Nassau County Advanced Health Care Directive

While many think that estate planning is restricted to preparing a will and planning to avoid probate, there are considerations. If you have a health problem that results in you losing your ability to communicate, and prior to this health crisis you left unambiguous instructions concerning your medical treatment, under the law those instructions must be followed. To ensure that your instructions and intentions are honored, there are specific estate planning tools that you should use to memorialize your wishes. For financial issues, the best tools to use are a trust and a financial power of attorney. These documents will help protect your assets and will also make sure your affairs are managed properly at a time when you are unable to manage them yourself. For health care issues, creating an advance health care directive (AHCD) that details your medical treatment preferences will ensure that the appropriate people understand your wishes. An advance health care directive can have a significant and in some cases irreversible affect on your future. In order to make sure that your wishes are understood and followed it must be properly written and executed according to the requirements of New York law. To make sure that your AHCD is properly drafted and executed, it is important that you contact an experienced Nassau County advance health care directive lawyer at the Law Offices of Stephen Bilkis & Associates who will educate you not only on the specifics of how advance health care directives work, but who will also help you develop an estate plan that includes other important components such as a last will and testament.

The term advance health care directive refers to a document or a set of documents that directs and instructs family, friends, health care professionals, any other appropriate individuals about how you want your medical care handled should you become mentally incapacitated such that you are unable to communicate your preferences. An AHCD becomes effective only under the specific circumstances described in the AHCD and defined by New York law. An AHCD generally includes a living will and a health care proxy.

Health care proxy. A heath care proxy is essentially the document that New York uses for a durable power of attorney health care. A power of attorney is a document in which you as the principal give another person, your agent, the authority to act for you. While powers of attorney generally become void when a person becomes incapacitated a durable power of attorney does not. In the case of a health care proxy, you name a health care agent to make health care related decisions for you in the event if you are incapacitated and cannot speak for yourself. While a spouse is most often named as a health care agent, you can name whomever you want including your adult child, parent, or friend. Regardless of whom you name, that person should know you well, and you should inform the person in advance of your intention to name him or her as your health care agent.

As a Nassau County advance health care directive lawyer will explain, under New York Public Health Law § 2981, your health care agent’s authority to make health care decisions for you does begin until your attending physician determines with a reasonable degree of medical certainty that you have lost the capacity to make decisions for yourself. Before your health care agent can make a decision to withdraw or withhold life sustaining treatment, a second physician must confirm your attending physician’s decision.

Living will. A living will is another advance health directive. It is a document in which you leave written instructions that explain your health care preferences, particularly related to end-of-life care. Your living will and other documents that make up your advance health care directives are generally given to your family members and your doctors. Your doctors will only look to the instructions in your living will if you are so ill that you are unable to make your own decisions.

In your living will your instructions can be general or they can be very specific. Examples of types of treatments that you may address in a living will as part of your advance health care directive include CPR, use of a respirator, blood transfusions, diagnosis tests, dialysis, drugs, and surgery. If you are unsure about the amount of detail to include in your living will, discuss your concerns with an experienced Nassau County advance health care directive lawyer.

