The Living WillA Guide To Health Care Decision Making
This copyrighted material may be freely reproduced and distributed (intact with no changes) for personal use only.
Introduction
Through advances in medical technology, some patients who formerly would have died can now be kept alive by artificial means. Sometimes a patient may desire such treatment because it is a temporary measure potentially leading to the restoration of health. At other times, such treatment may be undesirable because it may only prolong the process of dying rather than restore the patient to an acceptable quality of life. In any case, each person is seen, under the law, as having the personal right to decide whether to institute, continue or terminate such treatment. As long as a patient is mentally competent, he or she can be consulted about desired treatment. When a patient has lost the capacity to communicate, however, the situation is different.
Although New York has no statute on the question, there are state and federal court decisions that have established the right of an incompetent or comatose patient to have his or her wishes respected, as long as those wishes are known. New York law requires clear and convincing evidence of what the patient would want. Of all the various acceptable forms of evidence, a health care declaration (often called a "Living Will") can be the best. It simply documents a person's wishes concerning treatment when those wishes can no longer be personally communicated. Even in New York, such a document is recognized if it is clear, specific and unequivocal.
The following guide will help you prepare such a document if you have wishes you want respected. You should realize that if you do not express your views, treatment to maintain your life, by whatever means available, will probably be provided once you are no longer able to communicate, even if family members object. Therefore, if there are conditions under which you would not want treatment, it is important that you communicate your wishes while you are able to do so. In addition, because it is important that your wishes be documented in the most effective way possible, it is recommended that you consult your attorney in regard to the preparation of a health care declaration.
Prepared by: Jack P. Freer, M.D.
Elizabeth G. Clark, Esq.
Hodgson, Russ, Andrews, Woods & Goodyear
Attorneys At Law COPYRIGHT © 1994 Jack P. Freer, M.D. & Hodgson, Russ, Andrews, Woods & Goodyear
