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Advance Healthcare Directives

By: Zicari, Pullano and Farrow


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/forms/doh-1430.pdf.

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 (such as chest compressions or mechanical ventilation). 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. 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.

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 has been 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 Surrogate?

Under the New York Family Health Care Decisions Act ("FHCDA") which took effect in June, 2010, a person known as a "Surrogate" has the authority to make healthcare decisions for an adult who lacks capacity and who has not designated a Health Care Agent to make healthcare decisions. The FHCDA is currently only applicable in hospital and nursing home settings. A Surrogate can make any decision the individual could make for him/herself. The FHCDA establishes, in order of the following priority, the persons who can be appointed as a Surrogate by the involved hospital or nursing home:

  1. a guardian appointed under Mental Hygiene Law Article 81,
  2. a spouse (except if legally separated) or domestic partner (as defined in the FHCDA),
  3. an adult child,
  4. a parent,
  5. a brother or sister, or
  6. a close friend (who signs a statement as required by the FHCDA).

A Surrogate is required to make decisions based on:

  1. the resident's wishes,
  2. the resident's religious and moral beliefs, or
  3. if the resident's wishes are not reasonably known and cannot be determined with reasonable diligence, based upon the resident's best interest.

Under the FHCDA, an Ethics Review Committee reviews and provides advice to residents, Surrogates and health care providers. The Committee provides advice upon request, in the event of disputes/disagreements as to treatment decisions, in the event of disagreements regarding capacity, and upon review of other matters as required by the FHCDA. The recommendations of the Committee are advisory and non-binding, except in limited circumstances.

Additional information about the FHCDA can be found at the following website: http://www.nysba.org/Content/NavigationMenu/PublicResources/FamilyHealthCareDecisionsActInformationCenter/FHCDARC.htm.

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:

  • real estate transactions;
  • chattel and goods transactions;
  • bond, share and commodity transactions;
  • banking transactions;
  • business operating transactions;
  • insurance transactions;
  • estate transactions;
  • claims and litigation;
  • personal and family maintenance;
  • benefits from governmental programs or civil or military service;
  • health care billing and payment matters; records, reports and statements;
  • retirement benefit transactions;
  • tax matters; and
  • all other matters.

A recent change in the POA law prohibits your agent from making gifts on your behalf unless you have specifically addressed that right in a separate form known as the "Statutory Gifts Rider."

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 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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The Rochester Healthnote Library consists of locally-authored articles either commissioned by Rochester Health or republished with the author's permission. The information provided in the Rochester Healthnote Library is for general informational purposes only and is not meant to be a substitute for professional medical advice and treatment. You should always seek the advice of your physician or other medical professional if you have questions or concerns about a medical condition.


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