Living Wills and Health Care Decisions

Today’s advanced medical technology may result in your facing the possibility of being subjected to life support systems which may serve no purpose other than to prolong the process of dying. You have the right to state your wishes in this regard. This statement of your wishes can be made most effectively through two documents which Deutsch & Schneider, LLP can prepare for you, called a “Living Will” and a Health Care Proxy”.

A Living Will is a legal document in which you can state your wishes regarding your future health care if you become unable to communicate those wishes. It is used by those persons who want to express their feelings about withdrawing life sustaining treatment that prolongs the process of dying. Many persons want to make clear their objection to unwanted medical measures in advance.

The Living Will is intended to anticipate the situation wherein you might be in an incurable or an irreversible mental or physical condition, with no reasonable expectation of recovery. Your instructions are usually intended to apply if you are in a terminal condition; permanent unconsciousness (persistent vegetative state) or conscious but with irreversible brain damage and will never regain the ability to make decisions and/or express your wishes.

The common law has long recognized that a competent adult has the right to determine what will be done to the person or body, including the right to accept or decline medical treatment. This is known as the right of self determination. Included in this right is the right to accept or decline medical treatment. Although there are certain limited exceptions when this right cannot be exercised, the general rule is to allow each person the right of self determination. Courts have held that these expressed wishes of a competent adult should be honored even when he or she is no longer competent.

The New York Court of Appeals has held that a patient’s right to decline treatment is guaranteed by the common law. Although New York does not have a specific statute recognizing Living Wills as do other states, the Courts in New York have upheld those expressions of intent. The Supreme Court of the United States, stated that the rights of individuals who declared in writing their objections to life sustaining treatment would be upheld.

In New York, it is necessary that your wishes be established by “clear and convincing proof.” That is, it must be shown that a person who has become incompetent had previously given clear and unequivocal instructions that he or she wanted life sustaining measures to be terminated.

To meet this “clear and convincing” proof test, your wishes must be expressed clearly and unequivocally.

A related document to the Living Will is a Health Care Proxy which allows you, to appoint another person as “agent” or “attorney in fact” to make decisions for you regarding your health care in the event you lose your decision making capacity or the ability to understand and appreciate the nature and consequence of health care decisions. The Proxy can be general and apply to all medical decisions, or it can impose limitations and spell out specific instructions.

The Public Health Law in New York, specifically recognizes the Health Care Proxy and establishes a procedure to allow you (the “principal”) to appoint someone you trust, often a family member or a close friend, to make decisions about your health care treatment on your behalf if you are no longer able to do so.

Your agent’s authority to make health care decisions under the proxy law is activated only upon a determination by the principal’s attending physician, to a reasonable degree of medical certainty, that the principal has sustained loss of his or her capacity to make such health care decisions. The health care agent cannot act under the proxy until such determination has been made.

You should also consider having Deutsch & Schneider, LLP prepare a Durable Power of Attorney for your property and financial management so that your agent has power to make payments for medical care and treatment, cash checks, pay bills, and file tax returns. The Power of Attorney is also essential to avoid a costly Guardianship proceeding. The only drawback is that the agent will have free rein with your assets, so the selection of a trustworthy individual is critical.