No. New York law gives no legal authority to a child because of birth order. The oldest child has the same legal standing as the youngest. Authority to act for a parent comes from one of three sources: a document the parent signed, a statute that lists who may make medical decisions, or a court order.
Who decides for an incapacitated parent depends on which of these situations applies:
- The parent signed a power of attorney or health care proxy: The person named in the document is the decision-maker for the matters it covers, regardless of age or birth order.
- The parent needs medical decisions and left no health care proxy: The Family Health Care Decisions Act sets a priority list of surrogates. All adult children share the same rank on that list.
- The parent needs financial decisions and left no power of attorney: No family member has authority over the parent's money or property until a court appoints a guardian under Article 81 of the Mental Hygiene Law.
The sections below explain each situation, what siblings can and cannot do in the meantime, and what happens when children disagree.
If your parent signed a power of attorney or health care proxy
When a parent has signed valid documents, the named agent controls, even if that agent is a younger child, a niece, or a friend. Siblings who were not named have no authority to act under the document. For a general overview of these documents and how we prepare them, see our page on advance directives in New York. The points below are the ones families most often get wrong.
A health care proxy and a living will are different documents
A health care proxy is governed by Article 29-C of the New York Public Health Law. It names an agent to make health care decisions once the parent's attending practitioner determines in writing that the parent lacks capacity to decide. The parent must sign and date the proxy in front of two adult witnesses, who also sign. The named agent cannot serve as a witness. An agent can decide about artificial nutrition and hydration only if the agent reasonably knows the parent's wishes on that subject.
A living will is a separate document. It states the parent's own treatment wishes and does not appoint anyone. New York has no living will statute. Living wills are recognized through case law, most notably the Court of Appeals decision in Matter of Westchester County Medical Center (O'Connor), 72 N.Y.2d 517 (1988), which requires clear and convincing evidence of a patient's wishes. Many parents sign both: the proxy names the decision-maker, and the living will gives that person written guidance.
Execution rules for a financial power of attorney after June 13, 2021
Financial powers of attorney are governed by General Obligations Law Article 5, Title 15. Amendments that took effect on June 13, 2021 changed how they must be signed. Under GOL § 5-1501B, a New York statutory short form power of attorney must be:
- Signed and dated by the parent (the principal), or by another person at the parent's direction and in the parent's presence.
- Acknowledged before a notary public.
- Signed by two witnesses who are not agents under the document. The notary may serve as one of the two witnesses.
- Signed by the agent, with the agent's signature acknowledged before a notary, before the agent can act.
A document signed before a notary alone, without witnesses, does not meet the current requirements for a power of attorney signed on or after June 13, 2021. Documents signed before that date are generally judged under the rules in effect when they were signed.
Durable by default, with springing as an option
Under GOL § 5-1501A, a New York power of attorney is durable unless it expressly says otherwise. It stays in effect if the parent later loses capacity, which is the main reason families sign one. A parent can also make the document springing, so that it takes effect only on a stated future date or event, such as a written finding of incapacity. Springing documents can cause delays, because the agent must prove the triggering event to every bank and institution before acting.
Gifting authority and the end of the Statutory Gifts Rider
The 2021 amendments eliminated the separate Statutory Gifts Rider. Gifting authority beyond the small default amount allowed by statute must now be written into the Modifications section of the form itself. This matters in sibling disputes. An agent who transfers a parent's money to himself or herself needs clear written authority to do so, and the Modifications section is where a parent can grant, limit, or prohibit those gifts. A carefully drafted Modifications section can also require the agent to report to other family members.
Banks must accept a valid statutory form
Under GOL § 5-1504, a bank or other third party presented with a properly executed statutory short form generally must accept or reject it within the time set by statute, and it cannot insist that the parent use the bank's own form. A bank that unreasonably refuses can be brought before a court.
Medical decisions without a health care proxy: the Family Health Care Decisions Act
Many parents never sign a health care proxy. For those patients, New York's Family Health Care Decisions Act (FHCDA), Public Health Law Article 29-CC, sets out who may decide. It applies to decisions in hospitals and nursing homes, and to hospice care, when the patient lacks capacity and has no health care agent.
Under Public Health Law § 2994-d, the surrogate is chosen from this list, in order of priority:
- A guardian appointed under Article 81 of the Mental Hygiene Law with authority to make health care decisions.
- The spouse, unless legally separated, or the domestic partner.
- A son or daughter who is 18 or older.
- A parent.
- A brother or sister who is 18 or older.
- A close friend.
