Long Island Elder Law & Estate Planning

Living Will New York

A well thought out and comprehensive estate plan should do more than simply outline how your estate assets are to be handled when you pass away. Your estate plan should also contemplate the possibility of your incapacity and incorporate tools, such as advance directives, into the plan to ensure that your wishes are honored if you do suffer a period of incapacity during your lifetime or at the end of your life. A Living Will is one type of advance directive that outlines your preferences for medical treatment in the event you become incapacitated and are unable to make or communicate decisions about your care. To help you understand how a Living Will fits into your estate plan, the Long Island attorneys at Eghrari Law Firm discuss 8 things to know about a Living Will in New York.

  1. Definition of a Living Will: A Living Will is a written statement that details your wishes regarding medical treatments in situations where you are unable to make or communicate decisions for yourself. Its primary purpose is to provide guidance for healthcare providers when making medical decisions concerning life-sustaining treatments and end-of-life care.
  2. Legal Requirements for a New York Living Will: In New York, a Living Will is not governed by a specific statute, but it is recognized under common law. That means that there are no specific legal formalities required to create a Living Will. For a Living Will to be considered valid in New York, however, it must be “clear and convincing” regarding your medical treatment preferences. Working with your estate planning attorney to create your Living Will is the best way to ensure that it will be honored.
  3. Living Will vs. Health Care Proxy: A Health Care Proxy is the other type of New York advance directive that should be included in your estate plan. A Living Will outlines your wishes regarding medical treatments that you do or do not want while a Health Care Proxy appoints an “Agent” to make medical decisions on your behalf if you cannot make or communicate them yourself.
  4. Components of a New York Living Will: A New York Living Will should include instructions approving or rejecting specific life-prolonging or life-sustaining medical treatments, such as resuscitation (CPR), mechanical ventilation, tube feeding, dialysis, and artificial hydration. Organ donation and pain management can also be addressed in a Living Will.
  5. Flexibility: In part because A New York Living Will is not governed by a statute, you have considerable flexibility when creating your Living Will. This can allow you to be very detailed or very broad in your instructions. You can even include scenario-specific instructions. For example, you might provide instructions for treatments you authorize or reject if you are in an irreversible coma, or you have been diagnosed with a terminal illness.
  6. Activation: A Living Will only becomes effective if you are determined to have a terminal illness or are at the end-of-life and when you are no longer able to communicate your wishes. Because the validity of a New York Living Will comes from the courts, not the legislature, there are no statutory procedures in place dictating when a Living Will activates. You can also defer to your health care agent by including a statement along the lines of “Any questions about how to apply my Living Will are to be decided by my health care agent.”
  7. Enforceability: In New York, healthcare providers are legally required to follow your documented wishes as long as they are legal (you cannot instruct your physician to help you commit suicide for instance), clearly expressed, and your healthcare provider is aware of your wishes.
  8. Storage and Registration: To ensure that your Living Will works as intended, provide copies to your designated Agent, family members and loved ones, and your primary care physician. In addition, New York residents can file their advance directives with the New York State eMOLST Registry, an electronic repository for medical orders. Once filed, physicians, hospitals, and healthcare workers throughout the state will have access to your Living Will.

Working with your estate planning attorney is the best way to ensure that your New York Living Will properly conveys your preferences and will be honored when the time comes to rely on it.

Can We Help You Create Your New York Living Will?

For more information, please join us for a FREE estate planning seminar. If you are ready to get started creating your New York Living Will, contact the Long Island estate planning attorneys at Eghrari Law Firm by calling us at 631-265-0599 to schedule your appointment.

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About Eghrari Law Firm

Mark S. Eghrari is an attorney in private practice in Smithtown, New York. He has been in practice since 1988. Mark S. Eghrari provides extensive estate and tax planning services to individuals and businesses. Mr. Eghrari’s primary focus is helping clients avoid probate, minimize or eliminate Federal and State Estate taxes and protect their assets from the high cost of nursing care, if they become ill Read More!