New York Estate Planning & Elder Law Blog
End of life planning can be a very daunting task and is one many individuals do not want to face, however, actively addressing any future healthcare scenarios or issues in the event you are no longer fully capable, can save all parties involved from making painful or difficult decisions during emotional times. When thinking about the possibility of future incapacitation, it is important to know the different estate planning tools available in order to be adequately educated on your power to assign an agent to act on your behalf.
Health Care Proxy & Their Influence
When determining what your wishes would be in the event you are no longer able to make your own medical decisions, whether due to incapacity or illness, electing a healthcare proxy will help ensure that the decisions you made prior to incapacitation are honored. A healthcare proxy is an established health care agent named by you, as recognized under New York law, that can make healthcare decisions for you ONLY upon incapacitation, whether that incapacitation is temporary or permanent. Health care proxies are one of a few types of advance directives; it is also worthwhile to consider making a living will and filling out a Do Not Resuscitate Order. Assigning a healthcare proxy as well as making a living will ensures you not only have someone to carry out your wishes, but also have a way to notify loved ones about the decisions you have made for the end of your life.
What Decisions They Can Make
An in depth discussion should be had with your health care proxy about your wishes in all possible situations because under New York law, the proxy will be able to decide whether you receive artificial nutrition and hydration, whether to perform CPR, as well as what medical decisions are in your best interest. The only way the proxy, or agent, can have their decision challenged is by the family obtaining a court order. Limitations are in place on who can be a healthcare agent. You cannot name your doctor or any operator or employee of a hospital or nursing home as your agent, due to possible conflicts of interest.
Revoking your Agent’s Rights
There are situations in which you may name someone you trust to carry out your wishes, but years down the road they are unavailable or may not know what your best interest would be now. If you wish to revoke your health care agent’s right to make decisions, you must notify the agent, your doctor and other interested parties who know of the agent’s election. This can be done either orally or in writing, but is recommended to be in writing. You do not have to have a reason for cancelling the appointment, it is completely your decision. Additionally, upon divorce, if your spouse was named your proxy, their appointment is automatically terminated, due to assumed lack of ability to carry out your best interest.