An advance directive lets you decide, while you are still able, who will make medical and financial decisions for you and what those decisions should be if illness or injury leaves you unable to speak for yourself. In New York that is not one document but a set of them, each governed by its own statute with its own signing rules. We prepare these documents for individuals and families, usually as part of a full estate plan and sometimes in response to a recent diagnosis.
This page explains what each New York advance directive does, how it must be signed to be valid, what happens if you have none, and where the statutory forms fall short.
What Counts as an Advance Directive in New York
An advance directive is a written statement of your wishes about medical treatment, end-of-life care and the management of your affairs, made in advance of the day you cannot make those decisions yourself. New York recognizes several, and a complete plan usually combines more than one.
| Document | Authority | What it does |
|---|---|---|
| Health care proxy | Public Health Law Article 29-C | Appoints an agent to make health care decisions for you if you lose capacity. |
| Living will | Recognized by New York courts; no statute | States in writing which treatments you want and which you refuse. |
| Power of attorney | General Obligations Law | Appoints an agent to handle financial and legal matters. |
| MOLST | Department of Health form | Medical orders for life-sustaining treatment, completed with your physician and effective now. |
| DNR order | Public Health Law Article 29-B | Directs providers not to perform CPR if your heart or breathing stops. |
The Health Care Proxy
The health care proxy is the foundation of most New York plans. Under Public Health Law § 2981, any competent adult 18 or older may designate another person to make health care decisions on his or her behalf. The agent has no authority while you can decide for yourself; the proxy takes effect only when your attending physician determines that you lack capacity.
To be valid, the proxy must be in writing, signed and dated by the principal, and signed in the presence of two adult witnesses who also sign. It must clearly identify the principal and the agent and state that the principal intends to authorize the agent to make health care decisions. The agent cannot be one of the witnesses, and if the principal is a patient or resident of a hospital, nursing home or mental hygiene facility, special witnessing rules apply.
Once the proxy is in effect, the agent can make almost any medical decision you could make yourself: consent to or refuse treatment, choose providers, obtain medical records and make end-of-life decisions. There is one important limit. Decisions to withhold or withdraw artificial nutrition and hydration require that the agent be reasonably aware of your wishes on that subject. That is the main reason to pair the proxy with a living will that says what those wishes are.
Living Wills
New York has never enacted a living will statute. The Court of Appeals has, however, recognized the right of an individual to refuse medical treatment where there is clear and convincing evidence of the person’s wishes, and a properly drafted living will is exactly that evidence.
A living will typically states your preferences on cardiopulmonary resuscitation, mechanical ventilation, artificial nutrition and hydration, dialysis, antibiotics and antiviral medication, pain management and comfort care, and organ and tissue donation. Read together with the health care proxy, it gives your agent a clear instruction and gives the hospital a document to rely on. We draft living wills to reflect the client’s own values, religious beliefs and medical circumstances rather than a generic list.
The Power of Attorney
The health care proxy and living will cover medical decisions. A power of attorney covers money and legal affairs. New York rewrote its power of attorney statute effective June 13, 2021. The current law eliminated the separate Statutory Gifts Rider, simplified the signing requirements and imposed penalties on banks and other third parties who unreasonably refuse to honor a properly executed power of attorney.
Under the current law the document must be signed and acknowledged before a notary and witnessed by two people who are not named as agents. It must substantially conform to the statutory short form. It can take effect immediately or only on incapacity (a springing power). And it can authorize the agent to make gifts above $5,000 a year, but only if that authority is specifically written into the document. Most of the value of an attorney-drafted power of attorney is in the modifications section, where the authority a particular family needs, for example to fund a trust or to do Medicaid planning, is spelled out.
MOLST and DNR Orders
The Medical Orders for Life-Sustaining Treatment form is a New York Department of Health document used mainly for people with serious illness or advanced frailty. Unlike the proxy and living will, which express wishes for the future, the MOLST turns current wishes into medical orders signed by a physician, nurse practitioner or physician assistant, and it is effective as soon as it is signed.
A Do Not Resuscitate order, governed by Public Health Law Article 29-B, directs providers not to perform CPR. Both MOLST and DNR orders work alongside your advance directives, not in place of them, and we coordinate with the treating physicians so that the documents do not contradict each other.
Where the Statutory Forms Fall Short
New York publishes forms for the health care proxy and the power of attorney, and they are valid if signed correctly. They are also generic. A form cannot address religious restrictions on particular treatments, a preference about clinical trials, a blended family in which the spouse and the children from a first marriage disagree, or the authority an agent needs to carry out a specific estate plan.
Drafting is only part of the job. Advance directives work best when they fit with the rest of the plan, so the health care agent, the financial agent, the executor and the trustees can work together instead of at cross purposes. The documents also have to be signed exactly as the statute requires, since a proxy or power of attorney that fails the witnessing or notarization rules can be rejected when it is needed most, and they have to be stored where the agent can actually find them. Finally, the agent and the family should know what the documents say before a crisis; a conversation now prevents a fight in the hospital corridor later.
Common Questions
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When should I sign advance directives?
Every adult should have them. Accidents and sudden illness do not wait for old age. We recommend signing them at 18 and updating them after marriage, divorce, the birth of a child or a significant diagnosis.
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Can I change them later?
Yes. As long as you have capacity, you can revoke or replace any advance directive at any time. We suggest a review every three to five years and after any major life change.
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Who should be my agent?
Someone you trust completely, who understands your values, who can make hard decisions under pressure and who will advocate for your wishes against pushback from doctors or relatives. It does not have to be a family member.
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What happens if I have no advance directives?
For medical decisions in a hospital or nursing home, the Family Health Care Decisions Act supplies a ranked list of surrogate decision-makers, which may or may not put the person you would have chosen at the top. For financial matters there is no such shortcut: your family may have to petition for guardianship, which is slow, expensive and public.
Talk to Us
The decisions you write down today spare your family from guessing later and protect your right to be treated the way you want. We take the time to understand your goals, explain the options under New York law and prepare documents that will hold up when they are needed. Call us at 212-233-1233 or email [email protected].
