Under New York law, you can appoint someone you trust to make health care decisions on your behalf if you become incapable of making them on your own. In this guide, we tell you everything you need to know about the requirements for preparing a health care proxy document and appointing your health care agent.
What Is a Health Care Proxy?
A health care proxy is a legal document where you name someone you trust to make health care decisions for you if you become incapacitated due to a temporary or permanent illness or injury.
The situations that may require someone else to make a decision on your behalf include:
- Being in a coma after an accident or illness
- Suffering from a terminal illness and not being expected to recover
- Having Alzheimer’s disease or another type of dementia
- Having an illness that leaves you unable to communicate
- Being under general anesthesia
- Being in a persistent vegetative state.
Why do you need a health care proxy?
If you suddenly become unable to make your own health care decisions, someone else will have to take on this task. By stating your preferences in an official written document, you are ensuring that your health care provider will respect your wishes. Besides, choosing an agent can help avoid conflicting situations and disagreements among your family members, but also lift the burden of making hard choices during an already stressful time.
In case you have not appointed a proxy and become incapacitated, New York State laws will determine who can make health care decisions on your behalf.
When does a health care proxy take effect?
A health care proxy is effective from the moment you become incapacitated, as determined by your physician. As soon as you regain the capacity to make decisions, you can choose to speak on your own behalf again.
What is the difference between a health care proxy, a living will, and a power of attorney?
A health care proxy and a living will are so-called advance directives that contain your preferences when it comes to health care.
A living will is addressed to your family, friends, hospitals, and other health care facilities in general. This document states your wishes, particularly those related to end-of-life care. It provides your caregivers with specific instructions in case you become unable to communicate.
On the other hand, a health care proxy allows you to appoint another person to make decisions on your behalf in all medical situations, even those that are not anticipated by you. Your agent’s choices must be based on your wishes, values, and beliefs.
Finally, a power of attorney authorizes a person of your choice to make financial decisions for you. This document cannot be used for making any decisions related to health care.
Who Can Be a Proxy?
A health care proxy or an agent is someone who makes health care decisions on your behalf if you are not able to make them yourself. Under New York Health Care Proxy Law, any competent person can authorize someone else to make health care decisions if he or she becomes incapable of doing so.
Your health care proxy should be a person you trust, who understands your values, and who will act in your best interest. A proxy should be aware of your attitudes regarding health, illness, and death, as well as your medical treatment preferences and your religious beliefs.
You may designate as your proxy almost anyone who is over the age of 18, for example:
- Your spouse
- Your domestic partner
- Your child
- Your sibling
- Your parent
- A friend
- Your attorney.
When you appoint your spouse as your proxy, he or she cannot remain your agent after a divorce. If you want your ex-spouse to continue acting as your agent, you will need to complete a new health care proxy form.
Under New York law, your doctor and your health care provider are not eligible to serve as your proxy. The same applies to the witnesses on your health care proxy document.
What are the duties of a health care proxy?
A health care proxy can interpret your wishes as your medical condition and circumstances surrounding your health care change. Your agent has the legal authority to make the same medical decisions you could have made if you were able to decide for yourself.
Some of the decisions a proxy can make on your behalf include:
- Choosing medical care, medical tests, medication, therapeutic procedures, and surgery.
- Choosing pain management options.
- Authorizing or refusing suggested medication or procedures.
- Requesting or declining life-support treatments.
- Agreeing to admission to an assisted living facility, hospital, hospice, or nursing home.
- Deciding where to seek medical treatment and whether you should be moved to another hospital, facility, or state.
- Accessing and approving the release of your health records.
- Taking legal action on your behalf to advocate for your health care rights.
- Applying on your behalf for Medicare, Medicaid, and other programs or insurance benefits.
If you are not sure what sort of treatment options exist, you can schedule an appointment with your health care provider. Let your doctor know that you are preparing a health care proxy document and that you would like to know what are the situations in which someone else could have to make decisions on your behalf.
Your doctor, hospitals, nursing homes, and other health care providers are required by law to honor your proxy’s decisions and provide them with the same information they would give you.
A proxy is not legally or financially responsible for decisions made on your behalf as long as your wishes and beliefs are respected.
What are the limitations of a proxy’s role?
A proxy is bound by your directives regardless of any objections they may have. In other words, a proxy doesn’t have the authority to overrule your treatment instructions. He or she must follow these instructions unless there’s a valid reason to believe that your wishes changed or that they don’t apply in the given circumstances.
Furthermore, your health care agent can make decisions about artificial nutrition and hydration only if you specifically indicated your wishes regarding this matter.
A proxy doesn’t have the right to make any decisions that are not related to health care. If you wish to appoint another person to make financial decisions on your behalf, for example, you can talk to your lawyer about granting power of attorney.
Communicating with your proxy
You should keep in mind that most people don’t know what being a health care proxy entails. It is crucial for the quality of your future care that the person you’ve named as your proxy is aware of his or her exact responsibilities.
While you may not be able to anticipate every medical situation that could occur, it’s important to maintain an open conversation with your health care proxy. Make sure that he or she has a good understanding of your preferences, knows how you wish to be treated, and what types of care you would like to receive. Clearly explaining your views will give your agent the necessary information to make decisions on your behalf.
You should regularly update your health care proxy document as needed and inform your proxy if your wishes or attitudes change, so that he or she can make the most suitable choices for you.
