Advanced
Directives
Making Your Wishes Known and Honored
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/ Advanced Directives
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Dear New Yorkers,
Planning end-of-life care is
a complex matter. Although
it is hard to talk about the
final phase of life, it can be a
great gift to our family and
loved ones to prepare them
in advance for the sometimes
difficult and distressing
decisions that must be made.
For those who wish to plan in
advance, New York law can
help. Ultimately, your decision
to accept or reject medical
treatment really depends upon
your personal wishes, values,
and beliefs. This guide explains
your right to choose medical
treatments and describes the steps you can take under state law
to help ensure that your personal health care decisions are known
and honored if you are unable to speak for yourself.
Preparing a few simple legal forms known as advance directives
can help ensure that your wishes are respected and that your
health care decisions stay in the hands of people you trust. This
guide includes information about advance directive forms with
tips on how to use them.
We hope that you find this guide to be helpful.
Sincerely,
Letitia James
Attorney General of New York
Letitia James
Letter from Letitia James \
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Terms to Know ................................................................................................................1
Getting Started ............................................................................................................. 3
How to Select ................................................................................................................. 4
A Health Care Proxy ....................................................................................................5
A Living Will ................................................................................................................. 8
Differences ................................................................................................................. 10
Do Not Resuscitate Orders (DNR) ........................................................................... 10
Life-Sustaining Treatment (MOLST) Form ............................................................... 12
Making Directives Known ........................................................................................... 12
Health Care Proxy and Living Will ............................................................................12
DNR Orders .................................................................................................................13
If You Don’t Have an Advance Directive ................................................................... 13
Designation of a Surrogate. .................................................................................... 14
Health Care Proxy vs. Surrogate ............................................................................. 16
Canceling Advanced Directives .................................................................................17
Canceling your DNR ...................................................................................................17
Special Issues ................................................................................................................ 18
How Incapacity is Determined ................................................................................ 18
Pain Management .................................................................................................... 18
Hospice Care ............................................................................................................ 19
Palliative Care:.... ..................................................................................................... 20
Your Right To Be Informed ....................................................................................... 20
Organ Donation ....................................................................................................... 21
Power of Attorney ....................................................................................................... 21
Conclusion: Points to Remember. ............................................................................. 22
Table of Contents
Letter from Letitia James \
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Thinking about serious or terminal illness
and talking about your wishes can be
difficult. That is why it’s important to be
well informed about the steps you may
want to take. This booklet talks about
some of the most common legal options
available to New Yorkers and can help you
understand those options and how to talk
to your family and friends about them.
Let’s start with some definitions. Each of
the terms listed here will be discussed in
more detail in the following pages.
Advance care planning affords you the opportunity
to plan for future medical care in case you are
unable to make your own decisions. It may include
preparation of one or more straightforward legal
forms — a Health Care Proxy, for example — which
can help to ensure that your health care decisions
are followed and decisions are made by people you
trust. Importantly, advance care planning begins
by thinking through possible future health care
scenarios and having conversations with family and
friends about your wishes.
/ Advanced Directives
It is particularly important
to consider or reconsider your
health care choices if you:
Have been diagnosed with
a terminal illness;
Have been diagnosed with
an illness or condition that
could lead to incapacity;
Are entering into assisted
living facility or nursing home;
Have been admitted to the
hospital and are over 65.
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Terms to Know
Advance Directives are a legal documents by which you may make provisions for
future health care decisions in the event that you are unable to make such decisions
for yourself. In New York State there are three types:
Health Care Proxy form, Living Will, and Do Not Resuscitate Order (DNR). CPR or
cardiopulmonary resuscitation is an emergency procedure to restart the work of your
heart and lungs by compressing the chest overlying the heart and forcing air into the
lungs. Additional lifesaving procedures include mechanical ventilation or respirator and
intravenous medications to regulate blood pressure and heart rhythms.
Do Not Resuscitate Order (DNR) is a medical order written by a doctor. It instructs health
care providers not to perform cardiopulmonary resuscitation (CPR) or other lifesaving
emergency procedures if your heartbeat or breathing stops. A DNR is arranged with your
doctor or health care provider before an emergency occurs.
Health Care Proxy form lets you appoint
a health care agent — someone you trust
to make health care decisions for you
if you are unable to make decisions for yourself.
In order for the health care proxy to become
effective, two doctors must decide that you are
not able to make your own decisions.
Living Will allows you to leave written instructions
that explain your health care wishes, especially
about end-of-life care. This document becomes
effective when you are unable to make your own
decisions, and your doctor confirms that you have
an incurable condition. You cannot use a Living
Will to name a health care agent; you must use a
Health Care Proxy form.
