Living Will and Health Care Directives

In the aftermath of the Terri Schiavo court case, many people have reevaluated their options. State and Federal legislators throughout the country have offered new legislation, on how to handle seriously ill people in a terminal condition. The questions they are facing is how deal with patients on artificial life support such as mechanical breathing machines, kidney dialysis treatment, and artificial hydration.

Futile Care laws have been enacted by California, Virginia and Texas. These laws enable doctors and hospital watchdog groups to overturn the decisions of the family, whom despite the reality of the situation, still want to keep the patient alive, when there is no chance they can survive. In 1999 when George Bush was the Governor of Texas a law was created, that ordered an agent or representative who wanted the patient on life support 10 days to locate another hospital that would be willing to follow their wishes.

A Florida case, where the wife of the a terminally ill patient wanted to keep her husband on life support, in spite of the fact, his living will specifically stated he did not wish to being keep alive by artificially means. The wife insisted the hospital follows her wishes rather then those outlined in her husbands living will.

The case was brought to court by the hospital. The judge ruled against the wife and supported the patient's living will instructions, which would end life support by artificial means.

The law in New York State does not require the advance directive documents to be notarized. It is sufficient to be signed, without the presence of any witnesses.

We don’t know What Terry Wanted because she didn’t have a living will. Don’t make the same mistake!

Who Will You Trust To Carry Out Your Wishes

If there is no will, your loved ones will suffer after you have moved on.

You must have a living will and a health-care proxy, protect those you love.

You must have a plan that will dispose of your property and also address problems your family will face if you become incapacitated something that can happen at any time. You need a living will, a health-care proxy and a durable power-of-attorney

Let’s discuss advance directives often called health-care proxies and living wills.

Not very long ago there was no such protection, and your family would be left to do as they wished, allowing an already emotional event to be further complicated by being forced to make these decisions.

The Supreme Court's 1990 Cruzan decision concerning the 1983 car accident that left Nancy Cruzan in a vegetative state. Her family wanted her to be disconnected from all life support. Since there was no indication of what Nancy Cruzan wanted The U.S. Supreme Court upheld Missouri's decision.

You need a living will that will clearly state what medical treatments you want and what life-sustaining measures are acceptable to you.

A Health-care proxy gives the person of your choice the right to make health-care decisions when you're incapacitated. Different then a living will, It does not go into details. it just gives the authority to a person of your choice, who will follow out your wishes.

Having both a living will and a health-care proxy protects you as a living will is a backup to a health-care proxy as a living wills is recognized by case law in most states. So if you are on vacation or on business in another state you will be covered.

You want the protection a living will allows you in case the person you have chosen is challenged. Having a living will is clear and undisputed evidence of what you wanted.

On the other side of the coin a health-care proxy is a backup to the living will. A case in which a hospital refused a husband's request to terminate his wife's life support, despite the instructions in her living will. The hospital's lawyers argued that it was not clear she wished to be taken off life support. She lived many more months at a cost of $250,000, and the hospital is now suing him for payment.

These documents can be updated as medicine advances progress and your wishes are rethought.

That’s what’s great about a health-care proxy you don’t have to foresee every possible scenario once you have a person in place you trust.

LEGACIES: Entrusting Life and Death Decisions

By Lynn Brenner

If you don't write a will, your loved ones will pay for it after you're gone.

But if you don't have a health-care proxy and a living will, they're likely to suffer for it while you"re alive - and so are you.

A good estate plan doesn't just dispose of your property after you die. It also addresses lifetime issues you and your family will face if you become incapacitated - something that can happen to 30-year-olds as well as to 80-year-olds. That's why, regardless of age, everyone should have a durable power-of-attorney, a health-care proxy and a living will.

My last column discussed powers-of-attorney. So in this column and the next, let's talk about health-care proxies and living wills, which are sometimes called "advance directives."

A few decades ago, these documents didn't exist. It was understood that if you were comatose, your family would make your medical decisions. It's not that simple anymore. Without your "advance directives" to support their decisions, your family may be forced into an emotionally and financially draining battle for the right to make medical decisions on your behalf.

This new reality is epitomized in the Supreme Court's 1990 "Cruzan" decision: A 1983 car accident had left Nancy Cruzan in a vegetative state. Her parents asked that she be taken off an artificial feeding machine. The hospital, backed by the state of Missouri, rejected their request. The U.S. Supreme Court upheld Missouri's decision, because there was no clear and convincing evidence of what Nancy Cruzan would have wanted.

Living will. This document states which medical treatments - including life-sustaining measures - you do and do not want.

Health-care proxy. This gives another person the legal right to make health-care decisions when you're incapacitated. Unlike a living will, a health-care proxy doesn't have to state your wishes. "It just says that your agent knows what they are and is authorized to act for you," says Stephen J. Silverberg, an estate and elder-care lawyer at Certilman, Balin in East Meadow.

