Advanced Medical Directives – Health Care Proxy, Power of Attorney

One important aspect of living well is having a sense of control over your affairs. This guide has been prepared to help you organize important information which will be needed by you and your loved ones in the future. Taking the time to collect this information expresses your concern for your loved ones. Perhaps more importantly, reviewing this information may encourage you to consider end of life issues now, while you can discuss them with loved ones and make your wishes known.

Healthcare Proxy and Living Will

What steps can we take so that the end of our lives are focused on dignity, with comfort and respect? The best way to avoid clashes between medical technology and patient/family wishes is to complete the advance directives, the health care proxy and the living will.

Healthcare Proxy: By New York State law, you can appoint a Health Care Proxy to make decisions about your medical care – including decisions about life support – if you can no longer speak for yourself. Once you have identified a trusted individual, formalize this designation by completing the New York State Health Care Proxy document. Give a copy to your agent, your lawyer and your physician. Complete and keep a wallet sized health care proxy with you at all times.

Living Will. A Living Will gives guidance to your proxy as to what medical treatment you would or would not have wanted in particular situations.New YorkStaterequires clear and convincing evidence of an incapacitated patient’s wishes to withdraw or withhold treatment. The Living Will can provide this evidence of your wishes.

Due to the complexity of illnesses and treatment options, it is not always possible to make clear through the Living Will what your decision in a particular sitation would be. In such cases, the Health Care Proxy document designates the person who will make the decision for you. Hospice ofCentral New Yorkstrongly recommends that you complete both of these documents to best ensure that you receive the medical care you want in case you can no longer speak for yourself.

Durable Power of Attorney: Through this type of advance directive, an individual executes legal documents which provide the power of attorney to others in the case of an incapacitating medical condition. The durable power of attorney allows an individual to make bank transactions, sign Social Security checks, apply for disability, or simply write checks to pay the utility bill while an individual is medically incapacitated.

Click here for the official handbook for NYS Advanced Medical Directives

Do you need a lawyer to do any of this? While these decisions need careful consideration, it is very simple to complete a health care proxy document and a living will. You do not need a lawyer, and the forms do not need to be notarized. They must, however, be signed by two witnesses other than the person you have appointed as proxy (and preferably not an immediate relative).

Where do I get the forms? Great question. The New York State Department of Health has a great website with forms. However, officially, we need to go by what the Attorney General for NYS. Interestingly, the current guide was made in 2005 when Elliot Spitzer was around and so when you see his face, please do not think it is outdated.

Forms:

Health Care Proxy-  go to page 18
Living Will – go to page 23
DNR (Do Not Resuscitate) – go to page 25
New York Statutory Short Form Power of Attorney – click here for Form

What do I do if I do not have any of these in place for my aging loved one and they need my help in making decisions?

The answer is simple as of last Summer under New York’s Family Health Care Decisions Act (FHCDA, passed Summer 2011). Follow this little flowchart that we made with the help of Gary Elias from LifeStream Associates

Question #1 – Can the senior make his/ her own decision and as such, there is no legal adjudication of incapacity? If yes, then the senior can and will make all decisions (and you have no say).  If the senior cannot make his/ her own decision, then go to the next question below

Question #2 – If the senior cannot make his/ her own decisions, is there is a legal guardian or health care proxy properly appointed? Under the fact pattern described above, there is none but is there a legal guardian? If there is a health care proxy or legal guardian appointed and the senior lacks capacity, the health care proxy or legal guardian appointed is empowered to make all decisions on behalf of the senior. If there is no legal guardian or health care proxy appointed and  the senior lacks capacity, then under New York’s Family Health Care Decisions Act (FHCDA) the following have legal authority to make health care decisions, using the following surrogate list

  • A third party who is verbally designated by the patient (with witness)
  • Spouse or domestic partner (5 years living together)
  • Adult child
  • Parent.
  • Sibling
  • Close adult friend or relative familiar with the patient’s views about health care
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