If you are suffering from a condition that leaves you unable to communicate, and you have left clear instructions regarding your medical treatment, under New York law your intentions must be obeyed. There are estate planning documents that can help ensure that your wishes are followed. With a living will you can set forth your wishes as to what medical treatment you want to receive should you become incapacitated with a terminal condition. A health care proxy names someone to make health care decisions for you if you become incapacitated and cannot communicate. These two documents together are referred to as an advanced health care directive. An advanced health care directive, just like any other estate planning document, is complex and must be executed properly in order to be valid. It is wise to contact an experienced Manhattan Advanced Health Care Directive Lawyer who will be able to educate you not only on advanced health care directives, and who will be able to help you develop a comprehensive estate plan that includes other tools such as a last will and testament.
In New York an advanced health care directive typically consists of a living will and a health care proxy. A living will allows you to outline the type of life-sustaining medical treatment you prefer if you are terminally ill or incapacitated so that you cannot communicate. For example, you could specify in your living will whether or not you want dialysis, pain medication, a feeding tube, CPR, or a blood transfusion. Your living will can also specify at what point you would prefer for life-sustaining treatment to cease. For example, if there is a good chance of recovery, then you could direct that you receive certain treatments. On the other hand, if your condition has deteriorated to the point that there is little or no possibility of you recovering to the extent that you will again achieve a high quality of life, then your living will could indicate to cease life-sustaining treatments at that point.
A health care proxy gives someone you designate, known as your agent, the power to make healthcare decisions for you when you are unable. Like a living will, a health care proxy can specify under what conditions you consent to or refuse particular treatments. However, with a health care proxy, you designate someone to make the decisions for you.
What Types of Instructions are in a Living Will?A living will is a legally enforceable document that expresses your wishes regarding the treatment that you prefer to receive if you become incapacitated and are suffering an illness from which you are not likely to recover. It expresses your preferences but unlike a health care proxy does not give anyone the authority to make decisions for you. A living will typically addresses your choices for the life-prolonging treatments you would or would not like to receive, whether you would want to receive food and water, and whether you would want to receive palliative care.
Life-Prolonging Treatment. When deciding on whether or not you wish to receive life-prolonging treatment, you are determining which treatments you are willing to receive to help keep you alive despite having a terminal condition. Without the treatment you would most likely to pass away relatively quickly. Some would prefer not to have such treatments and prefer to pass away naturally with only treatment deemed necessary to alleviate pain. Other people would prefer to be kept alive by artificial means.
Examples of instructions that you can give in a living will with respect to live-prolonging treatment include whether or not your prefer to have:
Food and Water. In your living will you can also leave instructions regarding giving you food and water. If you are in a coma, for example, although you would not able to eat on your own, your body still needs food and water to survive. The use of an IV or a feeding tube are alternative methods of providing nutrition and hydration. Intravenous (IV) feeding involves introducing nutrition to the body through a vein in an arm or a leg. It is a short-term solution. Tube feeding involves inserting a tube through a small incision in the abdomen that delivers nutrition directly into the stomach. Unlike IV feeding, tubal feeding can go on indefinitely.
If you are in a coma or in a persistent vegetative state such that you are permanently unconscious, with artificial nutrition and hydration you could live for years without ever regaining consciousness or showing signs that your condition has improved. On the other hand if you are not given food and water, you could die relatively quickly. If you elect in your living will not to be given IV or tubal feeding, you can still elect to receive palliative care so that you will remain comfortable.
Palliative Care. Palliative care is a type of care that focuses on providing patients with relief from the symptoms, pain, and stress of a serious illness. In other words, its purpose is to improve the patient's quality of life despite having a severe or terminal condition. With patients who are near the end of their lives, palliative care often focuses on pain relief. This allows a patient to remain comfortable until life ends naturally. Thus, in your living will you can request that if you are in a persistent vegetative state, for example, and there is little likelihood of you recovering to the extent that you can again enjoy an acceptable quality of life, that life-sustaining measures are to be discontinued. However, you can also request that you still be given palliative care so that you are comfortable as you pass away. Palliative care is also helpful to family members is that knowing that you are not suffering will be comforting to them.
If life-prolonging treatment and food and water are no longer going to be given to you, palliative care can be given at home as it does not require the same type of hands-on care and equipment that a more active type of care or medical intervention would require. It also does not always require a health care professional to administer. Many people who know that they are at the end of their lives would prefer not to pass away in a hospital setting, but in a more familiar place such as at home surrounded by their loved ones. Others decide that a hospice would be the preferred place given their conditions. In your living will you can request that you be transferred to a hospice or to your home to receive palliative care. If you prefer a hospice, you can even name which one.
What Types of Instructions are in a Health Care Proxy?A health care proxy is a legal document in which you nominate another person, known as your agent, to make health care decisions for you or in the event you cannot. It is distinguishable from a living will in that a health care proxy involves giving authorization to a person while a living will is a set of instructions. In some jurisdictions it is referred to as a durable power of attorney for healthcare. Under New York’s Public Health law your agent’s authority to make health care decisions begins when your attending physician concludes that you have lost the capacity to make decisions for yourself. N.Y. PBH. LAW § 2983. This means that the person with your heath care proxy is not legally permitted to begin to make decisions for you simply because you are gravely ill, or because you are unconscious. The doctor has to let your agent know when it is time for that person to act.
