By making your health care wishes known now, you can provide the authority to individuals who you trust to carry out those directions and preferences when necessary. By making these directions known in advance, you will be exercising control of your affairs, rather than leaving the decision-making up to state statutes or to speculation. In the best of circumstances, you will openly and honestly discuss your wishes with your appointed agents. The following are several legal documents that you should consider and discuss with your legal advisor or health care provider:
- Health Care Proxy. This names a person as health care agent and authorizes that agent to make health care decisions on your behalf in the event that you are incapacitated and unable to make such decisions. A spouse is not automatically granted such authority, so it is very important that you designate your spouse or family member to make these decisions.
- Living Will. This is sometimes called “Health Care Instructions” or “Statement of Guidance” and, in New York, is evidence of your wishes concerning medical treatment but is not legally determinative. At a minimum, it can be used to state your preferences regarding whether you would want life sustaining measures, such as artificial nutrition or respiration, if there is no reasonable chance of recovery. In other words, the health care proxy appoints your agent and the living will gives directions to the agent.
- Durable Power of Attorney. An agent designated in a power of attorney is not authorized to make health care decisions, but the agent may be allowed access to your medical records if the power of attorney authorizes it under HIPAA. The New York statutory power of attorney form will be substantially changed starting September 1, 2009.
- DNR (Do Not Resuscitate Order). This is a medical order signed by a physician with your consent, or in certain circumstances, the consent of your family members. Generally, these orders are entered when you are in the hospital, but there are circumstances when a physician will issue a “non-hospital” DNR that you can keep at home.
- Appointment of Agent to Control Disposition. This allows you to designate a particular agent to carry out funeral and burial arrangements, and is particularly useful for unmarried or same-sex couples, because it can override statutory presumptions of who would otherwise be authorized to make your arrangements. Alternatively, pre-planning your funeral with a funeral director will give you the ability to select funeral arrangements that will meet your needs.
- Public Health Law. The Public Health Law provides that a deceased person’s information may be accessed by an heir of the person prior to the appointment of an estate representative. Resort to this law can save time and expense if an estate would not otherwise be required to be opened, which is often the case when a first spouse dies. However, the law does not allow the heir to authorize an autopsy. If litigation has been commenced or is contemplated, an autopsy will provide valuable evidence, and should be expressly authorized by the person while he or she is alive.