No one wants a medical crisis to become a family crisis, too. But if you suddenly cannot speak for yourself, someone may need to decide what treatment you receive, what treatment you refuse, and how your wishes should guide your care. In New York, you can plan for that possibility by using a health care proxy and a living will.
But what is a health care proxy? What is a living will? What’s the difference between the two? Both documents help health care providers understand your wishes if you become incapacitated. They serve this purpose in different ways, and many people benefit from having both.
At the Law Office of Andrew M. Lamkin, P.C., we provide award-winning service to New York residents with estate planning needs, and we can help you understand the benefits of a health care proxy vs. a living will. Our goal is simple: Help ensure your treatment wishes are clear and honored before others make difficult decisions for you.
What Happens If You Are Incapacitated and a Health Care Decision Must Be Made?
As long as you have decision-making capacity, you generally make your own health care decisions. The problem arises when illness, injury, or another condition leaves you unable to make those decisions.
Without legal documents or a plan in place, New York’s Family Health Care Decisions Act may allow a surrogate to make decisions for you when you lack capacity. The law uses an order of priority for who makes the decision, and it generally starts with a court-appointed guardian, followed by:
- A spouse or domestic partner,
- An adult child,
- A parent,
- An adult sibling, or
- A close friend.
That person, however, may not be the person you would have chosen, and they may not make the decision you want.
Planning ahead gives you more control. Instead of leaving New York law to determine who may speak for you, you can identify someone you trust and leave guidance about the care you want.
What Is a Health Care Proxy?
A health care proxy is a document that lets you appoint another person, called your health care agent, to make treatment decisions for you if you lose the capacity to make them yourself. In general, this document must be:
- In writing,
- Signed by you in front of two witnesses, and
- Signed by the two witnesses (the health care agent cannot be a witness).
You can complete a health care proxy if you are 18 or older and competent. Your agent generally must also be a competent adult, although New York places restrictions on certain people associated with hospitals and other facilities.
Because your agent may face serious and emotionally difficult decisions, you will want to choose carefully. You should pick someone you trust who can take appropriate action under pressure, understands your values, and can follow your wishes.
What Does a Living Will Do?
Living wills work differently. Instead of appointing someone to make decisions, it records your own wishes about future medical care.
A New York state living will can address treatments you would accept or refuse, particularly in serious or end-of-life situations. For example, you may express wishes concerning:
- Artificial nutrition and hydration,
- Mechanical ventilation,
- Certain surgical procedures,
- CPR, or
- Other critical treatment.
Your providers can look to your living will to make health care decisions when you cannot tell them yourself. However, you cannot appoint a health care agent in your living will. You have to use a health care proxy to name an agent.
You can make a living will if you are 18 or older by putting your wishes in writing. Clarity matters in these documents, so you should avoid vague statements in what you write. Experienced living will lawyers can help you describe your preferences with enough detail to provide useful guidance without trying to predict every possible medical scenario.
A Health Care Proxy vs. a Living Will: What Is the Difference?
The simplest way to understand the difference between these documents is to ask two questions:
- Who should make decisions for me?
- What do I want?
A health care proxy chooses who makes the decisions, and a living will tells others what you want.
A health care proxy offers flexibility because your agent can respond to circumstances you could not anticipate when you signed the document. A living will provides written evidence of your preferences so that no agent on your behalf has to guess.
Neither document requires you to predict the future perfectly. Instead, these documents provide different ways to keep your values at the center of future care.
Can You Have a Health Care Proxy and a New York State Living Will Together?
Yes. In many cases, the two documents complement each other.
A living will can give the agent in your health care proxy certainty, meaning it can give them concrete evidence of what you want. While a living will can give many details about what types of treatment you do and do not want, you may not be able to predict all medical possibilities to document your wishes for them. Your health care agent can respond to unexpected medical circumstances, while your living will can document the principles and treatment preferences that should guide those decisions.
How Can an Attorney Help?
What a health care proxy is or how a living will can protect you may seem simple, but the details and decisions behind them can be complex, personal, and important. Having professional counsel to complete these plans can make a huge difference.
Experienced living will lawyers can:
- Explain your options,
- Help you identify and close potential gaps in your plans, and
- Prepare documents that clearly communicate your intentions.
An attorney can also help coordinate these documents with the rest of your estate plan.
We Can Keep You Protected
The Law Office of Andrew M. Lamkin is an award-winning estate planning firm with nearly 20 years of experience, helping New York residents find peace of mind. If you have questions about a living will, a health care proxy, or a broader estate plan, our office can help you understand your options and create a plan tailored to your circumstances.
Please contact us on our website or call us to schedule an appointment.
Andrew Lamkin is principal in the law firm of Andrew M. Lamkin, P.C., where he focuses his practice in the areas of elder law, estate planning and special needs planning, including Wills and Trusts, Medicaid planning, estate administration and residential real estate transactions. He is admitted to practice law in New York and New Jersey.
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