• Cardiopulmonary resuscitation (CPR). CPR is a type of emergency treatment that restarts the heart when it has stopped beating. In your living will you can state whether or not you would want to be resuscitated by CPR or by a device that delivers an electric shock to stimulate the heart. You can also state the circumstances under which you want to CPR and the circumstances under which you would not want it.
• Mechanical ventilation. Mechanical ventilation is a treatment that takes over your breathing if you not able to breathe on your own. For purposes of your health care instructions, you may want to state when and for how long you would want to be placed on a mechanical ventilator.
• Tube feeding. If you are unable to eat or drink on your own, tube feeding supplies the body with nutrients and fluids intravenously or via a tube in the stomach. If you are unconscious, in a coma, or in a vegetative state, your doctor will order that you be given nutrition intravenously or through a feeding tube unless it is clear that you prefer not to be given nutrition under such conditions. Food and water are vital to life. If they are withheld, you will pass away. It is not unusual for people who are in vegetative states or comas to live for years with tube feeding.
• Dialysis. Dialysis is a type of treatment for kidney failure. It removes waste from your blood and manages fluid levels if your kidneys no longer function. For purpose of your living will, you can state if, when and for how long you would want to receive this treatment.
• Antibiotics or antiviral medications. Antibiotics or antiviral medications can be used to treat many infections. In your living will you can state whether or not you would want infections treated aggressively with medication or if you would prefer to let infections run their course.
• Palliative care. Palliative is a type of treatment that focuses on keeping patients comfortable. It includes any number of interventions that may be used to keep you comfortable and manage pain while abiding by your other treatment wishes. For example, one type of palliative care is arranging for a patient to die at home, if that is what he or she prefers. Other types of palliative care include pain medication, being fed ice chips to soothe mouth dryness, and avoiding invasive tests or treatments. Other issues that palliative care can address include anxiety, confusion, constipation, depression, diarrhea, breathing issues, fatigue, loss of appetite, nausea, sleep problems, weakness, and weight loss.
• Organ and tissue donation. Organ and tissue donations for transplantation can be specified in your living will. If your organs are removed for donation, you will be kept on life-sustaining treatment temporarily until the procedure is complete. To help your health care agent avoid any confusion, you may want to state in your living will that you understand the need for this temporary intervention for this specific purpose. If you choose, you can also specify if you would like to donate your body for scientific study.
• Other types of advance care directives. In addition to a living will and health care proxy, addition types of advance directives include do not resuscitate (DNR) orders and Medical Orders for Life Sustaining Treatment (MOLST) forms.
• DNR. In New York, a DNR order is a written document that instructions doctors and other medical professionals not to perform CPR in the event your heart stops beating or you stop breathing. If you have a DNR order in place, medical professionals are legally prohibited from performing mouth-to-mouth resuscitation, external chest compression, electric shock, insertion of tube to open your airway, or injection of medication into your heart or open chest in order to prevent you from dying.
• If you do not have a DNR order in place, but have named a health care proxy, your health care proxy can sign as DNR order as long as doing so is not inconsistent with the authority given in your health care proxy form.
• Medical Orders for Life Sustaining Treatment (MOLST) form. A MOLST form allow your doctors to record your preferences regarding cardiopulmonary resuscitation (CPR), intubation, antibiotic use, feeding tubes, and other life sustaining treatments on one form as a physician order. To be legally valid, a MOLST must be completed by a health care professional and signed by a New York State licensed physician. If you have questions about completing a MOLST form, discuss your concerns with an experienced advance health care directive attorney in New York.

Other types of advance health care directives. In addition to a health care proxy and a living will, other types of advance health care directives include Do Not Resuscitate (DNR) orders and Medical Orders for Life Sustaining Treatment (MOLST) forms. A DNR order is a written document that instructs doctors and other medical professionals not to perform CPR in the event your heart stops beating or you stop breathing. A DNR would prohibit a doctor, nurse, paramedic, EMT, or other medical professionals from performing mouth-to-mouth resuscitation, electric shock, external chest compression, insertion of tube to open your airway, injection of medication into your heart, or open chest in order to prevent you from dying.

A MOLST form allows your doctors to record your preferences regarding treatment on one form as a physician order. It can include your goals and preferences regarding resuscitation instructions when the patient has no pulse and/or is not breathing, treatment guidelines, future hospitalization and transfer, artificially administered fluids and nutrition, antibiotics, and other instructions about treatments not listed on the form.

If you fail to execute an AHCD your family may not know your wishes, or your family may not have proof of your wishes. This may make decision-making difficult as caring family members may disagree on the treatment you should receive. As advance health care directive attorneys serving clients in Nassau County, we are aware of cases in which the doctors refuse to follow what family members agree are the wishes of the patient in the absence of an AHCD. In extreme cases the matter may end up in the hands of the court and a judge will create a conservatorship. If this happens, under Article 81 of New York’s Mental Hygiene Law, someone appointed by the court will be given the power to make health care decisions for you while you are incapacitated. This person is called a guardian. A guardianship may result in your wishes not being followed as the guardian may not know what they are. Furthermore, the appointment of a guardian may be a drain on your estate as a guardian is paid from the assets of your estate.

It is important to understand that an AHCD is essential to an estate plan for everybody—not just people who are older or who are ill. Every adult should consider having one no one knows when a serious illness will strike or life-threatening accident will happen.

There are many complex and emotional issues to consider when making an advance health care Before you execute your advance health care directives, it is important that you understand the medical impact as well as the quality of life consequences of the possible treatments available should you suffer a serious illness or accident. An experienced Nassau County advance health care directive lawyer will understand both the legal issues related to living wills, health care proxies, and other advance directives, as well as the medical issues related to end of life conditions. To learn more about the advantages of an advance health care directive as well as other estate documents, contact the Law Offices of Stephen Bilkis & Associates. We will help you develop an overall estate plan that reflects your individual goals. Contact us at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County and Westchester County.