Becoming a Health Care Proxy in New York
Designating a proxy in the state of New York is straightforward. All you need to do is find a trusted person above the age of 18 who is willing to be your proxy, fill out the health proxy form, and sign it in the presence of two witnesses. The witnesses must attest to the fact that all parties were of sound mind when the form was completed and signed.
How Do I Write a Health Care Proxy in New York?
A health care proxy form gives the person of your choice the authority to make health care decisions for you. Health care here refers to any treatment, service, or procedure needed to diagnose or treat a physical or mental condition. By completing a health care proxy form, you will ensure that your medical treatment instructions will be carried out according to your wishes.
You can download a health care proxy form from the website of the New York State Department of Health. The document also includes detailed instructions on how to fill out the form.
You are required to provide the following information:
- Your name, address, and telephone number
- Your proxy’s name, address, and telephone number
- Name and contact details of an alternate agent in the event your proxy is unavailable
- Limitations to your proxy’s decision making powers (optional)
- Organ and tissue donation instructions (optional)
- The document’s expiration date (optional).
The form includes a witness section that must be signed by two witnesses above the age of 18. Note that your proxy and alternate proxy cannot serve as witnesses.
You should give a copy of the signed form to your proxy, your family members, as well as your health care provider. You may also want to carry an abbreviated version of the document in your wallet or purse, in case of emergencies.
Things to keep in mind
- You have to name your health care proxy yourself. It is not possible to name a proxy on behalf of another person.
- Designing a health care proxy is voluntary. You are not required to appoint an agent if you don’t want to.
- When appointing a proxy, you must be of sound mind in order for the documents to be legally binding.
- You don’t need to be a senior or suffer from a severe medical condition in order to appoint a health care proxy. Young and healthy individuals can also have health care agents to ensure they will maintain control of their medical decisions.
- You can provide examples of the types of treatments that you would want or not want to receive.
- You can limit the types of decisions you want your proxy to make or the type of documentation and records they can have access to. Your proxy is required to follow your instructions when making decisions.
- You can indicate an expiration date on the health care proxy form.
- Your health care proxy document remains in effect until you pass away, unless it has an expiration date.
- After signing the form, you still have the right to make health care decisions for yourself as long as you are capable of doing so. You can’t be given any treatments against your will, nor does your agent have the power to object to your choices until the document starts taking effect.
- You may cancel the authority given to your agent at any time, either orally or in writing.
- You may decide to change your proxy at any time. To do so, you need to create and sign a new health care proxy document.
- Your agent cannot make the decision to provide or remove the life-sustaining treatment unless this is specifically indicated in the form.
- If you don’t specify anything regarding organ and tissue donation, your proxy can consent or refuse donation on your behalf.
Does a Health Care Proxy Need to Be Notarized in New York?
The New York health proxy form includes a section where two witnesses must attest to the fact that both you and your agent were of sound mind when the document was created and signed.
You don’t need to notarize your health proxy document. However, you can always ask your attorney if they recommend that you get the document notarized for any reason, and follow their instructions.
Do You Need a Lawyer for a Health Care Proxy?
You are not required to have a lawyer to complete a health proxy form in the State of New York, but you may want to ask for legal assistance in the following cases:
- If you have unusual wishes regarding health care that don’t fit in the form
- If you have any special medical circumstances
- If you have any religious concerns
- If there is a disagreement among your family members.
If you already have an attorney who is handling your affairs such as your living will or power of attorney, for example, it may be a good idea to ask them to help you with your health care proxy as well. That way, they can make sure that all the individuals you appointed are on the same page and act in your best interests.
How Much Does a Health Care Proxy Cost?
There are no costs associated with creating and signing a health proxy document in New York if you print and fill out the form yourself.
If you decide that you need help from an attorney, you will need to pay for the time they spent working on the document.
Can You Have Two Health Care Proxies?
In the State of New York, you can appoint only one person as your health care proxy. You are not allowed to have two proxies, as this could potentially create confusion and conflicts between the agents.
However, it is recommended to name an alternate proxy who will act as an agent if, for any reason, the primary proxy isn’t available when needed.
When appointing an alternate proxy, you should follow the same steps as you did with the primary one. In other words, make sure that your alternative health care agent is aware of your views and preferences, willing to follow your wishes, and available on short notice.
List of Resources or Groups That Can Help You Set up Health Care Proxy in New York
- New York State Health Proxy Form. Downloadable PDF health care proxy form, including detailed instructions. The document is available in several languages: English, Chinese, Spanish, Haitian Creole, Korean, and Russian.
- New York’s Health Care Proxy Law & Family Health Care Decisions Act. This brochure explains everything you need to know about the New York Health Care Proxy Law and the Family Health Care Decisions Act.
- Health Care Proxy & Living Will Information Courtesy of the New York State Senate. This document explains the difference between a health care proxy and a living will, and provides examples of each. It also allows you to print out the abbreviated cut-out version of the health care proxy document.
- New York Department Information on Choosing Your Health Care Agent. Here you’ll find instructions on how to choose your health care agent and how to have a conversation about your health care wishes.
- CaringInfo New York Advance Directive Planning for Important Health Care Decisions. This document contains detailed instructions on how to set up a health care proxy and living will in New York.
- The New York State Office of the Attorney General: Advance Directives. This page offers comprehensive information about advance directives, including the Do Not Resuscitate Order and Medical Orders For Life-Sustaining Treatment. It also includes details on special issues such as determining incapacity, pain management, hospice care, organ donation, and more.