Living Will and Health Care Proxy
A health care proxy and a living will are both forms of advance directives. They are both ways to communicate how medical decisions should be made if you cannot make your own decisions.
An attorney that knows estate planning and elder law can help you and your family make the proper decisions on how to protect your families assets. The Attorneys at the law office of Castiglia-Rubinstein and associates handle all types of elder law and estate planning issues.
What is a health care proxy?
A health care proxy (also referred to as a durable power of attorney for health care) is a document that appoints someone to make medical decisions for you, if you are in a situation where you can’t make them yourself.
You must choose your proxy thoughtfully since he/she will be acting on your behalf. After appointing your proxy it is extremely important to discuss your wishes with them about your medical care, including resuscitation, artificial nutrition and hydration and personal goals for quality of life. Knowledge of your wishes will help guide the decisions your proxy will have to make with your medical team. Knowing that any decisions made are based on your personal values and wishes will be a comfort to family and friends during a stressful time.
What is a living will?
A living will is a document that specifies what type of medical treatments you would or would not want if you were unable to communicate. These treatments may include resuscitation, artificial nutrition and hydration and mechanical ventilation.
Living wills are usually too narrow to apply to many common medical situations. They often use language such as “incurable or irreversible condition with no reasonable expectation of recovery.” It’s very rare that a person faces this specific situation. More often a person is faced with a small chance of recovery, but not zero; or the person may be able to “recover” but not to the same level of health.
Be aware that there are differences in the legal status of living wills in each state. For example, in New York State a living will is actually not a legal document and medical decisions may not be based on it alone. . Our attorneys are not only trained in handling simple estate matters, we take care of complex living trust estate litigation in the event of a contest or fraud in Nassau County, Suffolk County, Queens County, Bronx, Westchester, Richmond County, Manhattan and Brooklyn Kings County New York.
What should you do?
Everyone should consider doing a health care proxy because the person you designate will be able to make judgments based on the most current situation and information. Naming a proxy early will help you prepare for the unexpected.
A living will is one way to communicate your values and beliefs, but language used in standard living wills is usually too narrow to be useful in many common medical situations.
A living will is your written expression of how you want to be treated in certain medical circumstances. Depending on state law, this document may permit you to express whether you wish to be given life-sustaining treatments in the event you are terminally ill or injured, to decide in advance whether you wish to be provided food and water via intravenous devices (“tube feeding”), and to give other medical directions that impact your care, including the end of life. “Life-sustaining treatment” means the use of available medical machinery and techniques, such as heart-lung machines, ventilators, and other medical equipment and techniques that may sustain and possibly extend your life, but which may not by themselves cure your condition. Be very careful signing any such document without reviewing the implications to you. For example, some of the commonly used clauses in living wills may forbid the provision of assisted breathing, including devices you presently may be using if, for example, you are living with COPD. Most important, many of the provisions of such a document have profound religious and philosophical implications. Be certain that whatever you sign is consistent with your beliefs and wishes. In addition to terminal illness or injury situations, most states also permit you to express your preferences as to treatment using life-sustaining equipment or tube feeding for medical conditions that leave you permanently unconscious and without detectable brain activity.
Health Care Proxy
A “health care proxy,” sometimes called a “health care surrogate” or “durable medical power of attorney,” is a durable power of attorney specifically designed to cover medical treatment. You appoint a person and grant to him or her the authority to make medical decisions for you in the event you are unable to express your preferences about medical treatment.
Why Have Health Directives?
Regardless of the name your state gives to these documents, their purpose is to allow you to express your preferences concerning medical treatment in an extreme medical situation when you cannot communicate, including at the end of your life. By expressing such preferences in a written legal document, you are ensuring that your preferences are made known. Physicians prefer these documents because they provide a written expression from you as to your medical care and designate for the physician the person he or she should consult concerning unanswered medical questions.
In addition to helping your physician, these documents express your wishes to your family so that they do not have to guess about what you would want. Making your wishes known in advance prevents family members from making hard choices at what likely will be one of the most stressful times in their lives.
Obtaining and Maintaining Living Wills and Health Care Proxies
The law offices of Castiglia-Rubinstein & Associates can provide you with these documents. Generally, these documents require at least two witnesses, who must be adults as defined under your state law. It is the policy of some hospitals and other medical institutions not to permit their employees to witness the signing of such documents. Most states have other restrictions as to who may witness such documents. Generally, the persons who act as witnesses are not permitted to be individuals entitled to any inheritance as a result of your death, either by will or by state law. Often, state law does not permit persons to witness such documents if they are related to you by blood or by marriage or if they are responsible for payment of your medical bills. Some lawyers recommend that these documents be notarized as well as witnessed.
Should you change your mind about your health care treatment or end of life decisions or your choice of health care proxy, you can simply destroy the documents you have and create new ones. Once you have a living will, health care proxy, or advance health care directive, you should keep it among your important papers. Make sure a responsible adult, such as the named health care proxy, knows where you keep these documents. If you have a regular physician who keeps your medical records, you should provide a copy of the document to him or her for your medical records. In the event you are admitted to a hospital, you should take this document with you at the time you are admitted and permit the hospital to place a copy of it into your medical file. It is also a good idea to discuss the decisions you have made in your document with family members so that they may better know and understand your wishes concerning these matters.
Communication is the Key
Many people prefer to keep their legal documents private. With end of life issues, however, communicating your wishes is essential. An advance health care directive is the first step in this process. But you also need to discuss your preferences with others. Take the time to discuss these issues with the person you appoint as your health care proxy. Talk to your physician. Make sure your family knows how you feel about end of life issues. The more these individuals know, the easier it will be for them to fulfill your wishes. While the conversations are no doubt difficult, they will relieve those you appoint of tremendous emotional burdens by your having personally explained your desires.
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