Planning for end-of-life care is a challenge. It's not easy to discuss medical situations that may make it impossible for you to communicate your wishes. However, by planning for the worst-case scenario now, you are giving your loved ones a great gift. That gift makes them aware of your preferences so that they do not have to guess what you may want during a very trying time.
Thankfully, New York has a legal framework that can help you decide if you wish to accept or decline medical interventions. This guide to making a Living Will in New York explains how you can make your preferences known in the event that you can't articulate them yourself.
When Should You Consider an Advanced Directive?
Who should consider making an Advanced Directive? Everyone who is creating a New York Estate plan would benefit from having some kind of advanced healthcare directive. But it is especially important to review your preferences if:
-
You are over age 65 and have been admitted to the hospital.
-
You have a terminal illness.
-
You have an illness that may lead to incapacity.
-
You are being admitted into an assisted living facility.
What Are Advanced Directives?
Advance Directives are legal documents that allow you to state your guidelines for future health care decisions if you cannot make such decisions for yourself. In New York State, there are three kinds of Advanced Directives: the Health Care Proxy form, Living Will, and Do Not Resuscitate Order (DNR).
Since it is crucial that you use the right terminology, this guide uses the definitions that are approved by the New York Attorney General.
Health Care Proxy
A Health Care Proxy is a form that appoints a health care agent. This person should be "someone you trust to make healthcare decisions for you if you are unable to make decisions for yourself. In order for the health care proxy to become effective, two doctors must decide that you are not able to make your own decisions."
Living Will
A Living Will is a document that contains written instructions that explain your health care wishes. According to the NY AG, the Living Will "becomes effective when you are unable to make your own decisions, and your doctor confirms that you have an incurable condition. You cannot use a Living Will to name a health care agent; you must use a Health Care Proxy form."
Do Not Resuscitate Order (DNR)
A DNR "is a medical order written by a doctor. It instructs health care providers not to perform cardiopulmonary resuscitation (CPR) or other lifesaving emergency procedures if your heartbeat or breathing stops. A DNR is arranged with your doctor or health care provider before an emergency occurs."
According to the New York AG, "CPR or cardiopulmonary resuscitation is an emergency procedure to restart the work of your heart and lungs by compressing the chest overlying the heart and forcing air into the lungs. Additional lifesaving procedures include mechanical ventilation or respirator and intravenous medications to regulate blood pressure and heart rhythms."
The Right to Refuse Treatment in New York
In 1986, New York's highest court recognized that a person has a liberty interest in refusing treatment. See Rivers v. Katz, 62 NY.Y.2d 485, 504 N.Y.S.2d 74, 78 (1986). New York law gives residents a right to accept or reject medical treatment, including life-prolonging procedures. Many life-prolonging procedures are available, including mechanical respiration and tube or intravenous feeding. You also have the right to accept life-prolonging procedures if you choose. Normally, you have the ability to tell the doctor what you do and do not want. But in some situations, you may lose the ability to communicate - this is what happens when you are in a coma, for example. Having advanced directives enables your voice to be heard and your wishes to be honored.
Which Advanced Directive Forms Do You Need?
To determine which legal documents are best for you, consider the following question:
If you were in a coma or vegetative state, or otherwise incapacitated, would you want someone you trust to make medical decisions for you? If your answer is yes, then a Health Care Proxy form will appoint the person who you trust to take on that role. If your answer is no, that you don't trust any person to make those decisions, then you might prefer a Living Will. A New York Living Will is like a direct communication between you and your doctors.
Many people would answer yes and no to that question. That would be the situation if you have someone you trust to make decisions for you but still have certain preferences that you absolutely want to make clear. For example, you might want your oldest child to make medical decisions for you if you're incapacitated, but you don't want CPR under any circumstances. If this is the case, you could opt for both a Living Will and a Health Care Proxy.
How to Write a Living Will in New York State
There is no New York statute governing Living Wills. New York’s highest court laid out the basic requirements. A person must be 18 years of age or older, and the Will must contain “clear and convincing” evidence of your wishes. To write a Living Will in New York, you should describe the medical situations in which you would accept or refuse medical treatment. You should be as specific as possible. For example, some people would not want to be kept alive with a feeding tube if they are in a coma and there is no brain activity. Stating this in the Living Will lets your doctor know exactly what to do.
Although New York does not have clear legal requirements for how to witness and sign your Will, you should sign the document and have at least one witness. Notarizing the Living Will gives it more authenticity. Be sure to include the date you wrote the Living Will and your signature.
Once you've completed your Living Will, you should make several copies and keep them in a fireproof and waterproof location. Give copies to your family members and your health care providers. New York law mandates that Health Care Proxy forms be included in your medical record. Many people keep a hard copy of these documents in their wallet in the event that they are needed.
Make a New York State Living Will in Minutes with FastWill
You can create a fully customized Living Will by using the FastWill platform. We will walk you through your medical choices and instruct you on how to validate your New York Living Will. Our system is informed by AI and vetted by New York estate planning lawyers. By creating a Living Will when you make your estate plan, you and your loved ones will have greater peace of mind.
