By Nancy Burner, Esq.
Making medical decisions for a loved one is extremely difficult, but making end of life decisions for someone is legally impossible without proof of his or her wishes. In New York, nobody may make end of life decisions for another — such as to forgo life sustaining treatments which only serve to artificially prolong one’s life — unless there is “clear and convincing” evidence of that person’s medical wishes. A Living Will document is the standard manner in which that burden is met.
A Living Will is part of a trio of “advanced directives,” which include a health care proxy and durable power of attorney, that help people plan for incapacity. Although you may name an agent to make medical decisions for you under a Health Care Proxy, that person cannot use his or her own judgment to reject life prolonging medical treatment for you — even if you are in a vegetative state with no hope of recovery.
The agent must provide sufficient proof of whether you would want cardiac resuscitation, mechanical respiration, artificial nutrition and hydration, antibiotics, blood, kidney dialysis, surgery or invasive diagnostic tests. A Living Will document specifically states what medical actions should be taken if you are in a terminal state with no reasonable hope of recovery and cannot communicate your wishes. Without it, your family members may end up in court offering testimony of why you would not have wanted to be kept alive if your quality of life was so poor. A video, a letter, a Facebook post — any such evidence could meet the “clear and convincing” burden.
A standard living will refuses all life-sustaining procedures if such measures only serve to artificially prolong one’s life. Such treatments are limited to making the patient comfortable and maximizing pain relief. However, this is not a requirement. A Living Will can and should be tailored to an individual’s specific needs and beliefs, even if it means that person wants all life-sustaining measures to be taken. Before executing a Living Will, you should consider what medical treatments are to be administered and under what medical conditions. Additionally, a Living Will can state your preference to be kept at home, if possible, rather than in a hospital.
It is important that when deciding who will act as a health care agent, you choose an individual who not only understands your wishes but is also willing to carry them out. Religious beliefs, for example, may prevent someone from “pulling the plug” even though you specifically instruct your agent to do so. A loved one may have a hard time carrying out your wishes for emotional reasons.
Before appointing an agent, you should have a discussion with them to ensure they understand your treatment plan and agree to follow same. If you cannot find an agent to carry out your wishes, the living will can be filed with your doctor or the hospital so that it is on record and provides instructions to your attending physician.
As you can see, a Living Will is a crucial estate planning document that all individuals should have in place. It is important to discuss your wishes with an Estate Planning attorney to ensure that your preferences will be carried out are legally valid.
Nancy Burner, Esq. practices elder law and estate planning from her East Setauket office.