Tags Posts tagged with "living will"

living will

METRO photo

By Nancy Burner, Esq.

Nancy Burner, Esq.

In addition to traditional healthcare advance directives, such as a Healthcare Proxy and Living Will, the MOLST form is another advanced directive one can execute to ensure their end-of-life wishes are followed.

MOLST stands for “Medical Orders for Life-Sustaining Treatment.” It was originally tested in Onondaga and Monroe Counties in May 2006. In July 2008, after a successful pilot program, the MOLST program was implemented on a permanent, statewide basis. The Department of Health updated the form in June of 2010 to make it more user-friendly and to make it compliant with the Family Health Care Decisions Act. Despite the fact that the MOLST form has been around for several years, many people are unaware of its existence. In fact, even many physicians and social workers are not familiar with it.

Unlike a Living Will which can be prepared well before the end of your life, the MOLST form is a medical document traditionally executed when the patient wants to avoid or receive any or all life-sustaining treatment, is in a long-term care facility or requires long-term care services and/or may die within the next year. It is intended to assist health care professionals in discussing and developing treatment plans that reflect the patient’s wishes. The program is based on the idea that communication between you as a patient (or your legal surrogate) and your health care providers will result in informed medical decision-making. 

A licensed physician must verify that the treatment plan accurately represents the patient’s wishes in light of their prognosis and sign the form. Once executed, all health care professionals must follow the orders designated by the patient from one location to another, unless a physician examines the patient, reviews the orders and changes them.

The MOLST form itself is bright pink to ensure that it can be found easily in an emergency. It documents medical orders regarding life-sustaining treatments such as Cardiopulmonary Resuscitation (CPR), intubation, mechanical ventilation, artificial hydration and nutrition. The form can be used to limit medical interventions like cardiopulmonary resuscitation (CPR) or to clarify a request for specific treatments. Through this document, you can include directions about other types of medical procedures that you may or may not want to receive. Moreover, because the form is intended to follow the patient, it is used and recognized in a variety of health care settings.

The benefit of the MOLST form is that it forces a constructive dialogue between the patient and their medical providers that will aid physicians, nurses, health care facilities and emergency personnel in fulfilling patient wishes regarding life-sustaining treatments.

Nancy Burner, Esq. is a Partner at Burner Prudenti Law, P.C. with offices in East Setauket, Westhampton Beach, Manhattan and East Hampton.

Stock photo

By Nancy Burner, Esq.

Nancy Burner, Esq.

When helping a parent or other adult loved one handle their affairs, we never think of the legal ramifications. As caregivers we just do what needs to be done. 

It starts out naturally enough — handling bills, writing out checks, paying property taxes, making doctor’s appointments. It is only when an impediment at the bank or hospital arises that caregivers realize that family members do not actually have the legal authority to handle these matters. Unfortunately, at that point your loved one may not have the mental capacity to give that power.

Every caregiver should make sure that three simple but crucial documents are in place: a Health Care Proxy, Living Will, and Power of Attorney. In fact, everyone should draft these “Advance Directives” while they are healthy. These simple but mighty documents can avoid a myriad of issues: guardianship hearings, asset depletion, and interfamily conflict.

A Health Care Proxy allows you to designate someone to make medical decisions for you if you are unable to do so for yourself. In most states, including New York, only one person at a time can fulfill this role in order to give healthcare providers clear direction. However, you can name multiple alternative proxies to act in case their predecessor is unwilling or unable to act. 

The New York State Family Healthcare Decision Act allows close family members to make such decisions but only if the person is in a nursing facility of hospital. Many times, caregivers need to make medical decisions outside of this context – even as to making appointments and deciding on routine medical procedures. Moreover, the statutory priority of decision makers (guardian then spouse then adult child then parent) is not always in line with the choice of proxy you may have chosen. Without a valid health care proxy, a “personal needs guardian” would have to be appointed by the court through a guardianship proceeding. Such proceedings can be expensive and intrusive.

A Living Will sets forth your end of life choices. Without evidence of your preferences, an agent under a health care proxy cannot make end of life decisions on your behalf. The agent must provide clear and convincing evidence of whether you would want cardiac resuscitation, mechanical respiration, artificial nutrition and hydration, antibiotics, blood, kidney dialysis, surgery or invasive diagnostic tests. 

