Frequently Asked Questions Concerning
Living Wills and Health Care Proxies

by Ira Salzman
Goldfarb Abrandt Salzman & Kutzin LLP

What is a Living Will?

A Living Will is a written statement that expresses your desires with regard to health care treatment if you become mentally incapable and/or physically incapable of expressing those desires. It can include, but need not be limited to, instructions concerning the termination of life support.

What is a Health Care Proxy?

A Health Care Proxy is a document which allows you to designate a person to make health care decisions for you if you cannot make them for yourself. These decisions can involve the management of your health care in order to keep you healthy. These decisions can also involve the termination of life support.

What are the Relative Advantages and Disadvantages of a Living Will and a Health Care Proxy?

If there is someone you trust to make health care decisions for you if you are not capable of making them for yourself, you should consider using a Health Care Proxy. In New York, by statute, the person you name as your health care agent in a Health Care Proxy can be given broad powers to make health care decisions for you. These decisions can include decisions necessary to help you regain your health. They can also include decisions concerning the termination of life support. If you do not have someone you want to name as your health care agent, you should consider a Living Will. For most people, it is better to have a Living Will than to have no advanced directive at all. However, a Living Will has some inherent disadvantages. These include the following:

1. There is no statute in New York that governs Living Wills. The highest court in New York has held that a Living Will is valid as long as it constitutes “clear and convincing evidence” of your wishes.
2. There is no standard form for a Living Will in New York which is interpreted in a uniform way. This means that even a well drafted Living Will is ultimately subject to interpretation by those who need to determine your wishes.
3. It is hard to draft a Living Will that provides specific instructions with regard to all possible future events. This means that inevitably, a Living Will will require those responsible for your care to interpret general instructions in your Living Will in the context of specific circumstances.

If I Decide to Sign a Health Care Proxy, How Do I Pick My Health Care Agent?

The New York health care proxy form permits you to name one agent and one alternate. Deciding whom to name as your health care agent is not always easy.

First and foremost, the person you pick should literally be someone you trust with your life. It is a rather ghoulish thing to say, but the truth of the matter is that most people’s obvious choice for health care agent is the person who will inherit their money when they die.

Second, a health care agent needs to be sophisticated enough to manage the health care system. The usual job of a health care agent is to make sure that you receive proper care and treatment from hospitals and other health care institutions. Health care institutions are often large bureaucracies. It sometimes takes significant time and effort to make sure that the right level of care is being provided to a patient.

Third, a health care agent needs to have the strength of character to make difficult decisions. Sometimes deciding what form of health care to provide to a person is not an easy choice. It requires someone to coolly assess the risks and benefits. In addition, not everyone has the ability to tell a physician to stop providing care to a loved one even if they know with certainty that termination of life support is what the loved one would want.

Fourth, a health care agent needs to have the persistence to obtain accurate information. This is important in order to make sure that you receive the care and treatment that you need in order to keep you well. It is also important with regard to end of life decisions.

There are two main underlying assumptions to a decision to terminate life support. The first is that the prognosis of the physician is correct. The second is that it is appropriate to forego possible advances in medical technology that at least, theoretically, could occur in the near future. A health care agent needs to be able to evaluate information provided by health care professionals and obtain second opinions when necessary.

Fifth, if possible, you should choose as your health care agent a person who lives relatively nearby. That way, your agent can meet with your health care professionals if necessary.

What Should I Tell My Health Care Agent About My Wishes?

Being a health care agent can be an enormous burden. It means taking responsibility for managing someone else’s health care. In extreme situations, it can mean making a decision to terminate life support. It is the kind of responsibility that makes people lose sleep at night.

If you are going to ask a person to undertake this responsibility for you, then you owe it to that person to make the job as easy as possible. This means having a conversation with your agent in which you make your wishes clear. Depending on your family’s dynamics, you may want to have this conversation in the presence of other family members. Here are some issues that you can discuss with your health care agent:

1. What treatment do you want if you are in a coma or persistent vegetative state?
2. If you have suffered a permanent brain injury which makes you unable to recognize people or talk to them in a coherent way and in addition you have an immediately life threatening illness that can be reversed with treatment, do you want that illness treated?
3. When and under what circumstances do you want pain medication, even if it shortens your life?

Where Can I Get a Form for a Living Will?

There is no official form of Living Will in New York. Every form is different and before signing a form, it should be reviewed carefully.

The New York State Attorney General has published an excellent information booklet called “Planning Your Health Care in Advance.” Page 23 of that booklet has a Living Will form.

The New York State Bar Association also has a Living Will form on its website. The New York State Bar Association form is available in English, Spanish, Chinese and Russian.

Where Can I Get a Health Care Proxy Form?

You can obtain a Health Care Proxy form at the website of the New York State Department of Health. This link includes a discussion of the form and instructions concerning how to fill it out. See the FAQ on this web site concerning the “Optional” section of the form for further information about how to complete that section.

How Do I Complete the “Optional” Section of the Health Care Proxy Form?

By signing the Health Care Proxy form without modification, you give your agent the authority to make any decision you could make about your health care, including termination of life support, with two exceptions. The unmodified form does not give your agent the authority to terminate artificial nutrition or artificial hydration. If you want your agent to have the authority to terminate artificial nutrition and hydration and you have not named an alternate agent, you should add the following language to the “Optional” section of the form:
“My health care agent knows my wishes concerning the termination of artificial nutrition and artificial hydration.”

If you have named an alternate agent, you should add the following language to the “Optional” section of the form:
“My health care agent and alternate know my wishes concerning the termination of artificial nutrition and artificial hydration.”

Religious Issues Involved in End-of-Life Decisions?

The obvious place to start if you have questions concerning the religious issues involved in end-of-life decisions is your own spiritual advisor. There is information on the web but not all of it is reliable. Some religious groups have not taken a definite position on some end-of-life issues. In addition, some sub-groups within larger religious groups have differing opinions on these issues.

Are There Other Good Resources on the Web Concerning End-of-Life Decisions?

There are literally thousands of websites that have information concerning end-of-life decisions. For New Yorkers, one of the best is the website of the New York State Attorney General which has on it a 33-page publication called “Planning Your Health Care in Advance.”