New Electronic Advance Directives Become Available

Caution needed to comply with New York law

As more of our healthcare moves into the digital world and access becomes greater, it is important to be aware of important limitations in some of the available products. For example, there has been a new push federally to have medical providers convert to sole use of Electronic Health Records (“EHRs”). In this push for EHRs, many EHR developers have left out the ability to incorporate advance care directives. As such, medical professionals are turning to a variety of other sources to incorporate these important documents – one such source being MyDirectives^®.

MyDirectives^® hosts a website and recently launched an “advance care planning app” for the iPhone. The website and app allows individuals to sign in and “create a state-of-the-art emergency medical directive” and is accessible via the app on your iPhone, thereby always allowing medical providers to have access to your advance directive. While the intent of this product is laudable, some serious issues should be considered.

MyDirectives^® has an “Universal Advance Digital Directive (uADD)^TM“, which is a medical power of attorney/living will/autopsy preference form created by the company. MyDirectives^® states that it is a “legal document” that “should be enforceable” in all states. While the site provides valuable information on advance directives and their importance, it does not address what is required in each state. The Terms and Conditions of Use for MyDirectives^® state, in part,”[y]ou acknowledge that you are responsible for complying with the laws of your particular state . . . with respect to witness and notary signatures on your uADD.”

In New York, a health care proxy appointing a health care agent must be signed and dated by the adult in the presence of two adult witnesses, who must also sign the proxy. The form on MyDirectives^® does not require witnesses to be present when you sign, and therefore puts the onus on the creator to know New York law and ensure witnesses are present. The uADD^TM does allow for witnesses to sign, but it does not prompt you to have witnesses sign at the time of creation.

In addition, regarding the language used to describe your wishes concerning medical treatment, there is general language in the uADD^TM form that New York courts may find insufficiently specific to meet the “clear and convincing evidence” standard for the expression of such wishes. It would be the obligation of the individual creating the directive to express additional terms in the “My Thoughts” section of the uADD^TM to ensure that their wishes are expressed consistent with New York standards.

When it comes to services such as MyDirectives^®, individuals must understand the limitations of these universal, electronic directives. Anyone who chooses to use such services should be careful to ensure the documents they create are compliant with New York law.

To discuss the proper drafting and execution of advance directives, please contact the experienced attorneys at the O’Connell and Aronowitz office nearest to you.