Bronx Living Will

A living will is an estate planning document that describes the treatments that you want and do not want should you become terminally ill or in a vegetative state and cannot speak for yourself. During such an emotional time, a living will prevent your loved ones from having to guess what you would want, or disagreeing about your care. It will also prevent a court from having to intervene and appoint someone to make decisions on your behalf. No one can predict when or if you will ever suffer a devastating accident or illness that leaves you mentally incapacitated. However, with the help of an experienced Bronx Living Will Lawyer you can create a living will that provides instructions for your doctors and your family members just in case this does happen so that your wishes are followed.

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What is a Living Will?

A living will is a document that expresses your intentions regarding the use of life-sustaining measures in the event of a terminal illness. It expresses what you want but does not give anyone the authority to speak for you. A living will typically addresses your preferences for life-prolonging treatment, food and water, and palliative care.

When treatments should cease. In your living will you can indicate when life-extending treatments should cease. Options include:

  • When you receive a diagnosis of an incurable condition that will soon result in your death
  • When you fall into a coma or lose consciousness and there is little hope that you will ever regain consciousness
  • When the risks of medical treatment or side effects of treatment outweigh the medical benefits
  • When you are being kept alive only through artificial life support

Life prolonging treatment. You can also make statements about who you feel about life prolonging treatment. You can state that you want any type of life prolonging treatment available, no life prolonging treatment, or you can select which forms of life prolonging treatment you would want to receive. Examples include:

  • Blood transfusions
  • Organ transplants
  • Tubal nutrition and hydration
  • CPR
  • Machine ventilation

Palliative Care. Palliative care, also called comfort care, is a type of care that focuses on providing patients with relief from the symptoms, pain, and stress of a serious illness. With patients that are near the end of their lives, palliative care often focuses on pain relief. However, there are options regarding the type of pain relief you could receive. Some treatments that will relieve pain and provide comfort will also result in side effect such that you may not be able to communicate very well, or your mental capacity may be diminished. Thus, you should specify what type of palliative care you would want to receive.

Palliative care does not generally require the same type of hands-on care that a more active type of care or medical intervention would involve. Palliative care does not have to be given at a hospital. It can be given at a hospice or at home. Many people who know that they will soon pass away would prefer not to do so 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 condition. In your living will you can request that you be transferred to a hospice or to your home to receive palliative care.

Who should have a copy of my living will?

Once you have executed your living will, you should keep it a safe place where you keep your other important papers. You should give a copy of it to your personal physician, the hospital or health care facility treating you, and to your close family members. If you have named a health care agent in a health care proxy, you should also give that person a copy of your living will as it will help inform your health care agent's decisions regarding your treatment.

Isn't a health care proxy the same as a living will?

No. A health care proxy and a living will are 2 different legal documents. A health care proxy is a legal document in which you nominate another person, referred to as your agent, to make health care decisions for you in the event you cannot. On the other hand, a living will is a set of instructions about the treatments you want or do not want to have. A living will does not give anyone the authority to act for. However, the person you name as your agent in your health care proxy will use the information in your living will when making treatment decisions on your behalf.

Under New York’s Public Health law your health care agent’s authority to make decisions begins when your doctor determines that you have lost the capacity to make decisions for yourself and has document as much in your medical records. N.Y. PBH. Law § 2983. This means that your agent is not permitted to begin to make decisions for you simply because you are very ill, or because you are unconscious.

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 is required to 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 or not you receive mechanical respiration, tubal nutrition and hydration, CPR, surgery, invasive diagnostic procedures, organ transplantation, medication, dialysis and blood transfusions. You can also 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 being kept alive only by artificial life support, 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. However, before your agent can exercise the authority to withdraw or withhold life sustaining treatment, New York law requires that a second doctor confirm that you lack the capacity to make health care decisions. N.Y. PBH. Law § 2983 (1)(a)

You should know that having a health care proxy and a living will will not always avoid conflict. If a family member or the health care facility objects to your decision and obtains a court order, your proxy's decision will be put on hold until a judge listens to arguments on both sides and makes a decision.

Deciding who you will name as your health care agent is an important decision. People typically select a spouse, significant other, adult child, sibling, some other relative, or a close friend. New York law only requires that a health care agent be at least 18 years old, that the person cannot be your doctor unless your doctor is also your relative, and that the person cannot be an employee of the facility where you are admitted unless they are also a relative or unless you appointed them before you were admitted. N.Y. PBH. Law § 2981.

The person you select should be trustworthy and should know you well. The person should be someone who you know will respect your decisions even if that person does not agree with your decisions. You should discuss it with the person who you plan to name as your agent before you execute the health care proxy. This is to make sure the person you select is comfortable being your agent and to make sure he or she understands your preferences.

Another important consideration is where your agent lives. While your adult child may be your first choice, if he or she lives on the other side of the country it may be impractical to name that person as your agent. If you become seriously 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 last minute and perhaps frequent visits to the health care facility.

It is also a good idea to name a second person as a successor agent in case the person who is your first choice is unable to serve as your agent.

Do Not Resuscitate Order

If you would like your doctors and other medical professionals to not administration CPR when your heartbeat or breathing stops, then you should execute a Do Not Resuscitate Order (DNR) in addition to your health care proxy and living will. N.Y. PBH. Law § 2961. This means that medical professionals such as doctors, nurses, or paramedics will not initiate emergency procedures such as mouth-to-mouth resuscitation, external chest compression, electric shock, insertion of a tube to open your airway, or injection of medication into your heart or open chest. You can also make your DNR preferences known in your living will or in your health care proxy.

Consequences of Not Having a Living Will

If you become incapacitated and you have not execute a living will or health care proxy, then those treating you will not know your preferences. As a result, a court may have to intervene and appoint someone to make decisions for you. In the case of In the Matter of the Application of Northern Manhattan Nursing Home, 32 Misc.3d 754 (2011), a 92-year old patient of Northern Manhattan Nursing home suffered from several medical conditions including dementia and terminal cancer. While there were treatments that might extend his life, these treatments would be invasive and cause the patient a great deal of discomfort. He did not have a living will or a health care proxy. The health care facility sought permission to stop tubal feeding, withhold treatment of the cancer, start palliative care, and execute a Do Not Resuscitate order. The court granted the facility's petition because continuing treatment would be extraordinarily burdensome to the patient and would cause him pain and suffering that would be inhumane. However, because the patient in this case had no executed a living will or health care proxy, it is unclear that this is what he would have wanted. While it is likely that he would want to be pain free, without documentation executed by him there is no way to know with certainty.

While a last will and testament is one of the most important estate planning documents, estate planning also involves planning for the possibility of future incapacity. To ensure that there is no confusion as to what your health care preferences and to avoid the court having to get involved, it is important that you work with an experienced practitioner to develop a living will as well as a health care proxy. The staff at Stephen Bilkis and Associates is experienced in creating comprehensive estate plans that include not only living wills and health care proxies, but also wills, trusts and other estate planning documents. We will help you develop a living will as part of your overall estate plan that reflects your individual goals. 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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