Multiple problems frequently arise when an adult loses capacity.  Do you remember Terri Schiavo and the 7 year court battle that her family had to endure to determine the proper course of her medical treatment? Much to the surprise of close relatives, unless certain documents are signed ahead of time, the relatives are not entitled to make health care decisions for their loved one.

The two documents that allow an individual to detail their future medical wishes are a Health Care Proxy and a Living Will. You can also combine these two into one document: in the Health Care Proxy you can both nominate an agent and provide specific instructions about your treatments.

What is a Health Care Proxy? The Health Care Proxy allows an individual to appoint an agent to make medical decisions on the principal’s behalf if they are unable to express their wishes themselves. 

Purpose: A Health Care Proxy allows an individual to plan their future medical decisions in the event they are incapacitated. Given the state of today’s medicine, individuals are commonly subjected to advanced life support systems and invasive medical treatments that only prolong the end-of-life care. If you have any specific wishes in regards to your end-of-life care (e.g. when not to resuscitate), you need to write them down ahead of time.

Proper Execution: In New York in order for the Health Care Proxy to be valid, it must be signed and dated by a competent adult (over 18 years old), in the presence of two adult witnesses, who must also sign and date the document. The nominated agent may not act as a witness to the health care proxy. 

How Long Does a Health Care Proxy Last? Unless there were any limitations inserted by the principal, a Health Care Proxy does not expire and lasts until the principal’s death.

Specific Wishes: You can either sign a separate Living Will or you can include your specific wishes in the body of the Health Care Proxy. You can include treatments that you may want to undergo or may want withdrawn in specific situations.  

Organ Donation: The Health Care Proxy may provide for individual’s wishes regarding organ and/or tissue donations and may include specific limitations.

Who Can Be an Agent under a Health Care Proxy? Any competent individual over 18 years of age, as long as he is not the principal’s attending physician and not an employee of a hospital or a nursing home where the principal is a patient. Only one Health Care Agent can be appointed at a time. However, alternate agents can and should be named, in case the primary agent is not available.

You should ensure that 1. your agent someone that you trust and 2. your agent is aware of your wishes.

When Does an Agent’s Authority Begin? A Health Care Proxy becomes effective as soon as a physician determines that the individual is incapable of making health care decisions. As long as a person is competent, he is free to make his own decisions about his own treatment.

Revocation: As long as the adult remains competent, they may revoke the Health Care Proxy. Revocation can be done either orally, in writing, or upon an execution of a subsequent Health Care Proxy. If a spouse is appointed as an agent, their appointment is automatically revoked upon legal separation or divorce.

If There is No Health Care Proxy: In the event there are no advanced directives and an individual loses capacity, New York law determines who will have authority to make medical decisions on the individual’s behalf. The Family Health Care Decisions Act provides an order of priority: Article 81 court-appointed guardian, a spouse or domestic partner, an adult child, a parent, a sibling, and lastly, a close friend. To the extent there is significant disagreement amongst family members regarding the proper treatment of an incapacitated individual, a guardianship proceeding may become necessary.

Please contact Sverdlov Law PLLC at 212-709-8112, email us at  ksverdlov@sverdlovlaw.com, or visit www.sverdlovlaw.com if you need help with setting up a proper health care proxy or if you have any other advance directive questions.

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