Health Care Proxy and Living Will in New York: The Rules

A New York health care proxy is a signed document that names one person, your health care agent, to make medical decisions for you when you can no longer make them yourself. The rules come from Article 29-C of the New York Public Health Law, sections 2980 through 2994. A living will is different: it is a written statement of the treatment you would or would not want. Most of our estate planning clients sign both, and they should be drafted to work together.

What is the difference between a health care proxy and a living will in New York?

A health care proxy appoints a decision-maker; a living will records instructions. The New York State Department of Health puts it this way in its official proxy form instructions: "A living will is a document that provides specific instructions about health care decisions. You may put such instructions on your Health Care Proxy form."

The practical difference is flexibility. According to the same Department of Health instructions, "Unlike a living will, a Health Care Proxy does not require that you decide in advance decisions that may arise." Your agent can apply your values to a medical situation that no one predicted when you signed.

A living will can stand on its own or sit inside the proxy. The Department of Health's guide for patients and families, Deciding About Health Care, notes that a written statement of treatment choices "can be included in a health care proxy, or it can be in a separate document."

Who can appoint a health care agent, and who can serve?

Any competent adult can sign a health care proxy. Public Health Law § 2981(1)(a) states: "A competent adult may appoint a health care agent in accordance with the terms of this article." Under § 2981(1)(b), every adult "shall be presumed competent to appoint a health care agent unless such person has been adjudged incompetent or otherwise adjudged not competent to appoint a health care agent", or unless a guardian of the person has been appointed under article 81 of the Mental Hygiene Law or article 17-A of the Surrogate's Court Procedure Act.

"Adult" has a specific meaning in Article 29-C. Under Public Health Law § 2980(1), it means "any person who is eighteen years of age or older, or is the parent of a child, or has married." The same definition governs who can serve as agent, because § 2980(5) defines a health care agent as "an adult to whom authority to make health care decisions is delegated under a health care proxy."

There are limits on who may serve:

• Your doctor. The Department of Health form instructions explain that a doctor named as agent "will have to choose between acting as your agent or as your attending doctor because a doctor cannot do both at the same time."
• Facility staff. If you are a patient or resident of a hospital, nursing home or mental hygiene facility, § 2981 restricts naming the facility's operators, administrators and employees as your agent, with exceptions for close relatives.
• Agents for many people. Under § 2981(3), a person who is not a close relative cannot be appointed if he or she "is presently appointed health care agent for ten principals."

You may also name an alternate. Section 2981(6)(a) provides: "A competent adult may designate an alternate agent in the health care proxy to serve in place of the agent when" the first agent is unavailable, unwilling or not competent to act, or is disqualified. We always suggest naming one.

What are the witness requirements for a New York health care proxy?

The proxy must be signed and dated in front of two adult witnesses, who also sign it. Public Health Law § 2981(2)(a) requires that the proxy be "signed and dated by the adult in the presence of two adult witnesses who shall also sign the proxy."

The Department of Health's form instructions extend this to your backup choice: "The person who is appointed your agent or alternate agent cannot sign as a witness." Have two other adults witness the signing.

No notary or attorney is required. The Department of Health states: "You don't need a lawyer or a notary, just two adult witnesses." The official form is on the Department of Health health care proxy page.

Remote witnessing is permitted. Section 2981(2-a) provides that "Witnessing a health care proxy under this section may be done using audio-video technology, for either or both witnesses," as long as the statute's conditions are met.

One drafting rule trips people up. Under § 2981(5), a health care proxy "shall not be executed on a form or other writing that also includes the execution of a power of attorney". Your proxy and your financial power of attorney must be separate documents. For more on the financial side, see our article on protecting an inheritance from an abusive power of attorney.

When does a health care proxy take effect?

The proxy takes effect only when your attending practitioner determines that you lack capacity to make health care decisions. Until then, you make your own decisions.

Section 2983(1)(a) says that determination "shall be made by the attending practitioner to a reasonable degree of medical certainty." For a decision to withhold or withdraw life-sustaining treatment, the attending practitioner "must consult with another physician, physician assistant, or nurse practitioner to confirm such determination."

You must be told. Under § 2983(3), notice of the determination goes promptly "to the principal, orally and in writing" and "to the agent". If you object, § 2983(5) provides that "the principal's objection or decision shall prevail unless the principal is determined by a court of competent jurisdiction to lack capacity to make health care decisions."

The agent's authority can also end. Under § 2985(1)(a), "A competent adult may revoke a health care proxy by notifying the agent or a health care provider orally or in writing or by any other act evidencing a specific intent to revoke the proxy." Signing a new proxy revokes the old one, and naming a spouse is revoked "upon the divorce or legal separation" unless the proxy says otherwise.

