Health Care Proxy In New York State

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What It Is

Technically, a Health Care Proxy is the person who makes health care decisions for someone else who is unable make those choices for themselves. This decision making authority comes from the Health Care Proxy form. Together, the form and the trustworthy person become a priceless legal convenience that could easily and often be the difference between life and death. At the very least, it will prevent difficult and stressful problems.  In this way, it is similar to the Power of Attorney but with a very different focus.
The controlling law is New York Public Health Law, Article 29-C, Section 2981.

Terminology

  • Principal: The person who gives someone else the authority.  This person must be competent and act for his or her self and must be at least 18 years old.
    • The Principal may direct someone to sign on their behalf.
  • Agent: The person who receives the authority.  This person has a fiduciary duty to the principal.  There can be more than one.
  • Capacity/Competency: Ability to comprehend the form and its consequences.
  • Health Care: Any treatment, service or procedure to diagnose or treat an individual’s physical or mental condition.

Who Should Get A Health Care Proxy

Generally, people who may soon be unable to make their own medical decisions should choose an agent and fill out the form. However, this is not only for the sick and elderly. The Covid-19 pandemic painfully demonstrated that anyone can suddenly stop breathing.  Thus, once a person is 18 years old, it is never too early to begin the process of picking out a proxy.  Unfortunately, it can only be too late.  Therefore, everyone should study the form, consult with their loved ones, fill out the form, and then rest easy.  This form can be the last truly difficult decision that a person makes.

Who Should Be An Agent

Someone who the Principal absolutely trusts should be the only person they consider to be an agent.  Although New York law does limit the options somewhat, a Principal can choose nearly anyone for this important role.  A spouse, adult child, relative, friend, or even a colleague can be an agent.  The one real restriction is that your doctor cannot be the agent unless that doctor is not acting as your attending physician.  This prevents a possible ethical conflict.  New York law also provides automatic safeguards such as divorce severing a spouse’s appointment as agent.

Health Care Proxy Rights & Duties

A Health Care Proxy, or the agent, has certain explicit legal duties.  First and foremost, an agent must comply with the Principal’s wishes.  More likely than not, the Principal will specify what medical procedures and treatments they want and do not want.  An agent’s primary responsibility is to carry out these wishes and communicate them to the attending physician.  This is akin to a living will, where explicit instructions limit decisions.  

The health care proxy goes further, however.  An agent does not need explicit instructions from the Principal.  This is why careful consideration is necessary to decide who should be an agent.  The agent will use their judgment to decide treatments for unexpected situations.  The Principal should literally trust their agent with their life.  Fortunately for the agent, they will generally be immune to liability related to these decisions.  

Executing The Health Care Proxy Form

The Health Care Proxy form has specific legal requirements and formalities in order for it to be effective.  The primary aspects are that the Principal and agent must both sign and date the form in front of 2 witnesses.  Neither of the witnesses can be the agent and both must be at least 18 years old.  There are other requirements and restrictions based on the Principal’s specific situation, but these are the main formalities. 

Once an agent is designated and the form is complete, there is only one thing left.  Activation.  A Health Care Proxy makes medical decisions for a Principal who is unable to make those choices.  For the Agent’s authority to activate, an attending physician must first determine that the Principal lacks capacity to make medical decisions.  New York law specifies the form and substance of the physician’s determination.  

Health Care Proxy Safeguards

New York law protects Principals.  The divorce safety is discussed above.  In addition to that one, the law allows a Principal to revoke an agent’s authority at any time until a doctor declares the Principal incapacitated for these purposes.  However, the doctor can also determine that the Principal has regained capacity, thus stopping the agent’s authority.  As long as the Principal chooses someone trustworthy, everything should be fine.  It is also a good idea to send a copy of the form to all interested parties, just in case.

In The End

A Health Care Proxy will save your loved ones time, stress, and pain.  It thereby provides the Principal with peace of mind, which is truly priceless.


Health Care Proxy Form


Contact For Help & Advice

Andrew Rozo
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