Make Your
Wishes Clear
Casual statements
you may have made
to your family, like
“Don’t keep me alive
on machines,” “No
Heroics,” or “Make sure
I am not in pain” may
not be specific enough
for procedures to be
withdrawn.
Terms to Know \
8
MOLST form: Medical Orders for Life Sustaining Treatment allows doctors to record
your preferences regarding cardiopulmonary resuscitation (CPR), mechanical
intervention, and other life sustaining treatments on one form as a physician order.
It must be completed by a health care professional and signed by a New York State
licensed physician to be valid.
Power of Attorney allows you, the Principal, to appoint an Agent to act for you
immediately upon its execution or the occurrence of some future event identified by you
and lasts until cancellation by you or upon your death; this power continues when you
are mentally or physically incapacitated.
Palliative Care is a multidisciplinary approach to specialized medical care for people
with life-limiting illnesses, focusing on providing people with relief from the symptoms,
pain, physical stress, and mental stress of the terminal diagnosis.
Surrogate is a person close to you, as defined by New York state law, who can make
decisions on your behalf if you have lost the capacity to make decisions about your
medical treatment, and have not appointed a health care agent.
Getting Started
New York law grants you the right to accept or reject medical treatment, including
life-prolonging procedures, such as mechanical respiration and tube or intravenous
feeding.
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As long as you are able to do so, you can speak directly to your doctor and your
family members and let them know what care you may or may not want. But what
if you are incapacitated, in a coma, for instance, the only way to be sure that your
wishes will be known and honored is to plan for future medical care.
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Would you want your doctor to withhold or withdraw medical treatment,
if that medical treatment will only prolong dying?
Would you want cardiopulmonary resuscitation (CPR) to restore stopped
breathing and/or heartbeat?
Would you want to continue mechanical respiration, i.e. use machines to
keep you breathing?
Would you want tube or intravenous feeding and water?
Would you want maximum pain relief even if it hastens your death?
Would you want to donate your organs and/or tissues?
1.
2.
3.
4.
5.
6.
The first step towards planning your end-of-life care is to think through what type of care
you may want, consistent with your values and beliefs. Discuss your wishes with your
doctor, your family and loved ones.
This is not an easy subject to deal with but it will help your family and loved ones know
what kind of treatment you want.
These questions may help you identify what kind of treatment you may or may not want if
you are no longer able to decide for yourself.
Thinking about the care you want to receive in particular situations and talking with
your doctor and loved ones about your health care wishes is an important step. Putting
those wishes in writing is more effective to ensure that everyone involved has a clear and
reliable view of the specifics. Appointing someone to decide health care matters for you
may be an effective way to address situations that you may not be able to anticipate. The
advance directives discussed above provide the vehicle for advance care planning so that
you can make your wishes known and be the one to decide what works best for you.
Getting Started \
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How do you choose which Advance Directive might be best for
you? Here are some questions and answers that may help you:
Q. If you are in a coma or vegetative state or otherwise incapacitated, would you
want someone you trust to make medical decisions for you?
Q. Even though you want someone you trust to make medical decisions, do you still
have strongly held views about specific situations?
How to Select Your
Advanced Directives
If the answer is yes, consider a
Health Care Proxy by appointing
someone you trust as your Health
Care Agent to speak and decide
for you when you are unable to
do so. (See below.)
If yes, you may consider combining
a Health Care Proxy with a Living
Will so that the person you appoint
to act on your behalf can also rely
on your written instructions to
make decisions for you.
If the answer is no because you have
no one you trust to act as your Health
Care Agent, consider a Living Will so
that your medical instructions are clear
and can be read by your care givers
when you are unable to communicate
your wishes.
If no, then maybe just a
Health Care Proxy will meet
your needs.
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You can complete a Health Care Proxy form if you are 18 years of age or older. A Health
Care Proxy form, established under New York law, allows you to appoint someone you
trust—a Health Care Agent—to make health care decisions on your behalf if you are no
longer able to do so.
2
You can tell your wishes to your agent orally or in writing. New York
law requires hospitals and nursing homes to provide you with the Health Care Proxy form
and information about creating a proxy.
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Below are some things to consider in writing
and signing your Health Care Proxy form.
Step 1: Understand Your Health Care Agent’s Authority
Under New York’s Health Care Proxy law, your agent’s authority to make health care
decisions begins when your doctor determines that you have lost the capacity to make
decisions for yourself. For a decision to withdraw or withhold life sustaining treatment,
a second doctor must confirm your doctors decision.
You may give your health care agent as little or as much authority as you wish. In other
words, you may allow your agent to make all health care decisions on your behalf or only
certain ones.
