Health Care Proxy
An Appointment of Health Care Proxy is a document that appoints another person, called a “proxy,” to make health care decisions for you if you are incapacitated and unable to make those decisions yourself. It can also include instructions about your wishes to your proxy. In New York, Appointments of Health Care Proxy are governed by Article 29-C of the Public Health Law. An official, one-size-fits-all Appointment of Health Care Proxy form is available from the Department of Health (link). If you have more detailed instructions to give your proxy, or if you wish to give the proxy more or less authority than the official form provides (for instance, authority over artificial nutrition and hydration), then you may wish to have Muennich & Bussard, LLP draft an Appointment of Health Care Proxy that is specially tailored to your wishes.
The need for an Appointment of Health Care Proxy was reduced, but not eliminated, by the Family Health Care Decisions Act that was signed into law by Governor Paterson in 2010. The Family Health Care Decisions Act creates a rank-ordered list of people who may automatically be appointed as a “surrogate” to make health care decisions for you if you are unable to (and do not have a health care proxy). Two major reasons that you may still want to appoint a health care proxy despite the protections of the Family Health Care Decisions Act are (1) the person in the highest position on the list may not be the person who you want to have making decisions for you; and (2) a surrogate under the Family Health Care Decisions Act has less decision-making authority than a health care proxy.1 If you decide not to appoint a health care proxy, you should almost certainly create a Living Will so that your surrogate knows what you want them to do.
Living Will
A Living Will is a document that sets forth your wishes about health care in advance, in anticipation of the possibility that you may become mentally or physically incapable of expressing your wishes at a later time. In New York, Living Wills are governed by the common law, as set forth in In re Westchester County Medical Center, 72 N.Y.2d 517 (1988). There is no official form for Living Wills; any document that provides “clear and convincing evidence” of your wishes is a valid Living Will. Unofficial one-size-fits-all forms are available from the Attorney General’s Office (link, page 23) and the New York State Bar Association (link). You may wish to have Muennich & Bussard, LLP draft a Living Will that is specially tailored to your wishes.
MOLST (Medical Orders for Life-Sustaining Treatment)
The MOLST form is an official form (link, must be printed on bright pink paper) from the Department of Health that provides a quick, concise, standardized summary of your wishes regarding certain forms of medical care to health care providers in any setting. In hospitals and other medical care facilities, the MOLST form is supposed to be placed at the front of your medical chart. Additionally, paramedics are trained to look for a MOLST form on the refrigerator, by the kitchen phone, and by the bedside. In order to complete the MOLST form, you need to discuss your wishes with your doctor, who will then fill out and sign the form. Muennich & Bussard, LLP cannot complete the MOLST form for you (because we are lawyers, not doctors), but we may recommend that you talk to your doctor about MOLST as part of a comprehensive advance medical plan.
Non-Hospital “Do Not Resuscitate” (DNR) Order
A non-hospital “Do Not Resuscitate” (DNR) Order is a document that tells non-hospital health care providers (such as a nursing home) that you do not want CPR. Because the MOLST form includes a section on CPR, you do not need a DNR form if you already have a MOLST form. The official DNR form is issued by the Department of Health (link) and must be completed and signed by your doctor after discussing your wishes with you. If you have a DNR (or MOLST that specifies that you do not want CPR), you may order a bracelet that notifies paramedics that you do not want CPR.
1 Compare surrogate’s authority under Public Health Law § 2994-d(3)-(5) and proxy’s authority under Public Health Law § 2982(1)-(2).
