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2014 National Healthcare Decisions Day

Author: Linda Grear


April 12th, 2014

The 2014 National Healthcare Decisions Day is Wednesday, April 16, 2014.

Over 100 million American adults have not designated an agent to make medical decisions nor documented the type of medical care they desire. Although it is a difficult issue to address, it is important for all adults to consider who is best-suited to make medical decisions for them the event they become too ill to convey their wishes personally.

Family Health Care Decisions Act: On March 16, 2010, New York passed the Family Health Care Decisions Act. The FHCDA allows family members to make medical decisions, including decisions about the withholding or withdrawal of life-sustaining treatment, on behalf of patients who have lost their ability to make such decisions and have not prepared advance health care directives (such as a Health Care Proxy or Living Will) if the patient’s wishes can be shown by “clear and convincing evidence”.

Warning: The Family Health Care Decisions Act may give some a false sense of security and belief that written advance health care directives (Health Care Proxy or Living Wills) are not needed. That is not the case.

The legislation established a protocol for health care practitioners to determine whether a patient has decision-making capacity. When it is determined that a patient does not have decision-making capacity, the legislation requires the selection of a ‘surrogate’ from a list of individuals ranked in order of priority, including family members, domestic partners and close friends.

The FHCDA does not solve problems where individuals desire to make very specific medical decisions for themselves based upon their own personal, religious or moral beliefs. Additionally, in family disputes, there may still be issues. For example, if several siblings have differing opinions regarding medical care for a parent, there will be problems to address.

Without advanced written directives for medical care, family members are left in the precarious situation of trying to figure out what to do. The FHCDA clarifies a decision-making hierarchy that may be helpful in emergency situations; however, the FHCDA does not obviate the need for a Health Care Proxy and/or Living Will. Under the statute, the health care surrogate is obligated to make decisions based on clear and convincing evidence of the patient’s wishes. The best way for a patient to express his/her own wishes, avoid family conflicts and select one’s own health care agent is to have a written health care directive (Health Care Proxy and/or Living Will).

The failure to specifically designate an agent to carry out your wishes may create a bitter, lengthy legal battle among family members and doctors in an effort to determine what treatments you would want. If you wish to give someone the ability to refuse treatment on your behalf (such as ventilator assistance, feeding tubes or cardio-pulmonary resuscitation), it is important to leave a written document (Health Care Proxy and/or Living Will) giving an agent authority to refuse treatment on your behalf.

Health Care Proxy: A Health Care Proxy is a document which allows you to designate an agent to make health care decisions in the event you are unable to do so. Your health care agent should be a person you trust to be able to carry-out your wishes and deal with your physicians.

Living Will: A Living Will supplements the Health Care Proxy by allowing you to document your wishes concerning treatment under certain instances, such as a terminal illness, or in the event you are in a vegetative state where there is no reasonable likelihood of recovery.

Appointing a health care agent is a good idea even if you are not terminally ill. A health care agent can act on your behalf should you ever become temporarily impaired. For instance, if you are unconscious as a result of a general anesthesia or have become comatose because of an accident, your agent would be able to make any necessary health care decisions on your behalf and could also arrange for the payment of your health care costs.

You are to be commended if you had the foresight to execute a Health Care Proxy; however, be advised that privacy rules have been enacted which could have a serious impact on your designation. On April 13, 2003, the Health Insurance Portability and Accountability Act (commonly referred to as “HIPAA”) took effect. These HIPAA regulations apply to virtually every physician, dentist, nurse, and health care provider in the nation. The intention of the HIPAA legislation was to standardize the transmission of health care information and require providers to take “reasonable efforts to limit protected health information to the minimum necessary to accomplish the intended purpose of the use, disclosure or request.”

In other words, if your Health Care Proxy was executed prior to 2003 and disclosure of protected health information is necessary for your treatment, your agent could be denied access to your health or medical information, which would then have an impact upon your agent’s ability to provide care for you. Therefore, it is prudent that you complete a HIPAA authorization or execute an updated Health Care Proxy, which should include the appropriate HIPAA language to authorize your agent to make informed medical decisions as a result of having full access to protected health information.

If you have any questions about the above material, or wish to speak to an Elder Law/Estate Planning attorney, please contact HoganWillig, Attorneys at Law at (716)636-7600 or visit www.hoganwillig.com. HoganWillig’s main office is located at 2410 North Forest Road in Amherst, New York with additional offices in Lockport, Lancaster and Buffalo.

National Healthcare Decisions Day

Author: Linda Grear


April 15th, 2013

April 16, 2013 is “National Healthcare Decisions Day.” It is a day set aside to educate the public about the importance of health care planning. This is to encourage people to express their personal wishes regarding healthcare, in writing, before a health care crisis occurs.

Although it is a difficult issue to address, it is important for all adults to consider who is best-suited to make medical decisions for them in the event they become too ill speak for themselves and convey their own wishes.

Health Care Proxy: A Health Care Proxy is a document which allows you to designate an agent to make health care decisions in the event you are unable to do so. Your health care agent should be a person you trust to carry-out your wishes and deal with your physicians.

Living Will: A Living Will supplements the Health Care Proxy by allowing you to document your wishes concerning treatment during a terminal illness or in the event you are in a vegetative state where there is no reasonable likelihood of recovery.

