Living Will Versus Healthcare Proxy

by José Enrique Perez

We have been writing for several months about Immigration, Trump and the changes in policies by this new government. It is time to take a break from all that. Now, we should talk about planning for you, your family and your friends.

As we go about our daily activities, our minds are often filled with plans for the future. Rarely do we have time to consider what might happen if we were somehow rendered permanently unable to understand these future plans. This is why you should write down your wishes about the kinds of treatment you do or don’t want to receive and name someone you trust to oversee your care should you become unable to communicate these desires. There are two basic documents that allow you to do this; a living will and a healthcare proxy. You do not have to be sick or dying in order to execute these papers. In point of fact, you should do it when you are in your full and unclouded mind.

Living wills are not really wills at all. Instead, a living will is a document that you sign in advance in which you specifically set forth your decisions about health care treatment in case you become unable to communicate these instructions during terminal illness or permanent unconsciousness. Living wills can direct health care providers to withhold treatment, to allow for all available treatment options, or to choose some medical treatment options and reject others. A living will cannot be used to authorize the withholding of nutrition and hydration. If you wish to have nutrition and hydration withheld, you will need to execute a legal document called a healthcare proxy.

Because a living will involves complicated medical issues, you may want to consult with a doctor to help clarify different treatment options. Most importantly, living wills cannot take effect legally unless you are medically determined to be in a permanent vegetative state or terminally ill, and therefore unable to communicate.

Any competent person eighteen years of age or older can make a living will by signing it in front of two witnesses who in turn also sign the document, attesting that the document was signed in their presence. These witnesses must also be at least eighteen years old. The witnesses should not be related to you, and they should not be beneficiaries of your estate or have financial responsibilities for your medical care.

A living will is a simple form but you should have an experienced attorney review this document. Failing to properly complete a living will means that it will not be recognized and your wishes will not be carried out.

A healthcare proxy trumps a living will. This document gives another person the power to make health care decisions for you if you cannot make those decisions yourself. A healthcare proxy differs from a living will in that it authorizes you to appoint someone to carry out the living will’s instructions and/or to make decisions that you did not anticipate when you completed the living will. Also, a healthcare proxy does not depend on terminal illness or permanent unconsciousness to become effective. The person you name in your healthcare proxy should be someone you trust but they must be at least 18 years old, i.e. spouse or partner, relative or close friend. You should not choose your doctor, or an employee of a hospital or nursing home where you are receiving treatment. You can find a healthcare proxy form on the New York State Attorney General’s website:

Without a living will or healthcare proxy, family members end up arguing over what treatments should or should not be provided. The best approach is to complete both a living will and a healthcare proxy. The two will work together. Local senior centers may be good resources for help. Many of them have trained healthcare staff on hand who will be willing to discuss your healthcare options. The patient representative at a local hospital may also be a good person to contact for help. And if you have a regular physician, you can discuss your concerns with him or her.

You should remember that this article is not intended to provide you with legal advice; it is intended only to provide guidance about living wills and health care proxies. Furthermore, the article is not intended to explain or identify all potential issues that may arise in connection with the execution of these documents. Each case is fact-specific and therefore similar cases may have different outcomes.

I represent individuals in many cases. If you have any questions or concerns about a case, you can call me at (315) 422-5673, send me a fax at (315) 466-5673, or e-mail me at The Law Office of Jose Perez is located at 120 East Washington Street, Suite 925, Syracuse, New York 13202. Now with offices in Buffalo and Rochester!!! Please look for my next article in the July edition.