What is the difference between a living will and a health care proxy, and is it necessary to have both?
The answer to this question is that it depends upon which state you live in. In the state of New York a living will and a health care proxy are different documents and accomplish different goals.
In New York State, a living will is a written expression of someone’s intent with regard to end of life decision-making and other important health care decisions. It can state under what conditions you do or do not want artificial nutrition and hydration, CPR, intubation or other medical interventions.
New York law does not contain a specific statute governing living wills; thus, the validity of a living will is decided by case law. The Court of Appeals, which is New York’s highest Court, ruled in the Matter of O’Connor (1988) that a living will is valid if it provides “clear and convincing” evidence of a person’s health care wishes.
A living will does not, however, appoint a specific person to make health care decisions for you.
A health care proxy is the document that appoints someone to make health care decisions for you in the event that you are unable to make those decisions for yourself. You can appoint a primary agent and a successor agent. However, unless your health care proxy is aware of your specific wishes regarding artificial nutrition and hydration, they cannot make end of life decisions for you.
That is why many times you will see a living will and a health care proxy executed together in a single form. Executing these documents together enables your agent to make whatever medical decisions may be necessary because your wishes are directly spelled out in the same document that appoints them. It also makes things easier for your doctor/treating professional because everything is in one place, and they do not have to look for two separate documents.
If you are thinking about executing a health care proxy or a living will, it is advisable that you contact an experienced estate-planning attorney to discuss your options, as there are specific execution requirements for these documents.
Greg T. Rinckey, Esq., is the managing partner at Tully Rinckey PLLC, a full-service law firm located in Colonie. For more information about the firm, please visit www.1888Law4Life.com. If you would like your legal question or topic answered in the next issue, please contact Greg Rinckey at 218-7100 or [email protected]. The information in this column is not intended as legal advice.