New York Estate Planning & Elder Law Blog
For health care decision-making, when a doctor determines you are unable to make medical decisions for yourself, New York has the Health Care Proxy. The proxy, or agent, may make any medical decision for you except one – they cannot withdraw life sustaining measures, such as feeding tubes or a ventilator, unless they can prove this is what you actually wanted.
There are two ways to show that, in situations where there is no reasonable expectation of recovery from extreme disability, and there is no meaningful existence, you do not wish to be kept alive by artificial means. First, you may state in your health care proxy form that you have discussed your wishes regarding artificial life support with your proxy and they know what your wishes are or, secondly, you may execute a ‘living will’ which is essentially a statement that you do not wish to be kept alive in the circumstances discussed above.
The primary consideration in choosing an agent is who would be best suited to make these end-of-life decisions. Most people choose a spouse first and one of their children second. Nevertheless, there is no requirement that it be a family member. You may choose whoever you wish. We are often asked if the client can choose two or more of their children to act jointly. For good reason, the Public Health Law disallows this — if the joint agents didn’t agree, how would the doctor know what to do?
A few years ago, a client came into our office and explained that his mother had been on a feeding tube for two years. He went on to say that she could not open her eyes, speak or get out of bed. Incredulous, we asked if she had signed a Living Will. He said yes she had. We then inquired what happened when he went to visit her. He stated that when he put his hand in hers, she was able to squeeze his finger. Our conclusion? She may have chosen the wrong person as her health care proxy. Choosing someone who is strong enough to carry out your wishes is essential.
As opposed to the health care proxy, Medical Orders for Life-Sustaining Treatment (MOLST) forms are medical directives signed by a doctor and used to convey a patient’s wishes regarding life-sustaining treatment. The purpose is to improve the quality of care that seriously ill people receive at the end of life.
A survey by BlueCross revealed only 42% of those surveyed had chosen a health care proxy, so most people are without an advance directive for medical decisions. The Family Health Care Decisions Act allows a close family member or friend to make health care decisions for incapacitated loved ones who do not have a health care agent or didn’t previously make such decisions.
The Family Health Care Decisions Act designates, in order of priority, who can act as a surrogate for the adult incapacitated person. The first surrogate is the spouse or domestic partner. The list then includes adult child, parent, sibling, and last, a close friend. If the court has appointed a legal guardian, that person takes priority.
Decisions are based on the patient’s wishes or the patient’s best interests if the patient’s wishes are unknown. The MOLST form and The Family Health Care Decisions Act are advancements in honoring each person’s end of life desires regarding medical treatment.
However, it can’t be stressed enough – the best way to honor one’s desires regarding end of life medical treatment is to complete a Health Care Proxy and Living Will in advance.