New York State Health Care Decision Making

If you are incapable of making your own health care decisions, how are they made?  There are two documents involved, a health care proxy and a living will.

A health care proxy allows you to appoint an agent to make health care decisions for you when you cannot.  You may name only a single agent, but as many backups as you chose. A health care proxy goes into effect only when you cannot make decisions. Your agent can make any decision you could have made, unless you state otherwise. He or she must make decisions according to your known or knowable wishes. The only decision your agent may not make is to remove you form a feeding tube.  In order to make this decision, your agent must know your wishes. A statement on your Health care proxy, that my agent knows my wishes regarding artificial nutrition and hydration, and is permitted to make such decisions on my behalf is sufficient. Other than feeding tubes, your agent may make any other life/ death decisions, if he or she has “clear and conniving evidence” of your wishes.

The way to insure that your agent has” clear and convincing “evidence of your wishes is to put them in writing. You may include them on your Health care Proxy, or you may sign another document  known as a living will. A living will is any writing that indicates your wishes regarding life and death decisions, if you are unable to state them yourself.   New York currently has no required form.

What happens if you have neither document? State Law provides for an order of preference as to who can make decisions for you. This starts with your spouse or partner and continues to a close friend. Only one person can make decisions, and how disputes among those in the same spot in the order are resolved is unclear. It is therefore advisable to sign a health care proxy.

Consider your choice of agent carefully. You are trusting the person with your health and maybe with your life.   No one, including your spouse or partner should be chosen just because it is “fair”.  Things to consider are will the person follow my wishes, even if they differ from his/her own and; is he or she capable of acting calmly in crises. The person need not be physically present, but he or she should be easily reachable. Once you have chosen your agent and backup agent, discus your reasons with everyone. Also be sure that everyone knows your wishes. Open and honest communication is the key.