Health Care Proxy and Living Will (NY)
This Health Care Proxy and Living Will (NY) helps individuals select authorized agents, medical treatment, providers, and other healthcare options. This Health Care Proxy and Living Will is the New York equivalent of the New Jersey Advance Health Care Directive. A New York Health Care Proxy is designed to appoint agents to make healthcare decisions for another upon their incapacitation. The health care proxy is not limited to end-of-life decisions, and it may or may not include specific end-of-life wishes. A New York Living Will allows individuals to state preferences for medical treatment, focusing on end-of-life decisions. The Living Will provides specific instructions to healthcare providers, agents, and family members regarding preferences for healthcare options and treatments. This document combines both the Health Care Proxy and Living Will for New York.
Furthermore, having a last will and testament is an important part of family estate planning in New York. Similarly, having an executed health care proxy and living will is also very important, especially now due to the coronavirus covid-19 pandemic.
Health Care Proxy
How a Health Care Proxy Works
A competent adult residing in New York may create a health care proxy. This document appoints a third party to serve as a health care agent in the event of the adult’s incapacity. This health care proxy refers to the individual making the health care proxy as the declarant. This document refers to the appointed third party as the agent. Similar documents in other states refer to health care agents as health care representatives.
Capacity to Execute a Health Care Proxy
To execute a valid health care proxy, the principal must be an adult. Additionally, the principal must have the requisite mental competence to execute the document.
Meaning of Adult
Only adults may appoint a health care agent. In New York, an adult is a person who is either:
- At least 18 years old.
- Under 18 and either:
- married; or
- a parent.
Presumption of Competence
All adults are generally presumed to be competent to appoint a health care agent unless either:
- A court has ordered otherwise.
- A guardian of the person has been appointed.
Attorneys should take extra care to document the principal’s mental state at the time the principal signs the proxy. This is important when a principal is suffering from a mental illness or defect when the proxy is signed. For example, such instances include dementia or Alzheimer’s disease.
Health Care Proxy Only Effective on Incapacity
The principal retains control over their healthcare decisions until the principal no longer has the capacity to make those decisions. The principal’s attending physician must determine the principal’s capacity to make decisions using a reasonable degree of medical certainty. Accordingly, the attending physician’s determination must be in writing. Additionally, the written determination should contain the physician’s opinion regarding the cause and nature of the principal’s incapacity, as well as its extent and probable duration.
How a Living Will Works
A Living Will allows individuals to define which healthcare options and treatments they do or do not want to receive. Specifically, living wills often focus on end-of-life care and life-prolonging procedures. This New York Living Will is consistent with achieving that end.
New York Living Will
There is no statutory living will in New York, and New York does not have a law governing living wills. However, New York courts determined that living wills are valid when providing clear and convincing evidence of the principal’s wishes. Estate planners should customize each living will so that it is an accurate representation of their wishes. This New York Living Will incorporates the provisions most commonly used in a living will. Further, this document includes additional provisions that estate planners may find helpful.
Purpose of Living Will
A living will may help to answer difficult questions regarding an individual’s preferences for death and dying. Living wills can reduce family arguments and provide a sense of peace and direction for the individual and family members. Additionally, they may help avoid unwanted and unnecessary medical care and expenses. Importantly, a living will can help assure that the dying individual’s dignity is a priority.
This New York Living Will refers to the individual making the living will as the principal. This document allows principals to provide clear and convincing evidence of wishes regarding medical treatments, including artificial nutrition and hydration.
Living Will as an Expression of Religious or Moral Preferences
Religious and moral beliefs may play a critical role in an estate planner’s wishes for or against medical treatment. As a result, religious estate planners should discuss the terms of their living will with clergy. Some religious organizations have developed their own living will forms, which estate planners can incorporate into this living will. Some examples include:
- Orthodox Christian Living Will.
- New York Halachic Living Will.
- A Catholic Guide To End-Of-Life’s Critical Decisions: Advance Directives.
The Role of the Physician in Completing the Living Will
Living Wills are not binding on doctors or hospitals. However, living wills are given great weight in the event of a disagreement regarding the principal’s wishes. Thus, estate planners should review the terms of the living will with their primary or treating physician, if possible.
Discussing the living will with a physician is helpful for multiple reasons. First, the physician can explain the medical effects of withholding or withdrawing medical procedures or treatments in specific situations. Additionally, this provides the physician the opportunity to indicate whether the physician will follow the terms of the living will. However, if a physician doesn’t agree to follow the living will’s terms, the individual should consider finding a new physician.
Finally, the principal should notify their primary physician of their living will. Principals often keep a copy of their living will on file with their primary physician and other regularly treating physicians.
Revocation of a Living Will
There is no specific law on living wills in New York. Consequently, there are no specified revocation procedures. Therefore, estate planners who want to revoke a living will should try their best to do everything they can to make sure that their intention is made clear to anyone who may be in possession of a copy of the existing living will.