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A healthcare proxy is New York’s version of a power of attorney for medical decisions. It lets you appoint an agent to make health care decisions for you if you lose the ability to make them yourself. It is authorized by New York Public Health Law § 2981, which sets out who may sign a proxy, how it must be signed and when the agent’s authority begins.
This page covers the proxy itself: 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, our overview of advance directives in New York compares the proxy, living will, MOLST and HIPAA release. 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 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 it is usually prepared with the rest of an estate planning packet: the will, the statutory durable power of attorney for finances and the 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 a free official Health Care Proxy form (DOH-1430). You do not have to use it; any document that meets the statutory requirements is valid. But the DOH form is a reliable starting point.
How a Healthcare Proxy Is Executed
Under PHL § 2981, a proxy must be executed by a competent adult (18 or older), signed and dated by the principal, and 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 be 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 signed inside a hospital, nursing home or mental health facility, such as requirements that certain staff explain the document or that an additional witness take part.
You may name an alternate agent who serves if the primary agent is unavailable, unwilling or unable to act. Naming one is strongly advisable, because the whole value of the document depends on someone being reachable in an emergency.
| Execution step | Why it matters |
|---|---|
| Choose a primary agent and at least one alternate | Someone must be reachable when a decision is needed |
| Confirm neither witness is the agent or alternate | The statute disqualifies the agent as a witness |
| Sign and date in front of both witnesses on the same occasion | Both witnesses must be present for the signature or its acknowledgment |
| Have both witnesses sign and give their addresses | Completes the statutory formalities |
| Give signed copies to your agent, alternate, primary physician and a family member | A proxy no one can find is useless at the bedside |
| Keep a copy with your other estate planning documents and note its location | Your family should know where to look |
When the Agent’s Authority Begins
The 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, must state the practitioner’s opinion on the cause, nature, extent and probable duration of the incapacity, and must be entered in the patient’s medical record.
For a decision to withhold or withdraw life-sustaining treatment, the attending practitioner must also consult a second physician, physician assistant or nurse practitioner to confirm the lack of capacity, and that consultation must be documented in the record too. Until incapacity is determined, the principal keeps making 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, and express anatomical-gift (organ donation) wishes, including which organs and any limitations.
One New York rule deserves emphasis. 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 Agent
Naming an agent is one of the most personal decisions in estate planning. The agent may decide whether to consent to surgery, whether to pursue aggressive treatment or comfort care, and whether to 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, who will assert your wishes against pressure from family or providers, and who can get to you or be reached quickly. The agent should be able to handle emotionally difficult decisions, be practically available (answers calls, attends conferences, responds promptly) and be 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, Living Will, FHCDA and MOLST
New Yorkers often confuse these tools. They overlap but do different jobs.
| 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 (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 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 the moments when prompt decisions matter most.
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 practical 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; and whether to try every available treatment even if it prolongs dying.
Cover as well any religious or cultural beliefs that affect your medical care, specific situations such as advanced dementia, a persistent vegetative state or a terminal diagnosis, and where you would prefer to be cared for: 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 Proxy
Review the proxy periodically and sign a new one when circumstances change: the named agent has died or become incapacitated, your relationship with the agent has changed through divorce or estrangement, you have moved to a state with different requirements, your views about end-of-life care have evolved, or 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
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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.
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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.
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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, and additional rules apply even then.
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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.
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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, call us at 212-233-1233 or email [email protected]. Related reading: advance directives in New York, a patient advocate abusing a power of attorney and about Albert Goodwin.
