Question: Do I need a health care proxy? Could my husband make medical decisions for me if I couldn’t make them for myself?

Answer: It is a good idea to have a health care proxy. A health care proxy is a document signed by you with two witnesses that names agents to make medical decisions for you if a doctor says that you do not have the mental capacity to make those decisions for yourself. You can only name one agent to act at a time, but you can designate successor agents who will act if the first person named becomes unavailable or unwilling to act. It is very important that your health care proxy states that your agent knows your wishes regarding artificial nutrition and hydration so that they may make end of life decisions on your behalf.

If you do not have a health care proxy, under New York the Family Health Care Decisions Act which states who will be your surrogate decision maker if you are in a facility, meaning a nursing home or hospital. This means that if you are at a regular doctor’s appointment or have hospice visiting your home, there would not be any person legally authorized to make your medical decisions. Also, what if you husband is unavailable or unwilling to act because of his own illness or death? Assuming your parents are deceased, the default in the law is for your children to act. What if you have more than one child and they do not agree on a course of treatment? Signing a health care proxy makes it clear who you choose to make your decisions and it states that you have shared your wishes with your agent regarding artificial nutrition, hydration, and other end of life treatments. It also clearly lists the addresses and phone numbers for the agents you have named, making them easy to find in an emergency.

In addition to signing a health care proxy and discussing your wishes with your agents, you can sign a living will so that your wishes regarding end of life treatment will be known. Like the health care proxy, the living will requires two witnesses. The living will states your wishes regarding administering or withholding certain life-sustaining treatments if a doctor declared you to be in an incurable state with no reasonable expectation of recovery. The living will gives examples of the types of treatments that you would not want administered if you were in this state; this can include cardiac resuscitation (“CPR”), antibiotics, dialysis, etc. The living will can also state your preferences regarding pain medications and whether you would like to spend your last days in a hospital or in your own home. The important thing to remember about the interplay between the living will and the health care proxy is that your agent under the health care proxy is the ultimate decision maker. The living will should state that your agent knows your wishes regarding these kinds of treatments and that you want your agent to be able to make the final decisions regarding end of life treatments.

While there is a default in the law to cover some situations it is important to sign a health care proxy and a living will so you maintain in control of your health care decisions even after you do not have the ability to express your wishes.