Healthnotes Library

Advance Healthcare Directives

By: Zicari, Pullano and Farrow

Published and reviewed January 2009

What is an Advance Directive?

An advance healthcare directive is a written document in which you make a healthcare decision in advance, or direct someone or empower someone to make healthcare decisions on your behalf. In New York, the directives are referred to as Living Wills, Health Care Proxies, Do Not Resuscitate Orders (“DNR”) and Medical Orders for Life-Sustaining Treatment (“MOLST”).

What is a Living Will?

A Living Will is a document that allows you to state your wishes concerning life sustaining medical treatment in the event you become incapacitated. Decisions expressed in a Living Will often cover complicated issues such as feeding and hydration.

New York does not have a Living Will law. If you create such a document, it is not binding in New York and serves only as a guide to your wishes. This means that it does not have to be followed by your healthcare providers, but it is strong evidence of what should be done if you become incapacitated.

What is a Health Care Proxy?

New York law allows you to create a Health Care Proxy. A Health Care Proxy names an individual person (referred to as your Health Care Agent) who is authorized to make healthcare decisions in the event you become incapacitated.

Your decision regarding who will act as your Health Care Agent is very important, and you should have a frank and honest discussion with that person so he or she knows how you feel about your healthcare decisions. However, if you want your Health Care Agent to have authority to make decisions regarding the administration of artificial food and hydration, you must clearly indicate your desire. Without this specific indication, your Health Care Agent will not be granted such authority. You will want to ensure that you choose an individual who will uphold your wishes even if he or she would not make the same decisions for himself or herself. Your Health Care Agent must be able to stand up to the pressure that can be exerted by family members who may disagree with your wishes.

How to Obtain a Health Care Proxy.

Your physician or lawyer can provide you with a Health Care Proxy form, or you can get it from the New York State Department of Health’s Website at http://www.health.state.ny.us/.

How to Fill Out the Health Care Proxy.

An attorney is not necessary to complete the Health Care Proxy form. All you must do is sign the form in the presence of two independent witnesses. Your Health Care Agent is not independent and should not sign as a witness.

Again, if you want your Health Care Agent to have authority to make decisions regarding the administration of artificial food and hydration on your behalf, you should clearly indicate that on your Health Care Proxy.

What is a DNR?

A DNR is a written order that tells medical personnel not to perform cardiopulmonary resuscitation (“CPR”) on you in the event of cardiac arrest. A DNR is a medical order, written by your physician, stating that you, as a competent adult, have consented to not be given CPR. A DNR order does not relate to any other treatment you may receive.

DNR orders may be written for you as a hospital patient, or as a nursing home resident, or for you at home. A hospital DNR order tells staff not to begin life saving CPR procedures, while a nursing home DNR order tells staff not only to withhold CPR, but also to not transfer you to a hospital for CPR. A home DNR order is used to tell emergency personnel, who may arrive at your home in the event of an emergency, to not begin life saving CPR procedures. In the absence of a pre-existing DNR order, medical staff will assume that you consent to CPR, unless such efforts would be considered futile.

Why Request a DNR?

Generally, if you are seriously or terminally ill, administering CPR may worsen your medical condition or not sufficiently add to your quality of life. Many factors determine how successful CPR will be including, for example, your age, illnesses and overall medical condition.

If you choose to request a DNR from your physician, he or she will follow your wishes, or transfer your care to another doctor who will follow your wishes, or begin a dispute resolution process. All disputes must be resolved within 72 hours, or your physician must enter the order or transfer your care to another physician who will do so.

In the event you are unable to make an informed decision regarding a DNR due to a loss of capacity, the law provides that a surrogate, generally your duly appointed and authorized Health Care Agent, may make the decision on your behalf. In the event a Health Care Agent has not been appointed, medical staff personnel can turn to your spouse, adult son or daughter, parent, adult sibling or a close friend, in that order of priority, to make a decision on your behalf. If family members disagree with regard to making the decision, your physician may request mediation of the dispute. In the event you lose capacity and none of the previously mentioned individuals are available to make this decision on your behalf, a DNR may be written by two physicians who are in agreement that CPR would not be in your best interests, or a court of law may approve the DNR.

Once there is a hospital or nursing home DNR, such order will be honored upon your transfer to another facility (i.e., from the nursing home to the hospital) unless a physician examining you at the new facility decides the DNR should be rescinded. If such a rescission occurs, you or the person who decided to have the DNR instituted initially will be informed of the cancellation and be permitted to reinstitute the DNR.

Conversely, if you have a hospital or nursing home DNR and are subsequently transferred to your home, the facility DNR will no longer be valid. You or your Health Care Agent will have to specifically request a new home DNR order in the event you still wish to have a DNR in place.

What is the MOLST Program and the MOLST Form?

MOLST stands for Medical Orders for Life-Sustaining Treatment and is a physician order based on your current medical condition and desired medical wishes. The MOLST form works as a summary of your current treatment preferences and is used to ensure that your wishes are respected and followed, regardless of the particular healthcare setting – including hospitals, nursing homes, and hospice programs. The MOLST form is not intended to replace other advance directives, but rather summarizes whether you have completed other advance directives, including a Health Care Proxy, Living Will, or a DNR. It assists in centralizing information from these directives for recordkeeping purposes and to ensure that such information is properly exchanged between healthcare providers at various healthcare settings.