A standard Health Care Proxy form approved under New York law is
provided on the New York State Department of Health website and is
offered in English, Chinese, Haitian Creole, Korean, Russian and Spanish
with detailed instructions at:
health.ny.gov/publications/1430.pdf
A Health Care Proxy
Health Care Proxy Form
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A Health Care Agent’s Rights and Obligations Under New York’s
Health Care Proxy Law:
Your Health Care Agent can make decisions related to artificial nutrition and hydration
(for example, use of a tube to give you food and water). You may either specifically tell
your wishes to your agent or write your wishes in your Health Care Proxy form.
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.
Overall, your agent is required to make health care decisions for you according to your
wishes, religious and moral beliefs, and in your best interest.
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Should my health care agent live in the same city as I do?
While the law does not require you to name an agent living in the same city or
state as you do, it is a good idea to choose someone who lives nearby. If you
are terminally ill, for example, and unable to make decisions for yourself, your
agent may have to spend weeks or even months nearby to ensure your health
care wishes are followed.
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Step 2: Choose a Health Care Agent
Picking your health care agent is a very important decision. Generally, you have the right
to appoint any competent adult (18 years of age or older) as your health care agent. Your
agent may be your spouse or partner, an adult child, a relative, a close friend or a lawyer.
Choose someone you trust—and someone with whom you feel confident discussing your
wishes for medical care. Your agent need not agree with all of your wishes, but must
be capable of carrying them out, regardless of his or her own feelings. And, of course,
it is always good practice to make sure the person you appointed as your agent is
comfortable serving as your agent.
Under New York’s Health Care Proxy law, you can appoint any competent adult as
your Health Care Agent except:
You cannot appoint your doctor as your health care agent unless your doctor is your
spouse or your relative.
You cannot appoint an operator, administrator, or employee of the hospital or
nursing home where you are admitted unless they are a relative or you appointed
them before your admission.
Step 3: Name an Alternate Health Care Agent
as Your Back-Up Agent
The Health Care Proxy form gives you the option to appoint an alternate agent. Your
alternate agent can take over from your first choice only if:
You specify the circumstances under which you would like your alternate agent to
take over from your agent. For example, if you want your alternate to serve if your first
choice moves out of state, then say that in your Health Care Proxy.
Your doctor states in writing that your first choice as health care agent is not
available, unwilling or unable to act when needed.
A court disqualifies your agent.
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Step 4: Sign Your Health Care Proxy Form
Two witnesses must watch you sign your Health Care Proxy form and say that you
appeared to sign willingly. Neither your agent nor your alternate agent can serve as a
witness. You do not need to have the form notarized.
The standard Health Care Proxy form approved under New York law has sections that
must be completed for your proxy to be valid. The form also has “optional” sections that
you may or may not choose to complete.
Make sure your Health Care Proxy form meets the minimum
requirements.
Minimum State Requirements for a Valid Health Care Proxy Form
Your name as the Principal who creates the proxy.
Name of your health care agent.
Your statement that you intend the agent to have the authority to make health care
decisions on your behalf.
You must sign and date your signature with the witnesses present. If you are unable
to sign your proxy, another adult can sign for you at your request.
A court disqualifies your agent.
Two witnesses must sign and date their signatures, and state that you (Principal)
appeared to execute the proxy willingly. Neither your agent nor your alternate agent
can serve as witnesses.
A Living Will allows you to leave written
instructions that explain your health care
wishes, especially about end-of-life care.
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A Living Will
While New York does not have a law
governing Living Wills, the Court of
Appeals, New York’s highest court, has
stated that Living Wills are valid as long
as they provide “clear and convincing
evidence of your wishes.
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If you are 18
years of age or older, you may express
your wishes in writing about your health
care by signing a Living Will.
Below are some things to consider in planning and signing your Living Will.
Step 1: Understand the Authority of Your Living Will
A Living Will is a written declaration of your health care wishes. In your Living Will, you can
leave specific instructions about medical treatments you may or may not want, when you
are no longer able to decide for yourself. A Living Will serves as evidence of your wishes.
There is no standard Living
Will form.
You may download a Living
Will form at no charge at
caringinfo.org
Optional Sections for a Health Care Proxy Form
Statement of your treatment wishes or limitations on the agent’s authority. For
example, you may want to state that you have told your agent your wishes about
artificial nutrition and hydration (food and water).
Naming an alternate agent.
Statement of your wishes regarding organ and/or tissue donation.
Expiration date if any, of your Health Care Proxy, or a description of circumstances
that trigger expiration.
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Step 2: Write Your Living Will
You can use a Living Will to write your wishes about care at the end-of-life. You may
describe the medical situations in which you would accept or refuse medical treatment.
You may specify the kind of treatment that you may or may not want.
For example, whether you wish to be kept alive with a feeding tube or intravenous
feeding if you are terminally ill or comatose and there is no hope you will recover.
