Creating a New York Health Care Proxy

Comprehensive estate planning involves more than just creating a Last Will and Testament and possibly a trust for your heirs. Estate planning is also an opportunity for you to make sure that your wishes for end-of-life care and other related decisions are known to those who will administer your estate, your loved ones, and your estate planning attorney. For many people, part of end-of-life planning and care often includes nominating a Health Care Proxy. The State of New York Office of the Attorney General offers individuals some clarification and advice related to a New York Health Care Proxy.

Health care Proxy: An Introduction

In New York, a Health Care Proxy is available to anyone over the age of 18. The purpose of a Health Care Proxy is to allow you to appoint a trusted person to make health care decisions for you should you be unable to make such decisions yourself. The inability to make health care decisions could arise because you are being kept alive via artificial means such as life support machines or even because you are unconscious for certain medical reasons. When a health care agent has been entrusted with the authority to remove you from or prevent you from undergoing potentially life sustaining treatments or procedures, New York requires that a second doctor must confirm the original doctor’s determination that you are unable to make your own health care decisions.

The person you appoint is known as your health care agent. Typically, anyone over the age of 18 that is competent to make these types of decisions can be selected. It is usually a good idea to nominate a secondary agent to act on your behalf should the person you nominate be unable to, unwilling to, or disqualified from acting as your health care agent. Your health care agent’s authority is limited to what you allow them to do through your Health Care Proxy form. You can give them as much or as little power as you wish, and their authority does not begin until a doctor has determined that you have lost the capacity to make health care decisions for yourself. Some decisions your health care agent can be empowered to make include:

  •      Whether or not your heart should be restarted through CPR or other means should it stop on its own or during medical treatment;
  •      Whether or not you should be kept alive via artificial means such as feeding tubes and ventilators; and
  •      Other decisions related to your health care as specified in your nomination.

In New York, a family member that objects to the health care agent’s decisions can request a court order to intervene on your behalf. Otherwise, your health care agent’s decisions regarding your care are final so long as they comply with your Health Care Proxy directives.

New York law requires that hospitals and nursing care facilities provide you with a Health Care Proxy form as well as information related to the process, so you should have the opportunity to create one before many medical procedures or simply out of precaution. However, many individuals that are young and active don’t anticipate the need for health care decisions to be made on their behalf and may decide not to fill out this form. While it can be unpleasant to think about death at any age, making informed decisions about your health care using a Health Care Proxy can help relieve the burden on your family to make difficult medical choices and ensure that your wishes related to your health care are carried out. An experienced estate planning attorney can help you create a Health Care Proxy appointment that complies with strict legal requirements for such documents to be valid.

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