The New York State Health Care Proxy Law allows you to appoint someone you trust (a family member or close friend) to decide about medical treatment if you lose the ability to decide for yourself.
You can appoint someone by signing a form called a Health Care Proxy. You can give the person you select, your “Healthcare Agent,” as little or as much authority as you want. You can allow your healthcare agent to authorize your admission to medical, nursing, residential or other facilities, enter into agreements for your care and authorize medical and surgical procedures. You may also give your agent instructions that he or she has to follow. Your agent can then make sure that healthcare professionals follow your wishes and can decide how your wishes apply as your medical condition changes. Hospitals, doctors and other healthcare providers must follow your agent’s decisions as if they were your own.
The Health Care Proxy may also be known as a “Durable Power of Attorney for Healthcare Decisions.”
Why should I choose a Healthcare Agent?
If you become too sick to make healthcare decisions, someone else must decide for you. Healthcare professionals often look to family members for guidance. But family members are not allowed to decide to stop treatment, even when they believe that is what you would choose or what is best for you under the circumstances. Appointing an agent lets you control your medical treatment by:
- Allowing your agent to stop treatment when he or she decides that is what you would have wanted or what is best for you under the circumstances.
- Choosing one family member to decide about treatment because you think that person would make the best decisions or because you want to avoid conflict or confusion about who should decide.
- Choosing someone outside your family to decide about treatment because no one in your family is available or because you prefer that someone other than a family member decide about your healthcare.
When does a Health Care Proxy take effect?
The Health Care Proxy becomes effective only when you become incompetent or unable to make decisions, as determined by a physician. Until then, you continue to be in charge of making your own healthcare decisions. It can be revoked verbally, and you always have the right while competent to sign a new Health Care Proxy.
What does it mean to be incompetent?
Incompetence means the lack of sufficient capacity for a person to make or communicate decisions concerning his or her care. The law requires your doctor to decide if you are competent for the purposes of developing an advanced directive.
What decisions can my Healthcare Agent make?
Unless you limit your healthcare agent’s authority, your agent will be able to make any treatment decision that you could have made if you were able to decide for yourself. Your agent can agree that you should receive treatment, choose among different treatments and decide what treatments should not be provided, in accordance with your wishes and interests. If your healthcare agent is not aware of your wishes about artificial nutrition and hydration (nourishment and water by feeding tubes), he or she will not be able to make decisions about these measures. Artificial nutrition and hydration are often used in many circumstances, and are often used to continue the life of patients who are in permanent coma.
Can I list treatments that I do not want?
If there are certain treatments that you do not want they may be listed. Your wishes should always be discussed with your doctor and your healthcare agent.
How will my Healthcare Agent make decisions?
You can write instructions on the proxy form. Your agent must follow your verbal and written instructions, as well as your moral and religious beliefs. If your agent does not know your wishes or beliefs, your agent is legally required to act in your best interests.
Who will pay attention to my Healthcare Agent?
All hospitals, doctors and other healthcare facilities are legally required to honor the decisions by your agent. If a hospital objects to some treatment options (such as removing certain treatment) they must tell you or your agent in advance.
What if my Healthcare Agent is not available when decisions must be made?
You can appoint an alternate agent to decide for you if your healthcare agent is not available or able to act when decisions must be made. Otherwise, healthcare providers will make treatment decisions for you that follow instructions you gave while you were still able to do so. Any instructions that you write on your Health Care Proxy form will guide health care providers under these circumstances.
What if I change my mind?
It is easy to cancel the proxy. To change the person you have chosen as your healthcare agent or to change any treatment instructions you have written on your Health Care Proxy form, just fill out a new form. In addition, you can require that the Health Care Proxy expire on a specified date or if certain events occur. Otherwise, the Health Care Proxy will be valid indefinitely. If you choose your spouse as your health care agent and you get divorced or legally separated, the appointment is automatically cancelled. It is a good idea to review your advanced directive periodically to ensure it is still in agreement with your wishes.
When you do rewrite your Health Care Proxy make sure that you give a new copy to anyone who is involved with your care. This includes your physician, healthcare providers, family, friends and anyone else who had a copy of the old form.
Can my Healthcare Agent be legally liable for decisions made on my behalf?
No. Your healthcare agent will not be liable for treatment decisions made in good faith on your behalf. Also, he or she cannot be held liable for costs of your care, just because he or she is your agent.
Who should I discuss my wishes with before writing them down?
Before you write your instructions down you may wish to discuss them with your doctor, family, friends or other appropriate person, such as other healthcare providers or a member of your clergy. You should always give explicit instructions to the person that you are naming as your proxy.
How can I appoint a Health Care Proxy?
All competent adults can appoint a healthcare agent by signing the Health Care Proxy Form. You DO NOT need a lawyer, just two adult witnesses. A form is included in your hospital admission packet. Forms may also be obtained from your doctor or local groups, such as the American Association of Retired Persons or the County Office of the Aging.