You may want to consult a lawyer if you wish to address issues not covered in the form
included with this guide—like whether you want medical treatments such as CPR, blood
transfusions and dialysis, or whether you want to be kept alive on machines for a short
time if necessary to be an organ donor. A custom-tailored Living Will can help make
clear your objection to unwanted medical treatments.
If you have questions, discuss them with your doctor, a patient representative
at a hospital, or a lawyer.
Step 3: Sign Your Living Will
It is best to have two witnesses watch you sign your Living Will, and sign a statement on the
form that you appeared to sign willingly. If possible, you should have the form notarized,
so that it may be recognized in states that require notarization.
Regardless of which Living Will form you choose to use, make sure you meet the
minimum requirements for a Living Will:
Your name as the person creating the Living Will;
Date you create your Living Will;
Your statement regarding your personal health care wishes;
Your signature;
Two witnesses’ signatures and dates, and statements from the witnesses that you
appeared to sign the document willingly.
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A Living Will is a document
that contains your health
care wishes and is addressed
to unnamed family, friends,
hospitals and other health
care facilities. You may use
a Living Will to specify your
wishes about life-prolonging
procedures and other end-of-
life care so that your specific
instructions can be read by
your caregivers when you are
unable to communicate
your wishes.
A Health Care Proxy is a document
that allows you to appoint another
person(s) as your health care agent
to make health care decisions on
your behalf if you are no longer
able to do so. You may give your
health care agent authority to make
decisions for you in all medical
situations if you cannot speak for
yourself. Thus, even in medical
situations not anticipated by you,
your agent can make decisions and
ensure you are treated according to
your wishes, values and beliefs.
The Difference Between a Living Will and
a Health Care Proxy
Although both a Health Care Proxy and a Living Will are advance directives, they
are not the same thing.
Living Will Health Care Proxy
vs.
Q. Can I choose to sign both a Living Will and a Health Care Proxy?
Yes. You have the right to create both a Living Will and a Health Care Proxy in
order to leave specific medical instructions in writing and appoint a health care
agent to carry them out. Your health care agent can rely on your instructions as
guidance to make decisions that reflect your wishes.
How to Select Your Advanced Directives \
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Do Not Resuscitate Orders (DNR)
Under New York law, a DNR Order is a written order by the doctor that instructs medical
professionals not to perform cardiopulmonary resuscitation (CPR) to restart your heart
or lungs when your heartbeat or breathing stops.
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This means that doctors, nurses, or
emergency personnel (i.e. paramedics) will not initiate emergency procedures such as
mouth-to-mouth resuscitation, external chest compression, electric shock, insertion of
tube to open your airway, or injection of medication into your heart or open chest. You
can make your Hospital DNR wishes known in your health care proxy, living will or a state
approved MOLST form.
In New York, any adult 18 years or older can get a Hospital or a Non-Hospital DNR Order. A
Hospital DNR Order is issued if you are in a health care facility such as a hospital, nursing
home, or a mental hygiene facility licensed by New York State. Emergency personnel (EMS)
must honor your Hospital DNR Order during transfer. But, if you are outside any of these
facilities, at home, for example, you may want to get a Non-Hospital DNR Order. Your Non-
Hospital DNR order must be recorded on a state specific form [DOH- 3474] and signed by
a doctor.
Giving Consent to a DNR Order
If you have capacity to make decisions for yourself, you can give your consent to a DNR
Order verbally or in writing. If you lack capacity to make decisions for yourself, your health
care agent can consent on your behalf.
Checklist for a Valid Hospital DNR Order:
You, your health care agent or a surrogate may give written or verbal consent to your
Hospital DNR order.
Verbal consent must be witnessed by two adults, one of whom must be a doctor in
the facility where you are admitted.
Written consent must be signed by two adult witnesses.
Your doctor can issue your DNR Order. New York State does not require your written
or verbal consent to be recorded on a state form. Facilities may use their own forms or
the state specified MOLST form.
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Checklist for a Valid Non-Hospital DNR Order:
You, your health care agent or a surrogate may give written or verbal consent to
your Non-Hospital DNR Order.
6
If you are getting your DNR Order before discharge, verbal consent may be given to
your attending doctor or two adult witnesses, one of whom must be a doctor in the
facility where you are admitted.
If you are out of hospital, at home, for example, it will be sufficient to give verbal
consent to your attending doctor.
If you are giving consent in writing, it must be signed by two adult witnesses.
Written or verbal consent must be recorded on New York State Form DOH3474 and
signed by your doctor. Form available at
health.ny.gov/professionals/patients/patient_rights
Medical Orders For Life-Sustaining
Treatment (MOLST)
The New York State Department of Health has approved the Medical Orders for
Life-Sustaining Treatment (MOLST) form. This form allows doctors to record your
preferences regarding cardiopulmonary resuscitation (CPR), mechanical intervention,
and other life sustaining treatments on one form as a physician order. MOLST must
be completed by a health care professional and signed by a New York State licensed
physician to be valid.
