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By John M. Bigler It's been several years since I've addressed the issue of advanced directives or documents that one prepares to cover future contingencies. Specifically, I'm referring to powers of attorney and health-care proxies.
I've gone into detail in the past as to how each document is prepared and how it works. However, the form for a power of attorney has changed twice since 1994 and the Health-Care Proxy Act only went into effect in 1991. During the period of the 1990's several important factors have become obvious regarding these forms. First, in regard to the health-care proxy, many people execute many different versions of it. Plus, there are many individuals who will have a proxy and a living will without really knowing the purpose or difference in these forms. I'm a great believer in preparing the simple standard health-care proxy form and leaving it at that. This form is easily obtainable from the health department or local hospital or even doctors. Many attorneys will prepare them at no charge as a courtesy for clients. (I like to joke with my clients and point out that it is the one thing that I do for free and that they should take advantage of it.) The health-care proxy form is a simple one-page one-sided form. It doesn't need to be notarized, but only witnessed by two people. One proxy and one alternate proxy are named and there are no co-proxies. The difficulty with the health-care proxy is the space left open for "optional instructions." Many of the forms I've reviewed leave the optional instructions blank. The problem with that is the language (underneath the space for optional instructions) which reads "unless your agent knows your wishes about artificial nutrition and hydration [feeding tubes], your agent will not be allowed to make decisions about artificial nutrition and hydration." The language is very clear that if you don't mention some type of optional instruction, then your proxy won't have the authority to make decisions regarding feeding tubes. If the hospital or nursing home feels that it's proper to insert one, even though you don't want it and your proxy is aware of that fact, they may act in a manner in which they feel is proper. The optional instructions to be listed basically vary amongst three possibilities. One is to indicate that the individual wishes very aggressive treatment. The second choice is to indicate that no treatments be given other than for pain medication to keep the individual comfortable. Or third, one can simply say "My proxy knows my wishes regarding artificial nutrition and hydration tubes." I like this last option because it gives the proxy some flexibility. Obviously, the person you've chosen is someone you have a great deal of faith and confidence in to act in your best interest. So allowing them to make the decision at the time with the assistance of other family members and the medical staff makes the most sense. Then there's this question: If John Doe has a health-care proxy, does he also need a living will? A living will is the document that became popular as a result of court cases indicating that if Mr. Doe had a clear-cut statement of his medical wishes, it would be honored. It's typically a statement indicating that no aggressive treatment is to be given. The living will normally doesn't put anyone in charge. For a number of years after the Health-Care Proxy Act was passed, the argument was that the living will would come in handy if one was traveling to a state that would not be familiar with the health-care proxy. As time has gone by, this argument no longer carries as much weight. Certainly, there's nothing wrong with have a health-care proxy and a living will, but in my opinion, the living will is redundant. I have a greater concern regarding the living will. Sometimes, I've reviewed documents that people have had prepared which include a three- or four-page health-care proxy, a living will and even a medical power of attorney. My concern is the cost in preparing these documents. As noted above, a health-care proxy should not be an expensive proposition and, in fact, there should be no charge for it at all. I still remember the professor from Hofstra University, the late Dean Regan, who had so much to do with preparing these documents. He spoke to a group of elder-law attorneys in January 1999 when the act first passed and advised us that, although he knew attorneys like to tinker with these forms, they were perfect as they were and we should leave them alone. His concern was that the forms be readily available for the general populous. In fact, my opinion is that this particular form is the most concise, well-drafted document that could ever be imagined to cover such a difficult situation as end of life decisions. It's perfect as it is and should be left alone. Next month we'll visit powers of attorney. Reprinted with permission of the Suffolk Times © 2000 [ Contact Us ] [ Guestbook ] [ Email ]  The Law Offices of John M. Bigler, Attorney At Law 1421 Wantagh Avenue, Wantagh, New York 11793-2206 1-888-ELDER-LAW · 516-409-6565 · Fax: 516-409-6522 E-Mail: info@biglerlaw.com · Web Site: www.biglerlaw.com |
The power of attorney is a document that allows an individual to appoint an agent to make financial decisions on behalf of the individual executing the document. The health-care proxy is a document that allows Person A to appoint Person B as a proxy to make Person A's medical decisions.