Manhattan Living Will Lawyer

A living will is an estate planning document that takes the burden from your loved ones' shoulders of having to make potentially agonizing decisions about your medical care. While it is difficult to think about the possibility that one day you may be incapacitated and unable to speak for yourself, it is important to plan for the possibility. With a living will you give your family and physician instructions with respect to end-of-life treatments. For example, you can state your preferences as to whether or not you are would want to receive artificial nutrition and hydration if you are in a coma and there is little to no chance that you will recover. In addition to a living will a health care proxy is another estate planning tool that will help ensure that your wishes are carried out in the event that you are incapacitated. While a living will addresses concerns related to life-prolonging treatments, with a health care proxy you give another person the authority to make decisions for you with respect to a wider range of health care concerns. A third document that some choose to have is a Do Not Resuscitate order. While you cannot predict when or if you will end up in an incapacitated condition, with the help of an experienced Manhattan Living Will Lawyer you can create a living will that provides instructions that your loved ones can follow just in case circumstances occur that render you incapable of making decisions related to your medical care.

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.

Life-Prolonging Treatment. When deciding on whether or not you wish to receive life-prolonging treatment, you are deciding about what treatment you want to help you keep you alive despite having a terminal illness. Without such treatments you would likely pass away after a short time. Some would prefer not to have such treatments and prefer to pass away naturally with only treatment deemed necessary to alleviate pain.

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:

  • mechanical respiration
  • antibiotics
  • maximum pain relief
  • cardiopulmonary resuscitation (CPR)
  • dialysis
  • surgery

Food and Water. In your living will you can also leave instructions regarding giving you food and water. If you are in a coma or suffering from a serious illness, without food and water you may not be able to survive for very long. Unless you instruct that your physicians withhold food and water, they will use intravenous (IV) feeding or tube feeding to give you a mix of nutrients and fluids. IV feeding involves introducing fluids to the body through a vein in an arm or a leg. It is a short-term solution. Tube feeding, however, can be carried on indefinitely. A gastric feeding tube is a tube that is inserted through a small incision in the abdomen into the stomach.

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. On the other hand if you are not given food and water, you could die relatively quickly. If you elect 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. With patients that are near the end of their lives, palliative care often focuses on pain relief. This allows a patient to remain comfortable and free from pain until life ends naturally. In your living will you can request that if you are in a coma or vegetative state, for example, and there is little likelihood of you recovering to the extent that you can again enjoy, that life-sustaining measures are discontinued. However, you can also request that you be given palliative care so that you are comfortable as you pass away. This palliative care is also helpful to family members as knowing that you are not suffering will be comforting to them.

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.

Executing your living will. While New York law does not have specific provisions on what is required to execute a legally enforceable living will, to make sure that there is no question as to the validity of your living will, it is a good idea to execute it using the same formalities that are required to execute a last will and testament or a health care proxy. You should sign it in the presence of 2 witnesses who also sign it. Of course you must be mentally incompetent when you execute your living will in order for it to be valid.

Health Care Proxy

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 or in the event you cannot. It is distinguishable from a living will in that a health care proxy names a person to make decisions for you while a living will is a set of instructions. Under New York’s Public Health law your agent’s authority to make health care decisions begins when your doctor determines that you have lost the capacity to make decisions for yourself. N.Y. PBH. LAW § 2983. This means that your agent is not permitted to begin to make decisions for you simply because you may be very ill, or because you may be unconscious. The doctor must first document in your medical records that you are mentally incapacitated.

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 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:

  • artificial respiration
  • artificial nutrition and hydration
  • CPR
  • antipsychotic medication
  • electric shock therapy
  • antibiotics
  • surgical procedures
  • dialysis
  • organ transplantation
  • 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 in a coma with little hope of coming out it, 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 give anatomical gifts. 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.

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 doctor confirm that you lack the capacity to make health care decisions. N.Y. PBH. LAW § 2983 (1)(a)

You should know that your agent's decision is not necessarily final. 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.

Choosing a health care agent. 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. 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 your successor agent in case the person who is your first choice is unable to serve as your agent.

New York law has 3 requirements with respect to who you can nominate as your health care proxy. 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 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

Executing your health care proxy. New York law requires that in order for a health care proxy to be valid you must sign it in the presence of 2 witnesses who also must sign it. Your agent and your successor agent are disqualified from serving as a witness. N.Y. PBH. LAW § 2981

Do Not Resuscitate Order

Under New York law a Do Not Resuscitate order (DNR) instructs doctors and other medical professionals not to perform CPR when your heartbeat or breathing stops. CPR refers to measures to restore cardiac function or to support ventilation in the event of a cardiac or respiratory arrest. 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 make your DNR preferences known in your living will or in your health care proxy.

Consequences of Not Having a Living Will

Should you become incapacitated without having executed a living will or health care proxy, then there may not be knowledge or a consensus among your family and friends as to what your preferences are. This may cause a delay in medical treatment as well as additional stress among family members during an already difficult and emotional time. In addition, New York State may end up stepping in and making the decisions on your medical treatment for you. For example, 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. The patient did not have a living will or a health care proxy. The nursing home sought permission to withhold a feeding tube, to withhold treatment of a metastasized cancer, to start palliative care, and to execute a Do Not Resuscitate order. The court ruled in favor of the nursing home because continuing treatment to the patient would be extraordinarily burdensome to the patient and would cause him pain and suffering that would be inhumane.

A court may even end up appointing a conservator for you. A conservator, also referred to as a guardian, is someone who is appointed by the court to make decisions for a person who does not have the mental capacity to do so. A conservator who is given authority to make decisions about your health care is referred to as a conservator of the person. New York policy is to first consider relatives to fill the role as conservator. The preference is for the spouse, then adult children, then adult siblings, and then other relatives. If the court determines that there is no relative qualified, willing or able to serve as the conservator, then the court will appoint a public or professional conservator. Ultimately, in deciding whom to appoint as conservator, the court will do what is in your best interests. Ending up with a court appointed conservator is not likely your preference. Having a living will in place will help avoid this scenario.

While a will is an essential estate planning tool, estate planning also involves planning for the possibility that one day you may suffer a serious accident or illness that renders you mentally capacitated. To ensure that there is no confusion as to what your health care preferences are 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 & Associates, PLLC is experienced in creating not only living wills, but also health care proxies, will 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. We serve individuals throughout the following locations:

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