Health Care Proxy vs. Living Will: What’s the Difference?

Health Care Proxies and Living Wills are related, but separate, legal documents. These important documents allow you to keep control of key health care decisions by making arrangements in advance and appointing trusted agents to assist you in the future. These essential estate planning documents allow you to designate a medical decision-maker and provide them specific instructions in the event that you cannot make medical decisions on your own behalf.

What is a Health Care Proxy?

A Health Care Proxy is used to designate someone, called your Health Care Agent, to make medical decisions on your behalf and to communicate your healthcare wishes to doctors if you cannot do so yourself. You can designate a spouse, child, family member, or friend as your Agent. Keep in mind that, while you can only have one Health Care Agent at a time, you can and should name alternates. For instance, you may wish to name your spouse as your Agent and name a child as the first alternate to act if your spouse is unable to act as your Agent for any reason (illness, has predeceased, etc.).

A Health Care Proxy form needs to be signed by you and witnessed by two people, neither of which are one of the Agents. A properly drafted Health Care Proxy includes a HIPAA release, which allows your Agent access to your medical records, which will help them make informed decisions on your behalf. It can also include a provision stating whether you do or do not wish to be an organ donor.

Benefits of Having a Health Care Proxy

If you are able to make decisions and communicate your wishes, you remain the decision-maker and medical providers must respect your wishes. However, if you become unable to communicate your wishes, it is important to have legally documented in writing who your trusted Agents are so that your medical care can be attended to without delay.

What is a Living Will?

A Living Will is a legal document where you set forth your wishes regarding end-of-life care. In the event you are unable to communicate your wishes to medical providers and loved ones, your Living Will provides written proof of your wishes. The Living Will includes your wishes and instructions concerning life sustaining treatments, such as artificial respiration, artificial hydration, artificial nutrition, CPR, and pain management. It is a set of instructions to your Health Care Agent who ultimately would be communicating these wishes to your medical providers.

A Living Will takes effect if you have a substantial and irreversible loss of mental capacity and either (1) you are unable to eat or drink without artificial feeding or (2) you have an incurable or irreversible condition likely to cause your death within a relatively short time. Examples of this may include being in a coma with no expectation of recovery, or end stage cancer or other irreversible terminally ill condition.

Benefits of Having a Living Will

While you are mentally capable to do so, you can always make your own decisions for medical treatment. However, if through accident, age, or illness, you become unconscious or too ill to decide for yourself, it is extremely important to have your treatment wishes set forth in writing. A Living Will allows you to specify your own wishes in the event your Health Care Agent needs to make end-of-life decisions for you. In particular, you can specify that if you, for instance, had an incurable or irreversible condition likely to cause your death in a relatively short time, that you would not want continuing heroic measures or life sustaining medical treatments to keep you alive.

Without a Living Will, your Agent may have to rely on their memory as to any discussions you may have had, or make their own judgment, which may not be your wishes. It can also lead to disputes among family members who have their own opinions on your treatment. It is best to have everything clearly written out in a legal document.

Many do not want their life artificially prolonged via heroic measures and “machines”. By setting forth your wishes in writing, you can help lift some of the burden placed on family members who are tasked with making these gut wrenching decisions. You can give them comfort that they are following your desires by setting forth your wishes in a legal document.

Should I Have a Health Care Proxy, Living Will, or Both?

Both a Health Care Proxy and a Living Will are extremely important planning documents to have in place. They provide for designated individuals to make health care decisions on your behalf, and provide clear guidance as to your wishes. They are extremely important for all adults over age 18.

If you do not have a Health Care Proxy and Living Will and there are disputes regarding your treatment, it may lead to a fight in court. In these cases, a family member may petition a court to become your legal guardian. The process of becoming a legal guardian is both expensive and time consuming. The court may also decide to appoint someone as guardian who you would not have wanted to make decisions for you, or even appoint a complete stranger off the Court’s list. Clearly, it is a good idea to avoid this by signing a Health Care Proxy and Living Will.

It is also very important to make sure your Health Care Proxy and Living Will are up to date. If circumstances change (marriage, divorce, having children, etc.) you may want to change your Agent. Perhaps your children are now older and you want to name one of them as decision maker instead of a sibling. Review your documents every five years or whenever there are major changes in circumstances.

Speak with an Experienced New York Estate Planning Attorney Today

Cona Elder Law is the recognized leader in the field of Elder Law and Estate Planning. Our award-winning firm has been continually ranked the #1 Elder Law firm on Long Island. Our holistic approach sets us apart from the others; we help our clients with legal issues but also provide assistance with financial matters, caregiver issues, health and housing and other practical matters. Our mission is to inspire and empower older adults to embrace aging with support and resources. Our customized trusts, estates and elder law plans have made us the go-to Long Island Elder Law attorneys for well over 20 years. Contact us here or call us at 631-390-5000.