Why do artificial nutrition and hydration wishes need to be stated?

Your agent cannot decide about a feeding tube or IV nutrition unless your wishes on that subject are reasonably known.

Public Health Law § 2982(1) gives an agent "the authority to make any and all health care decisions on the principal's behalf", and § 2982(2) directs the agent to decide "in accordance with the principal's wishes, including the principal's religious and moral beliefs". Artificial nutrition and hydration is the exception.

The Department of Health form instructions say the same in plain terms: "Unless your agent reasonably knows your wishes about artificial nutrition and hydration (nourishment and water provided by a feeding tube or intravenous line), he or she will not be allowed to refuse or consent to those measures for you."

The fix is simple. Write your wishes on the proxy, in a separate living will, or both. The Department of Health suggests language such as: "I have discussed my wishes with my health care agent and alternate and they know my wishes including those about artificial nutrition and hydration."

Who makes medical decisions if there is no health care proxy?

If you have no proxy and are in a hospital, nursing home or hospice, the Family Health Care Decisions Act, Article 29-CC of the Public Health Law, chooses a surrogate for you from a ranked list. You do not pick the person; the statute does.

The Act applies to health care decisions in a "hospital," which § 2994-a(18) defines to include a general hospital, a residential health care facility and hospice. If you signed a proxy and your agent is available, § 2994-b(2) provides that "health care decisions for the patient shall be governed by such article," meaning Article 29-C.

Public Health Law § 2994-d(1) sets the order of priority:

1. "A guardian authorized to decide about health care pursuant to article eighty-one of the mental hygiene law;"
2. "The spouse, if not legally separated from the patient, or the domestic partner;"
3. "A son or daughter eighteen years of age or older;"
4. "A parent;"
5. "A brother or sister eighteen years of age or older;"
6. "A close friend."

The surrogate decides "in accordance with the patient's wishes, including the patient's religious and moral beliefs", under § 2994-d(4)(a), or in the patient's best interests if those wishes "are not reasonably known and cannot with reasonable diligence be ascertained". A decision to withhold or withdraw life-sustaining treatment must also meet the added standards of § 2994-d(5), such as a finding that "Treatment would be an extraordinary burden to the patient" together with a terminal or permanent-unconsciousness determination.

An estranged spouse who is not legally separated still outranks your children on this list. A proxy replaces the statutory ranking with your own choice. Families facing a parent's decline should also read our guide to elder law and Medicaid planning in New York.

Where does a MOLST form fit in?

A MOLST is a set of signed medical orders, not a substitute for a health care proxy. The Department of Health approved form DOH-5003, Medical Orders for Life-Sustaining Treatment, for statewide use. According to the Department of Health MOLST page, it is intended for patients with serious health conditions who reside in a long-term care facility or require long-term care services, want to avoid or receive life-sustaining treatment, or might die within the next year.

A physician, nurse practitioner or physician assistant must sign it. The Department also states that "the MOLST form is the only authorized form in New York State for documenting both a nonhospital do not resuscitate (DNR) and a nonhospital do not intubate (DNI) order." Your health care agent can take part in the MOLST conversation on your behalf.

What should a complete New York advance directive plan include?

A complete plan pairs a health care proxy with written treatment instructions and a separate financial power of attorney. We also coordinate these documents with your will or trust; see our comparison of a living trust and a will in New York, and our explanation of what happens when someone is dying without a will in New York.

• Name an agent and an alternate, and confirm both are willing to serve.
• State your wishes on artificial nutrition and hydration in writing.
• Sign before two adult witnesses who are not your agent or alternate.
• Review the proxy after a marriage, divorce, legal separation or new diagnosis.

If you want a health care proxy and living will that say exactly what you mean, Estate Law New York can prepare them alongside the rest of your estate plan. Managing Attorney Alan Vaitzman, Esq. meets clients at our office on the 17th Floor, 299 Broadway, New York, NY 10007. Schedule a free consultation to get started.

Frequently Asked Questions

Disclaimer: This article is for informational purposes only and does not constitute legal or tax advice. No attorney-client relationship is formed by reading this publication. Prior results do not guarantee a similar outcome. Reviewed by Alan Vaitzman, Esq. — Managing Attorney at Estate Law New York. Working in estate law since 2017. J.D., New York Law School (2021); B.A. in Psychology, Brooklyn College (2016). Admitted to practice in New York (Reg. No. 5989199), New Jersey, and Florida (Bar No. 1040681). Office: 299 Broadway, 17th Floor, New York, NY 10007.