Legal Life Lines
LEGAL AID SOCIETY OF NORTHEASTERN NEW YORK, INC.
This LifeLine contains general information, and does not constitute individual legal advice about your situation. You should consult with an attorney for individual legal advice about your situation and to find out how this information applies to your situation. To see if you qualify for free legal services, call the Legal Aid office nearest you.
HEALTH CARE PROXIES AND LIVING WILLS
WHAT IS A HEALTH CARE PROXY?
A Health Care Proxy is a document which allows you to give a trusted person, such as a relative or friend, the power to make health care decisions for you if you become incapacitated and cannot make those decisions for yourself. The person you name is called your agent.
WHO CAN BE MY AGENT?
Your agent must be at least 18 years old and should be someone you trust. If you appoint your doctor, remember that the doctor cannot act as both your attending physician and your agent. Also, please note that there are special restrictions and limitations regarding health care agents if you are a patient or resident of a hospital or if you have applied for admission to a hospital.
You can also name an alternate agent who would act as your agent if your first agent were unable to do so.
WHAT CAN MY HEALTH CARE AGENT DO FOR ME?
Your agent can make any health care decision that you could make yourself if you were not incapacitated. Your agent makes these decisions in accordance with your wishes or in accordance with your best interests, if your wishes are not known and cannot be discovered. You should remember that your agent will not be allowed to make decisions to withhold artificial food and water for you unless your wishes about this specific kind of care are specified. Therefore, it is very important for you to discuss your wishes regarding health care with your agent and alternate agent. It is also important that any statements of your wishes reflect your current wishes regarding health care decisions.
Your agent has the right to get any of your medical records that are necessary to make an informed decision about your health care. Your doctors are required by law to follow the good faith decisions made by your agent as if they were your decisions.
WHO DECIDES THAT I AM NOT ABLE TO MAKE MY OWN HEALTH CARE DECISIONS?
Your attending physician will decide whether you lack the capacity to make health care decisions. The decision is made in writing. A second doctor also must be consulted in the case of decisions to withdraw or withhold life-sustaining treatment. You will be given notice of these decisions if there is any indication that you can understand it. If you object to this decision or to a decision made by your agent, your objection or decision will prevail unless a court determines that you are unable to make health care decisions.
WHAT IF I RECOVER THE ABILITY TO MAKE MY OWN HEALTH CARE DECISIONS?
Your doctor is required to decide whether you can make your own health care decisions and confirm it in writing each time your doctor plans on acting on your agent's health care decisions. If you have recovered the ability to make your own decisions, your agent will not be able to make any more decision for your unless you again lose the abilities to make decisions.
HOW DO I COMPLETE A HEALTH CARE PROXY?
In New York State, laws set forth the requirements for completing a health care proxy. You must be at least 18 years old and have the capacity to make your own decisions at the time you complete the proxy.
You must state your name and the name of the person you want to act as your agent, and state that your want the agent to have the authority to make health care decisions for you. You also must sign and date your health care proxy in the presence of two adult witnesses who are not names as your agent and have the witnesses sign the proxy. Please note that there are special rules for the execution of a proxy by residents of psychiatric facilities.
Please note that you do not need to have a lawyer draft your health care proxy, however, you may wish to consult with a lawyer for advice about a health care proxy.
WHEN WILL MY HEALTH CARE PROXY END?
You can create a proxy that lasts for a limited period of time by including in the document the dates you want the proxy to be valid. You can also revoke your proxy if you wish and you are competent to do so.
You can revoke the proxy by notifying your agent or health care provider orally or in writing or by taking an action that demonstrates your specific intent to revoke the proxy. You can also revoke a health care proxy by executing a new health care proxy if you are competent to do so. In addition, if you have appointed your husband or wife as your agent, and then you divorce or legally separate, the appointment will be revoked unless you specify that you do not wish to revoke it.
You should review your proxy periodically to be sure that it continues to reflect your wishes. If it does, you may indicate the date your reviewed it so that your agent will know that it expresses your current wishes.
WHERE SHOULD I KEEP MY PROXY?
You should give a copy of your proxy to your doctor as well as to the agent named in your proxy. If you revoke your proxy, be sure to notify whomever you gave a copy of the proxy.
WHAT IF I DON'T WANT A HEALTH CARE PROXY?
You can't be required to execute a health care proxy as a condition of receiving health care services or insurance. Also, the lack of a health care proxy or other specific instructions does not crate any presumptions regarding your wishes about health care.
WHAT IS A LIVING WILL?
A living will is a document giving written instructions about your wishes regarding health care. There is no law in New York State which sets up a format or rules regarding a living will, but the courts have recognized such documents as evidence of your wishes regarding health care.
This information can be helpful to your agent, if you have one, and can also be especially useful if your agent and alternate agent is unavailable or has died before you. You can state your wishes directly in a health care proxy and so may not need a separate living will, however, you may prefer to use a living will rather than a health care proxy if there is no one you trust to act as your agent.
IF I HAVE A POWER OF ATTORNEY OR WILL, DO I STILL NEED A HEALTH CARE PROXY/LIVING WILL?
Yes, you will also need a health care proxy or living will if you want to appoint someone to make health care decisions for you or express what your wishes are regarding these decisions. Powers of attorney only address financial matters, not health care matters. Your agent under your power of attorney will not be allowed to make your health care decisions, although you can specify other decisions and actions that they can take while you are alive.
A will does not take effect until after your death and so does not apply while you are alive.
If you want to appoint someone to make health care decisions for you, you should complete a health care proxy. If you do not want to name a health care agent, you can still use a living will to express your health care wishes.
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Last Reviewed: December 30, 2016