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Just as we create estate plans for our eventual demise, we also need to plan ahead for the possibility that we will become sick and unable to make our own medical decisions. Medical science has created many miracles, among them the technology to keep patients alive longer, sometimes indefinitely. As a result of many well-publicized “right to die” cases, states have made it possible for individuals to give detailed instructions regarding the kind of care they would like to receive should they become terminally ill or are in a permanently unconscious state. These instructions fall under the general category of “end-of-life care decision making.” Depending on the state in which you live, this may take the form of a health care proxy, a medical directive, a living will, or a combination of these.

The Health Care Proxy (Health Care Power of Attorney)

If an individual becomes incapacitated, it is important that someone have the legal authority to communicate that person’s wishes concerning medical treatment. Similar to a power of attorney, a health care proxy allows an individual to appoint someone else to act as their agent, but for medical, as opposed to financial, decisions. The health care proxy is a document executed by a competent person (the principal) giving another person (the agent) the authority to make health care decisions for the principal if he or she is unable to communicate such decisions. By executing a health care proxy, principals ensure that the instructions that they have given their agent will be carried out. A health care proxy is especially important to have if an individual and family members may disagree about treatment.

In general, a health care proxy takes effect only when the principal requires medical treatment and a physician determines that the principal is unable to communicate his or her wishes concerning treatment. How this works exactly can depend on the laws of the particular state and the terms of the health care proxy itself. If the principal later becomes able to express his or her own wishes, he or she will be listened to and the health care proxy will have no effect.

Appointing an Agent

Since the agent will have the authority to make medical decisions in the event the principal is unable to make such decisions for him- or herself, the agent should be a family member or friend that the principal trusts to follow his or her instructions. Before executing a health care proxy, the principal should talk to the person whom he or she wants to name as the agent about the principal’s wishes concerning medical decisions, especially life-sustaining treatment.

Once the health care proxy is drawn up, the agent should keep the original document. The principal should have a copy and the principal’s physician should keep a copy with that individual’s medical records.

Those interested in drawing up a health care proxy document should contact an attorney who is skilled and experienced in elder law matters. Many hospitals and nursing homes also provide forms, as do some public agencies.

Living Wills

Living wills are documents that give instructions regarding treatment if the individual becomes terminally ill or is in a persistent vegetative state and is unable to communicate his or her own instructions. The living will states under what conditions life-sustaining treatment should be terminated. If an individual would like to avoid life- sustaining treatment when it would be hopeless, he or she needs to draw up a living will. Like a health care proxy, a living will takes effect only upon a person’s incapacity. Also, a living will is not set in stone; an individual can always revoke it at a later date if he or she wishes to do so.

A living will, however, is not necessarily a substitute for a health care proxy or broader medical directive. It simply dictates the withdrawal of life support in instances of terminal illness, coma or a vegetative state.

Also, do not confuse a living will with a “do not resuscitate” order (DNR). A DNR says that if you are having a medical emergency such as a heart attack or stroke, medical professionals may not try to revive you. This is very different from a living will, which only goes into effect if you are in a vegetative state. Everyone can benefit from a living will, while DNRs are only for very elderly and/or frail patients for whom it wouldn’t make sense to administer CPR.

DNRS and DNIS

A do not resuscitate (DNR) and do not intubate (DNI) order is not part of an advance directive or living will. To establish your preferences, speak to your doctor, who can make them as part of your medical record. Although you may have a living will preference that addresses DNR and DNI orders, have a physician create these individual documents each time you are admitted to a new health care facility or hospital.

Medical Orders for Life-sustaining Treatment (MOLST)

Some states include a medical order for life-sustaining treatment (MOLST) document as part of an advance health care directive.

MOLSTS address patients already diagnosed with a serious illness. This form does not replace your directives; it provides instructions for the doctor that reflect the treatment you prefer. Your doctor fills out the form based on conversations you have had about the likely course of your illness and your treatment preferences.

Contact Our Estate Planning Attorneys

For more information on health care proxies, living wills and other end-of-life care decisions, contact Kommer Bave & Ciccone LLP. Our attorneys take a compassionate and holistic approach to planning out your end-of-life health care wishes.

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Creating a living will ensures your future health care decisions and plans are respected. A living will, or advance directive, is a legal document outlining medical treatment preferences and end-of-life care if you can’t communicate or make decisions for yourself. Everyone should have an advance directive, as end-of-life situations can happen at any age due to accident or illness.

Medical Treatment Decisions

This document identifies medical treatments you would (or wouldn’t) accept to keep you alive. It may include other medical decisions, such as pain management.

Consider the following: How important are self-sufficiency and independence to you? What circumstances may make you feel life is no longer worth living? Do you want to be alive at all costs in any situation, or would you only want treatment if a cure exists?

You can address several possible end-of-life care scenarios in your living will, including:

• Cardiopulmonary resuscitation (CPR) – Restarts the heart when it has stopped beating; can be done manually (chest compressions) or mechanically (defibrillator).
• Mechanical ventilation – Takes over the job of breathing if you can’t breathe on your own.
• Tube feeding – Supplies the body with fluids and nutrients intravenously or through a tube in the stomach.
• Dialysis – Manages fluid levels and removes waste from your blood if your kidneys do not function.
• Antibiotics or antivirals – Treats many infections. Would you prefer aggressively using pharmacy treatments if you are near the end of your life?
• Palliative or comfort care – Includes various ways to keep you comfortable, managing pain while abiding by other designated treatment choices. You may choose to die at home or receive strong pain medications, avoiding other invasive treatments or tests.
• Organ and tissue donation – Permits temporary life-sustaining treatment until the organ removal procedure is complete.
• Donating your body to science – Makes your body available for scientific study at a medical school or university program.

Creating Advance Directives

After reflecting on your choices for a living will, meet with your doctor and attorney. They can help create the written content for an advance directive. The lawyers at Kommer Bave & Ciccone LLP can help prepare the forms specific to New York State, as some may require a witness or notary.

Once your documents are complete, take the following steps:

• Keep the originals in an easily accessible but safe location.
• Provide a copy to your doctor, health care agent, and any alternate agents.
• Keep a list of the people who have your advance directives.
• Talk to your family and other loved ones about your health care wishes. Provide clarity to family members to prevent conflict or guilt during difficult times.
• Carry a wallet-sized card indicating you have advance directives and a health care agent, as well as the state(s) where your directives are.
• Travel with a copy of your advance directive.

Making Changes to Advance Directives

You can change your directives whenever you wish if you are of sound mind. You must create a new advance directive form, distribute new copies to the appropriate individuals, and destroy all old copies. Some states have specific requirements for changing directives, so consult our estate planning lawyers about relevant laws.

Discuss any directive changes with your primary care physician. Add new medical directives to hospital or nursing home charts. Inform your health care agent and loved ones about the changes.

Review and update your directives in case of a new diagnosis, a marital status change, or about every five years. Regular review of your living will ensures it still reflects your wishes and is up to date.

Contact the estate planning lawyers at Kommer Bave & Ciccone LLP to discuss a comprehensive advance directive and durable powers of attorney. We can ensure your living will meets New York State’s requirements and provides clear instructions for your health care decisions.

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