Living Wills

This is a short article on one of the documents that

, along with a last will and testatment, power of attorney and health care proxy, clients may think of when considering basic estate planning in New York.

A living will is a written statement, signed by you, that expresses your intent with respect to your health care treatment if you become incapable of making your own health care decisions. Typically, it includes your wishes concerning extended life support and end-of-life decisions. It is an advance directive.

In a living will, you may cover such things as use of mechanical respiration equipment, feeding by tube, cardiac resuscitation, and the use of pain medication where the pain medication may have the effect of shortening your life.

However, there are major drawbacks to using a living will. A living will is not created by statute and there is no legal basis for making uniform interpretations of language used in living wills. A living will is drafted by you and your attorney or other advisor specifically for you, and will be different than living wills of others.

With a living will, there is no legal immunity for physicians, hospitals, nurses and other health care providers for following the intentions expressed in your living will.

Further, because a living will is not something created by statute, there is no requirement that a health care provider follow the expressions of intent or instructions contained in the living will.

It is, in my opinion, much better to use a health care proxy instead of a living will. A health care proxy is created by statute and, in the health care proxy, you may state all of your intentions just as you would in a living will, but in a health care proxy you also name an agent to carry out your intentions. Further, by statute health care providers have immunity from both criminal and civil liability, and immunity from being deemed to have engaged in unprofessional conduct, for following the instructions of your health care agent, provided they do so in good faith. Likewise, your health care agent also has such immunity.

Perhaps the only time when you would want to consider executing a living will is where you do not have any family or friends whom you would trust to act as your health care agent, that is, where you are alone. And, further, if you are in this situation, keep in mind that a living will ages over time, that is, a living will signed last week will carry much more weight than a living will signed ten or twenty years ago.

I sum, I recommend a health care proxy and not a living will.

by: Project

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