Health Care Proxies and Living Wills

by Bryan Lane Berson, Esq.

Health care proxies (“HCP”) and living wills are advance directives. They explain one’s wishes about medical decisions and treatment. A principal can revoke them up until the time the principal becomes incapacitated. Advance directives provide binding instructions about treatment. In the absence of an advance directive, the person’s wishes may not be respected, and someone may need to petition the court for a guardianship to make decisions for the incapacitated person.

I. Advance Directives

A. Health Care Proxy

A principal uses a HCP to appoint a “health care agent” to make medical decisions on the principal’s behalf. It states the principal’s preference about artificial nutrition and hydration. To the extent that the principal’s wishes are not known, the agent should act in the principal’s best interest. When the principal becomes incapacitated, the agent acts for him.

Under the Health Insurance Portability and Accountability Act (HIPPA) of 1996, medical professional are subject to strict privacy guidelines. A HCP permits health care professionals to release confidential information to agents so they can make informed decisions.

B. Living Will

A living will deals with end of life issues. One should not confuse it with a last will and testament or revocable living trust. These documents fulfill very different functions. A living will provides instructions with regard to the use, withholding, and withdrawal of treatment that prolongs dying.

It becomes effective if the principal has an incurable or irreversible condition with no reasonable expectation of recovery. These include terminal conditions, permanent unconsciousness, a persistent vegetative state, brain death, or severe brain damage. The living will can request or refuse cardiac resuscitation, mechanical respiration, artificial nutrition, artificial hydration, or antibiotics. Also, one can request that maximum pain relief be applied. The living will is not used for euthanasia.

A living will should not be confused with a Do Not Resuscitate (DNR). As the title implies, a DNR instructs medical personnel not to resuscitate a patient under certain conditions. Attorneys draft living wills. They are legal documents, and one should have them periodically reviewed by competent counsel. Doctors draft DNRs. They are medical orders, and doctors must periodically review them.

II. Guardianships

If a person becomes incapacitated and does not have advance directives, someone will have to obtain a guardianship. In New York, this process is handled under the Mental Hygiene Law. It requires time and expense, and it can be stressful for everyone involved.

A petitioner initiates a court proceeding. The court appoints an evaluator to investigate and draft a report about the allegedly incapacitated person (“AIP”). The court holds a hearing, which may be convened in a courtroom or the AIP’s home or hospital room. An AIP is entitled to present a defense against incapacity. Upon clear and convincing evidence of incapacity, the court will establish a guardianship tailored to the needs of the incapacitated person (“IP”). It may cover the IP’s health, the IP’s property, or both. The guardian must complete a course and report periodically to the court.

III. Conclusion

Obtain advance directives while you are healthy and competent. Don’t wait until an emergency, because it may be too late. Distribute these documents to your agents and doctor. Keep them where they can be retrieved quickly. Don’t hide them or keep them in a safe deposit box. Review them periodically, and update them as necessary.

About the Author:  Bryan L. Berson, Esq. is an attorney and mediator at The Berson Firm, P.C., a commercial and civil law firm that handles estate administration and planning, real estate, commercial transactions, mediation, and commercial litigation.  His e-mail is bberson@bersonfirm.com.  His phone number is (631) 517-1055.  Connect with The Berson Firm on Facebook and Bryan L. Berson on LinkedIn.  The firm’s website is www.bersonfirm.com.

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Tags: advance directive, DNR, estate planning, guardianship, health care proxy, living will