New York Estate Planning & Elder Law Blog
Screenwriter and director Woody Allen once said, “There are worse things in life than death.” Becoming incapacitated and unable to make medical treatment decisions for yourself may be one of those things. The case of Terry Schiavo is a perfect example of the problems that can arise when one does not plan for incapacitation. Following Mrs. Schiavo’s hospitalization and being found incapacitated, an emotional battle erupted between Mrs. Schiavo’s husband and her family over whether she would continue to receive life-sustaining treatment.
Good estate planning is all about preparing for the unthinkable. While a will or trust addresses what happens once you die, what about if you become incapacitated and unable to make your own medical decisions?
The Health Care Proxy – The Unsung Hero of Estate Planning
Fortunately, New York residents have a tool to address this precise situation – the health care proxy, described in detail in NY CLS Pub Health ยง 2981. A health care proxy not only allows you to appoint a particular person to make health care decisions for you in the event you become incapacitated (called a “health care agent”), but it also memorializes your wishes concerning the type and duration of, as well as the circumstances under which, you would like to receive certain treatment.
The Devil is in the Details
Your health care proxy should be as specific as possible regarding your treatment wishes. If a particular course of treatment is not specified in your health care proxy and your agent does not know of your wishes, your agent is authorized to act in your “best interests.” These “best interests” may or may not be in accordance with your wishes. Without specificity, your health care agent may unwittingly consent to a course of treatment that you do not want for personal, religious, or financial reasons.
There is one course of treatment about which your health care proxy should be very specific – artificial nutrition and hydration. In other words, you may wish to consider and memorialize what you would like to happen in the event that you require feeding and watering tubes in order to remain alive. If your health care proxy does not address this critical question, or if you have not informed your health care agent of your wishes in this regard, your health care agent will not have the authority to agree to this form of treatment.
Follow the Formalities
A health care proxy should follow certain formalities. In addition to being written, you must sign and date your health care proxy in the presence of two witnesses. Your witnesses should also sign and date your health care proxy. Finally, ensure that the person you selected as your health care agent either is given a copy of your signed and witnessed health care proxy or knows how to obtain a copy of it.
Preparation is usually the best course of action, and a health care proxy is one more tool that can be used when preparing for those “worse things” in life.