A person in a higher class takes priority over everyone below, as long as that person is reasonably available, willing, and competent to serve. The statute makes no distinction among adult children. The oldest child, the youngest child, the child who lives nearby, and the child who lives in another state all hold the same rank. If the parent's spouse is alive and able to serve, the spouse ranks ahead of all of the children.
A surrogate must decide according to the patient's wishes, including religious and moral beliefs, if those are reasonably known. If they are not known, the surrogate decides according to the patient's best interests. Decisions to withhold or withdraw life-sustaining treatment are subject to additional conditions in the statute.
When adult children disagree as surrogates
Because every adult child holds the same rank, disagreements happen. The FHCDA does not settle a dispute by deferring to the oldest. The hospital or nursing home will typically try to reach consensus through the treating team and social work staff. If that fails, any person connected with the case can ask the facility's ethics review committee to review the dispute under Public Health Law § 2994-m. Family members on the surrogate list can also petition a court to resolve the disagreement. In long-running conflicts, a family may decide to seek an Article 81 guardianship so that one person holds clear authority. A court-appointed guardian with health care powers ranks first on the surrogate list.
Financial decisions without a power of attorney: Article 81 guardianship
There is no financial equivalent of the FHCDA surrogate list. If a parent loses capacity without a power of attorney, no child, spouse, or other relative has legal authority to manage the parent's bank accounts, investments, or real property. The family must petition for a guardian under Article 81 of the Mental Hygiene Law.
Under Mental Hygiene Law § 81.06, a petition can be filed by a relative or presumptive heir, a person concerned with the parent's welfare, the head of a facility caring for the parent, or the local department of social services, among others. The case is heard in the Supreme Court in the county where the parent lives.
The process includes several protections for the parent:
- Order to show cause: The court signs an order setting a hearing, which generally must take place within 28 days.
- Court evaluator: The court usually appoints a court evaluator under § 81.09, who meets with the parent, explains the proceeding, reviews finances and medical information, and reports to the judge.
- Counsel for the parent: The court may appoint a lawyer for the parent, and must do so in certain circumstances, such as when the parent requests one or the petition seeks major powers.
- Burden of proof: The petitioner must prove by clear and convincing evidence that the parent is likely to suffer harm because the parent cannot provide for personal needs or property management and does not adequately understand that inability.
- Least restrictive form: The judge grants only the powers that are needed, which may be limited to property management, personal needs, or both.
The court, not the family, chooses the guardian. Under § 81.19, the judge looks at suitability, including any choice the parent expressed, the person's relationship with the parent, the care and services the person has provided, and any conflicts or concerns about how the person would handle money. Age and birth order are not factors. A judge can appoint the child who has been the caregiver, a sibling who lives farther away, co-guardians, or an independent professional guardian if the family is in conflict.
Even an uncontested guardianship usually takes a few months from filing until the guardian receives a commission. Contested cases take longer. If something is urgent, such as a pending sale or unpaid nursing home bills, the court can appoint a temporary guardian under § 81.23. The parent's estate generally pays the legal fees, the court evaluator's fee, and any appointed counsel's fee. Total costs commonly run into thousands of dollars and can climb much higher when siblings contest the case. After appointment, the guardian must complete training, may need to post a bond, and must file an initial report within 90 days and an annual report every year. A power of attorney signed while the parent had capacity avoids nearly all of this cost and court oversight.
Article 81 is different from guardianship under Article 17-A of the Surrogate's Court Procedure Act, which applies to people with intellectual or developmental disabilities and is generally not the path for an aging parent with dementia.
What siblings can and cannot do without a power of attorney
Families often assume a child can step in for routine matters. In practice, most institutions require formal authority. Here is what to expect:
- Bank accounts: A child cannot access a parent's individual account without a power of attorney or guardianship. A child who is a joint owner can withdraw funds, but a joint owner or convenience signer who uses the money for personal purposes can face claims from siblings or from the estate later.
- Social Security: The Social Security Administration does not act on powers of attorney for benefit payments. A family member must apply to be the parent's representative payee, and the SSA decides who serves.
- Medical records: Under HIPAA, providers may share information with family involved in a patient's care when that is in the patient's interest. Full access to records generally belongs to a personal representative, such as a health care agent, an FHCDA surrogate for decisions in that facility, or a guardian.
- Medicaid: A relative can often help gather documents and assist with a Medicaid application. Transferring assets, funding a trust, or joining a pooled trust usually requires an agent with the right powers or a guardian with court approval.
- Selling the parent's house: No one can sign a deed for the parent without a power of attorney that covers real estate transactions. A guardian needs court approval to sell the parent's real property.
