LIVING wILL VS. hEALTH CARE pROXY COMPARE AND CONTRAST

Living Wills: 

1. What is a Living Will?

A Living Will is a legal document in which a person expresses their wishes regarding future medical and health care preferences in the event that he or she becomes incapable of expressing those desires.

2. What types of health care are included in a Living Will?

Generally persons wish to express their feelings about withdrawing or withholding life prolonging treatment in the event of terminal illness or injury, but any type of treatment that is desired or undesired can be specified.

3. When would a Living Will become effective?

The Living Will expresses your wishes once your medical condition is either terminal or you are in a persistent vegetative state (permanent unconsciousness).

4. What is the basis in the law for a Living Will?

A Living Will has a basis in common law. This means that the right to determine what will be done with your body has evolved through court cases.

5. Is a Living Will honored in New York State?

New York’s Highest Court (The Court of Appeals) has decided that a person has a constitutional right to decline medical treatment. The Courts will use the Living Will as evidence to determine the intentions of the individual. Living wills are given reciprocity in other states and are honored.

6. Is there any particular format that the Living Will must follow?

Generally, the Living Will must be signed by the Testator in the presence of two witnesses. In any event, the person’s wishes must be established by “clear and convincing proof” of their intentions before they became incompetent; their wishes must be clear and unequivocal. Because the document “speaks for itself”, it is subject to interpretation.

7. How are individuals’ intentions established?

The person’s wishes may be expressed orally or in writing. Any written or oral expression by the afflicted individual will be used to establish their intentions regarding health care directives.

8. How specific should a person be in a Living Will?

A Living Will can express general wishes, but can be as specific as the person wants. If a person has specific desires or wishes they should be written in the document especially those wishes concerning:

          · Cardiac resuscitation (CPR)

          · Respiration

          · Artificial nutrition and hydration

Health Care Proxies:

1. What is a Health Care Proxy?

A Health Care Proxy is a legal document a person, known as the principal appoints a health care agent to make health care decisions in the event you lose your decision making capacity. A valid health care proxy is recognized by health care providers and facilities.

2. What types of health care decisions can be made by the agent?

The agent has authority to make all of the principal’s health care decisions. This may involve day to day decisions such as choosing a doctor or other health care provider. In the extreme, the agent may even make the decision to terminate the principal’s life support. If you wish to have your agent consent to withhold or withdraw life support, the following language should be included: “my agent knows my wishes concerning artificial nutrition and hydration and is authorized to make decisions on my behalf.” A health care agent should be able to evaluate information provided by health care professionals. The religious and moral beliefs, if known by the agent, should be factored into the decision making process. If the agent does not know the principals views, they may act in accordance with the best interests of the afflicted individual. The agent must have specific knowledge of the principal’s wishes regarding artificial nutrition and hydration to make any decisions about these procedures.

3. When does a Health Care Proxy become effective?

A health care proxy will become effective in the event the principal loses capacity to make decisions. The loss of capacity is determined by the principal’s 

treating physician.

4. What is the basis in the law for a Health Care Proxy?

The Health Care Proxy is codified in the New York Statutes and became effective in January, 1991. 

5. Can more than one person be designated to act as Health Proxy Agent?

Only one primary agent may be designated. However, the principal may also appoint an alternate agent to act on his behalf if the primary agent is not available to act.

6. How can a Health Care Proxy be revoked?

The principal may revoke their health care proxy by:

          · notifying the agent orally

          · executing a new Health Care Proxy

          · designating an expiration period on the proxy

NOTE: All health care providers should be notified of changes regarding the Health Care Proxy.

7. Is there any particular format that the Health Care Proxy must follow?

The statute contains a form that organizes the relevant information and it is advisable to utilize this recognized form. It can be obtained from the Department of Health, rather than your hospital or attorney. In order to be valid the principal must sign the proxy in the presence of two witnesses who are not the named agent or alternate agent.

8. Can an agent be held legally responsible for decisions made on the principal’s behalf?

No, as long as those decisions were made in good faith. Pick a health advocate for your proper care and treatment. A person that has the strength to make difficult treatment decisions, including the ability to direct a physician to cease treatment when they believe this is the decision you would make, if able to communicate your treatment decisions.

9. What is the primary advantages and disadvantages of a Living Will and a Health Care Proxy?

Since a Living Will provides an expression of the principal’s wishes and instruction in life sustaining treatment circumstances, it is useful for health care professionals as a guide. It is better to have this type of written expression rather than no document, especially where there is no individual you wish to name as a health care agent.

Agents acting under the Health Care Proxy can make routine decisions regarding health care as well as decisions regarding life sustaining treatment. If you have a trusted family member or other individual to make health decisions, you should consider executing a health care proxy.