Living Wills and health-care Proxies
What is a health-care proxy?
Under New York law, an individual may appoint someone she trusts E.g. a family member or close friend to decide about treatment if she loses ability to decide for herself. She can do this by using a health-care proxy in which she appoint a health care agent to make sure that health-care providers follow her wishes. Her agent can also decide how her wishes apply as her medical condition changes. Hospitals, nursing homes, doctors and other health-care professionals must follow the agent's decisions as if they were the patient's. The individual can give her health-care agent as little or as much authority as she wants. She can allow the agent to decide about all health-care or only certain treatments. To properly protect patient who does not want to be kept alive by machine you must include both a "Do Not Resuscitate" and a "Do Not Intervene" order in all Powers and Living Wills. You must have multiple copies of this document e.g. Patient going to hospital by ambulance. Without DNI, patient could be put on machines and may not be able to be taken off.
What is the difference between a living will and health-care proxy?.
A Living Will is a written statement of an individual's wishes regarding medical treatment. The statement is to be followed if an individual is unable to provide instructions at time medical decisions need to be made. Health-Care proxy is significantly different from Living-Will in that it empowers another person (agent) to make health decisions if patient cannot do so herself/himself. Living-Will on the other hand, has no such provision but enables a person to express his/her own choices regarding medical treatment. It makes sense to utilize both a Living-Will and a Health-Care proxy.
Can the health-care agent be legally or financially liable for health-care decisions made on your behalf?
No. A Health-Care agent will not be liable for treatment decisions made in good faith. The agent cannot be held liable for costs of care just because she/he is an agent.
Do you have to write an advance directive?
No. Signing a Living-Will or Health-Care proxy is voluntary. No one can require an individual to complete documents
Guardianship - A Valuable Legal Tool
In 1993, NYS enacted a new guardianship statute know as Article 81 of the Mental Hygiene Law. The new law set aside the former system of conservatorships and committees. Under Article 81 a court may appoint a guardian for a person whenever it finds by "clear and convincing" evidence that alleged incapacitated person, the "AIP" (1) cannot adequately understand and appreciate nature and consequences of his/her particular limitations and (2) is likely to suffer harm because of these limitations and inability to appreciate consequences. A guardian is a person appointed by Court who receives authority from Court to make certain personal care decisions and/or property and financial mgt. decisions for AIP for a period of time found by Court to be necessary to meet a person's needs. Powers of guardian are specifically limited to those necessary to meet needs of the AIP. A guardian may be an individual of 18 years of age or a parent under 18 years of age and certain public agencies and not-for-profit corporations.
Statute provides that guardian's authority should be tailored to satisfy specific personal and/or property management needs of AIP making available least restrictive form of intervention. In contrast to the old guardianship law under Articles 78 and 81 of the Mental Hygiene Law, the new statute permits AIP as much latitude as possible under circumstances for exercise of independence and self-determination. Guardianship proceeding may be commenced by alleged incapacitated person or a person with whom that person resides, relatives, a trustee of a trust established by and/or for benefit of a person and in fact, any individual who is concerned about welfare of person alleged to be incapacitated.