- Paying bills: A child can pay a parent's bills with the child's own money. Paying them from the parent's accounts requires authority.
Common situations we see
The examples below are composites of situations New York families regularly bring to us. Names and identifying details are omitted, and they describe patterns, not results.
The oldest child who went to the bank
A father with advanced dementia has no power of attorney. His oldest daughter has always handled family matters, and her siblings agree she should take over. She brings his death-certificate-free paperwork, her ID, and a letter signed by all of her siblings to the bank. The bank refuses. Family consensus is not legal authority. Without a power of attorney signed while the father had capacity, the family's options are an Article 81 guardianship or, for limited matters such as benefits, a separate application such as representative payee status.
The caregiver sibling and the named agent
A mother lives with her youngest son, who manages her daily care. Years earlier, she named her oldest son as agent in her power of attorney. The two brothers disagree about selling her house to pay for home care. The named agent holds the financial authority, but he must act in the mother's best interest, keep records, and avoid self-dealing under GOL § 5-1505. The caregiver brother cannot override the agent. He can ask for records and, if he believes the agent is acting improperly, he can petition the court under GOL § 5-1510.
Three children, one hospital decision
A widowed parent is hospitalized and cannot communicate. There is no health care proxy. Three adult children each hold equal priority under the FHCDA, and they disagree about a feeding tube. The oldest child tells the staff she has the final say. She does not. The hospital's ethics review process, and if needed a court, will resolve the dispute based on the parent's known wishes or best interests.
When siblings disagree with the named agent
Conflict often grows when the child providing day-to-day care is not the child named as agent. An agent owes fiduciary duties to the parent and must keep the parent's property separate, keep records, and act according to the parent's instructions and interests. If you suspect an agent is misusing a parent's money, read our guide on what to do when an agent abuses a power of attorney and our page on breach of fiduciary duty claims in New York.
A written sibling care agreement
A sibling care agreement does not replace a power of attorney, because only the parent can grant authority. It can reduce conflict by putting the family's plan in writing. Useful topics include:
- Who will provide primary care, and how other duties are divided.
- Whether a caregiving sibling will be paid or reimbursed, and on what terms.
- Whether the parent will live at home, with a child, in assisted living, or in a nursing home.
- Whether siblings will contribute to the parent's care costs.
- How the agent will report to the other siblings about the parent's finances.
- How Medicaid planning decisions will be made.
Payments to a family caregiver should be documented in a written agreement. Undocumented payments can create problems for Medicaid eligibility and invite claims from other siblings.
Frequently asked questions
Can siblings override the agent named in the power of attorney?
No. Siblings who are not named as agents have no authority under the document, even if they outnumber the agent or are older. They can ask the agent for information and, in appropriate cases, ask a court to review the agent's conduct.
Can the agent be removed?
A parent with capacity can revoke the power of attorney at any time. If the parent lacks capacity, GOL § 5-1510 allows a special proceeding in which a court can compel the agent to account, determine whether the agent acted properly, or remove the agent. A spouse, child, parent, or presumptive heir of the principal, among others, can bring the proceeding.
Is a power of attorney valid after the parent dies?
No. A power of attorney ends at the principal's death. From that point, only a court-appointed fiduciary can handle the estate. If the parent left a will, the named executor applies for letters testamentary. If there was no will, a relative applies for letters of administration. In an intestate estate, the Surrogate's Court follows a statutory priority list. Children share the same rank there as well, and birth order does not decide who is appointed.
Does being the next of kin give a child any rights in the hospital?
An adult child is on the FHCDA surrogate list, but behind a guardian and a spouse or domestic partner. Every adult child has the same priority. Being listed as an emergency contact or next of kin on hospital forms does not, by itself, give authority to make decisions.
Can a parent with early dementia still sign a power of attorney?
Possibly. A diagnosis does not automatically remove capacity. The question is whether the parent understands the nature and effect of the document when signing it. An attorney can evaluate the situation and, where appropriate, arrange documentation of capacity at the signing to reduce later challenges.
How we can help
The Law Offices of Albert Goodwin prepare powers of attorney, health care proxies, and living wills for New York families, and we represent family members in Article 81 guardianship proceedings and in disputes over an agent's conduct. If your parent can still sign documents, the most effective step is to put a valid power of attorney and health care proxy in place now. If your parent can no longer sign, we can explain whether guardianship is needed and what it will involve.
We have offices in New York City, Brooklyn, and Queens. Call 212-233-1233 or email [email protected].
Reviewed by Albert Goodwin, Esq. This page provides general information about New York law and is not legal advice for any specific situation.
