Health Care Documents are Often Forgotten When Creating A Will

Health Care Documents are Often Forgotten When Creating A Will

Health Care Documents New York State

Do you have a Living Will  and a Health Care Proxy?  As I drafted a Last Will and Testament tonight, I thought to myself do people understand what these ancillary documents are, or better yet, do people know they even exist?

While the documents themselves aren’t entirely difficult to understand, the choices you have to make prior to their drafting are very difficult.  Unlike your Last Will and Testament these documents answer the tough question, of what happens if I am not dead?  What if I can’t make health decisions?

What is a Living Will?

A Living Will is the hardest ancillary document to understand, but only because of its name.  The New York State Bar Association provides an excellent definition,

A Living Will is a legal document in which you, as an adult who is now competent, can state your wishes regarding your future health care. It is used by those persons who want to express their feelings about the withholding or the withdrawing of life-sustaining treatment that prolongs the process of dying. Many persons want to make clear their objection to unwanted medical measures in advance; others wish to state that they favor measures to have all available kinds of life sustaining treatment administered.

The Living Will is intended to anticipate the situation wherein you might be in an incurable or an irreversible
mental or physical condition, with no reasonable expectation of recovery.

This is when you put in your (well, your attorney’s words, but your wishes) what you want when it comes to life sustaining measures (i.e. feeding tubes, breathing apparatus).  Seems simple enough, but then how is it confusing?

What a Living Will is Not?

A Living Will is not a Last Will and Testament nor is it a Revocable Living Trust.  Those two documents are put in place for bequests post-death (amongst other things of course), a Living Will is put in place just to let the world know your intentions concerning medical treatment if you were to become incapacitated.

It is easy to confuse all three documents because of their actual names.

What is a Health Care Proxy?

Again, I am going to use The New York State Bar Association’s definition for a Health Care Proxy,

A Health Care Proxy is a document which allows you, as a competent adult, to appoint another person as agent” or “attorney in fact” to make decisions for you regarding your health care in the event you lose your  decision making capacity or the ability to understand and appreciate the nature and consequence of health  are decisions. The Proxy can be general and apply to all medical decisions, or it can impose limitations and  spell out specific instructions. Some states may limit its applicability in certain situations.

In English, the HCP is appointing a person (someone you trust and cares about your best interests) as your proxy, or agent, to make health care decisions if you can’t.

When does a Health Care Proxy Become Effective?

From the same brochure,

Your agent’s power to make such a decision comes into effect only after your attending physician and a second physician give written opinions that you lack decision making capacity. If you are hospitalized and lack of capacity results from mental illness, then the second opinion must be that of a Board Certified  psychiatrist or neurologist. In certain other cases the second opinion must be that of another relevant specialist.

Additionally, a Health Care Proxy usually includes a provision to obtain HIPPA protected documents (your medical files).

There are free resources to obtain these documents (check out your State’s Bar Association Website), just like there are cheap options to obtain a Last Will and Testament, but I truly believe that these documents are extremely important and thus you should meet with an attorney.

5 Responses to Health Care Documents are Often Forgotten When Creating A Will

  1. Very informative, we’re in the process of updating our wills and it is not an easy task. Not to mention the realization that we’re worth a lot more dead than alive!

    • The roughest part of my side practice is sitting down with friends and family and asking so you both die, who do you want to take care of your children…and most of the time the stare at each other and the fighting beings.

      But you should be happy that you are worth more dead then alive, that means your family has a fighting chance if your income disappears (silver lining stuff huh lol)

  2. I need to find out if such a thing exists here in France! We just had a bad car accident in the family over here and I was left wondering who would make those decisions if necessary–luckily they weren’t necessary, but that doesn’t mean I’m not going to look into it for future use!

  3. Evan–thanks! I’m going to research that further with our attorney. I had the impression that medical decisions (like keeping someone on life support etc) are often determined more by the doctors here than in the US–I’ve never heard of a scandal about whether to leave someone on or off life support by the way–unlike in the US . . .But I’m very curious to find out.

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