New York Law on Living Wills

A living will is a legal document that you can use to express your wishes about your medical treatment or end-of-life care if you become incapacitated. It is one of the primary advance directive documents used for incapacity planning. It’s often paired with a healthcare proxy, which allows you to appoint a trusted person to make your healthcare decisions if you are unable to. Together, these two important documents can provide your family members and loved ones with clarity and direction during an uncertain time in their lives.

While planning for your incapacity may be uncomfortable, its value can be immeasurable. By providing clarity and direction, incapacity planning can prevent delayed treatment decisions and avoid court involvement in your healthcare decisions. It can also help prevent family conflict. This article explores incapacity planning, the legal requirements for a living will, how to revoke or amend one, and how to create a new one.

Distinguishing Wills, Living Wills, and Living Trusts

Estate planning terminology can be confusing. The words “living” and “will” have entirely different meanings depending on what word they’re partnered with. A will, a living will, and a living trust are all legal documents, but each serves a different purpose in an estate plan.

An estate plan is the set of legal documents that work together to express your wishes. It’s usually will-based or trust-based, meaning the key document that details how you want your assets distributed at your death is either a will or a trust. Here’s a breakdown of each one:

• Will: Also known as a last will and testament. A will is the legal document that explains how you want your assets distributed after your death.
• Living Will: A living will has nothing to do with the distribution of assets. Instead, it explains how you want your healthcare decisions made if you become incapacitated.
• Living Trust: Like a will, a living trust explains how you want your assets distributed after your death. It offers additional functionality but achieves the same essential purpose.

Having any of these in place can help ensure that your wishes for healthcare decisions and the sharing of your assets are followed.

Incapacity Planning

Estate planning does indeed handle the distribution of assets after a death, but it can do more as well. A comprehensive estate plan includes incapacity planning, which provides instructions for your healthcare and financial matters through a durable power of attorney. With incapacity planning, you can take charge of important decisions when you can’t speak for yourself. For healthcare decision-making, New York law primarily uses a healthcare proxy and a living will as advance directives.

Creating a Living Will

Your living will states your healthcare wishes. It can be tailored to your specific instructions, but often addresses medical decisions about the following:

• Cardiac resuscitation (administering CPR)
• Mechanical respiration (breathing machines)
• Artificial nutrition (tube feeding) and hydration (IVs)
• Antibiotics
• Pain relief

Living wills are recognized in New York primarily through case law (court decisions) rather than by a particular statute. Although there is no statutory Living Will form, a free template is available on the New York Attorney General’s website.

Appointing a Health Care Agent

Your healthcare agent interprets your medically-related wishes. With a healthcare proxy, a competent adult (“principal”) can appoint a friend, a family member, or another trusted person as their healthcare agent to make medical decisions for them if they become incapacitated.

While a living will is a static document, a healthcare agent can make real-time decisions on the principal’s behalf. Some of the benefits of using a healthcare proxy in tandem with a living will include the agent’s ability to:

• Evaluate new treatment options
• Decide on rehabilitation goals
• Address unexpected medical complications
• Make any other unforeseen medical care decisions

Appointing a healthcare proxy ensures that any gaps in your living will instructions are addressed by someone you choose. The state of New York provides a healthcare proxy statutory form. If you decide to add a healthcare proxy to your estate plan, the person you choose as your agent should understand your wishes, have access to your living will, and be willing and able to advocate for your medical decisions.

The Healthcare Agents and Proxies Public Health statutes include specific signature requirements. A healthcare proxy must be signed and dated by the principal (or by another person at the principal’s direction and in the principal’s presence) in the presence of two adult witnesses, who must also sign the proxy. The designated healthcare agent may not serve as a witness. The witnesses must state that the principal “appeared to execute the proxy willingly and free from duress.”

Can I Change My Mind?

The idea of planning for your incapacity can be daunting. You can create an advance directive and change your mind later as long as you remain competent. Keeping your advance directive up to date is important because circumstances change. There might be a change in relationship status, a new medical diagnosis, a different outlook at an older age, or a general shift in medical care preferences. Your incapacity planning documents should be kept up to date to accurately reflect your wishes in light of any changes to your medical care wishes.

Revoking Your Living Will

Living wills are recognized primarily through common law rather than by statute. While there is no statute addressing how to revoke a living will, a clear expression of intent by the principal is usually effective. For example, a principal may revoke the living will by physical destruction, by executing a new living will, by revoking it in writing, or by communicating the intent to revoke to a family member or healthcare provider.

Revoking Your Healthcare Proxy

By statute, a competent adult may revoke a healthcare proxy by notifying the agent or a healthcare provider orally, in writing, or by any other act that shows a specific intent to revoke the proxy. If the principal executes a later health proxy, this usually serves as a revocation of the prior version. A divorce or separation will also revoke the proxy unless the principal states otherwise.

Best Practices in Action

Although an oral revocation or physical destruction may be legally effective in some situations, an advance directive only works if the right version is in the right hands at the right time. For this reason, consider following these steps to ensure your updated healthcare wishes are known and followed:

• Sign entirely new documents
• Revoke earlier versions
• Promptly distribute the new documents immediately (family, hospital, healthcare providers, agent, etc.)

Having your proxies updated or clearly revoked will save everyone involved headaches if the living wills ever come into effect.

Do I Need an Attorney for Incapacity Planning?

When it comes to creating your advance directive, you have options. Planning for your incapacity is an important step you can take for your family, and completing the task is key. Between the statutory form healthcare proxy and the living will form available from the attorney general, planning for your incapacity is a task you can complete entirely on your own.

If the forms don’t quite address your specific needs and concerns, you may want to consider using an online drafting service. This option may offer a bit more flexibility while still adhering to New York State requirements. If you still have questions or concerns, consider speaking with a New York estate planning attorney.

Work With a New York Estate Planning Attorney

Working with an estate planning attorney begins with a one-on-one consultation. They’ll take the time to listen to your specific needs and concerns, evaluate your circumstances, and provide legal advice on your best course of action.

Whether you’re just starting to plan for your future or you already have some estate planning documents in place, an experienced estate planning attorney can help you ensure that all of the legal documents of your estate plan work together to achieve your goals. Contact a New York estate planning attorney and plan for your family’s future today.