One of the more common questions we deal with in the initial interview with many clients is why they need both a living will and a health care proxy. The answer to this question is quite simple but a background on what each document specifically does is useful.
Health Care Proxy
The health care proxy is an important document that every person should have as part of their overall estate planning portfolio. Under a health care proxy, the person signing (the “Principal”) designates one Health Care Agent and as many successor Health Care Agents as the Principal chooses. This Health Care Agent will make decisions regarding the Principal’s medical treatment in the event that the Principal is unable to make these decisions on their own, as determined by a physician. The Health Care Agent will not be able to make decisions before this determination by a physician and will not be able to make further decisions if there comes a time when the Principal regains capacity.
Appointing the Health Care Agent allows you to control your medical treatment by: allowing the Health Care Agent to make medical decisions as the Principal would have wanted; allowing the Principal to choose a person who the Principal believes would make the right decisions; and allowing the Principal to avoid conflict and/or confusion amongst the Principal’s family members. This last point raises an important facet of the Health Care Proxy, only one person may act as a Health Care Agent at a time. The Health Care Agent will likely be an individual that the Principal is very close with. Because of this, making end of life decisions could be a very difficult choice for the Agent. This leads to the power of a living will and why a living will should always go hand in hand with a Health Care Proxy.
Living Will
The Living Will, when cut to its core purpose, is a simple document. It is, typically, a written statement of the signee’s health care wishes when they are not able to communicate a decision regarding specific medical situations. Often, it is a document used to indicate that the signee either wants to stay on life support or be removed from life support when more than one physician determines the signee is in an incurable or irreversible mental or physical condition with no reasonable expectation of recovery. While New York State does not have a statute that specifically addresses the Living Will, the Court of Appeals (New York’s highest court) has stated that Living Wills are valid as long as they provide clear and convincing evidence of the signee’s wishes and the signee is 18 years of age or older.
Since the Living Will is an express declaration of the signee’s wishes and intentions regarding end of life medical decisions it can relieve a Health Care Agent of having to make the difficult decision of whether or not someone should stay on life support. The Health Care Agent will simply indicate that the signee has a Living Will and not have the cloud of making such a large decision hang over them. The signee will also have assurance that their wishes regarding end of life medical treatment will be honored.
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