Appointing a health care agent is a good idea even if you are not terminally ill. A health care agent can act on your behalf should you ever become temporarily impaired. For instance, if you are unconscious as a result of a general anesthesia or have become comatose because of an accident, your health care agent would be able to make medical decisions on your behalf.

Family Health Care Decisions Act: On March 16, 2010, NYS Governor David Paterson signed the Family Health Care Decisions Act (“FHCDA”) into law. The FHCDA may permit family members to make medical decisions, including decisions about the withholding or withdrawal of life-sustaining treatment, for patients who have lost their ability to make medical decisions and who had not previously prepared a Health Care Proxy or Living Will. However, the law may give some a false sense of security and belief that written a Health Care Proxy or Living Will is not needed. That is not the case.

The law established a protocol for doctors to determine whether a patient has decision-making capacity. When it is determined that a patient does not have decision-making capacity, the law requires the selection of a ‘surrogate’ from a list of individuals ranked in order of priority, including family members, domestic partners and close friends.

The FHCDA does not solve problems where individuals desire to make very specific medical decisions for themselves based upon their own personal, religious or moral beliefs. Additionally, in family disputes, there will still be issues. For example, if several siblings have differing opinions regarding medical care for a parent, there will be problems to address.

Without advanced written directives for medical care, family members are left in the precarious situation of trying to figure out what to do. The FHCDA clarifies a decision-making hierarchy that may be helpful in emergency situations, but, it does not obviate the need for a Health Care Proxy and/or Living Will. Also, under the FHCDA statute, the health care surrogate is obligated to make decisions based on clear and convincing evidence of the patient’s wishes. The best way for a patient to express his/her own wishes, avoid family conflicts and select one’s own health care agent is to have a written Health Care Proxy and/or Living Will.

If you have any questions about this information, or wish to speak to an Elder Law/Estate Planning attorney, please contact HoganWillig, Attorneys at Law at 716-636-7600 or visit www.hoganwillig.com. HoganWillig’s main office is located at 2410 North Forest Road in Amherst, New York with additional offices in Lockport, Lancaster and Buffalo.

Basic Estate Planning Documents

Author: Linda Grear


October 5th, 2012

There are three basic estate planning documents that all individuals should consider when making a life plan strategy. The specific content of each document will depend on personal and family circumstances, but, everyone should consider having the following documents in place:

Last Will and Testament – A Last Will and Testament is a legal document that includes your personal instructions regarding the distributions of your assets upon your death. The preparation of a Will allows you to designate the beneficiaries of your estate. Your Will may also name a person to serve as executor of your estate.

A Will may also name a guardian for any minor children and designate the age when the children will receive their inheritance. Parents of a child with disabilities can also express their preference relative to their child’s future care, education, job training and living arrangements and even establish a trust to supplement governmental benefits received by the disabled child.

Power of Attorney – A Power of Attorney allows you to appoint an agent to make decisions concerning your legal and financial matters in the event you cannot do so for yourself. If something catastrophic happens and you become incapacitated, having a Power of Attorney in place can avoid the alternative of having a Court appoint a guardian, this could take several months and cost several thousand dollars.

Health Care Proxy / Living Will – A Health Care Proxy/Living Will allows you to designate an agent to make health care decisions in the event you are unable to do so yourself. It also allows you to document your wishes concerning treatment in the event you become terminally ill.

The simple act of planning ahead can assure that your personal wishes are followed.

National Healthcare Decisions Day

Author: Linda Grear


March 27th, 2012

April 16, 2012 is “National Healthcare Decisions Day.” It is a day set aside to educate the public about the importance of health care planning and to encourage people to express their personal wishes regarding health care, in writing, before a health care crisis occurs.

Over 100 million American adults have not designated an agent to make medical decisions nor documented the type of medical care they desire. Although it is a difficult issue to address, it is important for adults of all ages and stages of life to consider who is best-suited to make medical decisions for them in the event they become too ill speak for themselves and convey their own wishes. Without such directives, these important decisions and related matters may be left to the control of medical professionals, estranged or inappropriate family members or even the Court, all of whom may know little to nothing about you, your values and morals, or your overall wishes.

Spring Cleaning? Time to Review Important Estate Planning Documents

Author: Hogan Willig


March 9th, 2011

Issues to Consider When Evaluating the Need for a New or Revised Will / Estate Planning Documents

As spring rolls around and we get ready for warmer weather, our thoughts turn to spring cleaning. Take this time to clean up your current estate planning documents and determine if they need to be revised. It is suggested that your estate planning documents be reviewed every five years to make sure they still comply with your wishes. If any of the categories listed below apply to you, it may be a good idea to embrace the season and make the necessary changes to your Last Will and Testament, Living Will/Health Care Proxy or Power of Attorney documents.

Family Health Care Decisions Act

Author: Linda Grear


June 8th, 2010

In March of this year, Governor Paterson signed into law the Family Health Care Decisions Act (FHCDA). The law allows family members to make medical decisions, including decisions about withholding or ending life-sustaining treatment, on behalf of individuals who have lost their ability to make such decisions and have not prepared advance health care directives (such as a Health Care Proxy or Living Will).

HoganWillig

We Practice Law for Your Peace of Mind