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Comparing Health Care Proxy with Living Will

This edition of the Koldin Law Center E-Newsletter is part of a series about frequently asked questions comparing legal documents, legal roles, and government benefits.

All prior newsletters are saved on our website. You can read them by clicking here.

We receive many questions from clients and readers of our newsletter asking about the differences between various legal documents, legal roles, and government benefits. In this newsletter we compare the difference between a Health Care Proxy and a Living Will.

New York State has provided a detailed website page about different advanced directives which can be found at:
https://ag.ny.gov/sites/default/files/publications/advancedirectives.pdf

Health Care Proxy

A Health Care Proxy is a legal document in New York State which allows you to appoint someone to make health care decisions on your behalf if you lose the ability to make decisions for yourself.

New York State provides a standard form in the law. This standard form is widely used by attorneys, physicians and hospitals. The blank Health Care Proxy form from New York State can be found on the internet at: https://www.health.ny.gov/publications/1430.pdf

As a practical matter, most hospitals and physicians will be very reluctant to follow an agent’s instructions without the necessary proof of your wishes. Therefore, it is critical that you make your wishes known in this optional section of your Health Care Proxy.

Under New York law, your Health Care Proxy agent does not have the authority to make health care decisions for you about artificial nutrition and hydration (nourishment and water provided by feeding tube and intravenous line) unless you have made your wishes known to your agent.

There is an optional section on the form with blank lines for additional instructions. We have found that most new clients who come to our office either don’t have a Health Care Proxy or have one with the optional section for additional instructions left blank.

For more information on Health Care Proxies, please visit our website by clicking here.

Living Will

A Living Will is a statement of your medical treatment wishes if you become incapacitated and also typically includes your wishes regarding termination of life support. Unlike a Health Care Proxy, there is no standard form for a Living Will.

A Living Will is not a legal document specifically authorized by New York statute. It does, however, provide evidence of your wishes that can be reviewed by a Court.

Although there is no legal Living Will document, there are many Living Will sample forms offered on the internet that can be completed to provide evidence of your wishes. A simple google search for “NY living will form” provides many sample Living Wills.

There are advantages and disadvantages to having a Living Will. On the one hand, a Living Will provides guidance to your appointed Health Care Proxy agent. On the other hand, a Living Will can create possible ambiguity for others to use to challenge decisions made by your Health Care Proxy agent.

A Living Will needs to be interpreted and sometimes this can lead to conflict between family members and medical professionals.

The Koldin Law Center, P.C., prepares Health Care Proxies for clients that always include specific instructions on your wishes regarding HIPAA privacy, removal of life support, artificial nutrition and hydration. Unless the client instructs us otherwise, the Health Care Proxy we prepare also makes clear that you desire whatever treatment necessary for your comfort and to alleviate pain.

At the Koldin Law Center, P.C., located in East Syracuse, New York, we have over 50 years of experience helping individuals plan for immediate crisis and long term care.

The Koldin Law Center, P.C. limits its practice to the specific field of Elder Law which includes estate planning and Medicaid law.

Our attorneys are available to discuss your estate planning options, including the advantages and disadvantages of Revocable Trusts and Irrevocable Trusts, along with other estate planning considerations including a Will, Power of Attorney, and Health Care Proxy.

When the Koldin Law Center, P.C. handles a Medicaid case, we not only handle the entire application process, but we also review asset protection options with our clients. We review with our clients who are already in a Nursing Home options to protect some or all of their assets beyond merely establishing Medicaid eligibility.

We do not charge a fee for the initial consultation. We welcome your children, family attorney, accountant, and/or financial planner to be present at the initial consultation.

There is something you can do.

Our Attorneys Are Available To Speak To Your Organization

Our Attorneys speak to groups throughout New York State as a public service. If you would like to arrange for one of our Attorneys to speak to your group, please contact our office.

We Appreciate Your Referrals

We have been told by many clients who are in a crisis that they wish they had known about our firm much sooner. We are proud of the many families we have helped in times of crisis.

We are also proud of the many families we helped avoid financial crisis by doing estate planning in advance.

We all share the responsibility for making our family and friends aware of the planning options available to them.

Your referral to the Koldin Law Center could make a major difference in the lives of your family and friends if they are someday faced with a long term illness.

Remember that the Koldin Law Center offers many services for clients of all ages. Our services range from basic estate planning such as a simple will to complex estate planning including asset preservation planning.

THERE IS NO FEE FOR THE INITIAL CONSULTATION