A valid MOLST form serves as a “Physician Order Form” and can be transferred with you
from one health care setting to another. A sample MOLST form is available at
health.ny.gov/forms/doh-5003.pdf.
Remember, while the MOLST form may help centralize your end-of-life wishes and
summarize your advance directives, it is not intended to replace your Health Care Proxy
form and/or Living Will. MOLST translates your current medical treatment preferences
into physician orders whereas your Health Care Proxy and/or Living Will guides future
medical care.
How to Select Your Advanced Directives \
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Making Your Advanced
Directives Known
Health Care Proxy and Living Will
After signing your Health Care Proxy or Living Will, follow these tips:
Make several photocopies of the completed forms.
Keep the originals in a safe but accessible place (not a safe deposit box). Give copies
to your health care agent, alternate agent, your attorney or other advisor, close family
members, doctors, and anyone else you choose to involve in your health care.
Under New York law, any doctor who is given a Health Care Proxy form must arrange
for a copy of the form to be put in your medical record.
Consider carrying a wallet card giving information about the existence and location
of your Health Care Proxy or a Living Will.
DNR Orders
A Hospital DNR Order is recorded in your medical chart. A Non-Hospital DNR Order must
be recorded on a state specific form. You may also consider getting a DNR Bracelet.
To learn more about DNRs, form
DOH-3474 or a DNR bracelet, visit:
health.ny.gov/professionals/ems/
policy/11-02.htm
or your local DOH EMS office
or health department.
To see a copy of form DOH-3474 visit:
health.ny.gov/forms/doh-3474.pdf
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If You Don’t Have an Advance Directive
If you have lost the capacity to make decisions about your medical treatment, and
have not appointed a health care agent, a person close to you may make decisions on
your behalf. In 2010 the New York Legislature passed the Family Health Care Decisions
Act (FHCDA),
7
which allows family members and others who are close to you to make
decisions regarding medical treatment in accordance with your wishes or, if unknown,
your best interests. The “surrogate” decision maker would also be permitted to direct the
withdrawal of life-sustaining treatment (including consenting to a DNR order).
The best way to ensure that your specific wishes are met is to select a Health Care Proxy
and complete a living will as described in this booklet. Otherwise, you will not be able to
control how you receive care while you are incapable of making a decision.
Designation of a Surrogate
If you are declared incapable of making medical decisions and do not have a health care
proxy, the FHCDA provides for the designation of a
surrogate” decision maker to make medical decisions
for you as outlined under New York law.
The law establishes a prioritized list by category of those
who may act as the surrogate decision maker for the
incapacitated person. The surrogate may be, in order
of priority, the court-appointed guardian, spouse, child
(18 years or older), parent, sibling (18 years or older), or
close friend.
8
This person may also designate a person
with lower priority to be the surrogate, assuming no one
with higher priority can take the role. For example, if
you do not have an Article 81 guardian and your spouse
is not willing to serve, your willing adult child will be
your surrogate. Your adult child may also appoint your
willing parent as surrogate.
DNR Bracelet
A DNR bracelet may
be worn only if you
have been issued a
valid Non-Hospital
DNR Order using
form DOH3474.
The law requires
emergency medical
personnel who see
a standard DNR
bracelet on you
to comply with
the Order.
Making Your Advanced Directives Known \
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Decisions a Surrogate Can Make
The surrogate has authority to make all health care decisions that the patient would have
been able to make prior to becoming incapacitated.
9
The surrogate is obligated to follow
religious or moral beliefs, if known. If those beliefs are not known, the surrogate must
make decisions that will be in the patient’s best interests.
10
Surrogates are entitled to have access to your medical records in order to make decisions
on your behalf. They may also seek out information from your doctor about your condition
and treatment options to make the most informed medical decisions.
11
Decisions to Withdraw
Life-Sustaining Treatment
If you made the decision to withdraw life-sustaining treatment before becoming
incapacitated, your doctor need not seek the surrogates permission or knowledge before
following those orders. If your doctor followed those orders before your surrogate was
appointed, he or she merely needs to document the action in your medical record. If your
doctor intends to follow through on that decision after the appointment of a surrogate,
your doctor may follow that order without permission from the surrogate, but must inform
or attempt to inform the surrogate of the decision.
