Headaches with Living Will

I wrote not long ago about how estate planning attorneys such as myself do not typically get involved in being a client?s agent on their Health Care Proxy, but every now and then the lawyer is the only one who can do it. ?The sad fact is that some people, I think more than you?d imagine, just don?t have any family members or close friends who to give their Health Care Proxy or Power of Attorney. ?As the lawyer, you can either say ?no? and let the client leave without these important documents in place, or say ?yes? and accept the hazards which come with the territory.

Now, the latest which is occurring with my client for whom I am the Agent on his Health Care Proxy is that the nurses and doctors are debating with me the language in the client?s Living Will. ?I can hardly believe it. Most people are not aware that a Living Will has almost no legal purpose in the state of New York. ?In New York, the official, legal document wherein one person (called the Principal) appoints another (called the Agent) to make medical and health care decisions when (and only when) the Principal cannot do so is called the Health Care Proxy. ?Sometimes, this document is called an ?advanced directive?, because it sets out ahead of time (?in advance?) a person?s wishes regarding medical procedures.

A Living Will, on the other hand, is really like an open letter to one?s friends and family and doctors as to what their feelings are towards heroic measures at the end of life. This would include, for example, Do Not Resuscitate (DNR) order, or a statement that a person does not want to live supported by breathing tubes and feeding tubes. ?However, the Living Will is not really a part of New York law. ?It is possible, very, very remotely, that a Living Will could be used as evidence of a person?s wishes if there was a judicial proceeding of some sort, but this is very unlikely. ?The bigger problem, as I have told my clients for years, and which I am facing head on right now, is that the Living Will may be interpreted different ways by different people. That?s just human nature. ?So I have the doctor calling me up and going through the living will and debating with me what the client really wanted in this situation. ?Fortunately, I am able to explain to the doctor that the client intended the Living Will to apply only at End of Life situations, where the client was brain dead, in effect, and had no reasonable hope of recovery whatsoever. ?Now the fact is that the Agent under the Health Care Proxy has complete authority under New York law to direct the client?s medical treatment when the client and patient cannot do so. ?However, because I have also presented the hospital with the client?s Living Will, and the doctors and nurses don?t really know the law on these issues, I have been drawn into debates on items which the doctor should technically be asking me how to proceed, rather than discussing what the patient would have wanted.

See for yourself; this is how the living will reads:

I, MICHAEL _______________, presently residing at Peter Cooper Rd., Apt. ?New York NY 10010, in the County of New York, State of New York, being of sound mind and memory, make this statement as a directive to be followed if, and only if, I become permanently unable to participate in decisions regarding my medical care.? These instructions reflect my firm and settled commitment to decline medical treatment when I am at the end of my life under the circumstances indicated below:

I direct my attending physician to withhold or withdraw treatment that serves only to prolong the process of my dying, if and only if I should be in an incurable or irreversible mental or physical condition with no reasonable expectation of recovery.

These instructions apply ONLY IF I am a) in a terminal condition; b) permanently unconscious; or, c) if I am conscious but have irreversible brain damage and will never regain the ability to make decisions and express my wishes.

I direct that treatment be limited to measures to keep me comfortable and to relieve pain, including any pain that might occur by withholding or withdrawing treatment.

While I understand that I am not legally required to be specific about future treatments, if I am in the condition(s) described above I feel especially strongly about the following forms of treatment;

I do not want cardiac resuscitation. (DO NOT RESUSCITATE)

I do not want electrical or mechanical respiration (ventilation).

I do not want tube feeding of any kind. (Intubation)

I do not want antibiotics.

I do not want surgery.

I do not want any other measures, available now or developed in the future which merely prolong or suspend the dying process without providing any possible cure.

????????? I DO WANT MAXIMUM PAIN RELIEF.

Nothing contained in this, my Living Will, shall be construed as to limit the authority of any Health Care Proxy appointed by me at any time heretofore or hereafter.

These directions express my legal right to refuse treatment, under the laws of the State of New York.? I intend my instructions to be carried out, unless I have rescinded them in a new writing or by clearly indicating that I have changed my mind.

I have made this instrument while in full command of my faculties in order to furnish clear and convincing proof of the strength and durability of my determination to forego life-sustaining treatment in any of the circumstances referred to herein; of my firm and settled conviction that I am entitled to forego such treatment in the exercise of my constitutional and common law rights to determine the course of my medical treatment; and of my belief that my right to forego such treatment is paramount to any responsibility of any health care provider or the authority of any court or judge to attempt to force unwanted medical care upon me.? Therefore, I expect my family, doctors, and all those concerned with my care to be free from liability or guilt for having followed my directions.

Source: http://new-york-estate-planning-probate-elderlaw.com/?p=131

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