Summary: R. Edward Townsend, Esq. suggested that we make a few more points on living wills and health proxies. Ed offers his comments from a New York law perspective but the comments really have wide applicability to wherever you might be. The comments, as is Ed’s style, are practical, to the point (well before I threw in my two cents) and real. Ed, in offering his practical insights, continues a process begun many decades ago. I clerked with Ed and his firm in law school, and no young attorney could find a finer mentor then Ed. We appreciate the input.
√ Make certain the health care proxy addresses nutrition and hydration (required by New York law). Be really careful of “standard” forms and especially cheapo internet documents. The provisions are often woefully inadequate with respect to this important point, and in some cases horrific in application.
√Make certain the health care proxy contains HIPAA language. That’s the Health Insurance Portability and Accountability Act which created specific requirements for authorizing a person to access your medical information. The language should clearly authorize an agent to access your records and should include specific references to HIPAA.
√Don’t designate multiple agents. Doctors don’t like this, and I believe it is not allowed in some states. I sometimes have clients who want two or more kids involved in the decision making, in which case I designate a primary health care agent (e.g., the older child), and then a successor (e.g., the younger child), and then provide that the former should consult with the latter. Sometimes you have one kid in New York and one in California. In this case, I might provide that the kid in New York has the power when the parent is in New York, and vice versa when the parent is with the kid on the West Coast. Even if multiple agents are permitted under your state law, don’t do it. Emotions run high when these issues arise and even children who always were of like mind could differ in dramatic ways making decision making impossible.
√I steer clients away from overly specific living wills. I find they only confuse the health care agent, the doctor and the hospital, and the health care problem that eventuates is invariably one which is not specifically addressed. Then everyone gets into the act with an opinion as to how the exact language should be interpreted, etc. I stress that the client should set forth his/her basic wishes, and then select a health care agent with judgment to act on this when necessary. We’ve advocated in prior articles to be quite clear about religious issues, organ donations and burial instructions, but those are different. We fully agree with Ed. The Myriad of medical possibilities make it inadvisable to get specific. Often when people do get specific, the actual situation that arises is different than the details specified in the document and confusion results.
√Make certain the living will is not part of the health care proxy. The doctor never needs to see the living will. Keep it simple. The only thing the doctor/hospital needs to know is who will be making the decisions. Agreed again, but we like to list the powers and authorities the agent has in the proxy to endeavor to minimize situations where a medical provider questions the scope of authority.
√A client should never appoint as health care agent anyone, even a spouse or child, if the client remotely feels he/she will let his/her religion get in the way. Accordingly, no special language is needed. We’ve opted for the opposite approach. Ed is right, simplicity is best, but we’ve seen situations where a client’s religious views may not be known, or erroneous assumptions made, or the professed views of the agent are not reflective of their real attitude.
√In New York, use the statutory form. The hospitals are familiar with it and, therefore, can more readily accept the designated health care agent. I even have my New Jersey clients sign a New York statutory form, since there is significant chance they will be treated in a New York hospital. Good point. We haven’t done this but will offer it to clients in the future if they wish. We haven’t had much kickback on lawyer prepared forms that were comprehensive in the powers they’ve granted the agent.
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