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Spotlight on Elderlaw: Advance Health Care Directives

by Nancy J. Brady, RN, Esq., Partner, Brady & Marshak, LLP Attorneys at Law

One of the critical parts of estate planning is the completion of advance health care directives. Advance health care directives include completion of documents to ensure that your wishes regarding medical care and treatment are carried out should you become unable to speak for yourself- as based on the opinion of two doctors’ decisions. Well established New York State law allows you to select a healthcare agent, or proxy in advance of needing another to make decisions, based on substituted judgment, or knowledge of your wishes and beliefs, which may even include refusal of certain treatment. Healthcare providers are obliged to follow the directions of your healthcare agent if it is determined that you cannot make your own decisions.

The most basic of the advance care directives form is the NYS Healthcare Proxy. Everyone over the age of 18 needs a health care proxy to be in place. Accident or illness may, unfortunately, strike at any age and a young person may be rendered unconscious, or anesthetized and unable to make decisions. The standard health care proxy document needs to be witnessed by two persons (who are not your agent or alternate agent). The document allows insertion of specific instructions or expiration date (after which the document will no longer be valid).

A “living will” is the advance health care directive which provides instructions to be followed in the event you are terminally ill, and two doctors have determined that you are unable to make decisions. This document is prepared based on specific life saving or life sustaining measures you do- or do not want administered if you are incurably ill. The types of treatment included typically include artificial feeding and hydration (feeding tube and intravenous); cardiopulmonary resuscitation; mechanical ventilation (respirator); antibiotics; pain relief (you can specify maximum allowed) as well as any specific instructions you choose to include. Based on these instructions, and your condition, your health care agent may consent to your physician issuing a “Do Not Resuscitate order”, or DNR.

If no advance care documents are in place, the Family Health Care Decisions Act (FHCDA) enacted in 2010, established an order of priority of family members who are authorized to make decisions-in order, they are court appointed guardian; spouse or domestic partner; adult child; a parent; brother or sister; close friend.

While in some cases this may provide the results you would have intended, in many cases this might not result in one’s intended wishes being carried out. For example, the order of priority may not be the order of priority you would have chosen. Except in the cases of guardian, spouse/domestic partner, there may be some confusion resulting in delay- (at a critical time) if there is more than one person in the particular level of relationship (adult child, parent, brother or sister, or close friend). Additionally the law excludes certain relatives (cousins, nieces, nephews, grandchildren) who may be in a closer relationship (than for example a close friend, which is a difficult relationship to define under these circumstances). Finally, despite the fact that there is an order of priority-you may not have had any discussion to make your healthcare wishes known-and the healthcare provider may have difficulties obtaining the names and contact information of these persons in an emergency if you cannot relay this information.

For these reasons, it is preferable for you to complete the document, select your agents, make them aware of your choice, include their contact information and have conversations about your beliefs and values regarding medical treatments. Copies of your forms can be distributed to your agents, and your healthcare providers.

Some people choose to go beyond the basic advance care directives, completing lengthier documents which can include doctors’ orders for medications and treatments to be kept in place from home setting to hospital, one of these types of documents is known as the MOLST (medical orders for life sustaining treatment). There is also a document called “five wishes” which provides structure for conversations about end of life care.

It is important to have at least the basics in place. The first step is the conversation, once you have given some thought to your beliefs and values regarding care. Your loved ones, your physician and your clergyman can provide guidance, and your attorney can explain the forms and have them drafted and executed according to your wishes.

This information is for general purposes and should not be substituted for specific legal advice. The attorneys can be reached at 1-718-738-8500.