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Health Care Decision-Making

Quite often I am asked about the differences between a Health Care Proxy and a Living Will. A Health Care Proxy allows a “principal” to appoint someone else to act as his or her health care agent for purposes of making health care decisions. When executing a Health Care Proxy, a person appoints another to make health care decisions consistent with the principal’s their own wishes. This is important where individual family members may disagree about treatment. The Health Care Proxy only takes effect when the principal requires medical treatment and medical care providers have determined that the principal is unable to communicate his or her wishes concerning such treatment. Should the principal subsequently become able to communicate his or her own wishes, the Health Care Proxy will not be used.

The Health Care Proxy should include a medical directive which provides directions concerning the refusal or removal of life support in the event the principal is in a coma or a vegetative state, or it may provide instructions to use all efforts to keep the principal alive, no matter what the circumstances may be. Alternatively, the medical directive can be crafted to provide a broader statement granting general authority for all medical decisions that are important to the principal.

A Living Will is a document that gives instructions concerning the treatment of an individual who has been diagnosed as terminally ill or is in a vegetative state and is unable to communicate his or her own instructions.  The Living Will provides the conditions which control whether life-sustaining treatment should be avoided or terminated. Similar to a Health Care Proxy, a Living Will takes effect only upon a person’s incapacity. A Living Will is not the same as a “Do Not Resuscitate” (DNR) Order. The DNR order provides that, when a person is having a heart attack or stroke, the person does not wish to be revived. The DNR is different from a Living Will which goes into effect only if you are in a vegetative state.  Clearly, everyone can benefit from a Living Will while generally only the very elderly or frail benefit from a DNR.

The distinctions among a Health Care Proxy, Living Will, and Do Not Resuscitate Order can be confusing. If you have further questions or concerns you should consult with an attorney who has experience with crafting such documents.

This is not intended to be legal advice.  You should contact an attorney for advice regarding your specific situation.


Mark A. Krohn, L.L.M Taxation, CPA and a partner at J&G, is in charge of the Business Law Team and is also a member of the Trust & Estates Team. He can be reached by phone at our Walden, NY office at 866-303-9595 toll free or 845-764-9656 and by email.[/column_1] [/column]

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