Written By:Scott Glatstian
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3 Generations & 100+ Years of Combined Legal Experience
A harsh reality is that any of us could find ourselves facing a terrible medical diagnosis and confinement in a hospital. According to research supported by the CDC, most Americans would prefer to die in their homes. Do you have a plan in place for if this happens to you? Unfortunately, many Americans do not, and often do not even understand that it’s possible to create a plan for this scenario.
How can one go about planning for a critical medical diagnosis? In New York state, this can be done with something called an advance directive. An advance directive is a way for someone to plan out how they want their health and treatment to be handled when they are unable to make the decision themselves. It is similar to a durable power of attorney, except that it only grants decision-making authority over health care decisions.
New York law allows everyone the right to accept or deny medical treatment for any reason whatsoever. But what if you are unable to make those decisions for yourself? This article will go over the basics of advance directives in New York state, including an overview of what they entail, how to create one, and potential issues to consider.
What Are the Different Types of Advance Directives?
Advance directives consist of two types of documents. The first is a health care proxy. This form allows one to assign a trusted health care agent – or rather, someone who has the power to make medical and treatment decisions when the creator of the advance directive is incapacitated. In order for a health care proxy to come into effect, two different doctors need to agree that the subject is unable to make their own decisions.
Choosing the right healthcare proxy is a big decision. It must be someone who is very close and trusted, because they will be in charge of decisions that could result in the life or death of the creator. Some questions to consider when selecting a proxy include:
- Will this person be available to step in immediately and make these decisions when the time is required?
- Are they local to where I reside?
- Can this person speak intelligently with doctors and medical professionals and come to an educated decision on how to proceed with my treatment?
- Is this person willing to disregard their own inclinations for my healthcare and follow my wishes as laid out in my living will?
If you’re able to answer ‘yes’ to each of these questions, then that person should be an excellent health care proxy choice. However, due to how important this decision is, it is important to consult not only a doctor, but also a seasoned estate attorney. An estate attorney will be able to help you select the best person to represent your health care choices, and point out any red flags. Remember, having a bad health care proxy is just as bad as having no proxy whatsoever.
The living will is the other important piece of an advance directive . A living will carefully lays out instructions on how the subject wishes to be dealt with in the event of a terminal illness or other incurable condition. Note that a person cannot assign a health care proxy in New York state with a living will in the same document. A separate health care proxy form must be filled out on top of the living will.
A living will can guide and direct medical professions on a wide range of issues. These issues include, but are not limited to:
- Whether or not to donate their organs
- How to follow any religious rules regarding their treatment and post-mortem care
- Which treatments they consider unacceptable
Living wills also allow for immense flexibility. Subjects can direct professionals to use certain treatments, such as ventilators or feeding tubes, for a specific amount of time. For example, Max knows that being on a ventilator, while lifesaving, creates a very poor quality of life that he wishes to limit. Max can create a section in his living will which limits doctors to using a ventilator for a maximum of two weeks, and request to be taken off at the end of that time frame regardless of the status of his recovery.
At Rosenblum Law, we create both documents because anyone considering either one should have both anyway.
How Is an Advanced Directive Created?
Before doing anything, it is crucial to consider what your overall goals are when it comes to medical treatments for severe diagnoses. After that, it will be easier to select which routes are best for you.
If you are looking to create a health care proxy, you will need to fill out the health care proxy form. The minimum requirements in New York include that the form must contain a signature of the creator and the date of signing. Additionally, all health care agents must be explicitly named, along with a statement from the creator designating the power to make healthcare decisions upon the agent. On top of that, at least two witnesses must be present for the signing, and the witnesses cannot be any of the agents you’ve selected. Despite doing all this, the courts still reserve the right to disqualify your proxy choice if they feel the selection is unfit for the role.
New York does not have official laws dictating how living wills must be formatted. The courts, however, claim that a living will is valid as long as it is “clear and convincing” of the wishes of the creator. The minimum requirements for a living will include a date and signature of the creator, a statement outlining the health care directives, and two witnesses who must provide sworn statements that the creator signed the living will of their own volition.
If you wish to cancel your advance directives in New York, you may do so at any time. In fact, the creator of an advance directive can even include an expiration date where the document becomes null. To cancel most advance directives in New York, a statement of cancellation can be delivered orally or in writing to the creator’s health care agent, doctor, or any person affected by the advance directive. Additionally, simply destroying your advance directive will terminate it, although it is often recommended that the creator still inform anyone who might be directly affected by the original advance directive.
Why Hire an Attorney?
Whether you are young or old, healthy or sick, medical issues can arise at any moment and render you incapacitated. While it’s difficult to contemplate such things happening, it’s always best to plan for them before they occur, rather than leave one’s family dealing with both an ailing family member and the need to make decisions about how they should be treated.
At Rosenblum Law, we guide our clients through every step of the process and create an advance directive for them that will ensure that their wishes are followed and their family is prepared for any future possibility. Call us now to get started with a free consultation.
How to Cite Rosenblum Law’s Article
Scott Glatstian (Sep 13, 2022). Creating an Advance Directive for Healthcare in New York. Rosenblum Law Firm, https://rosenblumlaw.com/estate-planning/ny/creating-directive-for-healthcare/
Scott Glatstian "Creating an Advance Directive for Healthcare in New York". Rosenblum Law Firm, Sep 13, 2022. https://rosenblumlaw.com/estate-planning/ny/creating-directive-for-healthcare/