The Law Office of Robert J. Maher, P.C.

Living Wills

A living will isn't strictly a will. It's a legal document that states your wishes as regards medical treatment preferences should you become incapacitated (e.g. unconscious) or otherwise unable to communicate.  For example, if you do now wish to be kept on artificial life-support, you can make this legally binding on your healthcare providers by expressing this intention clearly in your living will. A living will is an advanced directive as regards your end-of-life care.

Living wills can be personalized. They can be custom--tailored to your specific intentions and needs.  Typically, a living will address the following medical interventions, but you can limit or expand the list per your own wishes:

  • Artificial respiration (the use of machines to maintain breathing)
  • Artificial nutrition and hydration (the use of feeding tubes, IV drips to feed the body)
  • Surgical procedures (both superficial and invasive)
  • Medications
  • Diagnostic tests
  • Blood transfusions

Your living will can also address your decision on matters such as bodily tissue and organ donation.

New York Law - Health Care Proxy

In New York State, there isn't a specific statue that governs the making of living wills. There is, however, guidance issued by the New York Department of Health should you decide to appoint a Health Care Proxy. Appointing a health care proxy is one way to create a similar effect to having a living will -- the person you appoint, usually a close relative or friend - will carry out your wishes and act in your stead. The proxy document is a legal document and therefore legally binding.  Typically, your signing off on the document requires witnesses and/or a notary public. In some states, the health care proxy is also known as a durable power of attorney for health care.

You can spell out your very specific instructions in your health care proxy documents, as you would state your intentions in a living will.  As the significant difference between a health care proxy and a living will is the empowerment of another person to carry out your wishes, give deep and careful consideration about who you choose to be your proxy. What's the advantage of having a proxy? As not all situations can be anticipated or prepared for, in cases your instructions can not apply to the scenario at hand, in which case your proxy will be able to make decisions for you.

Should You Make A Living Will?

While some of my clients are uncomfortable with discussing making a living will, those who are of a particular mind-set seem entirely at ease with doing so. This latter group are essentially people who see a living will as a huge part of their responsibility to loved ones. Having a living will means that they take the heavy burden of making medical decisions as to their life and care off their families. They see their living wills as giving their loved ones the assurance of their own views and beliefs about not extending their life through medical means. Clients who create living wills tend to view it as a means of freeing their loved ones from having to make wrenching decisions on their behalf. They also tend to see the decision as an empowering one  -- they alone get to dictate the decisions as to their well-being should they become unable to make and communicate such decisions one day. Whatever your motivations, take the time to think deeply about this issue. It involves serious, often difficult decision-making, and be sure to understand your rights and most importantly, your wishes for yourself.

If you do go ahead with making a living will and/or health care proxy, make sure your loved ones and trusted friends, or attorney and/or primary care physician have copies of them.