One of the more common questions we deal with in the initial interview with many estate planning clients is why they need both a living will and a health care proxy. The answer to this question is quite simple; but a bit of background on what each document specifically does may be helpful.

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 Agent’s 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 her 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 the ability to make decisions.

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 a significant 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 some health care decisions will be a struggle for the Health Care Agent due to the close connection. 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 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 the Living Will is valid as long as is provides clear and convincing evidence of the signees 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 will override all other opinions, including the Health Care Agent under the Health Care Proxy. This can serve to relieve a Health Care Agent of having to make the difficult decision of whether or not someone would want to stay on life support when all signs point to no recovery. The Health Care Agent will simply indicate that the signee has a Living Will and not have to worry about making such an important decision. The signee will also have assurance that her wishes regarding end of life medical treatment will be honored.

The importance of having both a Health Care Proxy and a Living Will is clear. The Health Care Proxy ensures that you have someone to make decisions regarding your ordinary medical care during your lifetime if you are unable to make these decisions. The Living Will ensures that if you are in a terminal condition and are only being kept alive via life support, your personal choice concerning the continuation of life support is made plain..

Have more questions about Living Wills, Health Care Proxies or other estate planning matters? Contact one of the attorneys specializing in Estate Planning at the Wladis Law Firm by calling (315) 445-1700 or by visiting our website,