Scarsdale Congregational Church

Though he makes his living as a lawyer, Dean S. Bress advised participants in the March 9, 2003 Seminar to have a Health Care Proxy which requires no lawyer and may give you far greater protection than any document a lawyer can prepare for you.

Brought to our church by our Pastoral Support Committee, co-chaired by Diane Foster (pictured here) and Alison Rose, Bress has more than 30 years of experience in various aspects of the law. He got involved in elder law in 1990. He is chair of the Elder Law Committee of the General Practice section of the New York Bar Association's "Elder Law Attorney" and former chair of the Public Policy Committee of the Westchester chapter of the Alzheimer Association. He practices in White Plains. His firm's website at http://www.bresslaw.com provides information about issues of elder law as well as additional information about Bress and his associates.

Bress began his presentation by emphasizing that it is you - not your doctor, not your family or friends - who makes health-care decisions. However, particularly because of technological advances in medicine, you may outlive your ability to make decisions. Thus, you need a method to assure decisions about your health care are made in accordance with your wishes. Bress described three vehicles to accomplish this:

• Living Will
• Health Care Proxy
• Extensive conversations about your wishes

Lawyers have prepared Living Wills for several years, but these are limited to health care at the end of one's life. And it wasn't until 1987-1988 that there was proof such documents would "work" to assure a person's wishes were carried out in New York State. The landmark case related to Mary O'Conner who suffered a series of strokes and was hospitalized at Westchester Medical Center.

O'Conner's two daughters, both practical nurses, asked the Medical Center to stop providing life support, for their mother had told them on several occasions that she did not want her life prolonged simply for the sake of staying alive. These discussions occurred during the debate over prolonging of the life of Karen Ann Quinlan's life.

Westchester Medical Center, believing it was their job to preserve life, took the case the New York Supreme Court in White Plains. That court said testimony by the daughters about the wishes of their mother was sufficient to stop life support. The Medical Center disagreed, got a stay of the order to stop life support, and took the case to the Appellate Court - which affirmed the decision by the Supreme Court. Again the Medical Center disagreed, got a stay, and took the case to the New York State Court of Appeals.

The Court of Appeals agreed to take the case and ruled in favor of the Medical Center. This Court said "conversations" don't have the same seriousness as signing a document. O'Conner continued on life support, though she died within the year.

The O'Conner case, with its emphasis on a signed, written document, proved - said Bress - that a Living Will "works".

However, Bress pointed out that hospitals and doctors weren't happy with Living Wills, for such documents require interpretation of what the person would want "in this circumstance". Hospitals and doctors want an "answer", not an "interpretation". They cajoled the New York State Legislature to come up with a simple document that could be signed by an individual with no attorney, no notary. The result, after several years of work, was the Health Care Proxy.

"Each state has its own version of a Health Care Proxy," Bress said, "so there are 50 different versions. I believe matters of health, unlike matters of real estate, should have a federal standard. But that's not what we have."

If you are in a state other than New York when you are unable to make decisions about your health care the New York Health Care Proxy is "generally recognized," Bress said.

He explained that the Proxy is a method by which A gives to B the responsibility to decide matters of health care - but only when A is unable to decide. This might be at end-of-life, but it could be when you're under anesthesia for simple surgery. The responsibility of B is to make decisions that are in the best interest of A.

Bress urged individuals preparing a Health Care Proxy to talk with their designated Agent about their wishes and to record in the Proxy "My Agent knows my wishes". He cautioned against describing those wishes in the Proxy, for this may open up issues of interpretation and diminish the ability of the Agent to make whatever decisions are necessary.

Question -Who decides if a person is able to make health care decisions?

Bress said a physician would make this decision.

He noted that a Living Will is an attempt to record the wishes of the individual, but it doesn't give the doctors anyone with whom to talk. In preparing a Living Will it is also hard to foresee what might be the circumstances under which the Will might be used. With a Health Care Proxy, the doctors are talking with the designated Agent.

Bress explained that the New York State Legislature requires that the Health Care Proxy indicate who is the primary Agent. The Proxy may also designate a person to serve if the primary Agent is unable to serve, but only one person can serve at a time; therefore there can be no arguments - there is only one decision-maker.

