UNDERSTANDING ADVANCED DIRECTIVES: LIVING WILLS AND HEALTH CARE PROXIES

By: BENJAMIN D. ECKMAN, ESQ.
Elder Law Attorney

Modern medicine and advanced technology enable Americans to live longer. In some cases, however, medical machines are being used to keep individuals alive, long after their minds and bodies have ceased to function naturally. Today, individuals have the constitutional right to refuse medical treatment and execute advance directives as a method of expressing their wishes.

Advance directives are legal documents which provide information about your treatment preferences to those caring for you. Serious injury, illness or mental incapacity may make it impossible for you to make health care decisions for yourself. By executing either a Living Will or a Health Care Proxy, you have ensured that your wishes are respected even when you can’t make decisions yourself.

A Living Will allows you to state your wishes about your medical care in the event that you develop a terminal condition, become permanently unconscious, or have a serious illness. A Health Care Proxy allows you to designate someone to make key decisions about your medical care if you are unable to do so. Your proxy has the legal authority to make decisions about your health care; thus, it is important to select someone who knows you well, and who is familiar with your health care preferences.

Instances may occur in which medical circumstances arise or treatments are proposed that you may not have thought about when you first wrote your Living Will. If this happens your proxy has the authority to participate in discussions with your doctors and to make treatment decisions for you. If your treatment preferences are clear your doctor is legally obligated to implement your wishes, unless doing so would violate his or her conscience or accepted medical practice. If your doctor is unwilling to honor your wishes, he must transfer you to the care of another doctor.

It is a good idea to indicate your specific preferences concerning artificially provided fluids and nutrition and cardiopulmonary resuscitation (CPR). Advance directives also allow patients to make their feeling known about organ donation, feeding tubes, respirators and dialysis.

Your directives become effective once a copy of it is given to your doctor, and he and one other doctor confirm that you can no longer make decisions about your health care. It is in effect only as long as you are unable to make your own decisions. If you regain your ability to make decisions, then you resume this responsibility directly. Your advance directives are important legal documents. Keep the original signed documents in a secure, but accessible place. Give photocopies to all people who might become involved in your health care. Carry in your wallet a card that informs others that you have executed advance directives.

Remember it’s your right to accept or refuse medical care. Advance directives can protect this right if you ever become mentally or physically unable to choose or communicate your wishes due to an illness or injury. If you do not have a Living Will or Health Care Proxy, now is the time to consider signing them. Only by planning in advance, informing your family members and physicians on the type of care you wish to receive, and expressing your choices in writing, are you assured that your wishes will be implemented.

Benjamin D. Eckman, Esq. concentrates his practice on Elder Law & Estate Planning. Elder law is intended to broadly assist “extended living”. An elder law practitioner provides the legal information necessary for persons whose lives will extend or have already extended beyond the time when all children are usually out of the house and when regular employment ceases. After the elder law attorney and client complete their work, legal documents have been drafted, tax considerations have been analyzed, and a plan to protect the elder’s estate has been implemented.

Benjamin D. Eckman’s practice focuses on Estate Planning & Elder Law – legal issues facing senior citizens. Benjamin D. Eckman received his Bachelor’s Degree in Business/Accounting from Touro College and his law degree from Seton Hall University School of Law. He is a member of the New York State Bar Association, the New Jersey State Bar Association, the National Academy of Elder Law Attorneys, the Elder Law Section and Real Property, Probate and Trust Section of the New Jersey State Bar Association, the Union County Bar Association, Passaic County Bar Association and the Bergen County Bar Association. He can be reached at (973) 709-0909, (908) 206-1000 or (201) 263-9161.