April 16, 2012 is “National Healthcare Decisions Day.” It is a day set aside to educate the public about the importance of health care planning and to encourage people to express their personal wishes regarding health care, in writing, before a health care crisis occurs.
Over 100 million American adults have not designated an agent to make medical decisions nor documented the type of medical care they desire. Although it is a difficult issue to address, it is important for adults of all ages and stages of life to consider who is best-suited to make medical decisions for them in the event they become too ill speak for themselves and convey their own wishes. Without such directives, these important decisions and related matters may be left to the control of medical professionals, estranged or inappropriate family members or even the Court, all of whom may know little to nothing about you, your values and morals, or your overall wishes.
Health Care Proxy: A Health Care Proxy is a document which allows you to designate an agent to make health care decisions on your behalf in the event you are unable to do so. Your health care agent should be a person you trust to carry-out your wishes and deal with your physicians.
Living Will: A Living Will supplements the Health Care Proxy by allowing you to document your wishes concerning treatment during a terminal illness or in the event you are in a permanent vegetative state where there is no reasonable likelihood of recovery. It is always recommended that you engage in a thorough conversation with your designated agent to discuss your wishes and to contemplate various scenarios.
Appointing a health care agent is a good idea even if you are not terminally ill. A health care agent can act on your behalf should you ever become temporarily impaired. For instance, if you are unconscious as a result of a general anesthesia or have become comatose because of an accident, your health care agent would be able to make medical decisions on your behalf. By designating such an agent, you will also help avoid the need for costly and extensive Court intervention, in the event of both short and long-term incapacitation.
Family Health Care Decisions Act: On March 16, 2010, NYS Governor David Paterson signed the Family Health Care Decisions Act (“FHCDA”) into law. The FHCDA may permit family members to make medical decisions, including decisions about the withholding or withdrawal of life-sustaining treatment, for patients who have lost their ability to make medical decisions and who had not previously prepared a Health Care Proxy or Living Will.
HOWEVER, the FHCDA may give some a false sense of security and belief that written a Health Care Proxy or Living Will is not needed. That is not the case.
The law established a protocol for doctors to determine whether a patient has decision-making capacity. When it is determined that a patient does not have decision-making capacity, the law requires the selection of a ‘surrogate’ from a list of individuals ranked in order of priority, including family members, domestic partners and close friends.
The FHCDA does not solve problems where individuals desire to make very specific medical decisions for themselves based upon their own personal, religious or moral beliefs. Additionally, in family disputes, there will still be issues. For example, if several siblings have differing opinions regarding medical care for a parent, there will be problems to address.
Without advanced written directives for medical care, family members are left in the precarious situation of trying to figure out what to do. The FHCDA clarifies a decision-making hierarchy that may be helpful in emergency situations, but, it does not obviate the need for a Health Care Proxy and/or Living Will. Also, under the FHCDA statute, the health care surrogate is obligated to make decisions based on clear and convincing evidence of the patient’s wishes. The best way for a patient to express his/her own wishes, avoid family conflicts and select one’s own health care agent is to have a written Health Care Proxy and/or Living Will.
Although these matters can be difficult to contemplate and discuss, ignoring the issue can lead to devastating results for both you and your loved ones. Should you wish to prepare a Living Will/Health Care Proxy document with our firm, our Elder Law/Estate Planning attorneys will personally meet with you one-on-one to discuss your unique circumstances and to help you work through any number of these difficult issues, many of which you may have not yet considered. After the document is prepared and crafted to suit your needs, you will again meet with one of our attorneys to review the final document before signing. While we understand there is an endless supply of generic templates and forms for advanced medical directives in circulation, we encourage our clients to work with our firm to draft a comprehensive document that considers both your unique legal and personal circumstances and which designates not only the appropriate agent, but multiple successor agents of your choosing.
If you have any questions about this information, or wish to speak to or meet with an Elder Law/Estate Planning attorney, please contact HoganWillig, Attorneys at Law at 716-636-7600 or visit www.hoganwillig.com. HoganWillig’s main office is located at 2410 North Forest Road in Amherst, New York with additional offices in Lockport, Lancaster and Buffalo.