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Healthcare Proxy in New York: Power of Attorney for Medical Decisions
By Albert Goodwin, Esq., New York estate planning and probate attorney. Last updated: June 2024.
A healthcare proxy — the New York equivalent of a power of attorney for medical decisions — lets you appoint an agent to make health care decisions on your behalf if you lose the ability to make them yourself. It is authorized by New York Public Health Law § 2981, which sets out who may execute a proxy, how it must be signed, and when the agent’s authority begins.
This page focuses specifically on the healthcare proxy: what it is, how it is executed in New York, and how to use it well. If you are deciding among the several documents that govern medical and financial decision-making, see our broader overview of advance directives in New York, which compares the proxy, living will, MOLST, and HIPAA release at a higher level. If you are worried that an existing agent is acting improperly, see what to do about a patient advocate abusing a power of attorney.
What a Healthcare Proxy Is
A healthcare proxy is a legal document by which a competent adult (the “principal”) names another person (the “agent”) to make medical decisions if the principal becomes unable to make them. In New York the proxy is usually prepared together with the rest of an estate planning packet — the last will and testament, the statutory durable power of attorney for finances, and the healthcare proxy itself. The proxy covers medical decisions only; financial decisions are governed by the separate power of attorney under General Obligations Law § 5-1501.
The New York State Department of Health publishes an official, free Health Care Proxy form (DOH-1430). You do not have to use that exact form — any document that meets the statutory requirements is valid — but the DOH form is a reliable starting point.
How a Healthcare Proxy Is Executed in New York
Under PHL § 2981, a healthcare proxy must be:
- Executed by a competent adult (18 or older);
- Signed and dated by the principal;
- Witnessed by two adults who are present when the principal signs (or acknowledges the signature) and who also sign the proxy.
The person named as agent cannot serve as one of the two witnesses. If the principal is unable to sign, another adult may sign at the principal’s direction and in the principal’s presence. Additional safeguards apply when a proxy is executed inside a hospital, nursing home, or mental health facility — for example, requirements that certain staff explain the document or that an additional witness be involved.
You may name an alternate agent who serves if the primary agent is unavailable, unwilling, or unable to act. Naming an alternate is strongly advisable, because the entire value of the document depends on someone being reachable in an emergency.
Execution Checklist
- Choose a primary agent and at least one alternate.
- Confirm neither witness is the agent or alternate.
- Sign and date in front of both witnesses on the same occasion.
- Have both witnesses sign and provide their addresses.
- Give signed copies to your agent, alternate, primary physician, and a family member.
- Keep a copy with your other estate planning documents and note its location.
When the Agent’s Authority Begins
A healthcare agent’s authority does not take effect simply because the proxy is signed. It begins only when the attending practitioner determines, to a reasonable degree of medical certainty, that the principal lacks capacity to make health care decisions. That determination must:
- Be in writing;
- State the practitioner’s opinion regarding the cause, nature, extent, and probable duration of the incapacity; and
- Be entered in the patient’s medical record.
For a decision to withhold or withdraw life-sustaining treatment, the attending practitioner must consult a second physician, physician assistant, or nurse practitioner to confirm the lack of capacity, and that consultation must also be documented in the record. Until incapacity is determined, the principal continues to make their own decisions, and the proxy lies dormant.
What You Can Put in the Proxy
The principal can shape the document in several ways:
- Set an expiration date or a condition on which the proxy ends;
- Limit or expand the categories of decisions the agent may make;
- State specific instructions and values to guide the agent;
- Express anatomical-gift (organ donation) wishes, including which organs and any limitations.
One important New York rule: an agent may make decisions about artificial nutrition and hydration only if the agent reasonably knows the principal’s wishes on that issue. Writing those wishes into the proxy — or recording them elsewhere — preserves the agent’s ability to act.
Choosing the Right Healthcare Agent
Naming an agent is one of the most personal decisions in estate planning. The agent may decide whether to consent to surgery, pursue aggressive treatment or comfort care, and maintain or withdraw life support — often under stress and sometimes against the wishes of other relatives. Look for someone who:
- Understands your values and what care you would and would not want;
- Will assert your wishes against pressure from family or providers;
- Can get to you, or be reached, quickly;
- Can handle emotionally difficult decisions;
- Is practically available — answers calls, attends conferences, responds promptly;
- Is comfortable questioning doctors and asking for explanations.
Your healthcare agent need not be the same person as your executor or your financial power-of-attorney agent. Fill each role with whoever fits it best.
