I often review existing estate planning documents and in doing so, find that most estate plans consist of a living will and health care proxy which are advance directives dealing you’re your health care matters. A health care proxy is a document that appoints another individual to make your medical decisions if you are unable to make decisions on your own. A living will is a document that attempts to set forth in writing your wishes as to your treatment and care under various health related circumstances. As further discussed below, I do not favor the use of a living will.
In New York, there is a statute that defines the parameters of a valid health care proxy and provides clear guidance on when and how an agent may act. By relying on the statute, as well as case law, we know exactly how to draft a valid health care proxy with no ambiguity. In its simplest form, a health care proxy should appoint a health care agent and state that the agent knows your wishes regarding your care and treatment, including your wishes regarding artificial nutrition and hydration. It does not need to say anything more.
Unlike a health care proxy, there is no statutory basis for a living will in New York. We refer to a living will as a creature of an attorney, while a health care proxy is a creature of statute. In other words, relying on our experiences and case law, we as attorneys have crafted the forms of living wills many of you have seen and used. A living will is intended to be a document that provides clear and convincing instructions to your health care agent regarding your treatment and care but depending on how it is drafted, it can fall short of that goal.
The issue that a living will presents is that it can be extremely ambiguous, and at times overthought. For instance, many living wills contain a sentence substantially similar to “I do not wish to be kept alive by various life sustaining measures if death is inevitable or imminent or if there is no reasonable expectation of my being able to enjoy a meaningful quality of life. How many ambiguities can you find in that sentence? If I ask ten people to define “meaningful quality of life”, I would get ten different answers.
The concern is that a physician or other medical provider might interpret the language of a living will contrary to the wishes of the patient or the directions of the health care agent. What if, in the opinion of the physician, he does not believe you will have a meaningful quality of life, yet your family feels otherwise?
To avoid any conflict, I ordinarily advise clients to prepare only a health care proxy. With a valid health care proxy, your health care agent has complete authority to make any medical decision on your behalf. As I said above, a valid health care proxy only needs to say a few things. I encourage my clients to have in depth conversations with their health care agent so that the agent knows your exact wishes. If a client still wishes to prepare a living will, I will, but the health care agent only needs the health care proxy to act.
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