New York City AHCD Lawyer

Many families experience the heartbreak of a loved one suddenly becoming so critically ill that the loved one is unable to communicate. In some cases the loved one not only is mentally incapacitated and cannot communicate, but also cannot survive but for sophisticated life-support equipment. These heart-wrenching personal dramas have been played out in the media in the 1990s case of Terri Schiavo and in the more recent case of Bobbi Kristina Brown. In both cases the loved one suddenly was stricken by a medical condition that left them unable to communicate with family or medical personnel. Should you end up in such a condition, who will make health care decisions for you? If your condition deteriorates to the point that you are at the end of your life and there is little chance of recovery, would you want to be kept alive by machines? These are tough questions that as painful as they might be, are important to think about. With an advanced health care directive (AHCD) you can memorialize the answers to these and related questions in legally enforceable documents called a living will and a health care proxy. Because of the impact an AHCD may have on the course of your medical treatment, before completing an AHCD it is important that you contact a New York City AHCD Lawyer who will explain to you the legal significance of the components of an AHCD and who will help you create an AHCD that is in compliance with New York law.

What is an AHCD?

In New York an advanced health care directive, AHCD, consists of two documents that instruct your family members and medical personnel about your medical care should you become mentally incapacitated from an accident or illness so that you are unable to make decisions for yourself. The documents that together make up an AHCD include a living will and a health care proxy. These documents only can be used if your attending physician finds that you are mentally incapacitated. N.Y. PBH. Law § 298. The physician must document in writing in your medical record the extent and nature of your incapacity and its expected duration.

What is a living will?

A living will is a simple document that lets you explain your wishes for medical treatment in the event you are unable to express them yourself. Advances in medical treatment have made it possible to technically or artificially keep someone alive indefinitely using equipment that will help the patient breathe, help the patient's heart continue to beat, and that will help the patient receive food and water. Some people would want to be kept alive in this manner, while others would rather pass away naturally. Whatever your choice is, you can document it in a living will in order to make sure that both your family knows your decisions and your physicians know your decisions.

A living will is not be used simply because you are critically ill and have been unconscious for some time. In order for a doctor to seek guidance in the instructions that you left in a living will, the doctor must document in your medical records the details of your condition, that you are unable to communicate, that you are mentally incompetent, and that you are not likely to recover.

Medical issues and treatment options that you can address in your living will include:

  • CPR / Fibrillation: Do you want doctors to attempt to restart your heart if it stops beating using electric shock or compressions?
  • Breathing Tubes: Do you want doctors to take measures to help you breathe, such as inserting tubes in your throat or putting you on a ventilator?
  • Artificial Feeding and Hydration: Do you want to be indefinitely fed and hydrated if you are in a vegetative state?
  • Dialysis: Do you want to be put on a dialysis machine if your kidneys fail?
  • Pain Killers: What sort of pain management treatment do you want administered?

Your living will remains effective until you pass away or intentionally revoke it. You can change your living will or revoke it at any time as long as you are mentally competent. You can cancel your living will by destroying it or by indicating, in writing, that it has been cancelled, or by creating a new living will that includes a statement revoking prior living wills.

What is a health care proxy?

A health care proxy is a document in which you give another person, known as your health care agent, the authority to make health care decisions for you in the event you cannot do so. It is sometimes referred to as a power of attorney for health care. Like a living will, your health care agent can only make decisions for you in the event that a doctor had documented that you are unable to communicate heath care decision for yourself. Unlike a living will, your health care agent can act for you in situations where your condition is not permanent and you may recover. In addition, while a living will is a set of instructions, a health care proxy delegates the power to another person to make decisions for you. However, your health care proxy is required to follow any specific instructions that you set forth in the health care proxy or in your living will.

Choosing your health care agent is an important decision as the person you appoint may one day be deciding whether or not life support measures will be in your best interests. The person you select as your health care agent should not only be someone you trust, but also should be someone who is willing to make potentially difficult decisions about your medical treatment for you. You should make sure your agent understands your values, fears, and preferences about medical care in various situations.

What if I do not have an AHCD?

It you do not have a health care proxy, should you become incapacitated your family may end up going to court to petition for you to be placed into a conservatorship. The person the court appoints as your conservator may not be the person that you would choose. In fact, the court may choose someone that you find objectionable. Furthermore, even if the person the court appoints someone who you would choose, if you have not communicated to that person your desires regarding treatment, then your conservator may not make decisions that you would make. In addition, the court fees and other fees associated with a conservatorship may be a drain on your estate.

If, on the other hand, you had a clear AHCD, by law your doctors would be required to follow the instructions in your living will or the direction of your health care agency based on the details of your health care proxy. In other words, you can be reasonably sure that your wishes will be respected.

What should I do with my AHCD?

Once you make your living will and your health care proxy, give a copy to your doctor and request that it be placed in your medical records. Also, give a copy to the person you appointed as your health care agent.

The goal for an advanced health care directive is to give you peace of mind that your wishes are respected and also to relieve your loved ones of the burden of making difficult decisions that they may wonder about forever. To ensure that each document that is part of your advanced health care directive, as well as your other estate planning documents are each executed consistent with New York law, it is important to work with an experienced practitioner. To learn more about the advantages of an advanced health care directive as well as a last will and testament and other estate planning tools, contact Stephen Bilkis & Associates, PLLC. We will help you develop an 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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