New York City Advanced Health Care Directive Lawyer

Estate planning is not just planning for how you would like your property distributed once you pass away, it is also about planning for the possibility that one day you may not be able to make health care decisions for yourself. While it may be unpleasant to think about, it is possible that an illness or accident may leave you mentally incapacitated so that you are unable to communicate with your family or health care team. This could happen as a result of an illness that leaves you with severe brain damage. Or, you could be injured in an accident that leaves you in a coma or a vegetative state. Regardless of the cause of your health crisis and regardless of the probability that something like this will actually happen, it is important to be prepared. The best way to make sure that your wishes are known in the event that you are unable to speak for yourself is to create a set of instructions referred to as an advanced health care directive. With an advanced health care directive (AHCD) you can state the treatments that you want to receive or prefer not to receive if you are critically ill and give another person the authority to make health care decisions for you. Contact an experienced New York City 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.

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.

A health care proxy gives someone you designate, known as your health care agent, the power to advocate for your care when are unable to do so yourself. 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.

A living will is only used if your medical team documents in writing that you are mentally incapacitated and that you are not likely to recover. Living wills are for health care decisions related to end-of-life decision. If you are merely temporarily incapacitated and are likely to recover, then your living will will not go into effect.

What Types of Instructions are in a Health Care Proxy?

A health care proxy, sometimes referred to as a health care power of attorney, 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. If you appoint a health care agent you can avoid disagreements between family members about your care, as there will be one person who knows your wishes and can legally speak for you. Even if your family still disagrees about your treatment even though your wishes are clear, your health care agent will be the only person whose decision will matter from a legal perspective. Furthermore, if you appoint a health care agent, you will have a measure of peace of mind that should you end up in such a critical condition, someone you know and trust will speak for you, and make sure that you receive the medical care and treatments that you want.

In your health care proxy, in addition to appointing a health care agent, you can also specify the treatments you would or would not prefer such as life-extending treatments such as CPR and artificial nutrition and hydration. Your health care agent will also have the authority to:

  • Make choices about medical care, including diagnostic tests, medication and surgery
  • Make decisions about pain management and palliative care
  • Admit you to an assisted living facility, hospital, hospice, or nursing home
  • Make decisions about where to seek medical treatment and health care providers
  • Review and approve release of your medical records
  • Take legal action on your behalf in order to advocate for your health care rights and wishes
  • Apply for Medicare, Medicaid, or other programs or insurance benefits on your behalf

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. Your health care agent will not have the authority to make decisions for you if you are able to make decisions for yourself.

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.

What other documents should I have in case I become incapacitated?

A living will and health care proxy will make sure that your medical care is cared for. You will also need to make sure that your financial affairs are also cared for. The best way to this is to execute a durable power of attorney for finances. With a power of attorney you appoint someone, known as your agent, to handle all your legal and financial matters if you are unable to do so yourself. This includes paying bills such as your mortgage, utilities and credit cards, managing your bank accounts, overseeing investments, and preparing and filing tax returns on your behalf. A power attorney is "durable" if it remains in effect or goes into effect while you as the principal are incapacitated.

It is important to keep in mind the distinct between a durable power of attorney for finances and a health care proxy. They are separate documents delegating different authority. The person who is your attorney-in-fact cannot make health care decisions. Only the person who is your health care agent can make health care decisions. This issue came up in the case of In re Application of Balich, 2003 NY Slip Op 51080(U) (Sup. Ct. 2003). Kennedy suffered a paralyzing stroke that left her unable to swallow. A decision had to be made as to how she was to receive nutrition. Because Kennedy was incapacitated to the point she was not able to communicate her needs, her doctors turned to her friend, Lucas Balich, who Kennedy named as her health care agent in her health care proxy. Balich made the decision to have a stomach tube placed in Kennedy. Kennedy's children objected. The court found that Kennedy's decision to appoint Balich as her health care agent were made at a time when Kennedy was "fully possessed of her cognitive abilities." Thus, the court concluded that a health care agent's decisions on behalf of a principal pursuant to a valid health care proxy take precedent over any other person's decisions, including someone who is the principal's agent pursuant to a durable power of attorney.

A durable power of attorney becomes invalid if you pass away, if you cancel it while you are competent, if your agent passes away or becomes incompetent, or if your agent no longer wants to serve as your agent.

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

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 & 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 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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