What is the difference between a Last Will and a Living Will in NY?

A Last Will and Testament is a legal document that tells the world how you want your assets to be distributed when you die and who will manage your estate and implement your final wishes.  A Will only comes into effect after you have passed.

In contrast, a Living Will is a document instructing your medical agent and/or doctors regarding your preferences for medical care if you are unable to voice these wishes yourself.  Doctors consult living wills if you’re terminally ill, seriously injured, in a coma, in the late stages of dementia, or generally near the end of your life.

God forbid you have an accident or medical emergency and you’re unable to make decisions about your health – or that you become generally incapacitated, fall into a coma, or must be kept alive by artificial life support.  Who will take care of you?  And will that person know your wishes?

That’s why everyone – not just the elderly – needs a living will and health care proxy (together known as advance directives). 

If you’re young, you’re thinking you don’t need to worry about this, but that’s not true.  What if you get into a car accident tomorrow, or are hit by a car walking across the street?  What if something goes horribly wrong during a routine surgery?  Unexpected situations can happen to anyone, regardless of age, so it’s important for everyone to have a living will prepared and ready.  By doing so, you can make sure your wishes are followed and prevent your loved ones from the stress and suffering of making these decisions for you.

Let’s break down the living will and other related documents pertaining to your health care in New York.

Medical Power of Attorney / Health Care Proxy

Though each state has different names and forms, a medical power of attorney is a document that allows you to name someone you trust – your agent, representative, proxy, or attorney-in-fact, depending on your state – to make medical decisions for you if you cannot.  Some states allow you to name your agent and leave your end-of-life care instructions together in what’s known as an advance directive.  Other states require two separate documents, namely the medical power of attorney and the living will.

In New York, you may need to complete two separate documents, a Health Care Proxy and a Living Will.  Note that you may write your living will instructions in the Health Care Proxy to make your directives in one document.

It is important that the person you choose is someone you trust with your life, literally.  You should have open and honest discussions with this person about what should happen to you if you have a medical emergency.  And if you have different wishes for different situations, make sure that person knows.

Most people name their spouse, adult child, sibling, or other family member or close friend as their health care agent.  It is also a good idea to name a back-up in case that person can’t act for you.  Most states require, though, that your health care agent be over the age of 18 and not a part of your medical team.

Living Will

Besides telling your health care agent your end-of-care instructions, you should also document your wishes in a living will.  The living will tells your agent, family members, and doctors what medical treatments you want and do not want in different medical situations.  In a living will, you will write whether you want to be kept alive in different medical emergencies or if you should be allowed to die peacefully.  You may also discuss pain management, tube feeding, organ donation, and more.

A living will includes some very important instructions that can literally be life or death, so you should think about your wishes carefully.  Fully inspect your values and religious faith.  What sort of medical situation would make your life not worth living?  Each person’s answer is different.  Don’t worry, if you change your mind as you get older, you can always revoke your living will and write a new one with your updated wishes.

There are many different types of medical care that could be discussed in your living will.  These may include:

• Pain Management – any type of treatment to manage pain and keep you comfortable, despite the diagnosis.
• Artificial Nutrition and Hydration – also known as tube feeding. You can decide if you receive tube feeding, when it should be discontinued, etc.
• Mechanical ventilation – machines to take over your breathing if you cannot do so on your own.  You can decide if you want to be on a ventilator and when it should be taken away.
• Dialysis – the management and removal of fluid from your kidneys if they cannot do so on their own.  You can decide if you want dialysis, the type of dialysis to be received, and when it should stop.
• Cardiopulmonary Resuscitation – also known as CPR.  You can decide whether you want to be resuscitated by CPR after your heart stops beating or if you should be allowed to pass away.
• Organ Donation – you can decide whether to donate any/all of your organs after your death to those in need.  Note that if you decide to do so, you may be kept on life-support until procedures are complete, or, if harvested afterwards, it could delay your burial.

How do I make my living will legally valid?

After completing your Health Care Proxy and/or Living Will, you will need to sign and witness it per your state’s instructions. 

In New York, your documents must be signed in front of two witnesses.  Your witnesses must be over the age of 18 and cannot be your health care agent or any alternate health care agent.  If someone signed on your behalf because you could not do so, that person cannot be a witness.  If you live in a mental health facility, there are more stringent witnessing requirements.

I’ve made my living will.  Now what?

After you have completed and signed your Health Care Proxy and/or Living Will, you should keep the originals in a safe place, like a filing cabinet or home safe.  You should give a copy to your doctor and to your health care agent, and have discussions with both on how your wishes should be implemented.  It may be a good idea to keep a copy with you when traveling.

If you want to make changes to your documents, you can do so at any time.  Simply complete and sign a new Health Care Proxy and/or Living Will, distribute to the appropriate people, and make sure you discuss your changes with them.  You should destroy your old, revoked forms to avoid confusion.

If you haven’t completed a living will yet, what are you waiting for?

Simple Wills makes it easy to complete a New York Health Care Proxy.  Each purchase of an estate plan includes these documents.  There’s no excuse to wait, and five minutes will make sure your end-of-life wishes are followed in any situation.  Protect yourself and your family today!