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Advance Health Care Directives

 

In New York State, the best way to ensure that your health care wishes are known and honored is to document them using legal documents, commonly referred to as “Advance Care Directives.”

 

Your advance care directives will speak for you when you are unable to speak for yourself. In New York State, there are four types of Advance Directives:

 

1 - A Health Care Proxy lets you appoint a health care agent—that is, someone you trust to make health care decisions for you if you are unable to make decisions for yourself.

 

2 - A Living Will allows you to leave written instructions that explain your health care wishes, especially about end-of-life care. You cannot use a Living Will to name a health care agent; you must use a Health Care Proxy.

 

3 - A Living Will together with a Health Care Proxy lets you state your health care wishes and name a health care agent.

 

4 - A Do Not Resuscitate Order (DNR) only lets you express your wish to do without cardiopulmonary resuscitation (CPR)—that is, emergency treatment to restart your heart and lungs if your heartbeat or breathing stops.

 

A HEALTH CARE PROXY

 

You can complete a Health Care Proxy if you are 18 years of age or older. A Health Care Proxy, established under New York law, allows you to appoint someone you trust -- a so-called Health Care Agent -- to make health care decisions on your behalf if you are no longer able to do so.

 

Under New York’s Health Care Proxy law, your agent’s authority to make health care decisions begins when your doctor determines that you have lost the capacity to make decisions for yourself. For a decision to withdraw or withhold life sustaining treatment, a second doctor must confirm your doctor’s decision.You may give your health care agent as little or as much authority as you wish (i.e., you may allow your agent to make all health care decisions on your behalf or only certain ones).

 

Your Health Care Agent can make decisions related to artificial nutrition and hydration (for example, use of a tube to give you food and water) if you have communicated your wishes. You may either specifically tell your wishes to your agent or write your wishes in your Health Care Proxy form. Your agent will have the authority to decide whether or not your heart beat should be restarted through cardiopulmonary resuscitation (CPR) unless you write in your Health Care Proxy form that your agent cannot make this decision for you. Once your agent’s authority begins, he or she has the right to get your medical information and records to make informed health care decisions for you.Your agent’s decision is final unless an objecting family member or facility obtains a court order overriding the decision or disqualifying the agent.

 

Your agent is required to make health care decisions for you according to your wishes, religious and moral beliefs, and in your best interest.

 

Choose a Health Care Agent

 

Picking your health care agent is a very important decision. Generally, you have the right to appoint any competent adult (18 years of age or older) as your health care agent. Your agent may be your spouse or partner, an adult child, a relative, or a close friend. Choose someone you trust...  someone with whom you feel confident discussing your wishes for medical care.

 

A Health Care Agent’s Rights and Obligations Under New York’s Health Care Proxy Law

 

Once your agent’s authority begins, he or she has the right to get your medical information and records to make informed health care decisions for you. Your agent’s decision is final unless an objecting family member or facility obtains a court order overriding the decision or disqualifying the agent.

 

Your agent is not financially responsible for the cost of your care. Overall, your agent is required to make health care decisions for you according to your wishes, religious and moral beliefs, and in your best interest.

 

You should be sure that the person you intend to appoint as your agent is willing to serve as your agent.

 

Under New York’s Health Care Proxy law, you can appoint any competent adult as your Health Care Agent except you cannot appoint your doctor as your health care agent unless your doctor is your spouse or your relative. You cannot appoint an operator, administrator, or employee of the hospital or nursing home where you are admitted unless they are a relative or you appointed them before your admission.

 

While the law does not require you to name an agent living in the same geographic area as you do, it is a good idea to choose someone who lives nearby. If you are terminally ill,for example, and unable to make decisions for yourself, your agent may have to spend weeks or even months nearby to ensure your health care wishes are followed.

 

A LIVING WILL

 

A Living Will is a written declaration of your health care wishes. In your Living Will, you can leave specific instructions about medical treatments you may or may not want, when you are no longer able to decide for yourself. A Living Will serves as evidence of your wishes.

 

While New York does not have a statute governing Living Wills, 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 your wishes.

