The coronavirus is changing how New Yorkers live their daily lives. This global pandemic can cause us to look at the possibility that we may become patients at some point in the near future which triggers a whole host of concerns, some of which are legal such as how your care should be handled if you become incapacitated. There are other legal issues that will, forseeably come up, such as what your rights are when dealing with medical bills or sudden employment issues. This article addresses how New York law can give you control over your care in the event that you cannot make decisions for yourself. These types of issues are typically governed by state law so, depending on what state you live in, there may be different terminology and/or different rules.
A Living Will and a Health Care Proxy.
In New York, a living will, health care proxy, and do not resuscitate order (DNR) are a types of advance directives. An advance directive is a means of planning for health care and end-of-life decision making. Advance directives, such as a living will, are optional and not necessary but can provide some peace-of-mind.
In the absence of an advance directive (such as you never got around to writing a living will or drafting a healthcare proxy), a healthcare provider will turn to the Family Health Care Decisions Act (PHL 2994-b (2). This determines the priority and authority of health care surrogate but if you have a health care proxy, your proxy will take priority.
So, by default, New York Law (PHL 2994-d) says that healthcare providers will search for the person who will make healthcare decisions for you if you are incapacitated in the following order: Your guardian (article 81), spouse or domestic partner (unless legally separated), son or eldest daughter (eldest first), parent, adult sibling, and, finally, a close friend of patient or patient's family who has maintained regular contact with the patient.
How are decisions about me made if I'm incapacitated? Under PHL 2294-d, decisions must be made in accordance with the patient's wishes including religious and moral beliefs. If your wishes cannot be ascertained, it must be in accordance with your best interests. Best interests includes considerations of your dignity, preservation of your life, improving your health, relieving your suffering, and other reasonable things of this nature.
Under the Family health care decisions act, if you are unconscious and close to death and someone else is making health care decisions for you, decisions to withhold or withdraw life-sustaining treatment can only be authorized if treatment would be an extraordinary burden to you, treatment would cause you an inhumane level of pain and suffering, approval from independent doctors and/or an ethics committee may be required.
Matter of O'Connor 72 NY2d 517 (1988). There must be clear and convincing evidence of an intent to withdraw life support. Casual comments the patient might have made in the past (such as "I don't want to be a burden" won't be considered because they are too casual and could just be off-hand remarks. Even if you clearly state it, you can also later change your mind. The Court said the ideal situation is that the patient drafted a living will because this will help everyone understand your true wishes and if you change your mind after creating a living will, you will probably destroy it or tell your loved-ones to disregard it.
When does a living will kick-in? It kicks-in only if you are permanently unable to participate in health care decisions and you have an incurable or irreversible mental or physical condition with no reasonable expectation of recovery such as an end stage or terminal condition, permanent coma or permanent unconscious state, vegetative state, or minimally conscious state where there is no way the patient can express wishes or make any decisions and the treatment will only prolong death.
Why would I want a living will? A living will is probably best for you only if you don't want to be kept on life support for as long as possible even though you are dying and in a vegetative or unconscious state with no hope of recovery. For example, if you are in a vegetative state due to a massive stroke and the medical consensus is that you have no hope of recovery, a living will could be used to justify removing you from some or all forms of life support (such as artificial breathing, nourishment, and circulation).
A living will is a simple but powerful document because it is easy to draft but can have major implications for your care in the event that you become permanently incapacitated while dying before having a chance to discuss end of life care with your doctor and/or loved-ones. Please note that if you have a living will, it does not overrule you when you are alert. For example, if you are alert and awake but dying, your doctor won't bother to read your living will so long as he or she can just ask you what your wishes are. Also, your true wishes are always the most important thing. In the event that your wishes aren't clear, the healthcare provider, by default, is going to assume you want everything possible done to prolong your life. This means that although your living will says you don't want life support if you are dying with no hope of recovery, you are always free to change your mind unless you become permanently unconscious or in a similarly materially altered mental state. Your mental demise must be, from a medical perspective, permanent. That means your living will will not do anything if your are dying, unconscious, but your doctor believes you will become conscious again. In this situation, your doctor will wait for you to be conscious to discuss end of life care in the event it was not already discussed. Living wills should clearly state your wishes regarding the use of life support in end-of life care and should be signed, dated, and witnessed. There is no official template or version that the State of New York requires but I included a sample from the University of Rochester below and a link to an online wizard that I set up:
A living will carries no independent legal force meaning that it is just a statement of your wishes but it cannot force a healthcare provider to obey it. A health care proxy is different. A health care proxy is similar to a power of attorney. In New York, a power of attorney can't give the person you designate the ability to make medical decisions for you but a health care proxy can.
Generally, a health care proxy is something you can use to name someone you want to make health care decisions for you. If you don't have a health care proxy, the healthcare provider will go under the default rules (see above) to find your next of kin and that person will be able to use the powers granted to them under the default rules. Their default power is, basically, whatever control that you would have over your own care. So, if you don't want the default person to care for you, or you don't want that person to have the default powers granted to them (such as if you want a more specific or tailored type of care), you will need a healthcare proxy. However, the person you select with a healthcare proxy cannot withdraw life support unless they were specifically instructed in this regard.
A healthcare proxy must contain the principal's (patient) name, agent's name, a statement that the principal intends the agent to have the authority to make health care decisions on his or her behalf, the principal's signature and date, signatures of 2 witnesses, with the date, but the witnesses cannot be the agent or alternate agent (backup agent). It does not need to be notarized. Optionally, a health care proxy can name an alternate agent (in case the primary person is not reachable), additional treatment wishes, a statement that the agent has been informed of principal's wishes as to artificial nutrition and hydration, limits on the agent's authority, organ donation wishes, and an expiration date or event.
Final considerations. When selecting people to participate as agents of your health care proxy, you should select someone who can hold-up under stress, will follow what you want, is able to appear personally at the hospital, and someone who is sophisticated enough to navigate the heath care system and deal with doctors.
