When used together, Health Care Proxies, Living Wills and Powers of Attorney can be powerful tools in making sure that your legal and medical wishes are carried out if you are unable to implement them yourself. These documents offer relatively inexpensive alternatives to costly guardianship proceedings for incapacitated loved ones.
Power of Attorney: A power of attorney is a legal instrument that enables a person of your choice (agent) to carry out your affairs if you become legally “incapacitated.” A properly executed power of attorney in the hands of a trusted relative or friend can ensure that your legal, financial, business and other personal affairs can be managed if you become unable to manage them yourself. A power of attorney can be as broad or narrow as you like. For example, you can authorize your agent to handle your bank accounts, real estate, tax or family maintenance needs, or all of your affairs. Although a power of attorney typically takes effect upon execution, you can direct that it apply only upon a certain event such as your incapacitation. Powers of attorney can be a powerful aid to relatives who may need to access your financial accounts, manage your property or handle other affairs in the event you unexpectedly become unable to do so. In New York, the standard power of attorney must be executed according to legal requirements. You may want to work with an attorney in preparing the document so it can be enforced when you need it.
Health Care Proxy: A health care proxy grants a third party (proxy) the ability to make your medical decisions if you become incapacitated. It is different from a Power of Attorney because it is the only advance directive that allows someone else to make medical decisions on your behalf. Your proxy is required to direct your care so that it reflects your preferences regarding treatment decisions and your moral and religious attitudes toward care. Like a power of attorney, the health care proxy is only valid while you are incapacitated. For example, your proxy has the ability to direct your care while you are in a coma or other unresponsive state, but cannot act if you regain the capacity to make your own decisions. A health care proxy usually assumes that you have already expressed your desires to the person you appoint as proxy. However, it may be a good idea to also memorialize your end-of-life wishes in a living will. Health care proxies must be executed in a certain manner to be binding. You may want to work with a lawyer to make sure that your wishes can be carried out if necessary.
Living Will: A living will is a document that sets forth the type and duration of medical treatment you wish to receive if you are suffering from a terminal illness. In this respect, a living will is narrower in scope than a health care proxy because it only governs end-of-life decisions. An individual has a constitutional right to make decisions regarding refusal or termination of life support. In New York, “clear and convincing evidence” of the patient’s intent must be proven. A living will is not a binding document, but does serve as “clear and convincing evidence” of your intent. When coupled with a health care proxy, a living will can set forth in detail the types of life-saving treatment you would like and the circumstances under which each should be administered. There are no statutory guidelines on the creation of a living will. However, problems can arise if the terms of your health care proxy conflict with the terms of your living will. To avoid these issues, you may want to work with an attorney to create both of these documents.
When properly drafted, powers of attorney, health care proxies and living wills can prevent a multitude of problems associated with illness and end-of-life. Medical emergencies are emotional enough. Help your family avoid arguments, uncertainty and expensive court proceedings by executing these important documents today.