Understanding the Difference Between a Health Care Proxy, a Living Will, and a Do Not Resuscitate Order

By: Anthony J. Enea, Esq.

For one reason or another I have come to discover that many members of the general public believe that if they have executed a Health Care Proxy (HCP) or a Living Will (LW) that they are the same as a Do Not Resuscitate Order “(DNR),” however, that is not the case.

A HCP allows an adult (the principal) to appoint another adult (the agent) to make medical decision for them when they are no longer able to make said decisions. A HCP can include authority for the agent to commence or continue life sustaining treatment, as long as it is stated in the HCP or the principal has told their agent their wishes regarding life sustaining treatments, such as whether they want artificial nutrition, hydration, nasogastric tubal feeding, or any other mechanical life sustaining treatment. Placing specific and detailed instructions in the HCP may not be advisable, as it could handcuff the agent, especially if new or existing life sustaining treatments are not identified in the HCP. In my opinion, verbally expressing to your agent and others (as it is permitted by the HCP) your wishes about life sustaining treatment is a much better option.

A LW is merely a writing, not recognized by statute in New York, where one can express their wishes not to be kept alive by extraordinary measures if they are terminally ill, braindead and/or comatose, with no hope of recovery. It is meant to work hand in hand to guide your health care proxy agent with respect to wishes regarding life sustaining treatment. It bolsters the representation made by your agent that you do not want life sustaining treatment in the event that the agent’s decision is questioned by the medical provider. While there is no statute recognizing a LW, it has been recognized by the medical community for years.

Unlike the HCP or LW, a DNR is a medical order written by the patient’s doctor or a health care provider. It advises all health care providers that the patient does not want Cardiopulmonary Resuscitation (CPR) if their breathing has stopped. Patients that sign DNRs are generally those that have chronic illnesses, for example, Chronic Obstructive Pulmonary Disorder (COPD) and are prone to pneumonia and respiratory failure, thus requiring resuscitation.

Additionally, a patient that signs a DNR is often one that has already experienced the need to be resuscitated and no longer wishes to be kept alive by CPR. This also often occurs when one believes they are at the end of life and have given up the will to live.

The health care provider / doctor will only write the DNR order after a discussion with the patient (if mentally competent) and if the patient is not competent, with the patient’s health care agent or the family of the patient, depending on the circumstance.

From my own personal experience, I can assure you that the decision to sign a DNR on behalf of a loved one is daunting and traumatic.

It is also important to understand that a fully executed DNR will instruct all health care providers not to (a) perform mouth to mouth resuscitation on the patient; (b) utilize electronic shock to restart the heart (a defibrillator); (c) insert breathing tubes into the patient (use a ventilator) and offer to administer any medications to the patient that will restart breathing.

The patient’s decision to sign a DNR should be made with full knowledge of one’s medical condition and of one’s medical diagnosis and prognosis. It is clearly a document that requires significant consideration and should be discussed with one’s family members and named agent and contingent agent in the HCP.

The DNR can be printed in wallet size or can be part of a medical bracelet. It also should be prominently displayed in one’s home so that any emergency medical personnel/EMT can see it upon entering the patient’s home. In a hospital setting the DNR will be part of the patient’s medical records.

Finally, while your attorney can prepare many advanced directives for you, such as a HCP, LW, Power of Attorney or HIPPA form, they cannot prepare a DNR for you.

In conclusion, the soon to be enacted Medical Aid in Dying Act (the subject of another article) will allow those that are mentally competent to terminate their life if certain conditions are met. In essence, if someone else won’t pull the plug, you may be able to do it yourself.

*Anthony J. Enea is the managing attorney of Enea, Scanlan and Sirignano, LLP of White Plains, and Somers New York. He is a certified elder law attorney that focuses his practice on Wills, Trusts, Estates and Elder Law. Anthony is the Past Chair of the Elder Law and Special Needs Section of the New York State Bar Association (NYSBA) and is the past Chair of the 50+ Section of the NYSBA. He is a Past President and Founding member of the New York Chapter of the National Academy of Elder Law Attorneys (NAELA). Anthony is also a Past President of the Westchester County Bar Foundation and a Past President of the Westchester County Bar Association. He is fluent in Italian. He can be reached at 914-948-1500 or at [email protected].

I wish to thank firm associate, Alyssa C. Calabrese, Esq., for her assistance with this article.