Authority in a health care proxy. You can give your agent general authority to make health care decisions, or you can be very specific about what authority your agent has. In either case your agent must make decisions that are consistent with your wishes, your religious and moral beliefs, and that are in your best interest. Examples of the decisions that you can give your agent the authority to make in your health care proxy include whether you should receive artificial respiration, CPR, antibiotics, artificial nutrition and hydration, antipsychotic medication, electric shock therapy, surgery, dialysis, organ transplantation, or blood transfusions.
You can give your agent different authority depending on your condition. For example, you can give one instruction to your agent if you are terminally ill, a second instruction if you are in a coma with no hope of recovery, and a third instruction if you have brain damage that makes you unable to recognize people and there is no hope that your condition will improve.
With a health care proxy you can give your agent the authority to donate your organs and tissues. This means that you can allow your agent to authorize the donation of your organs and tissues without limitation, or you can give more limited authority and specify which organs and tissues you want donated. Currently, organs that can be transplanted are kidneys, heart, lungs, liver, pancreas, and the intestines. Tissue that can be transplanted includes corneas, the middle ear, skin, heart valves, bone, veins, cartilage, tendons, and ligaments.
If you give your agent the authority to withdraw or withhold life sustaining treatment, before your agent can exercise that authority New York law requires that a second physician confirm that you lack the capacity to make health care decisions. N.Y. PBH. LAW § 2983 (1)(a)
While your health care agent's decision are generally final, if a family member or the health care facility objects to your decision and obtains a court order your agent's decision will be put on hold until a judge listens to arguments on both sides and decides whether or not the doctor should follow the agent's decision.
Choosing a health care agent. Deciding who to name as your health care agent is an important decision as that person will be charged with making perhaps critical medical decisions on your behalf. People typically select a spouse, significant other, adult child, sibling, or a close friend. The person you select should be trustworthy, responsible and should know you well. The person should be someone who you know will respect your decisions regardless of whether he or she agrees with your decisions. You should discuss it with the prospective agent before you execute the health care proxy to make sure the person you select is comfortable being your agent and to make sure he or she understands what your instructions are.
Another important consideration is where your agent lives. For example, while your sibling may be your first choice, if he or she lives hundreds of miles away from you it may be impractical to name that person as your agent. If you become critically ill your agent may need to make decisions for you immediately and over an extended period of time, requiring your agent to be able to make frequent visits to the health care facility.
It is also a good idea to name a second person as a your successor agent in case your first choice is not able to serve as your agent.
There are 3 requirements relating to whom you can nominate as your health care proxy. Under New York law the person must be at least 18 years old. The person cannot be your doctor unless your doctor is also your relative. The person cannot be an employee of the healthcare facility where you are admitted unless he or she is also a relative or unless you appointed them before you were admitted. N.Y. PBH. LAW § 2981
What Other Documents Should be Part of My Estate Plan?An advanced health care directive is not commonly thought of as a document that is part of an estate plan. However, it is an important component. However, it is not the only important component. In addition to planning for your health care should you ever become incapacitated, you should also plan for how your estate should be distributed once you pass away.
A last will and testament allows you to provide for your loved ones after you pass away in the manner of your choosing. You can leave those you care about money, stocks, bonds, real property, jewelry, and collectibles. With a will you can also indicate who you want to raise your minor children should and manage their property should you pass away and the other parent is also unavailable to care for them. Most importantly if you make a will you can be sure that your property will be distributed according to your wishes, and not according to the wishes of New York State. Without a will New York's laws of intestate succession will be applied to the distribution of your estate so that your statutory heirs will get your property, instead of the people of your choosing
Another important estate planning document is a living trust. A trust is similar to a will in that it is also a means to provide for your loved ones after you pass away. However, unlike a will a living trust does not have to go through probate. This means that your trust beneficiaries will likely receive the property that you left them a lot more quickly. Property left in a will cannot be distributed until your will goes through the probate process. This usually takes a minimum of 9 months, and often much longer.
The components that you should consider for your comprehensive estate plan will depend on the size of your estate as well as your personal and financial goals. A well thought out plan and properly draft and executed estate plan documents will ensure that you meet your personal and financial goals for you and your family.
Planning for a serious illness and death can be uncomfortable. However, when you do plan using an advanced health care directive, you are providing your loved ones with a measure of comfort that your wishes for how you would like to be cared for are being fulfilled. Furthermore, in the absence of clear directions as to how to care for you should you become incapacitated, you may end up in a persistent vegetative condition for a prolonged period of time. This may not only be contrary to your wishes, but it may be painful for your loved ones. Furthermore, prolonged medical expenses may cause a significant drain on your assets, leaving little in your estate to pass on to your loved ones.
As with all of your estate planning documents, you should periodically revisit your advanced health care directive to make sure that it continues to be consistent with your current wishes. To learn more about the advantages of an advanced health care directive as well as other estate planning tools, contact Stephen Bilkis & Associates, PLLC. We will help you develop an overall estate plan that includes a living will, health care proxy, as well as a last will and testament that are consistent with your individual goals and family needs. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your estate plan.