Now Is the Right Time to Consult with Legal Counsel About Preparing Advance Directives that Reflect End-of-Life Wishes
New York’s Medical Aid in Dying Act (A136/S138) is once again before the New York State Legislature in 2025. The Medical Aid in Dying Act (also known as M.A.I.D.) has been proposed and debated in New York every year for nearly a decade.
Across the Hudson River in New Jersey, the Medical Aid in Dying for the Terminally Ill Act was passed in 2019. In the United States, currently ten states (including New Jersey) and District of Columbia allow medical aid in dying. In the United Kingdom, a bill was passed this November, but is still being debated before it may become law. Meanwhile, Canada has had a version of medical aid in dying since 2016, but in 2021 removed the requirement for terminally-ill to be eligible and soon plans to further open the option to individuals with mental illness and no physical ailment.
Proponents for medical aid in dying argue that it is not a decision about whether to live or die but whether to force a person to suffer for months before the underlying medical condition causes their death. Giving a person the dignity to choose not to be subjected to that suffering, advocates argue, is the humane option.
New Yorkers overwhelmingly support this legislation. According to a 2024 poll released by YouGov, 72% of New Yorkers support medical aid in dying. The data shows that New Yorkers across all demographics tested, including age, race, religion, political affiliation, and region of the state, support the law to give patients the ability to request and receive medication to end their life.1
In 2024 the legislation in New York had 88 co-sponsors and was supported by some large influential organizations such as the New York State Bar Association, the American Public Health Association, the American Medical Women’s Association, the American Medical Student Association, the American College of Legal Medicine and the New York Civil Liberties Union. Everyone expected, with significant momentum, that the bill would pass. Currently, the M.A.I.D. bills are awaiting a scheduled public hearing.
What is the New York Proposed M.A.I.D law?
The proposed legislation is modeled after legislation in the ten states and District of Columbia where medical aid in dying is currently authorized.
A patient must be:
- 18 years or older,
- Terminally ill with a prognosis of six months or less to live,
- Mentally capable of making their own healthcare decisions, and
- Able to self-ingest the medication.
Safeguards to protect the patient
To qualify under M.A.I.D, it must be determined that the patient’s request is based on an informed decision, expressly voluntary, and of their own volition without coercion. One concern by those who oppose the law is that disabled individuals may be coerced or unduly influenced.
- The request by the patient must be both oral and written with two attesting witnesses.
- Two physicians must determine the patient’s decision making capacity and if either physician is unsure of the patient’s decision-making capacity they must refer the patient to a mental health professional for an evaluation.
Since the proposed legislation only allows the patient to make the request individually, no person acting under the authority granted in a health care proxy or a surrogate under the Family Health Care Decision Act would be eligible to request the medication on behalf of the patient.
It is important to note, that the proposed legislation specifically states that no patient who requests the medication shall be deemed suicidal, nor shall the self-administration of the medication be deemed suicide for any purpose. Advocates of M.A.I.D. want to be clear that it is not assisted suicide. As experts in the field have noted, suicide occurs when a person is able to live but chooses not to, however a person who requests M.A.I.D. wants to live but cannot.2
As such, the proposed legislation provides certain protections such as that the patient’s “beneficiaries shall not be denied benefits under a life insurance policy,” and no life insurance or health insurance policy may be conditioned upon a request for the medication.3 The attending physician would be allowed to complete the patient’s death certificate and list “underlying terminal condition” as the cause of death.
Furthermore, a provision or obligation in a will, contract, or other agreement that would affect whether a person “may make or rescind a request for the medication” shall be invalid.4 Therefore, any provision in a will that disinherits any beneficiary who requested the medication under M.A.I.D would be held invalid.
Protections for medical providers
Due to the sensitivity of this issue and the personal, religious, and moral views that one may have, the proposed legislation does allow any doctor, office, pharmacist, or pharmacy the ability to refuse to offer, carry, or prescribe the medication.
For many in the medical field, the risk of liability around administering the medication is a critical reason why many medical providers may wish to not participate in M.A.I.D. However, the legislation provides numerous protections and immunities for any provider (even non-medical) who either provides reasonable good-faith action under this legislation or refuses to act under this legislation.
Do I need to update my Living Will?
While living wills can be used as proof of a patient’s intentions or wishes in other contexts for end-of-life decision making, even if the person has become incapacitated, M.A.I.D states that no patient may request or receive the medication via any advance health directive, as previously stated. Some advocates state that it is nevertheless useful to affirmatively state in your Living Will that you consent to medical aid in dying, as further proof of your wishes, done at a time when you may have not yet been ill. The language therefore can be used as further support to the voluntariness of the decision.
Ultimately, navigating health care decisions, including how to structure advance directives regarding end-of-life wishes and understanding the parameters of when a health care proxy/surrogate may step in and under which circumstances, are important issues to discuss with your family and attorney when preparing advance directives.
For additional information on M.A.I.D in New York, please visit Compassion and Choices, Death With Dignity, and End Of Life Choices New York.
Thank you to Amy Cushman for her contributions to this article. Amy Cushman is a 2024 graduate of Brooklyn Law School where she was an Executive Notes Editor on Brooklyn Law Review.
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