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In New York, a durable POA does not grant the agent the power to make healthcare decisions for the principal. The scope of authority granted under a durable POA is limited to financial and legal matters. Even if the principal becomes incapacitated, the POA agent cannot make medical treatment decisions or end-of-life choices on their behalf. This limitation is in place to ensure that the principal's healthcare wishes are respected and that medical decisions are made by a trusted individual specifically chosen for that purpose.
To appoint someone to make medical decisions on your behalf in New York, you must execute a separate document called a healthcare proxy. A healthcare proxy grants authority to a healthcare agent to communicate with medical professionals and make treatment decisions when you are unable to do so yourself. Unlike a durable POA, a healthcare proxy becomes effective only when you are determined to be incapacitated by your attending physician or a court. Having both a durable POA and a healthcare proxy ensures that your financial and medical affairs are managed by trusted individuals in accordance with your wishes.
Durable Power of Attorney (POA) in New York
A durable power of attorney (POA) is a legal document that grants authority to an agent to act on behalf of the principal. It allows the agent to manage the principal's financial and legal affairs, and remains effective even if the principal becomes incapacitated. A durable POA provides a way to avoid the need for a court-appointed guardian and ensures the principal's wishes are carried out and their assets are protected.
The powers granted to an agent under a durable POA may include managing bank accounts, investments, and other financial assets; buying, selling, or leasing real estate property; handling tax matters and filing tax returns; applying for government benefits, such as Social Security or Medicaid; accessing the principal's digital accounts and managing online presence; defending or initiating legal actions on behalf of the principal; and making gifts or charitable contributions, if authorized by the POA.
A durable POA has certain limitations on the powers granted to the agent. The agent cannot make healthcare decisions, as these are governed by a separate document called a Healthcare Proxy. A POA agent has no authority to make medical treatment decisions for the principal. Additionally, the agent cannot grant end-of-life authority, as end-of-life decisions, such as withdrawing life support, are not covered by a POA. These decisions are typically addressed in a Living Will or through a Healthcare Proxy.
Healthcare Proxy in New York
A healthcare proxy is a legal document that appoints a healthcare agent to make medical decisions on behalf of the principal. It allows the agent to communicate with healthcare providers and make treatment decisions, ensuring the principal's healthcare wishes are followed when they are unable to make decisions themselves. The healthcare proxy provides guidance to loved ones and medical professionals regarding the principal's preferences and helps to avoid potential conflicts or confusion about the principal's desired course of treatment.
To appoint a healthcare agent, the principal must select a trusted individual who understands and respects their values and beliefs. It is important to discuss the principal's healthcare preferences with the chosen agent. The principal may also appoint an alternate agent in case the primary agent is unavailable or unable to serve. The healthcare agent must be at least 18 years old and mentally competent. The agent cannot be the principal's attending physician or an employee of the principal's healthcare facility, unless they are related to the principal.
The powers granted to the healthcare agent include making decisions about medical tests, treatments, and procedures; consenting to or refusing life-sustaining measures, such as artificial nutrition and hydration; accessing the principal's medical records and communicating with healthcare providers; deciding on pain management and palliative care options; determining whether to donate the principal's organs or tissues after death; and arranging for the principal's admission to or discharge from hospitals, nursing homes, or other healthcare facilities. The agent must make decisions based on the principal's known wishes or, if unknown, in the principal's best interests.
A healthcare proxy becomes effective when the principal is determined to be unable to make their own medical decisions. This determination is typically made by the attending physician or a court. The agent's authority begins when the principal lacks capacity and ends when the principal regains capacity. If the principal's capacity is in question, the healthcare provider may require a written determination from a physician or a court order. The healthcare proxy remains in effect until the principal's death, unless revoked or changed by the principal.
The principal can revoke the healthcare proxy at any time, as long as they have the mental capacity to do so. Revocation should be done in writing and provided to the agent and any healthcare providers involved. The principal can also execute a new healthcare proxy that supersedes the previous one. If the principal becomes incapacitated, the healthcare proxy cannot be revoked or changed. The agent's authority ends upon the principal's death. If the principal regains capacity, they can resume making their own healthcare decisions and revoke or modify the healthcare proxy as desired.
Differences Between Durable POA and Healthcare Proxy
A durable power of attorney (POA) grants authority to an agent to handle financial and legal matters on behalf of the principal. However, a durable POA does not grant authority to make healthcare decisions or end-of-life choices. A healthcare proxy grants authority to a healthcare agent to make medical decisions on behalf of the principal, allowing the agent to communicate with healthcare providers and make treatment decisions when the principal is unable to do so.
To create a valid durable POA in New York, a written document is required, typically using the New York statutory short form POA (General Obligations Law § 5-1513). The POA must be signed by the principal and acknowledged before a notary public. If the principal is unable to sign, they may direct another person to sign on their behalf.
A healthcare proxy, on the other hand, requires a written document, typically using the New York State Department of Health form (DOH-1430). It must be signed by the principal and two adult witnesses, who cannot be the principal's healthcare agent, alternate agent, or the principal's attending physician.
Regarding effective dates, a durable POA can be effective immediately upon signing or can be springing, becoming effective upon the occurrence of a specified event, such as incapacity. If springing, incapacity is typically determined by one or more physicians or by a court. An immediately effective POA allows the agent to act on behalf of the principal right away and remains effective until the principal's death, revocation, or the execution of a new POA that supersedes the previous one.
A healthcare proxy becomes effective when the principal is determined to be unable to make their own medical decisions, typically by the attending physician or a court. The agent's authority begins when the principal lacks capacity and ends when the principal regains capacity. The healthcare proxy remains in effect until the principal's death, unless revoked or changed by the principal while they have the mental capacity to do so.
It is important to note that a durable POA and a healthcare proxy serve distinct purposes and should both be included in a comprehensive estate plan. While a durable POA allows the agent to manage the principal's financial and legal affairs, such as paying bills, managing investments, and handling tax matters, a healthcare proxy ensures that the principal's medical preferences are followed and that decisions are made in their best interests when they lack the capacity to make those decisions themselves.
Estate planning is a complex process that involves various legal documents and considerations. To ensure that your durable POA, healthcare proxy, and other estate planning documents are properly drafted and executed, it is essential to consult with an experienced estate planning attorney like us. We can help you understand the differences between a durable POA and a healthcare proxy, and guide you in choosing the right agents for each role. We can also assist in customizing your documents to meet your specific needs, such as adding or modifying powers granted to your agents, or setting conditions for when your documents become effective. Additionally, we can review your entire estate plan to ensure that all documents work together seamlessly and that your wishes are clearly communicated to your loved ones and agents.
Should you need estate planning services, you can call the Law Offices of Albert Goodwin at 212-233-1233 or send us an email at [[email protected].
We represent estate clients throughout the state of New York, including all five boroughs of New York City (Manhattan, Brooklyn, Queens, The Bronx, and Staten Island), Long Island, and Upstate New York.
About the Author
Albert Goodwin Esq. is a licenced New York attorney with over 17 years of courtroom experience. His extensive knowledge and expertise make him well-qualified to write authoritative articles on a wide range of legal topics. He can be reached at 212-233-1233 or [email protected].