12
The law ensures that life sustaining treatment will not be withheld or withdrawn from you
without serious consideration. For example, there must be a finding that treatment would
be an extraordinary burden to you and an attending physician, with another physician,
must concur to a reasonable degree of medical certainty. Other requirements include
finding that you have an illness or injury which can be expected to cause death within six
months, whether or not treatment is provided; or that you are permanently unconscious;
or that treatment would involve such pain and suffering that it would be reasonably
deemed inhumane or extraordinarily burdensome and that you have an irreversible or
incurable condition.
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Patient Objections
As the patient, you may object to:
The determination of your incapacity;
The choice of surrogate; and
The health care decision made by your surrogate.
In the event you disagree with any of these determinations, your determination will be
followed by your doctor. However, if a court determines that you lack capacity and (if
applicable) authorizes the treatment decision, you cannot override these determinations.
Further, if there is some other legal basis for overriding your decisions, you will be subject
to the choices made by your surrogate.
14
If the Patients wishes and beliefs are
unknown, the surrogate must make decisions
that will be in the patients best interests.
According to the FHCDA, those interests take into account “consideration
of the dignity and uniqueness of every person; the possibility and extent of
preserving the patient’s life; the preservation, improvement or restoration of
the patient’s health or functioning; the relief of the patient’s suffering; and
any medical condition and such other concerns and values as a reasonable
person in the patient’s circumstances would wish to consider.
Making Your Advanced Directives Known \
24
The Difference Between a Health Care Proxy
and a Surrogate
There are significant differences between a health care proxy and a surrogate. You should
carefully consider the differences and think about naming a health care proxy instead of
allowing a surrogate to be designated.
Health Care Proxy Surrogate
Who
appoints
them?
You — via a properly
executed Health Care
Proxy form
The Family Medical Decisions
Act establishes who may act
as a surrogate
Who can
serve?
Anyone over the age of 18
In priority order: Article 81
guardians, spouses, children
(over 18), parents, siblings
(over 18), or close friends
When do
they make
decisions?
When you lose capacity When you lose capacity
When do
they stop
making
decisions?
When you regain capacity,
when the appointment
expires, or under certain
specified conditions, as
written in the Health Care
Proxy form
When you regain capacity
What
decisions
can they
make?
Any decision or those
specified in the Proxy
form or Living Will
Any decision
Any
limitations?
You are able to specify
certain imitations in the
Proxy form
Surrogates may only make
decisions based on your
religious or moral beliefs, or
in the absence of those, your
best interests
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Canceling Your Advance
Directives
An advance directive remains in effect indefinitely unless you cancel it, include an
expiration date, or describe the circumstances that trigger expiration. You can change or
cancel your advance directives at any time. It is important to review the forms you have
signed from time to time to make sure they express your current health care wishes.
You can cancel your Health Care Proxy by notifying — orally or in writing — your health
care agent, doctor or others who have copies.
You can cancel the appointment of the agent on your Health Care Proxy at any time
and appoint a different agent in a new proxy.
If your spouse is your appointed health care agent, your Health Care Proxy is
automatically canceled upon divorce.
You can cancel your Living Will at any time by destroying the document. You are
not required to notify anyone before canceling it but it would be wise to inform those
aware of its existence that you have canceled it.
Canceling Your DNR
In general, you or your health care agent can cancel a DNR Order at any time in any way
that makes your wish known. This can include the following:
Your oral or written statement to a doctor or nurse.
Your act that shows an intention to cancel your consent, such as:
Destroying the document that references the DNR Order.
Removing any bracelet or medallion which indicates your DNR status.
Orally telling emergency responders not to pay attention to the order.
Canceling Your Advanced Directives \
26
However, a surrogate may cancel your DNR Order only by:
An oral statement to your attending doctor in the presence of an adult witness; or
A written statement to a doctor or nurse
Any doctor informed about the cancellation of a DNR Order must immediately record the
cancellation in your chart and inform the staff responsible for your care. Any nurse or other
professional who is informed about the DNR cancellation must immediately inform the
doctor.
Special Issues
How Incapacity is Determined
Generally, an adult patient is presumed to have the capacity to make medical decisions.
This means that you will make your own health care decisions until your physician
determines, to a reasonable degree of medical certainty, that you are incapable of making
medical decisions. The initial determination must be made by an attending physician,
and it must include information about the “cause and extent of the patient’s incapacity
and the likelihood that the patient will regain decision-making capacity.” Under certain
circumstances, New York requires a concurring determination to declare a patient
incapable of making health care decisions; a health care provider or social worker who is
affiliated with the hospital or nursing facility may make the concurring determination in
place of a physician. The number of determinations will depend on where you are as a
patient and what care is required.
