Health Care Proxy

A health care proxy is the document New York law provides for naming someone else, called your health care agent, to make medical decisions on your behalf if you become unable to make or communicate them yourself. It is New York’s statutory instrument for this purpose, the document the state has specifically enacted a law to create and govern. Signing one lets you choose, ahead of time, exactly who your doctors and family will turn to if a decision has to be made and you cannot make it yourself.

Fisher Stone prepares health care proxies for individuals and families throughout New York City for a flat fee, quoted up front, after a short, free consultation of about 15 minutes. A licensed New York attorney handles your document from start to finish, reachable directly by call, email, or text, with no call center and no handoff partway through.

The health care proxy and the living will

New York created the health care proxy through its own statute, a law that sets out how the document works and how it must be signed. A living will works differently. New York has never enacted a living will statute, so there is no state-approved living will form. A written statement of your wishes about medical treatment, whether called a living will or something else, still carries weight as evidence of what you would have wanted, and your agent, your doctors, and a court can look to it for guidance. Many clients write their wishes directly into the health care proxy itself, or prepare a separate living will alongside it, as part of a complete set of advance directives. You sign a health care proxy in front of witnesses who meet New York’s requirements, and your attorney handles those formalities so the document holds up when you need it.

When a health care proxy takes effect

A health care proxy does not take effect the moment you sign it. It takes effect only once a doctor determines that you lack the capacity to make your own health care decisions, meaning you can no longer understand a proposed treatment or communicate a decision about it. Until that determination is made, you keep full authority over your own medical care, and your agent has no authority to override you or act on your behalf. If you later regain capacity, whether after surgery, an illness, or an injury, your own decisions control again and your agent’s authority stops until it is needed again.

What it covers, and what it does not

A health care proxy covers medical decisions only: which treatments to accept or refuse, which providers or facilities to use, and access to your medical records so your agent can make informed choices. It does not give your agent any authority over your money, property, or other legal and financial matters. Those affairs are handled by a separate document, a power of attorney, which names an agent for financial and legal decisions. Many clients sign both documents at the same time, naming the same person or different people for each role, since the two documents work independently of each other.

Artificial nutrition and hydration

New York treats one category of medical decision differently from the rest. Your health care agent can decide about artificial nutrition and hydration, meaning feeding tubes or intravenous fluids used to keep you alive, only if the agent reasonably knows your wishes on that subject. If your agent has no reasonable basis for knowing what you would want, that particular decision may fall outside their authority. This is why writing down your wishes about this kind of care matters, whether in the health care proxy itself, a separate living will, or another written statement your agent and doctors can rely on.

Choosing your agent and your alternate

Your health care agent should be someone you trust to carry out your wishes and willing to advocate for what you actually want, even under pressure. Consider whether the person is comfortable talking with doctors and asking questions, whether they can make a decision quickly when one is needed, and whether they live close enough, or are reachable enough, to respond when a hospital calls. It helps to talk with the person before naming them, so they understand what you expect and agree to serve.

New York also lets you name an alternate agent, who steps in if your first choice is unavailable, unwilling, or unable to serve when the time comes. Naming an alternate keeps your plan working even if your first choice cannot be reached.

Limiting your agent’s authority

The health care proxy can limit what your agent is allowed to decide, or include specific instructions for particular situations, such as your wishes about life-sustaining treatment, organ donation, or procedures you would want to accept or refuse. Any instructions you include become part of the document your agent and your doctors rely on, alongside whatever you have discussed with your agent directly.

Copies, updates, and what happens without one

Once your health care proxy is signed, give copies to:

• Your agent and your alternate agent
• Your primary doctor and any specialists you see regularly
• Any hospital or medical practice that keeps your records on file
• Close family members, so they know the document exists and who you named, even if they do not need a copy themselves

Having copies in the right hands means there is no confusion at a moment when a decision has to be made quickly.

You can revoke or replace a health care proxy at any time, as long as you are able to do so, by signing a new one or telling your agent and your doctor directly that you are canceling it. Many people update their health care proxy after a falling out with their named agent, a move, or another significant change in who they would want making these decisions.

Without a health care proxy, if you become unable to make your own medical decisions, doctors and hospitals may need to rely on family members or, in some cases, turn to a court to decide who has authority to act, through a guardianship proceeding. That process takes time and involves a court, at a point when your family may already be dealing with a medical emergency. Signing a health care proxy in advance, as part of a broader estate plan, generally lets you choose that person yourself instead.