Advance directives are documents that are usually signed with an estate planning attorney while the client still has capacity and are meant to give direction as to how the client’s healthcare and financial decisions should be handled in case of incapacity. Advance directives traditionally include a health care proxy, living will, and durable power of attorney.

Health Care Proxy

Since we all have a right to independence over our medical decisions, a doctor is required to receive “informed consent” from a patient before treating or withholding treatment. To give informed consent, you must be able to understand the options being presented by the doctor and be able to weigh the risks and rewards of the proposed plan. If a patient is not able to give informed consent, the doctor must look to another individual who can give informed consent on behalf of a patient.

A health care proxy is a document that designates an agent to make medical decisions if you are unable to make such decisions for yourself. The health care proxy is only effective if the patient is determined to be incapacitated by a doctor. Oftentimes, the health care proxy also gives the agent the right to make end of life medical decisions. This includes receiving and withdrawing various treatments. If a health care proxy was signed, the agent will be able to communicate with the doctor and give informed consent on behalf of the patient. Although only one agent can act at any given time, to avoid confusion, you may name alternates if your initial agent is unable to act.

Living Will

It is important that the agent under the health care proxy be aware of the principal’s wishes regarding treatment so that he or she can act on their behalf. This can be done through a Living Will. The Living Will is a document that states a person’s wishes regarding end of life care. It also states whether if the principal were in an irreversible state with no hope of recovery, they would want to continue life sustaining treatment.

Family Healthcare Decisions Act

If the patient has not signed a health care proxy or living will, the Family Healthcare Decisions Act allows for medical decisions to be made by another person, but only if the patient is in a facility, such as a hospital or a nursing home. The Act says that in this situation there is a list of people with priority to make medical decisions for the patient. First, is a court appointed guardian, then a spouse, then the children, and it goes on. While this can be helpful for some patients, imagine the patient with no spouse that has four children. If two children approve a treatment and two oppose, from whom does the doctor take direction?

A patient without mental capacity who has not signed a health care proxy and is not in a facility will likely need someone to be appointed guardian of the person to help make their medical decisions. Someone would petition the Court asking for the patient to be deemed incapacitated and for a guardian to be named to make all medical decisions. This is expensive and time consuming.

Power of Attorney

New York State’s power of attorney allows you to designate an agent to administer your affairs while you are still alive. It immediately goes into effect at the time you sign it, but it also requires that your agent sign the document to be able to act on your behalf. An attorney should be consulted when signing a power of attorney because it can give broad powers to control your financial life. It is important for an attorney to describe the pros and cons of giving certain powers to your agent.

These documents should be reviewed periodically with your attorney to ensure your wishes have not changed regarding the persons to be named to act on your behalf or the powers you wish to give them. The laws in these areas are subject to change so reviewing with an attorney will make sure your documents are up to date with the current law. For example, the power of attorney law changed drastically in 2009 with small changes enacted in 2010. Accordingly, if you have not reviewed your estate planning documents with your lawyer since before that time, you should make an appointment to do so.

To avoid a guardianship situation, or uncertainty and delay in making medical decisions, a health care proxy, power of attorney and living will should be executed in advance. In addition to signing a proxy, the general wishes regarding treatment decisions should be shared with the agent so they can be in the best position to step into the patient’s shoes and make a decision they would likely make for themselves.