An advance directive is a legal document written in advance of incapacitating illness that allows individuals to state their preferences about medical care. You can also designate someone to make health care decisions for you when the time comes that you are unable to make them for yourself. The most common advance directives are a health care proxy (known in some places outside of NYS as a durable power of attorney for health care) and a living will. Other types of directives are an organ donor designation and a do-not-resuscitate (DNR) order.
This document names another person and an alternate to make health care decisions for you in the event you are unable to make them for yourself. This document does not necessarily state what type of treatment you want to receive. You can allow your proxy (also known as an agent) to make all health care decisions or just certain ones. In NYS, unless your health care agent has reasonable knowledge about your wishes regarding artificial nutrition and hydration, he/she will not be allowed to withdraw or withhold these interventions.
Problems often arise where loved ones disagree about what treatment is proper. Sometimes these disagreements end up in court and a judge, who has little medical knowledge and no familiarity with you, becomes the decision maker. These legal battles are costly, time-consuming and take an emotional toll on all who are involved. These legal battles are eliminated if you express your wishes by completing Advance Directives.
In NYS, a health care proxy/agent that you appoint has the full legal authority to make treatment decisions if you are unable to decide for yourself. Appointing someone to make decisions lets you control your medical treatment by: (1) empowering your proxy/agent to make health care decisions on your behalf as you would want them made; (2) choosing one person (and an alternate) to make health care decisions because you think that person would make decisions that are in your best interest; (3) choosing one person to avoid conflict or confusion among family members and those closest to you.
A Living Will usually discusses the withholding and/or withdrawal of life sustaining treatments under two circumstances-terminal or irreversible illness.
This is a physician’s order that directs health care professionals/emergency medical personnel NOT to perform cardiopulmonary resuscitation (CPR) if your heart or breathing stops. This is only completed when someone is chronically or seriously ill. A DNR order is not usually issued for a healthy person. Each state has its own rules about how this order must be issued. Speak to your physician to discuss your own situation. Note: In NYS, a DNR order does not carry over from one hospitalization to the next. A new order needs to be issued by the physician at the time of each hospitalization.
An advance directive is an instruction regarding your wishes when you are unable to make decisions for yourself. By definition, the completion of an organ donor designation form is a type of advance directive. The newest NYS Health Care Proxy Form includes a section regarding organ donation. At the time of your death, health care professionals can determine which of your organs or tissues are eligible for transplant/donation. There are many factors that influence that decision including the age, the type(s) of illnesses you had, etc. Even if you have indicated that you would like to be an organ donor, your family or health care proxy/agent must give their permission in order for the donation to take place. Therefore, it is very important to make your wishes known to those closest to you.
If you wish to have both of these documents, they can be combined into one. In NYS, there aren’t any laws regarding Living Wills but they can serve as clear and convincing evidence of what your wishes are. Even if you haven’t designated someone to make decisions for you, a living will can still provide direction to health care professionals about your preferences. Living wills are somewhat limited as they only apply to life sustaining treatments and not to other treatment decisions. The general instructions that living wills usually provide may be difficult to interpret in complicated medical decisions. The health care proxy is more comprehensive. The ability of the person you pick to make decisions on your behalf is not limited to situations where you may be terminally or irreversibly ill. It authorizes someone to weigh all the facts at the time a decision has been made according to (a) any guidelines that you have provided or (b) your best interests.
Yes, if you want someone to be able to make health care decisions for you. A general power of attorney enables someone you have chosen to carry out legal or business affairs for you but does not empower them to make health care decisions on your behalf.
No. A lawyer is not necessary but it can be helpful. Many people who hire an attorney to complete their wills or assist with other types of estate planning will have a lawyer help them to complete advance directives. If a lawyer is utilized, he/she should draft a personalized document that reflects your particular wishes and is compliant with the laws of your state.
Unfortunately, a federal law that guarantees that your directives will be recognized nationwide does not exist. Most states usually recognize directives completed in other states. If you spend a great deal of time in more than one state, you may want to complete directives in each state.
An advance directive should be an individualized document that reflects your wishes, values, preferences and priorities. Therefore, no one can tell you exactly what should or shouldn’t be in the documents. The advances of modern medicine are taking place so quickly that it is unimaginable what treatments and interventions will be available in the future. The best advice is to select someone as a proxy/agent who you trust and who you believe will respect your right to get the kind of care you would want. Some directives address the types of procedures that are most commonly administered to individuals who are terminally or irreversibly ill. They include but are not limited to: blood and blood products, cardiopulmonary resuscitation (CPR), diagnostic tests, antibiotics, respirators, surgery, and artificial feeding and hydration. If you want to insure that relief from pain and other discomforts is a priority, then you should specify this in your advance directives.
Most advance directives do not need to be renewed (except DNR orders and physicians are usually aware of the state law governing these orders). It is a good idea to review your documents from time to time to make sure that they still reflect your wishes. You can update your documents at any time by filling out new forms.
You can revoke your advance directives orally or in writing. In NYS, if you named your spouse as your health care proxy/agent and you get divorced, then that designation is automatically null and void unless you specify otherwise.
You should keep the original document. Copies should be provided to your health care proxy/agent (as well as the alternate if one was named), the hospital (each time you are admitted), immediate family members and your lawyer if you have one.
In NYS, these documents do NOT need to be notarized but they need to be witnessed. These rules vary from state to state.
In NYS, two individuals over the age of eighteen can serve as witnesses. They cannot be the proxy/agent or the alternate.
Please call us at 845.634.4974. A member of the staff of United Hospice of Rockland will be happy to answer your questions and/or provide whatever assistance you may need.