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Should New Yorkers Give their Medical Advance Directive to their Doctors?

{Read in 5 Minutes}  As a Trusts and Estates attorney, helping clients form an Estate plan is a very big part of my practice. Whether they are interested in writing a Will, a Power of Attorney, or other estate planning documents, our work together takes a fair amount of time to craft. Once complete, there’s always a big decision about what to do with the documents. For example, does the client want the Executor to have a copy of the Will? What if the Executor is also a beneficiary

Medical advance directives are very important and require some separate discussions here. Most New Yorkers choose to execute both a Health Care Proxy and a Living Will. Both of these documents are important and require special consideration. When a client signs a Health Care Proxy, they appoint an agent to make a medical decision for them if there comes a time when they are unable to make medical decisions on their own. It is essential that the client gives their agents copies of these documents, so in case of an emergency, the agents will have access to the documents — and will be able to provide them if they need to show up at the hospital in a pinch. I’ve also encouraged clients to keep copies of these documents electronically.

What about doctors? I strongly encourage clients to share copies of the Health Care Proxy with their doctors. Doctors are often to add a copy of the document to the patient/client’s file. It might also have a practical effect: if I give my doctor my Health Care Proxy and someone calls him to tell him that I’ve been in an accident, he can provide a copy of the Health Care Proxy to the hospital that’s treating me along with any helpful medical information. It can be a very powerful thing. If my doctor is part of the hospital’s network and has uploaded the Health Care Proxy to the server, the hospital may already have access to it as well. If my doctor uses an online patient portal, it may be even easier for me to upload this document myself.

The Living Will is a document that does not need to be shared with doctors and hospitals. Why? Well, it’s not because I don’t think that a client’s wishes concerning artificial or heroic health measures to keep them alive while they are unconscious are unimportant — quite the contrary! I think it’s one of the most important documents that a client can sign. The reason I’m not a fan of giving this document to doctors and hospitals is because I want the doctors and hospitals to only see the Health Care Proxy form. Living Wills are written in shades of gray that deal with the likelihood of an unconscious patient returning to a conscious state of existence. The words there often provide general priorities and goals as opposed to specific instructions. I don’t want anyone other than the agents on my Health Care Proxy, who presumably know me and my wishes well, to interpret my instructions. 

For this reason, I encourage clients to keep the medical advance directives as two separate documents — a separate Health Care Proxy, and a separate Living Will. That way, a client can provide one document (Health Care Proxy) to the medical team while keeping another (Living Will) closer to the vest — giving copies of it only to the agents appointed on the Health Care Proxy. If the agents need to make a medical decision on your behalf, they can reference your instructions in the Living Will.

As you can see, these are very important and personal decisions. While the suggestions I’m making here may not fit everybody, in my experience, they do cover a broad array of New Yorkers, ensuring that medical staff treats them appropriately and consistently with their wishes. 

For more information on this topic, please contact me