Healthcare Proxy vs. Living Will vs. FHCDA
New Yorkers often confuse these tools. They overlap but serve different functions:
| Document | What it does | New York status |
|---|---|---|
| Healthcare proxy | Names an agent to make any permitted medical decision and to weigh current circumstances against your prior wishes. | Expressly authorized by PHL § 2981. |
| Living will | States your own specific preferences for end-of-life care (e.g., ventilation, resuscitation, artificial nutrition). | Not created by statute, but recognized by New York courts as clear-and-convincing evidence of your wishes. |
| FHCDA surrogate | Provides a default decision-maker when you have no proxy. | Authorized by Public Health Law Article 29-CC (the Family Health Care Decisions Act). |
| MOLST | Turns your preferences into medical orders providers must follow. | Recognized statewide for those with serious illness. |
A well-built plan usually pairs a proxy (who decides) with a living will or written values statement (what you want), so the agent has both authority and guidance.
If You Have No Proxy: The Family Health Care Decisions Act
If you never sign a proxy and lose capacity, New York’s Family Health Care Decisions Act (Public Health Law Article 29-CC) supplies a default surrogate from a statutory priority list: a court-appointed guardian, then a spouse or domestic partner, then an adult child, a parent, an adult sibling, and finally a close friend.
The FHCDA fills a real gap, but it is no substitute for naming your own agent. The default surrogate may not be the person you would have chosen, must act within statutory limits that reduce flexibility, and disputes over who has priority can cause delay at moments when prompt decisions matter most.
Don’t Forget the HIPAA Authorization
Modern plans include a HIPAA authorization alongside the proxy. It lets your agent — and any other named individuals — access your protected health information. Without a HIPAA release, even close family can be denied information about your condition. The authorization is short but solves a recurring real-world problem: hospitals declining to share information in an emergency.
Conversations to Have With Your Agent
Signing the proxy is only the start. It gives the agent legal authority but not insight into your wishes. Talk with your agent about:
- Quality of life versus length of life;
- Mechanical ventilation when meaningful recovery is unlikely;
- Artificial nutrition and hydration in different scenarios;
- CPR if you are seriously or terminally ill;
- Whether to try every available treatment even if it prolongs dying;
- Religious or cultural beliefs that affect medical care;
- Specific situations — advanced dementia, persistent vegetative state, terminal diagnosis;
- Preferred location of care — hospital, hospice, or home.
MOLST for Serious Illness
For people with advanced illness or significant frailty, a Medical Orders for Life-Sustaining Treatment (MOLST) form supplements the proxy with concrete medical orders that hospitals, EMS, and nursing facilities must follow. The physician completes and signs the MOLST with the patient, and it travels with the patient to override the default emergency response.
Updating Your Healthcare Proxy
Review the proxy periodically and revise it when circumstances change:
- The named agent has died or become incapacitated;
- Your relationship with the agent has changed (divorce, estrangement);
- You move to a state with different requirements;
- Your views about end-of-life care have evolved;
- You want to add or remove instructions.
A new proxy revokes the prior one. Distribute updated copies to your providers, agent, alternate, and family.
Frequently Asked Questions
Is a healthcare proxy the same as a power of attorney?
No. A healthcare proxy covers medical decisions under Public Health Law § 2981. A power of attorney under General Obligations Law § 5-1501 covers financial and property matters. Most plans include both.
Does a New York healthcare proxy need to be notarized?
No. New York requires only the principal’s signature and the signatures of two qualified adult witnesses. Notarization is not required, though it is permitted.
Can my doctor be my healthcare agent?
Generally no. A physician or other provider directly involved in your care cannot serve as your agent unless that person is also your spouse, domestic partner, parent, child, sibling, or someone with a similarly close personal relationship, subject to additional rules.
What happens if I have no healthcare proxy?
The Family Health Care Decisions Act appoints a default surrogate from a statutory priority list. That person may not be whom you would have chosen and may face limits a designated agent would not.
Will a proxy signed in another state be valid in New York?
New York generally honors a healthcare proxy validly executed in another jurisdiction, but moving is a good reason to sign a New York-compliant document to avoid confusion at the bedside.
Speak With a New York Estate Planning Attorney
If you would like help preparing or reviewing a healthcare proxy, living will, HIPAA authorization, and the rest of your estate plan, the Law Offices of Albert Goodwin can assist. We have offices in New York City, Brooklyn, and Queens. Call 212-233-1233 or email [email protected].
Related reading: Advance Directives in New York · About Albert Goodwin · Patient Advocate Abusing a Power of Attorney.
This article is general information about New York law and is not legal advice. Reading it does not create an attorney-client relationship. For advice about your situation, consult a licensed New York attorney.
About the Author
Albert Goodwin Esq. is a licensed New York attorney with over 18 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].