Hospitals and nursing homes often provide blank Health Care Proxies to patients when they are admitted, though patients may have other things on their mind and not sign the Proxy.

Bress noted that among the reasons why he prefers a Health Care Proxy to a Living Will is that the Proxy is a document created by the Legislature, a Living Will has only case law to support it in New York State.

Prior to 2000, the New York State Health Care Proxy was a single page. It is now two pages to allow a person to document their willingness to make organ or tissue donations. Bress said it appears this was done as a practical matter so the donation information would be available to the doctors treating the patient. If the donation instructions were in a will, the organs and tissue would be unlikely to be usable by the time the will was read. He also noted that leaving the donation section blank does not mean "I am unwilling to make organ or tissue donations". These donations may be recorded somewhere else, like the back of your driver's license.

Question - Is the one-page Health Care Proxy I signed five years ago still valid?

"Yes," Bress said.

Bress emphasized that creating a Health Care Proxy requires no lawyer or notary - just the signature of two witnesses.

There are several sections to the New York State Health Care Proxy. One of the most important is the section on artificial nutrition and hydration (nourishment and water provided by feeding tube and intravenous line). Because nourishment and water are the foundations of life, it is imperative that you be clear about whether you want them administered artificially. Bress recommends you talk with your Agent about this important matter but record in the Proxy only "My Agent knows my wishes".

Question - There may be times when artificial administration is totally appropriate - such as in preparation for or recovery from surgery. How do you make the distinctions between these situations and end-of-life situations?

Bress said this is an excellent of example of something you would discuss with your Agent rather than trying to describe in the Proxy.

He said different members of the family might have different opinions about appropriate health care. If the Proxy says "My Agent knows my wishes" the document strengthens the hand of the Agent against differing points of view. "As I've continued to practice law, I see the great virtue of simplicity. The more you write down, the more can get complicated," Bress said.

Question - Will insurance companies accept my Health Care Proxy?

Bress said the simple answer is "yes," but he went on to explain a ruling by the Federal Second Circuit which extends the liability of insurance companies for the decisions they make about appropriate treatment. This decision said that if an insurance company makes distinctions between what is "medically appropriate" and what is not, they might make themselves liable for denying the treatment.

Bress said that although the O'Conner case did not support the conversations between this mother and her daughters as being sufficient evidence that life support could be withdrawn, it is possible to convince a court if there have been extensive conversations with many people - conversations that can be recounted in detail to the court.

Bress described a case he had prepared for a guardianship proceeding where the guardian was seeking the right to deny life support. Bress believed the guardian had "rock solid testimony" regarding the wishes of the patient. However, the patient died before the testimony could be given.

In the absence of a Living Will or Health Care Proxy, the proceedings to get a guardianship that allows the withdrawal of life support are lengthy and expensive, Bress said. "It takes three months and about $7,500 to accomplish this," he said - even if the testimony is "rock solid". He compared this to the $0 and immediacy of a Health Care Proxy.

Question - What happens to the patient during the court proceedings?

Bress said the patient remains on life support.

Question - Who can serve as an Agent in a Health Care Proxy?

Bress said the person must be 18 years of age or older and not be a person who has been convicted of a felony. He said behaviors short of a felony might get in the way of serving as an Agent, but he knows that filing for bankruptcy doesn't get in the way of serving as an Agent.

Question - Are Health Care Proxies honored in a Catholic hospital?

Bress said the New York State law requires a hospital to say "I won't honor your Health Care Proxy" and give you the right to transfer. "But I don't know if that really happens - and sometimes there is no alternative hospital," Bress said. He also recalled an article in the New York Times which recounted many instances of hospital and doctors not following a Living Will or the wishes of the Health Care Proxy Agent.

Question - Several years ago I managed the death of my mother. The rule to the doctors was "she must suffer no pain," though we all knew that continued administration of morphine would kill her. Could this happen today?

Bress said it could...as long as the administration of morphine is couched in terms of pain relief. He said morphine is used a great deal to reduce pain in terminally-ill cancer patients.

At the close of this seminar Bress reminded the attendees that he would return on Sunday, April 27 to deal with "the money part" of long-term care.

Reported by Lucy Werner