If you could no longer speak for yourself in a hospital room, who would the doctors turn to, and how would they know what you actually wanted? That single question is the reason two very different documents exist in New York law, and I find that most clients use the terms “health care proxy” and “living will” interchangeably, when in fact they do two very different jobs.
The Health Care Proxy: Naming a Decision-Maker
A health care proxy is a document authorized by New York’s Public Health Law Article 29-C, and its purpose is simple: it lets you appoint a person, called a health care agent, to make medical decisions on your behalf the moment you lose the capacity to make them yourself. You can review the statute directly on the New York State Senate’s website. The proxy does not tell your agent what to decide. It tells the hospital who is allowed to decide. To be valid, you must sign it while of sound mind, in front of two adult witnesses, and I always recommend naming a backup agent in case your first choice is unreachable when the moment actually arrives.
The Living Will: Stating Your Wishes
A living will works differently, and here is where I see the most confusion. New York has no statute governing living wills at all. Instead, their authority comes from the Court of Appeals decision in the Matter of O’Connor, which held that a person’s end-of-life wishes are enforceable so long as they are proven by clear and convincing evidence. A living will is your own written statement, made while competent, describing which treatments you would want, or refuse, if you became terminally ill or permanently unconscious. It names no agent. It simply speaks for you directly.
I generally tell clients that if they trust their agent to make decisions, then a healthcare proxy alone is a better option than having both since would remove any second-guessing by medical professionals. It also allows your agent to make real-time decisions, which may have changed since you executed a living will, based on a change in your wishes or medical advancements.
If you want to make sure your medical wishes and choice of decision-maker are properly documented and legally protected, contact us today at (347) 766-2685 for a free phone consultation.
Contributed by Roman Aminov, Esq, a queens estate attorney in New York City.
