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The Realities of Health Care Advance Directives

Published December 7, 2021

By Joel Krooks, Esq.

Recently, the Uniform Law Commission formed a new committee to review the Uniform Health Care Decisions Act (UHCDA). Although, New York is not one of the states that follows the UHCDA, the potential changes the committee is discussing brings important issues to light. The states that do follow the UHCDA are Alaska, Delaware, Hawaii, Maine, Mississippi, New Mexico and Wyoming.

One consideration that the committee is reviewing is the relationship between advance directives, which include health care proxies and living wills, and Physician Orders for Life-Sustaining Treatment (often referred to as a POLST and in New York a MOLST – or Medical Orders for Life-Sustaining Treatment). When a doctor is in an emergency situation, it is very unlikely that they have reviewed the patient’s wishes regarding end-of-life care. It’s likely that the doctor has never even met the patient before. The reality is that a living will or life-sustaining order is only effective if your agent under your health care proxy knows your end of life wishes. The best practice is to communicate with your health care proxy and inform them of your wishes.

Another consideration the committee is reviewing is the default surrogates and disqualification of surrogates. Currently, the UHCDA provides for a patient’s spouse to have priority to name decisions when a health care agent has not been appointed. After a patient’s spouse the priority is as follows, an adult child, parent and adult sibling. In New York, the Family Health Care Decisions Act (FHCDA) determines the priority if a patient has not appointed a health care agent. The order of priority in New York is, a court appointed guardian, spouse or domestic partner, an adult child, a parent, a brother or sister, a close friend. Participants in the committee noted that relatives can sometimes be poor choices for determining health care decisions, especially when intra-family conflicts occur. In addition, some people trust nonfamily members to make health care related decisions more than family members. This is why it is very important to have a health care proxy to make sure that you are nominating the person you wish to make these decisions for you.

These are just two of the considerations that the committee is reviewing. We at Littman Krooks can help you get the appropriate health care advance directives in place. If you have issues with your current health care advance directives or just need to update your Health Care Proxy please reach out to us.

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