Without documentation of your preferences, family members may end up in court arguing whether you would have wanted to be kept alive if your quality of life is so poor. A video, a letter, or a social media post could meet the “clear and convincing” burden.

A Power of Attorney is what gives caregivers the legal authority to take care of your financial affairs, such as writing checks and selling real estate. In New York, the Durable Power of Attorney allows someone, the “principal”, to name an agent to step into one’s shoes financially and act in the principal’s best interest. This is a powerful document that extends into incapacity and should only be granted to someone you trust completely. 

Although in NYS the statutory power of attorney can be downloaded for free, it does not include necessary modifications that an estate planning attorney would include. For example, these modifications are crucial for Medicaid planning and asset protection. Having a valid Power of Attorney avoids the necessity of an Article 81 guardianship proceeding to appoint a “property needs guardian.”

These simple Advance Directives should be a part of a checklist for everyone – caregiver and loved one. These are the type of legal documents that seem unimportant until you actually need them.

Nancy Burner, Esq. practices elder law and estate planning from her East Setauket office. Visit www.burnerlaw.com.

Stock photo

By Nancy Burner, Esq.

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. Visit www.burnerlaw.com.

Stock photo

By Linda M. Toga, Esq.

Linda Toga, Esq.

THE FACTS:   I want to be sure that I do not receive end-of life-medical treatment that will do little other than prolong my life. 

THE QUESTIONS: Is the document in which I can state my end-of-life wishes called a living trust or a living will?

THE ANSWER: The document in which you can memorialize your wishes with respect to the medical treatment to be administered or withheld when you are near death is called a living will. 

A living will differs from a living trust, also known as a revocable trust, because a living will has nothing to do with how your assets are handled during your life or distributed upon you death. 

Instead, a living will provides the person you name as your agent in your health care proxy, your next of kin and/or your health care provider with important information about how you would like to proceed if your doctor has determined that your condition is likely to cause death within a relatively short time and you are unable to express your wishes about your medical treatment.  

A properly drafted and executed living will can also serve as clear and convincing evidence of your wishes in the event a court is asked to decide whether or not your health care provider must honor your wish to withhold medical treatment. 

A living will gives you the opportunity to put into writing what types of medical treatments, procedures and medications you do not want if you have suffered from a significant loss of mental capacity and you cannot eat or drink without assistance or you have an irreversible or incurable medical condition with no likelihood of improvement.

For example, in your living will you can state that you want medical treatment withheld if you suffer from dementia or some other form of mental impairment and there is no reasonable likelihood that such treatment will restore your ability to be oriented and interact with your environment. 

You can direct your health care provider to withhold treatment if you lack mental capacity and need a feeding tube. You can also state in a living will that treatment should be withheld if you exhibit significant mental impairment combined with a condition that is likely to cause death in a relatively short time, as determined by your doctor. 

Examples of the types of life-sustaining treatments and procedures you may want withheld include cardiopulmonary resuscitation, dialysis, artificial hydration, artificial nutrition (feeding tubes), mechanical respiration, antibiotics, experimental medications and surgical procedures. Under many circumstances, these sorts of treatments and procedures serve to prolong life but do not necessarily have any impact on a patient’s underlying medical condition. 

While asking that such life-sustaining treatments be withheld, living wills generally direct the health care provider to the administration of pain medication and to take the steps necessary to keep the patient comfortable. 

Since a living will is a document in which a person essentially rejects life-sustaining treatments, sometimes referred to as “heroic measures,” people who have a living will may effectively hasten their own death. As such, a living will is clearly not appropriate for people who want all possible measures to be taken to keep them alive. 

Because of the moral and religious issues associated with a living will, it is likely the most personal and emotionally charged estate planning document you can sign. It is, therefore, extremely important that you give serious thought to your options when deciding if a living will is right for you and discuss your wishes with an attorney who has experience preparing living wills. 

Linda M. Toga, Esq. provides personalized service and peace of mind to her clients in the areas of estate planning, real estate, marital agreements and litigation. Visit her website at www.lmtogalaw.com or call 631-444-5605 to schedule a free consultation.