15
In Cases of Mental Illness or Disability
While any condition may lead to incapacity, New York sets out specific requirements
for determining incapacity caused by mental illness or developmental disability. Those
initial determinations must be made by a physician who is qualified to work with those
populations, and cannot be made by an ordinary attending physician. This ensures that
people with mental disabilities are not unnecessarily stripped of their rights to make medical
decisions for themselves. If you have a mental illness or disability, you will be not
be automatically declared incapable of making your own medical decisions.
16
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27
How Incapacity is Determined
Unrelieved pain can have a profound effect on your physical and mental well-being. In
New York, doctors have an ethical, moral, and legal obligation to treat pain as effectively
as possible. Also, hospitals, nursing homes, health plans and home care agencies
accredited by the Joint Commission (formerly the Joint Commission on the Accreditation
of Healthcare Organizations or JCAHO) are required to establish procedures to support
the appropriate prescription or ordering of effective pain medications. You should make
certain that your doctor is well-informed about your level of pain and understands your
wish to receive adequate pain management. Express the nature and intensity of your
pain to your doctor so that he or she can assess and address your needs accordingly.
Ensure that your Living Will or Health Care Proxy makes clear your wishes related to pain
management. For example, you may want to state whether or not you want medication
to alleviate pain even if it shortens your life.
Hospice Care
Hospice is a program of care focused
on providing comprehensive care for
the terminally ill and their families.
The program provides palliative and
supportive care to meet the special
needs arising out of physical, mental,
spiritual, social and economic stresses
experienced during the final stages of
illness, dying and bereavement. Hospice
care programs are regulated under
federal and state law.
17
In New York State, there are about fifty
state certified hospice care programs.
You or your health care agent may
indicate a preference for a hospice
program in advance to fulfill your needs.
Hospice Information
To obtain information on
hospice providers and
benefits or to file a
complaint against a hospice
care provider, call the New York
State Department of Health:
1-800-628-5972
or check their website:
health.ny.gov/
facilities/hospice
Special Issues \
28
Here are some factors to consider about hospice care:
Hospice care services provided by state certified programs are usually covered
by insurance such as Medicare, Medicaid, and commercial health insurance plans.
Generally, hospice care is a covered benefit if you have a terminal illness with 6 months
or less to live and a physician has certified that hospice care is appropriate.
In New York, you can opt to receive hospice care in settings of your choice such as
your home, in a hospital, or nursing home.
Under federal and state law, hospice care must be administered by a coordinated
team which may include your doctor, the hospices medical director, registered nurses,
certified home health aides, licensed social workers, pastoral counselors, bereavement
counselors, rehabilitation therapists and volunteers who provide support with day-to-
day life challenges.
Palliative Care: Your Right To Be Informed
New York facilities such as hospitals and nursing homes must inform you before you are
admitted as to whether or not they will be able to honor the decisions you have made
concerning your advanced directives. If you are already admitted, they are required to
transfer you to a facility that will.
18
Information concerning your health and medical care is important to have and
understand when planning your health care in advance. New York’s Palliative Care
Information Act (PCIA),
19
which became law in February 2011, was passed to ensure that
patients are fully informed of the options available to them when they are terminally ill or
have “advanced life limiting conditions or illnesses.
The law requires that the patient’s attending health care practitioner offer to provide the
patient with information and counseling regarding palliative care and end-of-life options.
Where the patient lacks medical decision-making capacity, then the information and
counseling is provided to the person who has authority to make health care decisions.
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29
In New York, any person 18 years or older, may donate
any or all parts of their body after death to any hospital,
surgeon, doctor, accredited medical school, storage facility,
specific person or organ procurement organization.
New York’s Palliative Care Access Act (PCAA), in effect since September 2011, builds upon
the PCIA to require health care facilities, home care agencies, assisted living residences,
and individual practitioners to offer information and counseling relating to end of life
care and to assist patients with access to appropriate palliative care consultation and
services.
20
Organ Donation
In New York, any person 18 years of age or older, capable of making decisions, may donate
any or all parts of their body after death to any hospital, surgeon, doctor, accredited
medical school, storage facility, specific person or organ procurement organization. New
York law prohibits organ donation for money or any other consideration.
You can choose to fill out an Organ/Tissue Donor Form or specify your wishes related to
organ donation in your Health Care Proxy or Living Will. Failure to specify your wishes,
however, shall not be construed to imply a wish not to donate. Your agent is authorized to
consent to organ/tissue donation, unless he or she has notice of opposition, or reason to
believe that the donation is contrary to your religious or moral beliefs.
To enroll in the New York State Organ and Tissue Donor Registry, you can request that an
enrollment form be mailed to you by calling (800) 443-8469 or enroll electronically in the
Donate Life Registry by visiting donatelife.ny.gov.
You may also enroll at the NYS Department of Motor Vehicles or at the Board of Elections.
You will be enrolled automatically if you check the organ donor box on your driver’s license
or non-driver identification (ID) card application or renewal form.
