In our previous article, Understanding a Health Care Proxy*, we followed Richard, an 81-year-old widower, who had named his daughter Beth as his Health Care Agent in his health care proxy. Since being admitted to the hospital, Richard has taken a turn for the worse, and is now in a permanent vegetative state. Beth feels it would be best to terminate treatment and life-prolonging procedures, such as mechanical respiration and artificial feeding, which are keeping Richard alive. Based upon prior conversations she had with her father, Beth believes that Richard would want to die peacefully, rather than “being kept alive by machines.” Beth’s brother Chris, however, is adamant that all forms of treatment and artificial life-prolonging procedures be continued.

As Richard’s agent, Beth has the authority to make such health care decisions for Richard. However, because Richard never created a Living Will, Beth is now burdened with making the decision to terminate the treatment and life-prolonging procedures for her father. Further, Chris may have grounds to bring a legal proceeding seeking to continue the treatment because it is his belief, based upon prior conversations with his father, that Richard would want to “be kept alive at all costs.”

Beth and Chris, who were once inseparable, are now at odds with each other. This division between family members, sadly, is a scenario that plays out all too often, and cannot be fixed by the Courts. Had Richard prepared a Living Will, his beliefs and wishes would be memorialized in writing, for all to see and understand.

A Living Will is a legal document in which someone states his/her wishes regarding their future health care. While New York State does not have any statutes governing Living Wills, the Court of Appeals, New York’s highest court, has found Living Wills are valid if they provide “clear and convincing” evidence of one’s wishes. Generally, the Living Will is used to express one’s views or wishes about withholding, withdrawing or continuing life-sustaining treatment that prolongs the process of dying.

Because there is no statutory Living Will form, this document can be created and tailored to one’s beliefs and wishes, and even provide for different scenarios. Perhaps Richard told Beth that he did not want to be ‘kept alive by machines’ if he were in a permanent vegetative state, while telling Chris that he wanted to “be kept alive at all costs,” if there was a chance that he could recover from a future medical condition. These two wishes are not entirely contradictory, but are open in interpretation, or perhaps misinterpretation, by his children because the wishes were not memorialized in writing. In hindsight, Richard should have had a Living Will to provide the Health Care Agent with clear and convincing proof of one’s views and wishes when he/she is called upon to make health care decisions. Furthermore, the Living Will provides written proof of one’s views and wishes to all other family, friends, hospitals and other health care facilities.

A person creating a Living Will is able to express their wishes for various scenarios, including, but not limited to: permanent vegetative state, coma and not expected to recover, terminal illness, incurable condition and imminent death. One can require that two treating doctors confirm the condition (i.e., permanent vegetative state without the ability to recover and experience a meaningful life) before the Health Care Agent can make the decision to end all treatment and life-prolonging procedures. One can even express their desire to be provided maximum pain relief once the treatment and life-pronging procedure are withdrawn to allow them to pass away peacefully.

Since there is no statuary required form for a Living Will, it’s important to make sure all appropriate questions are addressed, and that it accurately reflects and details one’s wishes and desires.

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Michael Giannasca and Brian Miller are attorneys with the law firm of Giannasca & Shook, PLLC. The Elder Law & Estate Planning Group of the firm handles all aspects of Elder Law including wills & probate, trusts & estates, Medicaid planning, guardianships, estate administration and litigation, and asset protection. Mr. Giannasca and Mr. Miller are members of Elder Counsel, the National Academy of Elder Law Attorneys, the Elder Law and Special Needs Section and Trusts and Estates Law Section of the New York State Bar Association and the Trusts & Estates Section and the Elder Law Committees of the Westchester County Bar Association; 1 Barker Avenue, Suite 325, White Plains, NY 10601; 914-872-6000.