LIVING WILL
A living will is a legal document in which a competent adult can state his/her wishes with respect to future medical care decisions. It comes into use when you can no longer make and communicate decisions regarding the medical care you wish to receive. It is used by persons who want to express their feelings about treatment that prolongs the process of dying and end of life decision making. 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 a meaningful recovery. Your instructions are usually intended to apply if you are in a terminal condition with no reasonale chance of a meaningful recovery, are permanently unconsciousness or in a persistent vegetative state, or are conscious but with irreversible brain damage and will never regain the ability to make decisions and/or express your wishes. You can specify under which circumstances the living will should come into use.
The living will allows you to make clear your desire not to have heroic measures made on your behalf if you are incapacitated as stated above. Stated objections to unwanted medical procedures and treatment can and should be specified within this document. Conversely, your decision to have administered all available life-sustaining treatment can also be stated, if those are your wishes. Some examples of specific matters that you should cover are your wishes concerning artificial nutrition and hydration, cardiac resuscitation, mechanical respiration, antibiotics, pain management, surgery, etc. It is especially important to be specific about artificial nutrition and hydration (tube feeding) since many statutes differ significantly with respect to this issue. You may also want to authorize the issuance of a DNR (Do Not Resuscitate) Order by your agent or physician.
The highest Court in New York has held that patient’s right to decline treatment is guaranteed by the common law. Although New York does not have a specific statute recognizing living wills as do most other states and the District of Columbia, the courts in New York have upheld those expressions of intent where the patients’ wishes have been established by clear and convincing proof---where it was proven that the person who has become incompetent had previously given clear and unequivocal instructions that he or she wanted life-sustaining measures to be terminated. Although your wishes may be stated orally, and might be proven by testimony of conversations, those wishes which are expressed in writing are preferable and much more convincing. The living will is the ideal document in which to express these wishes.
A living will should not be used as a substitute for a health care proxy, which is the preferred method for expressing your medical wishes in New York State. The health care proxy allows your agent to make decisions on your behalf as the situation unfolds. If you do not have anyone to appoint as a health care agent, then you should complete a living will. Along with the health care proxy, a properly drafted and executed living will also provides written proof of your wishes in the event your health care agent’s decisions as to end of life care on your behalf are challenged.
What If You Change Your Mind And Want To Revoke Or Change Your Living Will Or Health Care Proxy?
Periodic reviews are important to ensure that the documents you have signed still state what your wishes now are. You can modify or revoke your living will or health care proxy or appoint a different agent at any time by destroying the document or by executing a new one. You should notify your agent, your attorney, your physician and any other health care provider and anyone who has a copy, verbally and in writing, of any change or revocation you make.
For further information contact Fern J. Finkel or Julie Stoil Fernandez at Finkel & Fernandez, LLP
16 Court Street, Suite 1007, Brooklyn, New York 11241, 347-296-8200 (telephone), 718-965-3185 (fax), ffinkel@ffelderlaw.com, jstoilfernandez@ffelderlaw.com.
