There is often a great deal of confusion surrounding the Health Care Proxy (HCP), the Living Will (LW), and the Do-Not-Resuscitate (DNR) Order. It is crucial to understand what each document does, and the differences between them, so that you can make informed choices about the future of your medical care.
HEALTH CARE PROXY
A HCP is an “advance directive”—a document you sign while you are alive and mentally competent that allows you to designate an agent (one at a time) to make medical decisions for you when you are no longer able to do so yourself. The HCP can either provide specific instructions or remain open-ended (with the understanding that you have communicated your wishes to your agent orally). To be effective, the HCP must be signed before two disinterested witnesses who are at least 18 years old and who also execute the document acknowledging you signed in their presence.
LIVING WILL
As noted above, the agent under your HCP is the decision-maker with respect to your health care, which could include end-of-life decision making, however, a LW offers guidance to this person as to what your wishes are in particular circumstances. For example, a LW may state that if you are permanently unconscious, brain-dead, with no hope of recovery, you do not wish to be kept alive by artificial measures (e.g., no cardiac resuscitation, artificial nutrition, etc.) but that you do want maximum pain relief. The LW is also an advance directive and has been accepted by medical providers and courts, but it is not statutorily created. It is often valuable when the agent under your HCP is faced with making decisions regarding life-sustaining treatment as you near the end of your life and receives pushback from medical professionals. In this situation, the agent under your HCP may present the LW and HCP to support their decisions and demonstrate they are being made in accordance with your wishes.
DO-NOT-RESUSCITATE ORDER
Contrary to popular belief, a DNR is not prepared by your estate planning and/or elder law attorney, but rather, by your physician in a medical facility. Typically utilized if you are elderly and/or suffer from a severe chronic illness, a DNR advises all health care providers that you do not want them to perform CPR on you or otherwise attempt to re-start your breathing if your heart stops. A physician prepares the DNR following a discussion with the patient or, if the patient is mentally incapacitated, with the patient’s agent under their HCP and close family members. A DNR is part of a patient’s medical records in a hospital, but it may also be kept in the patient’s wallet, worn on a medical bracelet, or posted on the wall of one’s home.
The aforementioned documents are of great importance, and each requires careful consideration and discussion with the person you designate as your HCP and your loved ones.
CAPTION: Stella King, Esq. is a resident of Tarrytown, New York, and an associate attorney at Enea, Scanlan & Sirignano, LLP, a White Plains-based law firm that concentrates its practice in elder law; wills, trusts, and estates; Medicaid planning and applications (home care and nursing home); guardianship proceedings for the disabled (contested and non-contested); and special needs planning for the disabled.
