By David R. Okrent // Managing Attorney

The Supreme Court of the United States has held that an individual has a constitutional right to make decisions regarding his or her own medical treatment, including the right to refuse life sustaining treatment.

In New York State, two types of advance directives have become extremely valuable tools in planning for possible incapacity:  The health care proxy and the living will.

Health Care Proxy

New York State has codified the right of an individual to designate an agent to make medical decisions on his or her behalf in article 29-C of the N.Y. Public Health Law.  The health care proxy is defined as a document which delegates the authority to another adult known as a health care agent to make health care decisions on behalf of the adult when that adult is incapacitated.  The document must be executed when a person is competent.  An agent’s authority is valid only during periods of temporary or permanent decisional incapacity of the principal.  The health care agent “stands in the shoes of the principal” and exercises the principal’s right to grant or refuse consent to medical treatment. If the principal’s wishes are known, either through written directions in the health care proxy or a separate living will, or from conversations with the agent, then the agent’s actions must be consistent with those wishes, including the principal’s religious and moral beliefs.  If the agent does not have a reasonable idea as to the principal’s wishes on a particular issue, and cannot with reasonable effort discover them, then the agent must attempt to make health care decisions based on the principal’s best interest.”  The health care proxy should state wishes regarding artificial nutrition and hydration.

Because there is wide variation in medical decision-making statutes from state to state, the question of interstate validity often turns on both the text of, and the policy behind each statute.  Whereas some statutes specifically provide that proxies or similar documents validly executed in another state will be honored within its borders, one should be careful to look at the scope of the foreign document’s statutory authority to ensure that it does not conflict with the statutory provisions of the state in which it is being used.  In some instances it would be appropriate to have each state’s documents.

Living Will

In New York State there is no statutory authority supporting the use of a living will.  The Court of Appeals of New York though has strongly endorsed it use.  The rationale for the Court’s decision is that verbal statements are often too general and do not provide adequate proof to outweigh the state’s interest in preserving the rights of individuals who are unable to make decisions for themselves.

With the enactment of the health care proxy statute, the living will has been relegated to somewhat second choice.  However, a well drafted Living Will is still recommended in conjunction with a health care proxy.  It gives the agent named in the health care proxy guidance and in the event the agents themselves are unavailable, it will have the “clear and convincing evidence” required by the New York Court of Appeals to make sure your wishes are followed.