Who should I appoint as my Health Care Proxy?
You can appoint anyone that you wish. It should be a person that you know and trust to make decisions for you. Make sure that you discuss your wishes with the appointed person.
Where should I keep the proxy form after it is signed?
Give a copy to your agent, your doctor, hospital, family members, close friends and other healthcare providers. You can also keep a copy in your wallet or purse or with other important papers. Each time you enter a medical facility you will be asked about your Advanced Directives and asked to supply a copy for your medical record. If you change your proxy, ensure that everyone who has an old copy receives the new directive.
What if I have not appointed a Health Care Proxy?
If you have not appointed a proxy then, under New York State law, there is no one who becomes the proxy by default. Your healthcare provider may ask your family or the courts to make decisions about your care and treatment.
Without naming a proxy, life-sustaining treatment will be provided unless there is clear and convincing evidence that you would not have wanted it.
In addition to, or instead of, appointing a proxy, you have the right to create a Living Will that spells out what you would or would not want done in the event that you are unable to make decisions for yourself. However, Living Wills are less flexible than designating a Health Care Proxy.
What if I have expressed my wishes verbally, rather than writing them down?
Your physician will follow your verbal directions to the best of their ability. It is difficult to rely solely on verbal information. If you choose not to execute an advanced directive, talk to your physician about your healthcare wishes.
How is a Health Care Proxy different from a Power of Attorney?
A Health Care Proxy is different than a Power of Attorney. A Power of Attorney primarily authorizes the person you designate to make financial decisions for you. It cannot be used to make healthcare decisions. You must complete a healthcare proxy to have an agent to make healthcare decisions when you are not able.
What about organ/tissue donation in the event of my death?
If you wish to be an organ or tissue donor it is important that your healthcare agent is aware of this. Once again, the agent is asked to make all decisions in regards to any procedures being performed. This is also an issue that can be listed on your Living Will or on the back of your driver’s license so that your wishes are clear to others. The most important issue is appointing a healthcare agent who knows your wishes and will follow them if you are unable to speak for yourself.
Completing the Health Care Proxy Form
This is an important legal form. Before signing this form, you should understand the following facts:
This form gives the person you choose as your agent the authority to make all healthcare decisions for you, except to the extent you say otherwise in this form. “Healthcare” means any treatment, service or procedure to diagnose or treat your physical or mental condition.
Unless you say otherwise, your agent will be allowed to make all healthcare decisions for you, including decisions to remove or provide life-sustaining treatment.
Unless your agent knows your wishes about artificial nutrition and hydration (nourishment and water provided by a feeding tube), he or she will not be allowed to refuse or consent to those measures for you.
Your agent will start making decisions for you when doctors decide that you are not able to make healthcare decisions for yourself.
You may list any information about treatment that you do not desire and/or those treatments that you want to make sure you receive. Your agent must follow your instructions (verbal and written) when making decisions for you. If you want to give your agent written instructions, do so right on the form. For example, you could say:
- If I become terminally ill, I do/don’t want to receive the following treatments…
- If I am in a coma or unconscious, with no hope of recovery, then I do/don’t want…
- If I have brain damage or a brain disease that makes me unable to recognize people or speak and there is no hope that my condition will improve, I do/don’t want…
- I have discussed with my agent my wishes about _______ and I want my agent to make all decisions about these measures.
Examples of medical treatments about which you may wish to give your agent special instructions are listed below. This is not a complete list of the treatments about which you may leave instructions.
- Artificial respiration or being placed on a ventilator
- Artificial nutrition and hydration or nourishment and water provided by feeding tube
- Cardiopulmonary resuscitation or CPR
- Blood transfusions
Choosing an Agent
Talk about choosing a healthcare agent with your family and/or close friends. You should discuss this form with a doctor or another healthcare professional, such as a nurse or social worker, before you sign it to make sure that you understand the types of decisions that may be made for you. You should also give your doctor a signed copy. You do not need a lawyer to fill out this form.
You can choose any adult (over the age of 18), including a family member, or close friend, to be your agent. If you select a doctor as your agent, he or she may have to choose between acting as your agent or as your attending doctor, a physician cannot do both at the same time. Also, if you are a patient or resident of a hospital, nursing home or mental health facility, there are special restrictions about naming someone who works for that facility as your agent. You should ask staff at the facility to explain those restrictions.
You should tell the person you choose that he or she will be your healthcare agent. You should discuss your healthcare wishes and this form with your agent. Be sure to give him or her a signed copy. Your agent cannot be sued for healthcare decisions made in good faith.
Even after you have signed this form, you have the right to make healthcare decisions for yourself as long as you are able to do so, and treatment cannot be given to you or stopped if you object. You can cancel the control given to your agent by telling him or her or your healthcare provider verbally or in writing.
If you have any questions or concerns regarding an Advanced Directive, please speak with a healthcare provider. They will be able to address your concerns and assist you in completing the appropriate forms.