Special Issues \
30
Power of Attorney
How Incapacity is Determined
Under New York State law, you can designate a person to make property, financial, and
other legal non-healthcare decisions on your behalf through a “Power of Attorney.
A Durable Power of Attorney allows you, the Principal, to appoint an Agent to act for you
immediately upon its execution or the occurrence of some future event identified by you
and lasts until cancellation by you or upon your death; this power continues when you are
mentally or physically incapacitated.
Power of Attorney can be used to grant any and all of the following legal powers to
an Agent: buy or sell your real estate; manage your property; conduct your banking
transactions; invest or not invest your money; make legal claims and file lawsuits on your
behalf; and manage your tax and retirement matters.
Power of Attorney is often used to plan for ones future incapacity or disability and loss of
competence resulting, for example, from Alzheimer’s disease or a catastrophic accident.
It is important to know that the New York Health Care Proxy law specifically requires you to
fill out a Health Care Proxy form to appoint your health care agent. Therefore, you cannot
combine your Health Care Proxy with your Power of Attorney. The agent appointed by you
in your Power of Attorney may, but need not be, the person who is the Health Care Agent
in your Health Care Proxy.
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31
Points to Remember:
Your decision to accept or reject medical treatment, including life-sustaining
procedures, ultimately depends on your personal wishes, values and beliefs.
Advance Directives can help you ensure that your health care wishes are
followed if you are unable to make decisions for yourself.
Advance Directives are for everyone, not just the elderly and the chronically ill.
Advance Directive forms are free.
Advance Directives can be canceled at any time.
Advance Directives work best when accompanied by discussions with your
family and loved ones about your personal values and beliefs. You may also
wish to speak with a patient representative (if you are in the hospital), your
doctor or lawyer.
Conclusion
Power of Attorney \
32
Endnotes
1
In Rivers v. Katz, 62 NY.Y.2d 485, 504 N.Y.S.2d 74, 78 (1986), the court Recognized
that the common law right to refuse treatment is co-extensive with the patient’s liberty
interest protected by the due process clause of the New York State Constitution.
2
N.Y. Public Health Law, Article 29-C. See generally, New York State Task Force on
Life and the Law, Life-Sustaining Treatment: Making Decisions and Appointing a
Health Care Agent (1987) (providing social, ethical, and legal background to New York
Health Care Proxy Law); see also New York State Department of Health, The Health
Care Proxy Law: A Guidebook for Health Care Professionals (1991).
3
N.Y. Public Health Law § 2991 requires hospitals and other health care facilities to
provide patients with a Health Care Proxy form and information about creating a proxy.
In addition, the Federal Patient Self-Determination Act requires health care facilities
to notify their patients of their rights under state law to create advance directives. See 42
U.S.C. 1395cc(f).
4
Matter of O’Connor, 72 N.Y.2d 517, 531 N.E.2d 886 (1988).
5
N.Y. Public Health Law, Article 29-B. 6 N.Y. Public Health Law §§ 2960, 2965,
29662966 and N.Y. Compilation of Codes, Rules & Regulations, Title 10 § 405.43
(F)(1)(i) facilitate the ability of surrogates to consent to DNR Orders for patients in hospice
and home care settings.
7
Chapter 8 of the Laws of 2010 amends N.Y. Public Health Law to create Article
29-CC (known as the Family Health Care Decisions Act).
8
N.Y. Public Health Law § 2994-d(1).
9
N.Y. Public Health Law § 2994-d(3)(a)(i).
10
N.Y. Public Health Law § 2994-d(4)(a).
11
N.Y. Public Health Law § 2994-d(3)(c).
12
N.Y. Public Health Law § 2994-d(3)(a)(ii).
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33
13
N.Y. Public Health Law § 2994-d(5).
14
N.Y. Public Health Law § 2994-c(6).
15
N.Y. Public Health Law § 2994-c.
16
N.Y. Public Health Law, Article 29-B.
17
See 42 CFR § 418.3 and 10 NYCRR § 700.2.
18
N.Y. Public Health Law § 2991 requires hospitals and other health care facilities to
provide patients with a Health Care Proxy form and information about creating a proxy.
In addition, the Federal Patient Self-Determination Act requires health care facilities to
notify patients of their rights under state law to create advance directives. See 42 U.S.C. §
1395cc(f) (2010).
19
Chapter 331 of the Laws of 2010 (known as the Palliative Care Information Act),
amends N.Y. Public Health Law by adding § 2997-c.
20
Chapter 59 of the Laws of 2011 (known as the Palliative Care Access Act), amends
N.Y. Public Health Law by adding § 2997-d.
Endnote \
Office of the New York Attorney General
ag.ny.gov
Letitia James