Health Care Proxy in New York – Basics and Frequently Asked Questions

New York Health Care Proxy Basics

Under New York law, a person is allowed to appoint an agent to make health care decisions on their behalf if they are unable to make those decisions on their own by preparing and signing a health care proxy form. The designated health care agent has the ability to interpret a person’s wishes as their medical condition changes and circumstances surrounding their health care change.

A person can designate the types of decisions they want their agent to make and/or put an expiration period on the health care proxy. It is also possible to designate a successor when an agent is unavailable or to make two health care proxy designees giving agents different decision-making powers with or without time limits. For example, a person could designate a spouse with the decision-making process regarding life support and do not resuscitate matters and designate a son or daughter, who must be over the age of 18, with the decision-making process regarding organ donor decisions.

Decisions that are commonly made by a Health Care Proxy designee include the following:

• Life support when a person is in a coma
• Treatments continued or discontinued
• Artificial nutrition and hydration and under what types of circumstances
• Organ donor decisions

Health care proxy in New York is the same document that is called a Health Care Power of Attorney in many other states.

Who Can be a New York Health Care Proxy Agent?

The following persons can be designed as your agent:

• A spouse
• Domestic partner
• A child over the age of 18
• Sibling
• Father or mother or both jointly or another family member
• Friend
• An attorney

A person’s doctor or health care provider cannot be their agent under New York law. Hospitals, doctors and other health care providers are required to abide by a person’s health care proxy and follow the person’s wishes and the decisions made by the person’s agent. An agent will not be held liable for any decisions.

Making Changes to the New York Health Care Proxy

If a person decides to change an agent, this can be done easily at any time by signing a new health care proxy form. Otherwise, the existing health care proxy would remain in effect until a person passes away unless it has an expiration period. When a person gets a divorce or they are legally separated, the appointment of an ex-spouse is automatically canceled. However, if a person wants their ex-spouse to remain as their health care proxy agent, a statement can be added by them to the current health care proxy, or they can sign a new one.

It is a good idea for a person to keep a copy of their health care proxy where it can be easily accessed such as in their wallet and to give a copy to their agent, other family members, a close friend or attorney in case there is an emergency, and the person is unable to make decisions about their own health care and treatments. This way a person knows that their wishes will be followed. An attorney can assist with the preparation of a health care proxy and answer any questions a person may have about the use of it.

If you wish to speak to a New York estate attorney, call the Law Offices of Albert Goodwin at (212) 233-1233.

The Statutory Authority for Health Care Proxies

The health care proxy is governed by Article 29-C of the New York Public Health Law, specifically Public Health Law § 2981 and following sections. The statute establishes:

• The requirements for executing a valid proxy (a competent adult, signed in the presence of two witnesses).
• The agent's authority to make health care decisions.
• The standard for determining when the agent's authority becomes active (a determination by the attending practitioner that the principal lacks capacity).
• The protections for health care providers who rely on the proxy in good faith.
• The mechanisms for revocation and modification.

The statute is reasonably user-friendly. The standard health care proxy form provided by the state can be downloaded for free and is widely accepted by New York hospitals and providers.

How the Agent's Authority Becomes Active

The health care proxy does not give the agent any authority while the principal can make their own decisions. The agent's authority "springs" into effect when the attending practitioner determines, to a reasonable degree of medical certainty, that the principal lacks capacity to make health care decisions.

The determination must:

• Be made by the attending practitioner (the physician primarily responsible for the principal's care).
• Be in writing.
• State the cause and nature of the incapacity, including the expected duration.
• Be included in the patient's medical record.

For decisions to withhold or withdraw life-sustaining treatment, the attending practitioner must consult with another physician, physician assistant, or nurse practitioner to confirm the incapacity determination. This second-opinion requirement provides additional protection for these consequential decisions.

The Standard the Agent Must Follow

When the agent makes decisions, the agent is required to follow the principal's wishes if known. If the principal's wishes are not known, the agent makes decisions in the principal's best interests.

"Wishes if known" is determined by reference to:

• The proxy document itself, if it includes specific instructions.
• Other documents the principal executed (living wills, MOLST forms, values statements).
• Statements the principal made to the agent or others about preferences.
• The principal's known religious or cultural values.
• The principal's prior medical decisions in similar circumstances.

"Best interests" is a more open-ended standard that considers what a reasonable person in the principal's situation would want, taking into account the principal's overall condition and the available treatment options.

Specific Issues That Come Up

Practical issues that frequently arise:

Religious considerations. Some religious traditions have specific views about end-of-life care. Catholic teaching, Orthodox Jewish law, Jehovah's Witness positions, and other traditions can affect what treatments are acceptable. The principal can include religious instructions in the proxy or a separate document.

Family disagreement. The agent's decision is binding even when other family members disagree. Family members who disagree can challenge the agent's decisions in court, but the court will generally defer to the proxy agent unless the agent is acting clearly contrary to the principal's wishes or interests.

Capacity questions during the proxy. The principal may regain capacity temporarily during illness. During lucid intervals, the principal can override the agent's decisions. This requires careful coordination between the agent and the medical team.

Conflicting documents. If the principal has both a health care proxy and a separate document (a living will, advance directive, or MOLST form), the documents must be read together. Usually the proxy controls who makes decisions and the other documents inform what the decisions should be.

HIPAA Authorization

The health care proxy gives the agent authority to make decisions, but a separate HIPAA authorization is generally needed to give the agent access to the principal's medical records. Most modern health care proxies include HIPAA language, but older proxies may not. The HIPAA authorization should specifically permit the agent (and other designated people) to receive protected health information.

Without proper HIPAA authorization, the agent may have authority to make decisions but be unable to obtain the medical information needed to make informed decisions. This is a common gap in older documents.

MOLST and the Health Care Proxy

For individuals with serious illness, the Medical Orders for Life-Sustaining Treatment (MOLST) form is a separate document that translates preferences into specific medical orders. The MOLST is signed by the physician (after discussion with the patient or proxy agent) and provides binding instructions that follow the patient across care settings.

The MOLST and the health care proxy work together. The proxy designates who can make decisions if the patient cannot. The MOLST records the specific decisions made. Both should be reviewed and updated as the patient's condition changes.

What If There Is No Proxy

If the principal has not executed a health care proxy and becomes unable to make decisions, the Family Health Care Decisions Act (FHCDA) under Public Health Law § 2994-a provides a default surrogate decision-maker hierarchy. The priority order is roughly: court-appointed guardian, spouse or domestic partner, adult child, parent, adult sibling, close friend.

The FHCDA fills a real gap but is no substitute for a designated proxy. The default surrogate may not be the person you would have chosen. The default surrogate must comply with statutory standards that limit flexibility. And family disputes about which default surrogate has priority can produce delays at moments when prompt decisions matter.