There are few rational reasons to having a Living Will in New York, almost no legal benefits to having one, and Living Wills may cause more confusion than guidance in your final days of life.
There are several misperceptions concerning what a Living Will actually is. For starters, the very name “Living Will” is a misnomer: It is neither a living document (because it discusses your desire to have someone “pull the plug” on life sustaining measures), nor is it a will (a document which distributes property upon your death). Some people refer to this document as an “Advanced Directive”, but I am pretty sure the Advanced Directive is a Star Trek term regarding Captain Kirk’s alien kissing fetish or something.
A Living Will is a document which states if you would like your Health Care Agent (under your Health Care Proxy) to continue or cease tube feeding, cardiac and pulmonary machinery, and administer near-lethal doses of morphine when you are terminally ill. Unlike documents like a Power of Attorney, there is no standard form created by New York’s state legislature, so Living Wills may have 1 page or 12 pages, may have blank lines and boxes for you to fill in, may have bold or italicized writing. Most people either utilize their attorney’s standard document or download one from online that looks official.
Here are the zingers that make Living Wills legally and practically useless in New York:
- A Living Will is not legally binding, it merely suggests your end-of-life desires. While your Health Care Proxy names your Agent to make decisions for you and is enforceable under the law, a Living Will merely states your wishes to die under amorphous health circumstances.
- Your Health Care Agent’s decisions supersede your Living Will. If your Living Will states you do not want antibiotics administered to you upon reaching a permanent comatose state (so you may die of sepsis and end your unconscious life), your Health Care Agent can disregard your directions and keep administering those antibiotics despite what you stated in your Living Will.
- It is incredibly difficult (often impossible) to predict what health condition you might suffer to commence your instructions to die. Are you actually at the point where your Agent should be ceasing life sustaining measures? Your attempted foresight as to when you would like the Living Will engaged may not be so clear cut nearing your final months of life.
- The State will not intercede to ensure your Living Will’s end-of-life wishes are fulfilled. Indeed, most states (including New York) are more likely to make your plan for a dignified end-of-life more difficult. You only die once (unless, regrettably, you are a pair of bell-bottom jeans), so the State does not want to make an irreversible booboo – like ending your life – that a family member could cause a stink about in the future.
- Lastly, should you be trusting an attorney or the owner of a generic document factory website with end-of-life medical decisions when their depth of medical knowledge is Googling “Will taking Ozempic make my butt sag”? Practically speaking, the only reasons attorneys draft Living Wills are (a) they make us sound smart about something we have no clue about, (b) charging another $250 for a 3-page boilerplate document sounds good to me, and (c) there aren’t many other professions that can passably encapsulate the confluence of medical / legal / end-of-life matters in a document.
Also, a decent number of people may not want a generic Living Will because they have religious or personal convictions that preclude an active attempt to cease life, or feel like a Living Will may encourage their Agent to end their life before they may have wanted.
My feeling is that the important decision is who you name as your Health Care Agent, not whether you have a Living Will, since this person makes the ultimate decision to terminate life support often under complex and unforeseeable conditions. From a cynical point of view, the only good reason to have a Living Will is so that your Health Care Agent – who often does carry out your end-of-life processes – can assure your family she followed your desires, I.e., a Living Will may merely serve as a justification for your Agent’s decision to pull the plug.
A Living Will is neither a necessary document in New York nor is it an appropriate document to rely on to spell out your end-of-life instructions. A better alternative is to verbally share your feelings with your family, preferably before your final illness and as the end of your life is approaching.
