| Read Time: 4 minutes | Wills
What Is a Living Will

In New York, advance care directives, including living wills and health care proxies, are legal documents that allow competent adults to specify their preferences and wishes regarding medical treatments or appoint someone to make healthcare decisions on their behalf if they cannot communicate their wishes. 

Although New York recognizes living wills, no statutory framework governs the validity of these documents. As a result, the recognition of a living will often fall on the court. Accordingly, consulting with an attorney to draft a legally binding living will in New York is crucial. 

Purpose of a Living Will 

Living wills are legal documents that allow individuals the right and mechanism to make decisions if they can no longer communicate or make informed choices. The overarching purpose of living wills is to articulate preferences regarding end-of-life care decisions and life-sustaining treatments. Some aspects a living will address include:

  • Resuscitation,
  • Mechanical ventilation,
  • Tube feeding, and
  • Dialysis. 

These controversial and emotional decisions often fall upon family members without these directives. Additionally, living wills provide healthcare providers with a clear roadmap of the patient’s wishes. A living will prevents healthcare practitioners from performing unnecessary or unwanted medical interventions. 

How to Write a Living Will 

Living wills should express a person’s general wishes while being as specific as reasonably possible. Writing a living will require careful consideration to ensure your medical wishes are articulated and upheld in court. A New York estate planning attorney can work with you to ensure your documents meet these high standards.

Determine Your Intentions

Before meeting with an attorney, it is essential that you reflect on your spiritual, personal, or religious values and beliefs. You should consider the treatments you may want to avoid, such as palliative care, tube feeding, and resuscitation. An attorney can help you address issues that may not have come to your mind. 

Use Clear Language

Clear language is crucial to ensuring that your loved ones and healthcare providers have specific and unambiguous instructions about your wishes. 

Have Witnesses

Although New York does not maintain a statutory requirement for witnesses, having at least two (non-beneficiary) witnesses sign the document is beneficial.  

Consult with a Lawyer

A New York estate planning attorney can guide and assist in drafting your living will, ensuring it contains relevant information about your wishes. 

Review Periodically

Medical advancements and life circumstances may change, so it is important that you review your living will periodically. 

How Do Living Wills Work? 

New York does not have a specific statute that addresses living wills; however, various court cases have addressed the validity of these documents. Generally, courts prioritize and recognize the right of competent adults to make decisions about their healthcare. However, in New York, your wishes must be established by “clear and convincing” evidence. Creating a living will is the best way to anticipate and meet this burden. 

What is the Difference Between a Living Will and Health Care Proxy?

New Yorkers often create a healthcare proxy with their living will. A living will states specific medical preferences, whereas a healthcare proxy designates another person to make healthcare decisions on the patient’s behalf. Unlike living wills, New York statutorily recognizes health care proxies. However, if there is a discrepancy, living wills typically take precedence over the authority of a health care proxy. 

How to Change or Revoke a Living Will

Reviewing your living will every few years or after any life-altering event, such as marriage, divorce, or medical change, is important. You can change or revoke your living will by destroying the document, notifying anyone who has a copy of the document, and executing a new living will. However, there are certain points to keep in mind when modifying or revoking a living will:

  • Clearly specify the changes;
  • Ensure that the amendments are unambiguous; 
  • Consider having the amendments done in front of witnesses;
  • Indicate that the modification revokes any prior living wills;
  • Consult with an attorney to ensure the changes comport with the legal landscape;
  • Inform relevant parties about the changes, such as healthcare providers, family members, and beneficiaries. 

Although New York permits amendments and revocations, it is important to speak with an estate planning attorney so there is clarity as to which living will applies. 

Disputing a Living Will 

In some cases, disputes may arise regarding the validity of a living will. Disputes often stem from the following situations:

  • The document is not clear or specific;
  • The individual lacked capacity when drafting the living will;
  • The living will was created under duress, fraud, or undue influence; and
  • The document does not represent the individual’s current or last-known wishes.

As such, living wills must be clear and unambiguous. 

In these cases, the following steps may be taken to determine the validity of a living will:

  • Obtain a medical evaluation to determine whether the patient can communicate or make decisions;
  • Seek judicial intervention if informal resolution is not possible; and
  • Schedule a consultation with the person’s health care proxy for insight into the individual’s wishes. 

Ideally, the resolution should be in the patient’s best interest and wishes. In light of the legal complexities, it is important that individuals consult with an estate planning attorney if there are any issues with deciphering a living will. 

What Is a Living Will, Do You Need One, and What Should Be Included?

If you have questions related to living wills and what benefit they can provide you and your family, reach out to the dedicated New York estate planning attorneys at the Law Office of Andrew M. Lamkin, P.C. At our estate planning and probate law firm, we pride ourselves in our ability to simplify estate planning topics so you can understand exactly what you need to accomplish your goals. We are focused exclusively on estate planning, estate administration, special needs planning, residential real estate transactions, and elder law, giving us an unrivaled breadth of experience in these complex topics. To learn more and to schedule a no-obligation consultation with an attorney from the Law Office of Andrew M. Lamkin, P.C., contact us today.

Author Photo

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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