For More Advice

Consult someone who can tell you about some of the alternatives to be decided. Persons to discuss these matters with you might include your physician, clergyman and family members. Your lawyer can give advice which will ensure that your documents are legally effective. If you do not have a lawyer, or if your lawyer is not familiar with all the legal requirements, you can contact the Lawyer Referral Service of your local Bar Association or various attorneys’ groups such as the National Academy of Elder Law Attorneys. . You can get the statutory form of Health Care Proxy here

Will I get notification of the right to execute these documents?

Beginning December 1, 1991, federal law requires hospitals, nursing homes and hospitals participating in Medicaid or Medicare programs to give patients written information about Living Wills and/or other advance directives.

This pamphlet, which is based on New York law, is intended to inform, not to advise. No one should attempt to interpret or apply any law without the aid of an attorney. Produced by the New York State Bar Association Committee on Public Relations in cooperation with the Committee on Law of the Elderly, Trusts and Estates Section.

What is a Living Will?

A Living Will is a legal document in which you, as an adult who is now competent, can state your wishes regarding your future health care. It is used by those persons who want to express their feelings about the withholding or the withdrawing of life-sustaining treatment that prolongs the process of dying. Many persons want to make clear their objection to unwanted medical measures in advance; others wish to state that they favor measures to have all available kinds of life-sustaining treatment administered.

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 any of the following states:

(a) in a terminal condition;

(b) permanent unconsciousness (persistent

vegetative state) or

(c) conscious but with irreversible brain damage and will never regain the ability to make decisions and/or express your wishes.

The Living Will can also be used to provide for any expression whatsoever of your wishes as to health care and treatment. A Living Will is sometimes called an Advance Directive for Health Care, or a Health Care Declaration.

What is the basis in law for allowing a Living Will?

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 (as, for example, for protection of minor children, or to prevent or assist suicide), 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. In the Cruzan case the Supreme Court of the United States stated in 1990 that a competent person has a liberty interest under the due process clause of the constitution in refusing medical treatment.

Is a Living Will recognized in New York?

Yes. The highest Court in New York 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 most other states and the District of Columbia, the Courts in New York have upheld those expressions of intent that meet the test described below. The Supreme Court of the United States, in the Cruzan case, stated that the rights of individuals who declared in writing their objections to life sustaining treatment would be upheld.

What is the test that must be met?

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. In Matter of O’Connor, the New York Court of Appeals in 1988 held that the patient’s statements about not being maintained on artificial life support systems were too unspecific and casual so as to constitute “clear and convincing proof that the patient had made a firm and settled commitment, while competent, to decline this type of medical assistance under circumstances such as these”. The right of the state to impose such a strict test has been upheld by the Supreme Court in Cruzan.

To meet this “clear and convincing” proof test, your wishes must be expressed clearly and unequivocally. Although your wishes may be stated orally, and might be proven by testimony of conversations, those wishes which are expressed in writing are preferable and much more convincing. The Living Will is the ideal document to express your wishes.

How specific should you be in your Living Will?

Your Living Will should express your general wishes; but it should also be as specific as you can express. If you have definite desires or preferences as to medical treatment under certain circumstances, it is important to spell them out both in the document itself and in discussions with your health care agent and physician. This written and oral evidence helps ensure that your wishes and values will be respected when you can no longer make such judgments on your own behalf. Some examples of specific matters that you should cover are your wishes concerning:

(a) artificial nutrition and hydration

(b) cardiac resuscitation,

(c) mechanical respiration,

(d) antibiotics,

(e) pain medicine, etc.

It is especially important to be specific about artificial nutrition and hydration (tube feeding) since many statutes differ significantly with respect to this issue. You may also want to authorize the issuance of a DNR (Do Not Resuscitate) Order by your physician. Avoid using terms such as “heroic measures” or “extraordinary treatments.”

What is a Health Care Proxy?

A Health Care Proxy is a document which allows you, as a competent adult, 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. Some states may limit its applicability in certain situations.

Is the Health Care Proxy recognized in New York?

Yes. A new section of the Public Health Law in New York, effective January 18, 1991, 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.

When does the appointment of the Health Care Proxy become effective?

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.

Can your health care agent make all medical decisions for you when authorized to act?

Yes. Your agent can make decisions in accordance with your wishes, including your religious and moral beliefs, if known to your agent, or, if your agent does not know your views, in accordance with your best interests. However, in regard to the administration of artificial feeding (nutrition or hydration) your agent must have specific knowledge of your wishes, otherwise the agent has no authority to make decisions regarding these procedures. You should express your views on these matters — just as to other questions, in your Living Will, or in the Proxy itself. While your views on this subject could also be expressed orally, because of the “clear and convincing evidence” rule it is much better to put them in writing.

