How does a health care proxy work?
You name an agent, and optionally an alternate. The proxy takes effect only when a physician determines you lack the capacity to make your own decisions. Until then you decide for yourself, and your agent has no authority.
Once it is in effect, your agent can make health care decisions on the same terms you could — consenting to or refusing treatment — guided by your known wishes, and where those are not known, by your best interests.
Requirements: you must be at least eighteen and of sound mind, and the document must be signed in front of two adult witnesses. Your agent cannot serve as a witness.
Health care proxy, living will, MOLST — what is the difference?
| Document | What it does |
|---|---|
| Health care proxy | Names who decides. Statutory in New York. |
| Living will | States what you want. No New York statute, but courts give effect to clear evidence of your wishes. |
The proxy and the living will do different jobs and work best together. The proxy gives your agent authority; the living will gives them evidence of what you wanted, which both guides them and protects them from second-guessing by other family members.
One New York-specific point worth knowing. New York applies a demanding standard of proof to withdrawing life-sustaining treatment where a patient’s wishes are in dispute. Vague instructions are difficult to act on. Specific, written statements are considerably more useful than general ones — which is an argument for the living will being detailed rather than a formality.
Artificial nutrition and hydration is treated separately in New York. Your agent cannot make decisions about it unless they have reasonable knowledge of your wishes on that specific question, which is a strong reason to address it expressly rather than leave it implied.
What happens without one?
New York has a statutory decision-making hierarchy for patients without a proxy — a fixed order of family members and others.
It works, after a fashion. What it does not do is let you choose. If the person best placed to make decisions for you is not the person the statute reaches first, or if your family disagrees, the absence of a proxy is what turns a medical decision into a family conflict.
Frequently asked questions
What is a health care proxy?
A document naming someone to make medical decisions for you if a physician determines you cannot make them yourself. It is authorized under New York Public Health Law Article 29-C.
What is the difference between a health care proxy and a living will?
A proxy names who decides. A living will states what you want. New York has a statute for the proxy but not for the living will, though courts give effect to clear evidence of your wishes. Most plans include both.
Who should I name as my health care agent?
Someone who will be reachable, who can make a decision under pressure, and who will follow your wishes even where they disagree. Proximity matters less than reliability. Name an alternate.
Does my health care agent control my money?
No. Financial authority requires a separate power of attorney.
When does it take effect?
Only when a physician determines you lack capacity to decide for yourself. You retain full authority until then.
Related: Estate Planning Advisory · Wills · Powers of Attorney · back to Estate Planning
Written by Dale Riedel, Esq. · Admitted in New York, Bar No. 5837539