While the MOLST form is not for everyone, it is recommended if you suffer from advanced and chronic illnesses or if you are interested in specifically defining end of life treatment choices.

The MOLST program is active and requires regular communication between you, as a patient, your family and representatives, and your healthcare providers. The program provides individualized care by:

• documenting healthcare treatment preferences;

• converting these preferences into physician orders on the MOLST form;

• increasing the chances that your treatment choices will be followed by having a physician record these choices and preferences on the MOLST form;

• assisting you with the transfer of patient preferences in various healthcare settings; and

• enabling treatment by emergency medical personnel.

In addition to the general and standard MOLST form, there is a supplemental form for adults. This adult supplemental form is intended to be completed when:

• the patient lacks the capacity to consent;

• a patient with capacity would suffer immediate and severe harm by having a discussion about a DNR order;

• cardiopulmonary resuscitation would be medically futile and the patient lacks capacity and has no surrogate; or

• the patient resides in a correctional facility.

Additionally, there is a supplemental form for minors which should be used if the patient is under 18 years of age and not married or a parent. This supplemental form needs to be completed in addition to the general MOLST form.

The MOLST form itself was designed to be copied onto bright pink paper so that it can be easily identified by healthcare personnel in the event of a medical emergency. The form meets the requirements of New York law and policies governing nursing facilities, hospitals, and other healthcare institutions. The form is being developed into a New York State Department of Health official form. If you use the MOLST form, you should make sure that copies of the completed form are provided to physicians, your Health Care Agent, and other individuals in order to make sure that your wishes are honored even when you are unable to vocalize your preferences.

Additional information about the MOLST program in New York State can be found at the following website: www.compassionandsupport.org.

What is a Power of Attorney?

In New York, a power of attorney (“POA”) document is an authorization allowing someone else to act on your behalf with respect to business or legal transactions. It does not address healthcare decisions. As the individual authorizing some other person to act on your behalf, you are known as the principal, while the person authorized to act is known as the agent or attorney-in-fact. In New York, there are three types of POA forms: the nondurable POA, the durable POA, and the POA effective at a future time (the “springing” POA).

The primary difference between the nondurable and durable POA is that the nondurable POA ceases to be effective if you become disabled or lack capacity to make decisions, while the durable POA continues to remain effective during any period of subsequent disability or incompetence you may experience. As the name indicates, the springing POA takes effect upon the occurrence of a specified event, such as your incapacity.

A POA provides your designated agent with broad powers to handle legal and business matters during your lifetime (it expires upon death), including the potential power to engage in the following transactions, all of which are defined under the New York power of attorney law:

You can grant your agent the power to engage in some or all of those transactions. Additionally, you can grant the agent the power to delegate any or all of the foregoing powers to any other person. You may also designate more than one agent. As detailed in the instructions in the POA form, such agents must either act jointly or separately.

It is important to point out that, unlike in other states, in New York State, a POA cannot authorize your agent to make medical or other healthcare decisions for you. Such decisions can only be made if you execute a separate document, such as a Health Care Proxy.

Although New York has established a specific statutory short form POA, the statutory form does not have to be used, and modifications to the standard form are acceptable even if some powers are eliminated and others are supplemented.

You should carefully consider your choice of an agent because the responsibilities involved may require considerable time and effort. Although standard POA forms are available, professional advice should be obtained for the preparation of a POA because the document must meet specific legal requirements.

About the Author 

Zicari, Pullano and Farrow Craig J. Zicari is an attorney in the Rochester-based law firm of Harter Secrest & Emery LLP. He is a member of the firm's Health Care Group and provides a full range of business and health care law services to health care providers including physicians, physician organizations, allied health care professionals, and heath care facilities such as hospitals and ambulatory surgery centers. Mr. Zicari received his B.A. degree, cum laude, from Boston College, and his J.D. degree from Syracuse University College of Law. He is a member of the American Health Lawyers Association, the American Bar Association, and the New York State and Monroe County Bar Associations. Patrick Pullano is an attorney in the Rochester-based law firm of Harter Secrest & Emery LLP. He is a member of the firm's Health Care Group and provides counsel to health care providers including nursing homes, hospitals, physician organizations and physicians. Mr. Pullano received his B.A. degree, summa cum laude, from the University of Rochester, and his J.D. degree, cum laude, from Albany Law School of Union University. He is a member of the American Health Lawyers Association, and the New York State and Monroe County Bar Associations. Brett E. Farrow is an attorney in the Rochester-based law firm of Harter Secrest & Emery LLP. He is a member of the firm's Health Care Group and provides counsel on a variety of health care and general business issues. Mr. Farrow received his J.D. degree from Albany Law School of Union University, his M.B.A. degree in health care administration from Union College, and his B.S. degree in biology and psychology from Union College. He is a member of the American Health Lawyers Association, the American Bar Association, and the New York State and Monroe County Bar Associations.

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