As part of your right to self-determination, a competent adult can communicate preferences regarding medical treatment and life support through the formulation of an Advance Directive.
The following are examples of the most common form of Advanced Directive. Please consult with you attorney about which directive is best suited for your situation.
A Health Care Proxy is a document delegating to another individual the authority to make health care decisions. It takes effect only in the event that the person signing the document becomes unable to make her/his own health care decisions. The document should give the name and address of a proxy, as well as an alternate proxy. The instrument must be signed and dated by the individual, in the presence of two adult witnesses, who must also sign the document, acknowledging that they witnessed the execution of it.
Bear in mind that this instrument does not become effective unless and until the person is unable to make her/his own decisions. In addition, it only addresses health care decisions, not other aspects of the individual’s life.
A Power of Attorney designates one or more individuals to act on behalf of the person signing the document. Importantly, it has no bearing on medical or health care issues, but focuses solely on “legal” issues. It would permit one or more individuals to act either separately or together with respect to such items as: real estate transactions, personal property, bonds, shares and commodity transactions, banking, business operations, insurance transactions, estate procedures, claims and litigation, personal relationships, military benefits, records, reports, statements, retirement benefits, making gifts to a spouse, child or more remote direct descendants, as well as other additional powers which may be added to the statutory form.
It is important to recognize that the Power of Attorney form is like a menu: one can pick and choose those items which look desirable, and omit or reject those powers which do not interest the individual granting the powers.
It is also important to distinguish between a Durable Power of Attorney, which becomes effective immediately, and a Springing Power of Attorney, which does not become effective until one’s physician or another person named in the document certifies that a particular even has occurred (usually inability to make one’s own decisions) which would then set in motion the powers granted. There are benefits and risks associated with these two forms of Power of Attorney.
Technically, both Power of Attorney instruments are “Durable,” meaning they will not be affected by any subsequent disability or incompetence. However, the legal community often (and erroneously) refers to one as a Durable Power of Attorney and the other as a Springing Power of Attorney. The difference is that the most common form takes effect immediately, whereas a Springing Power of Attorney does not become effective until a future undetermined time. They could also be distinguished as follows:
The ordinary Durable Power of Attorney gives the individual to whom the power is granted the right to act at once, and does not require the disability of the principal. Therefore, one need not be comatose, suffering from dementia, or otherwise infirm in order for the person delegated to utilize the Power of Attorney. It could be as simple as a husband and wife buying real property while one is away on business. The other spouse could sign on his or her behalf.
The real advantage of this form is that the Power of Attorney is transferred instantly. No third party has to make a determination as to whether or not the individual executing the instrument is incapacitated. Bear in mind that the person signing the instrument is not surrendering the right to make these decisions, but merely sharing them with someone he or she trusts. That, of course, is the key issue. Once the document is turned over to the “Attorney in Fact,” that person could buy and sell real property, buy and sell stocks and bonds, commence litigation, make gifts, etc. on behalf of the principal, assuming those powers were marked off on the Power of Attorney form.
The Springing Power of Attorney requires that a physician named in the instrument certify that the principal is suffering from diminished capacity and is unable to conduct his or her affaires in a competent manner; or in the alternative, a statement by another individual named by the principal certifying that a specific event has occurred.
The advantage that some people perceive in the Springing Power of Attorney is that a person to whom the authority is given has no rights whatsoever unless and until the triggering event occurs. They need not fear that someone will buy or sell stocks, bonds, real estate, etc. without the written statement of the physician or the certification by another individual that a particular event has occurred.
The disadvantage of this form is that it does not have the flexibility or convenience of the first document, which can be used at any time. It also requires that a physician be “tracked down” in order to certify that the principal suffers from diminished capacity. In the alternative, the person named as the alternate to the physician would have to be located to certify that a particular event has occurred. Aside from the challenge of finding the physician or individual named on a timely basis, there is also uncertainty as to whether the physician will, in fact, certify that the party is unable to conduct his or her affairs in a competent manner (or that the other individual will certify that a particular event has occurred). The persons making the weighty decisions may decline and ask for a court order regarding the capacity of the principal. That would be a lengthy and expensive process. If urgent action is needed, that would slow down the ability of the agent to act in a timely manner.
Notwithstanding the hazards of a “Springing Power of Attorney,” some people feel more comfortable by not relinquishing any power or control over their lives unless and until, they have suffered diminished capacity.
Unlike the Health Care Proxy and Powers of Attorney, which are authorized by statute, the Living Will is more of a philosophical statement. It generally expresses a desire that if one suffers a substantial loss of mental capacity, which is incurable or irreversible and which by reasonable medical judgment is expected to cause one’s death in a relatively short time, that no unusual “medical interventions” should be taken.
These medical interventions may be narrowly defined or broadly defined. They may include prohibitions against tube feeding, mechanical resuscitation, intravenous hydration, etc. The Living Will, generally asks that medications be administered to alleviate suffering, even though that may shorten one’s remaining life. It may also contain a wish to live out one’s remaining days at home, if possible, rather than in a hospital.
It is wise to insert a paragraph that any physician, hospital or health care provider who withholds or withdraws life sustaining treatment in reliance upon the Living Will and the direction of a Health Care Proxy, be held completely harmless with no liability or responsibility whatsoever to the patient, the patient’s estate, or any other person. The format of the Living Will is not dictated by statute, but can be crafted to meet the individual philosophy of the person signing the instrument
Public Health Law article 29B provides that in certain circumstances, it is appropriate for an attending physician to issue an order not to attempt cardiopulmonary resuscitation of a patient in the event that a patient suffers cardiac or respiratory arrest, and an appropriate consent has been previously obtained.
Because there is a presumption that any patient admitted to a hospital shall be presumed to consent to the administration of cardiopulmonary resuscitation, an order not to resuscitate must be based upon the written consent of the patient or of the surrogate of the patient, or parent or legal guardian of a minor patient. The attending physician is to provide to the person giving consent information about the patient’s diagnosis and prognosis and the reasonably foreseeable risks and benefits of cardiopulmonary resuscitation, and the consequences of an order not to resuscitate.
There are detailed rules concerning the manner in which an order not to resuscitate may be secured. These rules include, among other things, a list of individuals other than the patient who may under certain circumstances issue an order not to resuscitate. These include, in order of priority: