FN1 On this analysis it is unnecessary to reach the many other issues presented on this appeal including the question as to State interest in prolonging life particularly in view of the fact that that issue is not asserted by the parties.

FN2 The status of the law on this point has since been changed to some extent by legislation. The Legislature has now authorized third parties to issue do not resuscitate orders for incompetent patients under certain circumstances (Public Health Law art 29-b). More recently the Legislature enacted a statute permitting individuals to create "springing powers of attorney", which come into effect when another designated person determines that the maker has become incompetent (General Obligations Law @ 5-1602). This broadens the "durable power of attorney" which simply survives incompetency (General Obligations Law @ 5-1601). Although powers of attorney have traditionally been limited to delegation of financial powers as opposed to personal decisions (see, e.g., Camardella v Schwartz, 126 App Div 334, 337; Restatement [Second] of Agency @ 17), this limitation has been eroded by court recognition of the ability of third parties to express the wishes of incompetent patients without written authority (see, 1984 Opns Atty Gen 58, No. 84-F16). There is therefore no longer any reason in principle why those wishing to appoint another to express their specific or general desires with respect to medical treatment, in the event they become incompetent, may not do so formally through a power of attorney. The question raised by the dissent with respect to pure substituted judgment exercised by a third party not designated by the patient is not at issue in this case since Mrs. O'Connor's daughters made it very clear at the hearing that they were simply conveying their mother's wishes, and were not attempting to decide for her. There has been no change in the law which would confer such a power on the courts or others.

FN3 Whether there is sufficient evidence in the record to satisfy the clear and convincing standard presents a question of law reviewable by this court. Reviewing the entire record in this manner does not involve making new factual findings, as the dissent suggests.

FN4 There are numerous instances in which the law refuses to recognize the exercise or waiver of an important right unless the intent to do so is clearly manifested. Waivers of constitutional rights are always carefully scrutinized by the courts and, indeed, waivers of some constitutional rights will be given no effect unless, in addition, the individual has been advised of the right and consequences of waiver, or has made the waiver in open court or has had the assistance of counsel actually present. It is also familiar law, even to most laymen, that the right to dispose of real property will not be legally effective unless the intent to do so is made in writing with a high degree of specificity. Indeed, no one's request to have real or personal property pass to a specified person upon death can be enforced in court, no matter how clear and unequivocal the intent may be, unless it is also expressly stated in a signed will, witnessed by others. Although one may argue whether such demanding, and sometimes formal requirements, should come initially from the Legislature, it cannot be seriously urged that it would be "unrealistic" for the law to accord the same protections to the individual's life and right to survive, as have long been accorded to the individual's land and pocketbook.

FN5 The suggestion in Judge Simon's dissent (dissenting opn, at 549) that our decision today presents an ironic contrast to our holding in Rivers v Katz (67 NY2d 485) misconstrues the rule announced in that case as well as the basis for our decision in the case now before us.

FN6 One unfortunate practical consequence of the Storar rule on decision-making by physicians and the families of terminally ill patients is discussed in a recent commentary: "[The Storar rule] could lead to an interference with the policies that the hospitals and physicians have used in dealing with these situations in the past. Since serious illness often renders a patient incompetent, the effect of requiring past expressions as to wishes concerning life-sustaining treatment could be far-reaching. The standard of proof was defined as 'clear and convincing' and this may not be an easy standard to meet. Many individuals, especially younger people, do not tend to think about themselves in the stage of a terminal illness, or make their wishes known in a manner that will be seen as reliable evidence later. Certainly family and friends who have known an individual throughout his or her life can have some idea of what that individual would want. Physicians make life and death decisions as a part of their everyday job and it is their duty to keep the best interests of the patient at heart. Between the patient's loved one, and the ethical standards physicians follow, with a decision reviewable by a hospital committee formed for that purpose in the event of conflict, it would seem as if a proper decision could be made [emphasis added]" (Comment, In Re Storar: The Right to Die and Incompetent Patients, 43 U Pitt L Rev 1087, 1105; see also, Moore, "Two Steps Forward, One Step Back": An Analysis of New Jersey's Latest "Right-To-Die" Decisions, 19 Rutgers LJ 955, 992; dissenting opn, at 541-542 [Simons, J.]).

FN7 Judge Alexander takes no position on the desirability of the theory of substituted judgment or similar rules.

FN8 The Storar decision has been widely criticized for its overly restrictive consequences (see, e.g., Matter of Hier, 18 Mass App 200, 464 NE2d 959, review denied 392 Mass 1102, 465 NE2d 261; Conservatorship of Drabick, 200 Cal App 3d 185, 245 Cal Rptr 840; Note, A Patient's Last Rights -- Termination of Medical Care -- an Analysis of New York's In re Storar, 46 Albany L Rev 1380; Comment, In Re Storar: The Right to Die and Incompetent Patients, 43 U Pitt L Rev 1087).

Counsel for the Westchester County Medical Center: Marilyn J. Slaaten, County Attorney (Carol L. Van Scoyoc, Kenneth E. Powell and Cataldo F. Fazio of counsel),

Counsel for Ms. O'Connor's daughters: Julius W. Cohn, Carl Stahl and Wayne H. Spector.

Amicus curiae:
Fenella Rouse, Elena N. Cohen, M. Rose Gasner and Richard Wasserman for Society for the Right to Die, Inc.; Richard J. Concannon and Mary Ellen Gunnison for New York Medical College; David Zwiebel for Agudath Israel of America, amicus curiae; Anne M. Perone for New Jersey Right To Life Committee, Inc.; Elliot B. Pasik for Greater New York Health Care Facilities Association, Inc.; Mary B. Spaulding, James Bopp, Jr., Thomas J. Marzen, Mary M. Nimz, Daniel Avila and Teresa Kealy for the Ethics and Advocacy Task Force of the Nursing Home Action Group; Michael Vaccari, Edward R. Grant, James Michael Thunder and Clarke D. Forsythe for New York State Nurses for Life, Inc.; Giles R. Scofield, III, for Concern for Dying; Thomas J. Ford, Robert F. Van Der Waag, Paul Callahan, Eugene Ferencik and J. Randolph Hundertmark for the Catholic Lawyers Guild of the Diocese of Rockville Centre.

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