Advance Care Planning: What You Need to Know about Health Care Proxies

Submitted by: Tracey Casseus, Staff Paralegal

As the COVID-19 virus spreads across the globe and throughout the United States, many of us are concerned about what will happen to us if we get sick.

During this uncertain time, it is important, now more than ever, to create an advance health care directive in case you or a loved one experiences a medical emergency. In New York State, the health care advance directive is called the “Health Care Proxy” (HCP).  The Health Care Proxy is a legal document that allows you to appoint someone to make medical decisions on your behalf if you are unable, and gives you the opportunity to provide instructions about your medical care so your agents and health care providers can follow your wishes.

If something were to happen to you unexpectedly, and you were unable to communicate your wishes regarding medical care, who would you want to speak for you?

A Health Care Proxy (HCP) agent is someone you appoint who will make health care decisions on your behalf if you are no longer able to make your own decisions. If you would like to express specific instructions and choices about medical treatments in writing you can do so in your Health Care Proxy, or you can create a “living will.” A living will is a written statement, which can be incorporated in a health care proxy, or a separate document entirely, in which you can express your wishes regarding your medical care. Please note that a living will is not a legally binding document in New York State. However, a living will can serve as evidence of your wishes.

You may have heard of a MOLST, which is an acronym for Medical Orders for Life-Sustaining Treatment. The MOLST form is not an advance directive because it is a medical document that contains actionable medical orders that are effective immediately based on a patient’s current medical condition. The MOLST is meant to facilitate end-of-life medical decisions. A MOSLT form is not suitable for everyone and typically created for individuals who are currently ill and may die within a year or for individuals who live in a nursing home or receive long-term care services at home or assisted living. Healthy people are NOT appropriate for MOLST and should complete an advance directive and have a discussion with family and loved ones. I have provided a link to the New York Department of Health so you can learn more about MOLST orders.

Key difference between Living Will, HCP and MOLST forms

  

Living Will

 

Health Care Proxy

 

MOLST

Type of DocumentStatement of WishesLegal DocumentMedical Order
Who Completes ItIndividualIndividualHealth Care Professional- in consultation with patient or surrogate
Who Should Have OneCompetent AdultsCompetent AdultsPatients with advanced illness who might die within 1-2 years; require long-term care services; or wish to avoid and/or receive specific life-sustaining treatments now
Is Completion Voluntary?YesYesYes
Appoints a Surrogate/ProxyNoYesNo
Can Patient’s Surrogate Complete, Change or Void?NoNoYes
What is CommunicatedGeneral wishes about medical treatmentNomination of health care agent; May include general wishes about medical treatmentSpecific Medical Orders

 

If you become incapacitated and cannot speak for yourself, you’ll want someone who knows you well to advocate on your behalf. By naming a Health Care Proxy agent, it may help alleviate potential disagreements between family members about your care, as there will be one person who knows your wishes and who is designated to legally speak for you.

It is always wise to make plans before those plans are needed. If you do not designate a health care agent, you risk leaving important medical decisions in the hands of the courts or people who may not have your best interest at heart.

What happens if there is a medical emergency but no Health Care Proxy in place?

The law will designate a “surrogate” decision-maker. New York’s Family Health Care Decisions Act (FHCDA) allows a patient’s family member or close friend to make health care decisions for a patient who is in a hospital or nursing home, if the patient lacks decisional capacity and did not leave prior instructions or sign a health care proxy.

Once a patient has been determined by a doctor to lack capacity to make health care decisions, a “surrogate” is chosen to make all health care decisions, in the following order of priority:

  1. Legal guardian appointed under Article 81 of the NYS Mental Hygiene Law
  2. Spouse
    • or Domestic Partner defined to include person who is either:
      1. formally registered as a domestic partner in any state, city, or foreign jurisdiction, or by either partner’s domestic employer, or
      2. a beneficiary of or covered by the other person’s health insurance or employee benefits, or
      3. dependent or mutually interdependent on the other person for support, as evidenced by the totality of circumstances indicating a mutual intent to be domestic partners, including jointly owned or leased property, shared income or expenses, children in common, signs of intent to marry or become domestic partners, or the length of the two parties’ relationship.
  3. Adult child
  4. Parent
  5. Brother or sister
  6. Close friend, age 18 or over, or a relative other than those listed above, who presents a signed statement to the treating physician stating that s/he is in regular contact with the patient so as to be familiar with the patient’s activities, health, religious and moral beliefs. .

Some individuals may feel satisfied with the surrogate decision-maker that would be designated to act on their behalf under the FHCDA and may see no benefit in creating a HCP. However, if you want anyone to serve as your HCP who would not be chosen as a surrogate decision-maker by law, you will need a HCP to make your wishes known. In addition, it happens frequently that more than one individual qualifies as a surrogate decision maker on the FHCDA priority listing (for example, three adult children or more than one sibling). Since they would have equal decision making authority, the execution of a HCP designating a specific agent to act may help avoid the potential for familial disagreements at the time of a medical emergency. Also when creating a HCP you can add an alternate proxy to serve in the event that your primary agent is unavailable or unwilling to serve.

What can a Health Care Proxy Agent do?

It is important to state that it is only when you lack the capacity to make your own health care decisions is your agent given that power. It is only then that any medical professional should be listening to the agent instead of you. I have provided a link to a resource for more information on HCP’s and the determination of capacity for you to review.  

Under New York’s Health Care Proxy Law your agent has certain rights and obligations:

  • Your agent will have the authority to decide whether or not your heart beat should be restarted through cardiopulmonary resuscitation (CPR) unless you write in your Health Care Proxy form that your agent cannot make this decision for you.
  • Once your agent’s authority begins, he or she has the right to get your medical information and records to make informed health care decisions for you.
  • Your agent’s decision is final unless an objecting family member or facility obtains a court order overriding the decision or disqualifying the agent.
  • Your agent is not financially responsible for the cost of your care.
  • Your agent is required to make health care decisions for you according to your wishes, religious and moral beliefs, and in your best interest

I have provided you with a link to the NYS Department of Health’s website which has information on choosing a health care agent

Once you’ve created a HCP make sure you retain the original for your records and you give a copy to your agent(s), your primary care doctor and any other family members or close friends you want. Keep a copy in your wallet or purse or with other important papers, but not in a location where no one can access it, like a safe deposit box. Bring a copy if you are admitted to the hospital or if you undergo surgery.

Selecting a health care agent can be difficult, and many of us may have a hard time approaching difficult conversations regarding our health and mortality, but now is the time to begin having these conversations. Please keep in mind that you can change your mind and revoke a HCP and create a new one in the future as long as you have the capacity to do so.

The Conversation Project is a national campaign dedicated to helping people talk about their wishes for end-of-life care.  A link to the Your Conversation Starter Kit, provided by The Conversation Project and the Institute for Healthcare Improvements is included here.  This booklet is intended to help you determine what kind of medical care you want and how to share your wishes for end-of-life care and with loved ones.

If you have a question not covered in this post please contact the Center for Elder Law & Justice’s Legal Advice Helpline at 1-844-481-0977 for free advice on your legal questions.

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