When does the health care agent have the authority to decide to withhold or withdraw life-sustaining treatment?

Your agent’s power to make such a decision comes into effect only after a second physician’s opinion that you lack capacity is obtained. If you are hospitalized and lack of capacity results from mental illness, then the second opinion must be that of a Board Certified psychiatrist or neurologist. In certain other cases the second opinion must be that of another relevant specialist.

The New York State Department of Health has stated that each person can appoint only one agent. While it is not clear that the statute was intended to have this result, most commentators have concluded that the statute precludes more than one agent acting at the same time, and recommend that only one person be authorized to act. The statute does allow for the appointment of an alternate agent, and you can and should provide in the Proxy for another person to act if the person you have appointed is unable, unwilling or unavailable to act as your health care agent.

Unless you indicate otherwise, the Proxy will remain in effect until your death. If you wish, you can state a date, or the occurrence of any condition, which would terminate the Proxy.

Are witnesses necessary?

Yes. You as principal should sign the Health Care Proxy in the presence of two witnesses, who must also sign and give their names and addresses. In fact, the statute requires that the witnesses state that the principal appeared to execute the Proxy willingly and free from duress. In New York, the person designated as agent or alternate agent may not act as a witness, and special witness

requirements apply in health care facilities. Note that some states (not New York) require notarization, as well as witnesses. Also, some states bar certain persons from acting as witnesses, and some states require a statement that the witnesses knew the principal.

It is also good practice to have two independent witnesses to the execution of your Living Will, if that is a document separate from your Health Care Proxy.

How many copies should you sign?

You may execute more than one copy of the Health Care Proxy, although the New York State Department of Health has advised that copies are acceptable. Originals or photocopies should be given to your physician, your health care agent, your alternate agent, your attorney or other advisor, close family members, and of course one for yourself.

As to the Living Will, you may also execute more than one copy, and provide originals or photocopies to the same individuals. It is also recommended that you carry a wallet card giving information about the existence and location of your Health Care Proxy and Living Will. If you have executed a Health Care Proxy, it may not be necessary to give your physician, who will have a copy of the Proxy, a copy of the Living Will. You will want to have your health care agent communicate the views expressed in the Living Will to your physician to be sure the physician understands your wishes. If your physician or the hospital questions that the agent is acting contrary to your wishes, the agent could then show that your wishes were expressed to the agent in your Living Will.

Should you execute both a Living Will and a Health Care Proxy?

Yes. The Living Will is your own expression of your attitudes and wishes about your health care. This instrument is especially important if you do not have a person to appoint as your Health Care Proxy, or if the person you have appointed is not available. The Health Care Proxy is important because it names your selection of the person who is to make decisions on your behalf if you cannot do so. You will want to have your health care agent communicate the views expressed in the Living Will to your physician to be sure the physician understands your wishes.

In New York State, the Health Care Proxy is statutorily recognized. By specifically providing in the Health Care Proxy statute that a person can specify his or her wishes in a separate document, it appears that the New York legislation invites persons to also write a Living Will.

What if you change your mind and want to revoke or change your Living Will or Health Care Proxy?

Periodic reviews are important to ensure that the documents you have signed are still in accord with your wishes. You can modify or revoke your Living Will or Health Care Proxy or appoint a different agent at any time, by destroying the document or by executing a new one. You should also notify your agent, your attorney, your physician or any other health care provider, and anyone who has a copy, verbally and in writing, of your change or revocation. The New York statute provides that the Proxy can be revoked by notifying the agent or health

care professional orally or in writing of your intention to revoke, by executing a subsequent Proxy, or by any other act evidencing a specific intent to revoke. Keep a record of who has copies of existing documents to make revocation or amendment easier.

What if you move?

Generally, the “clear and convincing proof” standard in New York is among the strictest of all the states, and documents signed here should be effective as proof of your wishes in other jurisdictions. To be sure, check locally in your new residence, because different states have different rules and standards, and requirements for execution. In any event, take with you all documents which you have executed, since they show your wishes and intentions. In New York, if a Health Care Proxy or similar document from another state complies with the laws of that state, it will be honored in New York. Correspondingly, most states generally consider valid and will accept documents properly executed in another state. Even if you do not move, if you spend any significant amount of time in another state you should have documents which comply with the laws of that state.

Will other documents be helpful to insure your wishes are carried out?

Yes. You should consider having a Durable Power of Attorney for property management so that your agent has power to provide funding for medical care and treatment. The agent appointed may, but need not be, the person who is the Health Care Agent in your Proxy. Your Health Care Proxy should not be combined with your Power of Attorney. The New York Proxy Law requires a separate Health Care Proxy.

Who can help me create a Living Will and health care power of attorney?

Start by talking to someone who knows you, and who can help you express your values and wishes in the context of your family and medical history. Talk to

New York State Bar Association