Living Wills:

Although it is referred to as a "will" a living will is not a will. A living will is considered an "advanced directive" since it gives specific instructions, in advance, of medical treatments. The individual may choose to have or not to have certain procedures or treatments, in the event the he or she is unable to because of mental & physical incapacitation. Although New York has no specific statute on living wills, prior court decisions have established the right of an incompetent or comatose patient to have his or her wishes respected, as long as those wishes are made known to others. In New York, a living will is recognizes if it clear, specific and unequivocal.

Living wills can direct health care providers to withhold treatment, allows a person to ask for all available treatment options and medical techniques, or allows a person to choose some medical options and reject others. It is always advisable to consult with a medical professional about the various treatments so that informed choices and decisions may be made in the living will. A living will takes effect once the individual is terminally ill or permanently disabled (or in a vegetative state), rendering him/her unable to make and communicate decisions about his or her medical treatment.

When Living Wills Become Effective:

The circumstances in which living wills take effect are: terminal illness and permanent disability. Terminal illness is where death is expected in a relatively short time. In these situations treatment available is typically treatment that only extends life without restoring a desired quality of life. While this treatment may be acceptable for some, it is not acceptable for others. If the individual can no longer communicate, the doctors may assume that he or she wants their life extended as long as possible. However, if that is not the individual's choice then that can be expressed and most doctors will respect those wishes if it is in a living will.

The other circumstance is permanent disability. Permanent disability is when an individual is unconscious (i.e. in a coma), incompetent or in a vegetative state due to illness with no expectations of regaining full consciousness or competence. Although it is not uncommon to have healthcare professionals differ in opinion as to what is actually "permanent", permanent disability must be determined by a medical professional. Consequently, since the circumstances that trigger the application of a health care directive differ for each individual, it is wise to specifically state what should or should not be endured in the living will.

Do Not Resuscitate Orders ("DNR"):

The only other health care situation in which there are specific legal guidelines in New York is the area of "Do Not Resuscitate" (DNR) orders. These orders apply only to cardiopulmonary resuscitation and there are specific rules concerning how they are to be written and who may authorize them. In essence, if while an individual is in a hospital his or her heart stops beating and breathing stops, the medical team will immediately attempt to restore normal heartbeat (resuscitation) and breathing. This attempt will happen automatically unless such treatment is refused in advance. The issuance of a DNR order is the method prescribed by law for such a refusal. This health care declaration, (like any other treatment) can be refused in advance and can be included in the living will or healthcare proxy. The refusal can be unconditional, or can be specified as becoming effective only under certain circumstances. Your health care agent will have the right to make DNR decisions for you when you are no longer able to make them yourself.

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