New York State does not recognize the authority of a family member (even a spouse) to make health care decisions unless a Health Care Proxy has been signed. A properly signed Health Care Proxy gives caregivers the legal authority to make medical decisions. As soon as possible after diagnosis, a person with dementia should consider their wishes for future treatment and designate a Health Care Proxy. Once appointed, a Health Care Proxy can make medical decisions on another person's behalf, including: choices regarding health care providers, medical treatment, and, in the later stages of the disease, end-of-life decisions. The Health Care Proxy form comes into affect when a physician determines that the person with dementia no longer has the capacity to make medical decisions.
When it comes to decisions about artificial nutrition and hydration (feeding tubes), the Proxy must have specific knowledge of the person's wishes. The Health Care Proxy form should state that artificial hydration and nutrition have been discussed, and that the Proxy is authorized to make those decisions.
The Healthcare Proxy should contain a HIPAA waiver. This is the document that is signed allowing the healthcare provider, doctor, pharmacist, etc. to release medical records to a third party. It is possible that without this language medical professionals may not be able to speak to the agent and share information concerning the patient. Copies of the health care proxy should be given to the agent, the patient's doctor, home health care provider agency, hospital, elder law attorney, geriatric care manager and other family members or close friends.
The Living Will is a good supplement to the Health Care Proxy, allowing a person to declare his or her wishes regarding the use of medical procedures, including those that can delay death. A Living Will is distinct from a Health Care Proxy, which names an agent but does not address specific wishes about end of life issues. The contents of a Living Will should be discussed with personal physicians, family members, and caregivers, and should be accessible if the need arises. While New York State does not have a statute that authorizes the use of Living Wills, they are recognized under case law.
back to top