Bronx Advanced Health Care Directive

If you have a condition that leaves you incapacitated such that you are unable to communicate and take care of yourself, but you have left clear instructions regarding your medical treatment, under New York law your doctors must abide your wishes. There are specific types of estate planning documents that you can create to memorialize your wishes. With a living will you can set forth your instructions as to what life-prolonging medical treatment you want to receive should your condition become terminal. A health care proxy names an agent who you authorize to make health care decisions for you if you become incapacitated and cannot make your own medical decisions. A living will and a health care proxy together are called an advanced health care directive. The documents in an advanced health care directive are complex and must be drafted executed properly in order to be valid. Even if you are healthy and young it is wise to consider creating an advanced health care directive so that you will be prepared in the event you do become incapacitated. Contact an experienced Bronx Advanced Health Care Directive Lawyer who will be able to explain to you how advanced health care directives work, as well as answer your questions about your other estate planning needs.

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What is an Advanced Health Care Directive?

An advanced health care directive AHCD lets your physician, family and friends know your health care preferences in the event you become incapacitated and cannot speak for yourself. In New York an AHCD consists of a living will and a health care proxy. A living will allows you to state the types of life-sustaining medical treatments you prefer or not prefer if you are incapacitated with terminally ill or incapacitated so that you cannot communicate. For example, you could specify in your living will whether or not you want dialysis, organ transplantation, pain medication, a feeding tube, CPR, or a blood transfusion. Your living will can also specify at what point you would prefer for life-prolonging 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 the quality of life you had prior to becoming ill, 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 appoint someone to make the decisions for you.

What Types of Instructions are in a Living Will?

A living will is a legally enforceable document in which you setting forth your directions regarding medical treatment if you are near the end of your life and are unable to make decisions for yourself. You can determine under what conditions your instructions should apply. For example, the instructions in your living will could apply if you are in a terminal condition, if you are permanently unconscious, or if you have irreversible brain damage and will never again be able to make decisions for yourself. 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. You can also make statement about your religious or moral beliefs that will help put your instructions in to context.

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 cardiac resuscitation or mechanical respiration.

Food and Water. In your living will you can also leave instructions regarding giving you food and water. You may end up in a condition such as a persistent vegetative state or a coma such that you cannot feed yourself. However, with the use of IV or tubal feeding you can receive the nutrition and hydration your body needs to stay alive for an extended period of time. 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 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 improving terminal patients' quality of life by making patients comfortable by providing relief from the symptoms, pain, and stress of a serious illness. 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. Your family members may also find comfort if you receive palliative care because they would know that even though you may be critically ill and terminal, you would not be suffering.

If life-sustain treatment and nutrition are no longer going to be given to you, palliative care can be given at home as it does not necessarily require hands-on supervision and administration by medical professionals or the use of medical equipment. 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. In your living will you can request that you be transferred to a hospice to receive palliative care.

What Types of Instructions are in a Health Care Proxy?

A health care proxy is a legal document in which you give another person, known as your health care agent or your proxy, authority 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 gives someone the authority to make decision for your, while a living will is a set of instructions. In some states a health care proxy is called 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 executing a health care proxy and naming someone as your agent does not immediately give that person authority to make decisions for you. You have the right to make health care decisions for yourself as long as you are able to do so, even of your health care agent disagrees with your decisions.

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:

  • artificial respiration
  • artificial nutrition and hydration
  • cardiopulmonary resuscitation
  • antipsychotic medication
  • electric shock therapy
  • antibiotics
  • surgery
  • dialysis
  • organ transplantation
  • blood transfusions

In addition, you can authorize your agent in your health care proxy to donate your organs and tissues. Your organ donation instruction can allow your agent to authorize the donation of your organs and tissues without limitation, or you can be specific about which organs and tissues you want donated. Organs that can be donated and transplanted include kidneys, heart, lungs, liver, pancreas, and the intestines. Tissue includes corneas, the middle ear, skin, heart valves, bone, veins, cartilage, tendons, and ligaments.

While with a healthcare proxy you can give your agent the power to make decisions about withdrawing or withholding life-prolonging treatment such as CPR and artificial nutrition, the law has an additional requirement before your agent can assert that authority. Instead of one physician determining that you are mentally incapacitated and cannot make your own medical decisions, New York Public Health Law requires that a second physician also come to the same conclusion. N.Y. PBH. LAW § 2983 (1)(a)

One of the advantages of appointing a health care agent is avoid confusion and disagreements about your health care treatment and to avoid getting the court involved. However, while doctors and other health care professionals are required by law to follow your health care agent's instructions, if the doctor or a family member objects to your decision, they can petition the court to intervene. Your agent's decision will be put on hold until a judge decides whether or not the doctor should follow your 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. Under New York law there are only 3 limitations on who may serve as your health care agent. First, your agent must be at least 18 years old. Your agent cannot be your doctor unless your doctor is also your relative. Finally, your agent 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

Before selecting your agent and completing a health care proxy, review the contents of it with your physician to make sure you understand the health care decisions that your agent may make for you. This will also allow you to explain to your prospective agent the types of decisions that he or she may be required to make. The person you select should understand these issues, understand your preferences and should be able to respect your decisions regardless of whether he or she agrees with them.

Another important consideration is where your agent lives. For example, while your sister may be your first choice, if she lives hundreds of miles away from you it may be impractical to name her 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 alternate agent in case your first choice is not able to serve as your agent.

What Other Documents Should be Part of My Estate Plan?

While a living will and a health are proxy are important components to your estate plans, there are other critical documents that you should also have. A durable power of attorney is extremely useful in the event you become incapacitated. It is similar to a health care proxy. The difference is that a durable power of attorney gives another person the authority to take care of your financial affairs. The agent or "attorney-in-fact" who you appoint in your durable power of attorney will be able to manage your bank account, pay your bills, collect benefits or your behalf, social as social security, manage your investments, manage your property, as well as other tasks to make sure that your finances do not fall into disarray.

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 leave gifts to the people you care about to help them financially, or as an expression of affection. You can leave those you care about money, stocks, bonds, vehicles, real estate, jewelry, and collectibles. With a will you can also indicate who you want to take care of your minor children and manage their property should you pass away and the other parent is not available to raise 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 through laws related to intestacy your property will be given to your heirs, instead of beneficiaries of your choosing

Another estate planning document that may be important to helping you achieve your estate planning goals is a living trust. A trust is comparable to a will in that it is also provides a way to leave your property to your loved ones. However, it is different from a will in that it does not have to go through probate. This means that the beneficiaries you name in your trust will receive the property that you left them a lot more quickly. On the other hand, property left in a last will and testament cannot be distributed until your will goes through the probate process. Probate usually takes a minimum of 9 months and often well over a year.

Planning for a serious illness is not something that most of us look forward to doing. However, if you create an advanced health care directive, you will make an emotionally difficult situation a little easier by relieving your loved ones of having to make agonizing decisions about your medical care. Your advanced health care directive will let your family know what you want to happen. As with all of your estate planning documents, you should periodically review your advanced health care directive to make sure that it continues to include directions that are consistent with your wishes. To learn more about the advantages of an advanced health care directive as well as other estate planning tools, contact Stephen Bilkis and Associates. 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 1-800-NY-NY-LAW (1-800-696-9529) to schedule a free, no obligation consultation regarding your estate plan.

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