Why You Need a Health Care Proxy and Living Will

The Terri Schiavo case, which was explained in the Winter 2005 Legalsurvival.com Newsletter, has generated much discussion about Health Care Proxies and Living Wills. Your spouse or other relatives are not legally authorized to make medical decisions on your behalf unless that authority is delegated to them by a living will and health care proxy. Health care proxies recognize your right to appoint a health care agent that you trust to decide about medical treatment in the event that you become unable to decide personally.

Unless specified otherwise, the agent will have the same authority that you would have in deciding about treatment. The authority encompasses the right to forego treatment or to consent for needed treatment. The agent’s authority begins only when a physician determines that you have lost the capacity to decide about treatment. Living wills are written declarations instructing your family and doctor about life-prolonging medical procedures when your condition is terminal and there is no chance of medical recovery.

Under constitutional and common law, patients have the right to refuse medical treatment. A living will gives you the opportunity to express your wishes in advance, since you may not be able to make them known when it becomes necessary to do so. Life-prolonging procedures include the use of machines if you cannot breathe on your own, performing operations or prescribing antibiotics that cannot realistically increase the chances of recovery, starting your heart mechanically when it stopped beating, or feeding by tube. You can specify that the only treatment rendered be for the relief of pain.

In a Queens County, New York Supreme Court case, the patient’s treating geriatrician recommended that she be given a percutaneous endoscopic gastrostomy (PEG) tube for hydration and nutrition because she could not be fed by mouth. The patient’s daughter, invoking her status as health care agent under a statutory health care proxy, refused to authorize the surgery.

The patient’s sister petitioned for an order authorizing the PEG surgery. The pointed out that under New York’s health care proxy law, a patient’s preferences regarding artificial nutrition and hydration must be specified before his or her agent is deemed to have the authority to decide these questions. If a patient does not clearly indicate in an advanced directive that nutrition and hydration are to be withheld or withdrawn, nutrition and hydration must be provided.

Since the patient left no written instructions in her health care proxy regarding the administration of artificial nutrition and hydration, and since it was conceded that her wishes in that regard were not reasonably known and could not with reasonable diligence be ascertained, there was no clear and convincing evidence on this specific issue. Under the circumstances, the court found that the patient’s daughter was without authority to make decisions about artificial nutrition and hydration for her mother.

Contact Friedman & Ranzenhofer, P.C. at (716) 542-5444 to schedule an appointment for the preparation of a Health Care Proxy and Living Will. See the Winter 2005 Newsletter for the Terri Schiavo article: Why Everyone Needs Estate Planning.

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