We Recommend a Health Care Proxy Rather Than a Living Will

A Health Care Proxy is a legal document that authorizes an agent of your choice to make medical and health care decisions for you, if you become unable to make them yourself. These can include end-of-life decisions.

It is important to choose as your agent someone you trust, who understands you and your beliefs and wishes, because you will be relying on that person to make the same health care decisions you would have made if you had been able. Because the Health Care Proxy is legally binding, and only one agent can serve at a time, it can also help to prevent or resolve disputes within families. The health care agent has sole authority and it is very difficult anyone to interfere with his or her decisions.

In 2010, the New York State legislature passed the Family Health Care Decisions Act which allows family members to make medical and end-of-life decisions on your behalf under certain circumstances if you do not have a Health Care Proxy (http://www.nysba.org/FHCDA/). However, this legislation contains ambiguities, and it permits others to object, which can lead to disputes. A Health Care Proxy is a more prudent and reliable choice.

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The other option that our clients sometimes explore is a Living Will. This is a document that states your instructions regarding your health care, including end-of-life decisions. The major problem with a Living Will is that it always contains vague and ambiguous terms, and is therefore subject to different interpretations. For example, common phraseology such as “if there is little hope or no reasonable expectation of recovery, I would not want heroic measures to be taken merely to preserve my life,” may mean different things to different people. Terms such as “little hope,” “reasonable expectation,” or “heroic measures” are subjective.

Also, living wills often include restrictions on medical care, such as “no antibiotics.” But then, what should be done if you get a painful infection that could be cured with antibiotics? Whoever acts on your behalf would be put in an untenable position of either doing what you said you wanted, and subjecting you to unnecessary pain and suffering, or disregarding your written wishes in order to relieve you of suffering and cure your infection.

At Lamson & Cutner, we encourage you to avoid the ambiguity of a Living Will and appoint someone you love and trust to be your health care agent via a Health Care Proxy. It is the best way to ensure that health care and end-of-life decisions are made according to your wishes.

For help with a Health Care Proxy or other Advance Directives, get in touch with us here. To learn more about the various ways our Elder Law attorneys can help you, view Our Services.

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