The Living Will and Health Care Proxy-
Essentials for a Complete Estate Plan

The law in New York recognizes two ways to have a patient control his hospital treatment, if he is not able to do so himself.  The Living Will and the Health Care Proxy.  A hospital routinely has an incoming patient sign a "Living Wills" when he is admitted for treatment.  The Living Will is a directive by a patient to a medical facility about what types of medical care the patient will accept, if he is not able to make such decisions at a later time.  For example, a patient can direct a hospital not to take extraordinary steps to revive him, if he suffers heart failure while in the hospital.

The other potential part of the directive is the Health Care Proxy.  Unfortunately, however, this part of the total medical directive is frequently overlooked, since a signed Health Care Proxy is not usually part of the paperwork of a hospital's admission procedure.  But, having a Health Care Proxy can be as important as the Living Will.  Here’s why: Many aspects of a patient’s health care are not covered in the Living Will.  Actions such as deciding on a course of treatment or moving the patient to another hospital are impossible to include in a Living Will.  In a Health Care Proxy, the patient could name a trusted relative or other person to make these decisions for him.  Otherwise, if the patient is in a coma or otherwise unable to convey his decision, the hospital will have no authorization for proactive treatment beyond what was actually authorized by the patient.                

The Federal Government steps in. New Regulations to a recent Federal Law have now made obsolete virtually all previous Health Care Proxies.  The Health Insurance Portability and Accountability Act (“HIPAA”), in an effort to protect a patient’s right of privacy over his medical records, now requires a specific release of those medical records to anyone, including any person designated in a Health Care Proxy.  The problem is, of course, that the previously used Health Care Proxies probably do not have this specific release language.  As a result, virtually all previous Health Care Proxies are obsolete and need to be revised.  If not revised, then when the time comes for Agent  to make medical decisions, the doctors and the hospital will not be able to divulge the necessary medical information on which any thoughtful decision would be based.

What to do?  We have studied the new Regulations and have developed a Health Care Proxy that complies with the HIPPA requirements.  If you don't have a current Living Will and Health Care Proxy, you should have these important medical directives prepared and executed.  If you have a Health Care Proxy, but it does not reflect the requirements of the new Regulations, it will probably not be honored when it is most needed.  If you need a new Living Will and Health Care Proxy, please call us to make an appointment to review your objectives and to get this important medical directive in effect as soon as possible.

626 Reckson Plaza
Uniondale, NY  11556

Telephone
(516) 522-2575

Copyright © 2007 STEPHEN C. SILVERBERG, PLLC  All rights reserved.
Last modified: December 27, 2007

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