Using both. New York State has a health-care proxy law; it doesn't have a living will statute. Nevertheless, lawyers say it's important for New Yorkers to have both documents. "A living will is backup," explains Bernard A. Krooks, a partner at Littman Krooks in Manhattan and president of the National Academy of Elder Law Attorneys. "Let's say I'm in an accident while traveling. An Arkansas hospital may not honor a New York health-care proxy." But living wills are recognized by case law in most places.

Silverberg agrees. "You want a living will in case anyone gives the agent you named in your health- care proxy a hard time," he says. "If your agent is challenged, the living will is written proof - 'clear and convincing evidence' - of what you want."

As backup. By the same token, a health-care proxy can be crucial support for a living will. As an example, Krooks cites a Westchester case in which a hospital refused a husband's request to terminate his wife's life support, despite the instructions in her living will. "The hospital's lawyers argued that it wasn't crystal clear that she would have wanted termination of life support to apply in this case," says Krooks. Her husband had no health-care proxy authorizing him to make the decision. "His wife lived six more months in the hospital, at a cost of $250,000," Krooks says, "and the hospital is now suing him for payment."

Advance directives are revocable - you can change your mind. And of course, these documents don't come into play unless doctors certify that you're incapacitated. Many of us aren't sure what we'd want in such a dire situation - and, of course, we can't know what medical treatments may be available in the future.

That's what's attractive about a health-care proxy
: You don't have to anticipate every contingency; instead, you leave the ultimate decision to a person you trust. But how to choose that person? I'll write about that in my next column.

Copyright © 2003, Newsday, Inc.

Who Will Handle, Your Health Care Proxy?

There's no simpler estate planning document than a health care proxy in which you name someone to make medical decisions for you if you're incapacitated. You can pick up a standard proxy form for $2.50 at any legal stationery store and fill it in without a lawyer's help.

So much for the easy stuff.

The hard part is choosing the right person. You want an agent who's persistent, intelligent and confident -- someone who'll push doctors for more information, be smart enough to assess conflicting medical recommendations and decisive enough to make choices some members of your family may disagree with. Your health care agent must understand your wishes and be capable of carrying them out, regardless of his or her own feelings.

That's a very tough job -- perhaps too tough for the person closest to you. In some cases, a close friend or a relative by marriage. may be a better choice than your spouse. "When there's a nurse or a doctor in the family, people often lean toward appointing that person as their agent," says Vincent J. Russo, senior partner of Vincent J. Russo & Associates, an elder-care law firm with offices in Westbury and Islandia.

New York law lets you name only one health care agent. "If you don't want to offend anybody by leaving them out, you can appoint one family member as your agent and name the others as successor agents," says Russo. "And if you're in your 70s or 80s and appoint one of your contemporaries," he adds, "the successors should be younger."

Your agent should also live near you, or be willing and able to traveland stay nearby if it becomes necessary. "Distance really doesn't matter when you name an executor, a trustee or a power of attorney," says Stephen J. Silverberg, an East Meadow elder care attorney. "Telephone, fax and e-mail have made it a small world. But for health care decisions, I prefer a local agent. Doctors aren't as easily consulted over the phone."

One reason a health care proxy is such a simple document is that it doesn't give any instructions. It merely names an agent and says that he or she knows your wishes and has your authority to carry them out. You can make your agent's job less stressful by also signing a living will, says Russo.

A living will does give instructions. It says, for example, whether you do or don't want to be kept alive with a feeding tube in the event that there's no hope you'll recover. Living will forms are available at legal stationery stores, too, and some religious organizations even provide their own. (An Orthodox Jewish living will provides for a rabbi to be involved in the decision-making, for example.) But you may want a lawyer to enhance an off-the-shelf document for you.

A custom-tailored living will addresses issues not covered in the standard form, says Russo – like whether you want medication to alleviate pain even if it shortens your life, and whether you want to be kept alive on machines for a short time if that's necessary to be an organ donor.

A lawyer can also amend the standard health care proxy to include a reference to the Health Insurance Portability and Accountability Act (HIPAA), the law passed in 1996 that went into effect this year, which restricts access to medical records. To make sure your agent gets access to your records, Russo likes adding the words, "I designate my agent to be my personal representative in compliance with federal HIPAA laws and regulations."

Discuss your wishes with your doctor, too. And if possible, says Russo, find out before being admitted to a hospital or a nursing home whether it honors these documents. Like many states, New York lets health care institutions refuse to terminate life support systems on religious grounds. But by law, the "institutions" are required to disclose this policy when they admit you.

"If you're already there, and they can't honor your directives, they're required to transfer you to a facility that can," adds Russo.