WHAT MEDICAL DIRECTIVES
CAN, AND CANNOT, DO FOR YOU What Are Medical Directives and How It Can Help You Should One Day You Become Incapacitated
MICHAEL ROBINSON NEW YORK ESTATE PLANNING ATTORNEY
“Estate planning is about anticipating the things that will happen, as well as planning for events that might happen, such as incapacity.” It’s something that none of us want to think about, but ignoring the issue doesn’t make it go away. What are we talking about? Incapacity: losing your ability to make your own decisions because you’ve been injured or fallen ill. The idea of not being able to tell people what you want, or what you don’t want, is something that no one looks forward to, yet it’s also something that all of us need to plan ahead for. In the state of New York, every competent adult can create advance directives that you can use if you are one date incapacitated. Also called medical directives, advance directives give you the specific ability to convey your wishes and desires about the kinds of healthcare you might want to receive if you are no longer able to talk. In New York, there are two primary types of advance directive: the health care proxy and the living will. Let’s take a look at both of these a little more depth.
You might know that a will is a legal document in which you can state your preferences about inheritances, who you want to serve as an executor over your estate, and who you would like to serve as a guardian over any minor children. Wills are a vital
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piece to any estate plan, but they only take effect after you have died. If you want to express your wishes about medical care in the event that you are incapacitated, you cannot use a will to do it. A living will, on the other hand, is specifically designed to allow you to express your healthcare choices should you fall unconscious, or otherwise become incapacitated. Through your living will you can state any medical preference you desire. These range from stating whether or not you wish to be an organ donor, whether you want to receive CPR, as well as your preferences about receiving any other type of medication or treatment. Through your living will you can be as specific as you like, stating your preferences for any conceivable medical condition or treatment. However, living wills are somewhat limited. Though you can be as specific as you like, they are only documents. It’s possible, and sometimes fairly common, for a living will to be ambiguous or imprecise. In such a situation, your doctors and health-care providers might have a hard time understanding what you would want. In this situation you need someone who will be there for you and who will be able to talk to your doctors about your healthcare. This person should also be able to make decisions when you’re living will is unclear. To do this, you need a health care proxy.
Through a health care proxy you can choose someone to act as your medical decision-making representative. That person, known as your health care proxy or agent, can speak to your health care providers and discuss your medical situation. If your living will is unclear about what you would prefer in any given situation, your health care proxy has the ability to make that decision on your behalf. Your health care proxy will serve as your advocate. The person you select can serve as a sort of decision-making judge. If your living will is
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unclear or doesn’t address a specific kind of treatment, your health care proxy has the ability to use his or her own judgment to make the decision that is in your best interests.
When you make a health care proxy, choosing your agent is very important. You can choose almost anyone you wish. Most people choose their spouse, but you can also choose a parent, and adult child, sibling, or even a trusted friend or advisor. When making your choice, it’s important to focus on the qualities that a good health care decision-maker has. Your proxy should be able to make a decision under possibly stressful or emotionally difficult situations. He or she should feel free to investigate the relevant medical information, be able to ask meaningful questions to your doctors, and be able to review any relevant medical history in light of your preferences.
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If you create an incapacity plan you can decide who this person is, and you can ensure that they do not have to go through an expensive, lengthy and emotionally stressful court proceeding. Not only that, but you can leave very specific instructions about the kind of care you may or may not wish to receive, as well as other decisions you believe are important. ●
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For example, in some situations your physician might be reluctant to answer questions from your health care proxy. Though this is relatively uncommon, your proxy should be prepared to deal with such a situation. Seeking the assistance of a hospital administrator or patient representative, or even pursuing the matter to hospital management or by contacting an attorney is something your proxy should be ready to do if necessary.
When people create advanced medical directives, they most often do it with the idea of life-support choices in mind. When we talk about life-
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support choices, what we mean is the possibility that you might one day be unable to feed yourself, fend for yourself, or your that body is otherwise unable to perform tasks necessary to sustain life. Making informed decisions about these situations requires not only that you understand what different medical conditions mean, but also that you know what your chances of a successful recovery are. In many situations people make medical decisions based on what they have seen on television or in movies. The reality of such situations is often remarkably different.
In the end, any choice you make about life support systems or any other type of medical treatment you might receive if you’re incapacitated is entirely up to you. No one can make your choices for you. If you appoint a health care proxy, you can direct that proxy to act under the restrictions or guidance of your living will.
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It’s also important to note that if you fail to make medical directives, someone else will have to step in and make that choice for you. In the worst situation, a New York’s Surrogate’s Court will have to get involved. Taking the time to create your own advance directives to ensure that your family and friends know what you would want is an important step, and one you need to speak to your estate planning attorney about as soon as possible.
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About the Author Clients notice Michael Robinson’s unique approach to his estate planning practice the minute they walk through his office doors. Mike has established a law practice that provides clients with a warm, comfortable and relaxed atmosphere staffed by professionals who believe in providing highly individualized attention. That’s especially important in Mike’s practice, because estate planning is an often personal process reflecting the most cherished hopes and dreams of his clients. “The estate planning we do for our clients,” Mike explains, “often represents the culmination of their life’s work. That’s why we take a personal interest in helping them complete estate plans that suit their needs and that address the unique circumstances of their families.” There’s one last difference clients often remark upon in Mike’s estate planning practice. “Because we concentrate on estate planning exclusively, we have the focus to bring state-of-the-art, cutting-edge estate planning techniques and strategies to a broad range of clients, no matter how diverse.” Mike’s firm has the breadth of expertise to provide its clients with estate plans ranging from the basic to the very sophisticated, including offshore asset protection trusts. His office regularly conducts seminars on estate planning topics throughout the Rochester and Finger Lakes area. Mike has also been a guest speaker on the subject of estate planning before a variety of professional organizations. The Law Office of Michael Robinson, P.C. 196 North Main St. PO Box 417 Naples, NY 14512 www.mrobinsonlaw.com Phone: (585) 374-5210 Fax: (585) 374-9327
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