able to make your own health care decisions, your health care agent will no longer be authorized to act.

  1. How will my health care agent make decisions?

Your agent must follow your wishes, as well as your moral and religious beliefs.  You may write instructions on your Health Care Proxy form or simply discuss them with your agent.

  1. How will my health care agent know my wishes?

Having an open and frank discussion about your wishes with your health care agent will put him or her in a better position to serve your interests.  If your agent does not know your wishes or beliefs, your agent is legally required to act in your best interest.  Because this is a major responsibility for the person you appoint as your health care agent, you should have a discussion with the person about what types of treatments you would or would not want under different types of circumstances, such as:

  • whether you would want life support initiated/continued/removed if you are in a permanent coma
  • whether you would want treatments initiated/continued/removed if you have a terminal illness
  • whether you would want artificial nutrition and hydration initiated/withheld or continued or withdrawn and under what types of circumstances.
  1. Can my health care agent overrule my wishes or prior treatment instructions?

No.  Your agent is obligated to make decisions based on your wishes.  If you clearly expressed particular wishes, or gave particular treatment instructions, your agent has a duty to follow those wishes or instructions unless he or she has a good faith basis for believing that your wishes changed or do not apply to the circumstances.

  1. Who will pay attention to my agent?

All hospitals, nursing homes, doctors and other health care providers are legally required to provide your health care agent with the same information that would be provided to you and to honor the decisions by your agent as if they were made by you.  If a hospital or nursing home objects to some treatment options (such as removing certain treatment) they must tell you or your agent BEFORE or upon admission, if reasonably possible.

  1. What if my health care agent is not available when decisions must be made?

You may appoint an alternate agent to decide for you if your health care agent is unavailable, unable or unwilling to act when decisions must be made.  Otherwise, health care providers will make health care decisions for you that follow instructions you gave while you were still able to do so.  Any instructions that you write on your Health Care Proxy form will guide health care providers under these circumstances.

  1. What if I change my mind?

It is easy to cancel your Health Care Proxy, to change the person you have chosen as your health care agent or to change any instructions or limitations you have included on the form.  Simply fill out a new form.  In addition, you may indicate that your Health Care Proxy expires on a specified date or if certain events occur.  Otherwise, the Health Care Proxy will be valid indefinitely.  If you choose your spouse as your health care agent or as your alternate, and you get divorced or legally separated, the appointment is automatically cancelled.  However, if you would like your former spouse to remain your agent, you may note this on your current form and date it or complete a new form naming your former spouse.

  1. Can my health care agent be legally liable for decisions made on my behalf?

No.  Your health care agent will not be liable for health care decisions made in good faith on your behalf.  Also, he or she cannot be held liable for costs of your care, just because he or she is your agent.

  1. Where should I keep my Health Care Proxy form after it is signed?

Give a copy to your agent, your doctor, your attorney and any other family members or close friends you want.  Keep a copy in your wallet or purse or with other important papers, but not in a location where no one can access it, like a safe deposit box.  Bring a copy if you are admitted to the hospital, even for minor surgery, or if you undergo outpatient surgery.

  1. May I use the Health Care Proxy form to express my wishes about organ and/or tissue donation?

Yes.  Use the optional organ and tissue donation section on the Health Care Proxy form and be sure to have the section witnessed by two people.  You may specify that your organs and/or tissues be used for transplantation, research or educational purposes.  Any limitation(s) associated with your wishes should be noted in this section of the proxy.  Failure to include your wishes and instructions on your Health Care Proxy form will not be taken to mean that you do not want to be an organ and/or tissue donor.

  1. Can my health care agent make decisions for me about organ and/or tissue donation?

No.  The power of a health care agent to make health care decisions on your behalf ends upon your death.  Noting your wishes on your Health Care Proxy form allows you to clearly state your wishes about organ and tissue donation.

  1. Who can consent to a donation if I choose not to state my wishes at this time?

It is important to note your wishes about organ and/or tissue donation so that family members who will be approached about donation are aware of your wishes.  However, New York Law provides a list of individuals who are authorized to consent to organ and/or tissue donation on your behalf.  They are listed in order of priority; your spouse, a son or daughter 18 years of age or older, either of your parents, a brother or sister 18 years of age or older, a guardian appointed by a court prior to the donor’s death, or any other legally authorized person.

  1. What is a Living Will?

A Living Will is a legal document in which a then competent adult can state his or her wishes regarding his or her 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.

  1. Is a Living Will legal and will it be honored in New York?

There is no statutory authority for Living Wills in New York.  However, the courts in New York have upheld those expressions of intent that meet the test described below.

  1. What is the test that must be met?

In New York, it is necessary that your wishes be established by “clear and convincing proof,” that is, it must be shown that a person who has become incompetent had previously given clear and unequivocal instructions that he or she wanted life-sustaining measures to be terminated.  To meet this “clear and convincing” proof test, your wishes must be expressed clearly and unequivocally.  Although your wishes may be stated orally, and might be proven by testimony of conversations, those wishes which are expressed in writing are preferable and much more convincing.  The Living Will is such a document to express your wishes.

  1. How specific should you be in the Living Will?

The Living Will should express your general wishes; but it also can be as specific as you want.  If you have definite desires or preferences, it is important to spell them out both in the document itself and in discussions with your health care agent and physician.  This corroboration of written and oral evidence helps ensure that your wishes and values will be respected when you yourself can no longer make such judgments.  Some examples of specific matters that you should cover are your wishes concerning cardiac resuscitation, mechanical respiration, antibiotics, pain medicine, etc.  It is especially important to be specific about artificial nutrition and hydration (tube feeding), since many states differ significantly with respect to this issue.

  1. Should you execute both a Living Will and a Health Care Proxy?

Yes.  The Living Will is your own 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, if that person you have appointed might not be available, or should a tragedy occur in a state where Health Care Proxies are not recognized.  The Health Care Proxy is important because it names your selection of the person who is to make decisions for you if you cannot do so yourself.  Copies of your Living Will should be given to your health care agent, your attorney or other advisor and close family members, and a copy should be retained by you.  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.

  1. Will other documents be helpful to ensure your wishes are carried out?

Yes.  You should consider having a Durable Power of Attorney so that your agent has power to handle your personal and financial affairs.  The agent appointed may, but need not be, the person who is the Health Care Agent in your Proxy.

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