Q. What is the difference between a living will and a healthcare proxy?

Answer

"The primary purpose of a Living Will is for a person to set forth his or her own wishes as to what medical procedures he does or does not want. A Living Will can constitute clear and convincing evidence of a patient's wishes and no further judicial proceeding would be necessary for a hospital to follow such wishes. A Living Will does not designate an agent. It can, however, be used to help a health care agent designated in a Health Care Proxy know what the principal's wishes are. Although a proxy can list the medical care which is desired and that which is not desired, a Living Will is designed to do this in greater detail if necessary.

"Great care must be taken to avoid any inconsistency between a Living Will and a Health Care Proxy. If the two documents are inconsistent in any way, difficulties may arise in the acceptance of either the Health Care Proxy or the Living Will, as an inconsistency can cast doubt on the true wishes of the principal.

"A client should also be advised that a Health Care Proxy is a creature of New York State law. The document may or may not be recognized in another state, especially the section regarding designation of an agent. A Living Will on the other hand, is a clear declaration of a person's wishes and is more likely to be honored in other states. Most states have Living Will statutes. However, a client should be advised that a Living Will executed in New York may not meet the requirements of some other state. Executing a Health Care Proxy together with a Living Will is in the client's best interest.

"According to Choice in Dying, forty-seven (47) states and the District of Columbia presently have Living Will statutes.4

"As of March 1998, 32 states authorize reciprocity for Living Wills and 15 states and the District of Columbia do not have statutes addressing reciprocity. Massachusetts, Michigan, and New York do not have statutorily recognized Living Wills."

§ 7:29. Living Will—Overview, N.Y. Elder Law Practice § 7:29 (2019 ed.)

 

Public Health Law § 2981 Appointment of health care agent; health care proxy  defines the requirements for a health care proxy. The New York State Dept of Health provides a proxy health care form.

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  • Last Updated Dec 20, 2019
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