Question: If I have a health care proxy do I also need a living will?
Answer: That’s a great question and one that we are often asked. A health care proxy is the document which designates an agent or “proxy” to make health care decisions for you in the event that you are unable to make those decisions for yourself. A living will on the other hand is a statement as to how you want your end of life medical treatment handled. It is important to have an understanding of each document and how each play a part in the event you become incapacitated.
A health care proxy names a specific agent you want to make health care decisions on your behalf. In New York, the statute provides that you cannot have co-agents, however you can appoint alternate agents to act in succession. The treating physician would take direction from the health care agent with respect to any medical treatment or decisions on your behalf.
The living will is the document that memorializes your wishes with respect to end of life medical treatment and intervention in case the time comes that you are no longer able to express your wishes. In executing a living will, an individual can let it be known that if the time comes that they are suffering from an incurable illness, with no hope of recovery, they do not want to be kept alive artificially. Although there is no statute in the State of New York which specifically recognizes living wills, there are both state and federal court decisions that have established the right of an incompetent patient to have his or her wishes respected, as long as those wishes are known. New York law requires clear and convincing evidence of what the patient would want. Of all the various acceptable forms of evidence, a living will is often the best evidence of those wishes. It simply documents a person’s wishes concerning treatment when those wishes can no longer be personally communicated.
It is important to note that we do not have “substituted intent” in New York. Meaning that an agent under a health care proxy cannot make end of life decisions based on what the agent would want or a “reasonable person” faced in those circumstances. The agent would have to know the wishes of the patient. A living will is based evidence as to the wishes of the patient.
Both a health care proxy and a living will need to be executed when a person has capacity. These documents are crucial as part of any estate plan to make sure your wishes are known and respected.
– Robin Daleo Burner, Esq. and Nancy Burner, Esq.