How Do I Revoke a Living Will Created by the Housing Authority in New York?
Full Question:
Answer:
A living will is a document that allows a person to explain in writing which medical treatment he or she does or does not want during a terminal illness. A living will takes effect only when the patient is incapacitated and can no longer express his or her wishes. The will states which medical treatments may be used and which may not be used to die naturally and without the patient’s life being artificially prolonged by various medical procedures. The living will allows a person to make the decision of whether life-prolonging medical or surgical procedures are to be continued, withheld, or withdrawn, as well as when artificial feeding and fluids are to be used or withheld. The living will may also contain an appointment of a health care proxy to carry out the specified wishes.
A health care power of attorney authorizes an agent to make health care decisions for the incapacitated person. It is limited in scope to health care decisions. A general or financial power of attorney may be used to authorize an agent handle financial matters.
The answer will depend on all the facts and circumstances involved, including, among others, whether the mother has a guardian/conservator and whether she has legal capacity to understand the nature of her actions. In order for a person to make someone else an agent for purposes of making health care decisions on her behalf, the person appointing the agent needs to have the mental capacity to understand the nature and consequences of her actions. Generally, as long as the document was signed by her voluntarily and she has legal capacity, it may be revoked and a new document may be signed appointing a new agent. I suggest you consult a local attorney who can review all the facts and documents involved.
Please see the following NY statutes:
§ 2985 Pub. Health. Revocation.
1. Means of revoking proxy. (a) A competent adult may revoke a health
care proxy by notifying the agent or a health care provider orally or in
writing or by any other act evidencing a specific intent to revoke the
proxy.
(b) For the purposes of this section, every adult shall be presumed
competent unless determined otherwise pursuant to court order.
(c) A health care proxy shall also be revoked upon execution by the
principal of a subsequent health care proxy.
(d) The creation by the principal of written wishes or instructions
about health care, or limitations upon the agent's authority, shall not
revoke a health care proxy unless such wishes, instructions or
limitations expressly provide otherwise. Such wishes, instructions or
limitations shall constitute evidence of the principal's wishes for
purposes of subdivision two of section two thousand nine hundred
eighty-two of this article.
(e) The appointment of the principal's spouse as health care agent shall
be revoked upon the divorce or legal separation of the principal and
spouse, unless the principal specifies otherwise.
2. Duty to record revocation. (a) A physician who is informed of or
provided with a revocation of a health care proxy shall immediately (i)
record the revocation in the principal's medical record and (ii) notify the
agent and the medical staff responsible for the principal's care of the
revocation.
(b) Any member of the staff of a health care provider informed of or
provided with a revocation of a health care proxy pursuant to this
section shall immediately notify a physician of such revocation.
§ 2988 Pub. Health. Requiring or prohibiting execution of proxy.
No person may require or prohibit the execution of a health care proxy by
an individual as a condition for providing health care services or
insurance to such individual.
§ 2992 Pub. Health. Special proceeding authorized.
The health care provider, the conservator for, or committee of the
principal, members of the principal's family, a close friend of the
principal as defined in subdivision five of section two thousand nine
hundred sixty-one of this chapter, or the commissioner of health, mental
health, or mental retardation and developmental disabilities may commence a
special proceeding pursuant to article four of the civil practice law and
rules, in a court of competent jurisdiction, with respect to any dispute
arising under this article, including, but not limited to, a proceeding to:
1. determine the validity of the health care proxy;
2. have the agent removed on the ground that the agent (a) is not
reasonably available, willing and competent to fulfill his or her
obligations under this article or (b) is acting in bad faith; or
3. override the agent's decision about health care treatment on the
grounds that: (a) the decision was made in bad faith or (b) the decision is
not in accordance with the standards set forth in subdivision one or two of
section two thousand nine hundred eighty-two of this article.