 

If you are 18 years of age or older, you may create a Living Will.

 

A LIVING WILL AND A HEALTH CARE PROXY

 

Although both a Health Care Proxy and a Living Will are advance directives, they are not the same thing. A Living Will is a document that contains your health care wishes and is addressed to unnamed family, friends, hospitals and other health care facilities. You may use a Living Will to specify your wishes about life-prolonging procedures and other end-of-life care so that your specific instructions can be read by your caregivers when you are unable to communicate your wishes.

 

A Health Care Proxy is a person who is named by you to make health care decisions on your behalf if you are no longer able to do so. You may give this person (your agent) authority to make decisions for you in all medical situations. Thus, even in medical situations not anticipated by you, your agent can make decisions and ensure you are treated according to your wishes, values and beliefs.

 

You can create both a Living Will and a Health Care Proxy. Thus, you can leave specific medical instructions in writing and appoint a health care agent to carry them out. Your health care agent can rely on your instructions as guidance to make decisions that reflect your wishes. representative.

 

DO NOT RESUSCITATE ORDERS (DNR)

 

Under New York law, a DNR Order instructs medical professionals not to perform cardiopulmonary resuscitation (CPR), that is, emergency treatment to restart your heart or lungs when your heartbeat or breathing stops. This means that doctors, nurses, or emergency personnel (i.e, ambulance paramedics) will not initiate emergency procedures such as mouth-to-mouth resuscitation, external chest compression, electric shock, insertion of tube to open your airway, or injection of medication into your heart or open chest. In New York, any adult 18 years or older can get a Hospital or a Non-Hospital DNR Order.

 

A Hospital DNR Order is issued if you are in a health care facility such as a hospital, nursing home, or a mental hygiene facility licensed by New York State. Emergency personnel (EMS), such as ambulance paramedics must honor your Hospital DNR Order during transfer. But if you are outside any of these facilities, at home, for example, you may want to get a Non-Hospital DNR Order. You can make your Hospital DNR wishes known in your health care proxy, living will or a state approved MOLST form (see below).Your Non-Hospital DNR order must be recorded on a state specific form.

 

Medical Orders for Life-Sustaining Treatment (MOLST) Form

 

The New York State Department of Health has recently approved the Medical Orders for Life-Sustaining Treatment (MOLST) form. The MOLST form allows doctors to record your preferences regarding cardiopulmonary resuscitation (CPR), mechanical intervention, and other life sustaining treatments on to one form as a physician order.

 

MOLST must be completed by a health care professional and signed by a New York State licensed physician to be valid. A valid MOLST form serves as a “Physician Order Form” and can be transferred with you from one health care setting to another.

 

Remember, while the MOLST form may help centralize your end-of-life wishes and summarize your advance directives, it is not intended to replace your Health Care Proxy form and/or Living Will. MOLST translates your current medical treatment preferences into physician orders whereas your Health Care Proxy and/or Living Will guides future medical care.

 

Giving Consent to a DNR OrderIf you have capacity to make decisions for yourself, you can give your consent to  aDNR Order verbally or in writing. If you lack capacity to make decisions for yourself, your health care agent can consent on your behalf. But what if you become unable to decide about CPR, you did not tell your doctor about your wishes in advance, and you do not have a health care agent or a Living Will?

 

Under New York's DNR law, in such a circumstance, a surrogate, such as a family member or a close friend, can give consent.

 

What is the difference between a health care agent and a surrogate?

 

Under New York law, a health care agent is named by you in your Health Care Proxy and has the authority to accept or reject any medical treatment on your behalf. A surrogate, on the other hand, is a person appointed by a court to make decisions on your behalf about CPR. Under DNR law, a surrogate could be a spouse, a parent, an adult child, an adult sibling or a close friend. Remember, a surrogate can only give consent to your DNR Order if you do not have a health care agent and cannot accept or refuse other medical treatments on your behalf.

 

[Source: NY AG - Health care Bureau]

Robert J. Adler,

Attorney at Law

ADLER & ADLER,PLLC

Wills, Trusts, Estates & Private Client Services

30 years of

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