HEALTH CARE PROXIES
Under New York Health Care Proxy Law (Section 2980 et seq.), any competent person age 18 or older (or if you are under 18, and married or have a child), may make a Health Care Proxy (also known as a Healthcare Power of Attorney). The law allows you to appoint someone to make healthcare decisions for you if you lose the ability, even temporarily, to make decisions yourself. By appointing a healthcare "agent," you can make sure that healthcare providers follow your wishes. Your agent can also decide how your wishes apply as your medical condition changes. All hospitals, nursing homes, doctors and other healthcare providers are legally required to provide your health care agent with the same information that would be provided to you and to honor the decisions by your agent as if they were made by you. You may give the person you select as your healthcare agent as little or as much authority as you want. You may allow your agent to make all healthcare decisions or only certain ones. You may also give your agent instructions that he or she has to follow. You may appoint an "alternate agent" to decide for you if your healthcare agent is unavailable, unable or unwilling to act when decisions need to be made.
Minimum Requirements for a Valid Health Care Proxy
• Your name as the Principal who creates the proxy.
• Name of your healthcare agent.
• Your statement that you intend the agent to have the authority to make health care decisions on your behalf.
• You must sign and date your signature with the witnesses present. If you are unable to sign your proxy, another adult can sign for you at your request.
• Two witnesses must sign and date their signatures, and state that you (Principal) appeared to execute the proxy willingly. Neither your agent nor your alternate agent can serve as witnesses.
• Some states (not New York) require notarization as well.
Optional Sections for a Health Care Proxy
• Statement of your treatment wishes or limitations on the agent’s authority. For example, you may want to state that you have told your agent your wishes about artificial nutrition and hydration (food and water).
• Naming an alternate agent.
• Statement of your wishes regarding organ and/or tissue donation.
• Expiration date if any, of your Health Care Proxy, or a description of circumstances that trigger expiration.
1. This document gives the person you choose as your agent the authority to make all healthcare decisions for you, including the decision to remove or provide life-sustaining treatment, unless you say otherwise in this document. “Healthcare” means any treatment, service or procedure to diagnose or treat your physical or mental condition.
2. Unless your agent reasonably knows your wishes about artificial nutrition and hydration (nourishment and water provided by a feeding tube or intravenous line), from what you have said and/or written, he or she will not be allowed to refuse or consent to those measures for you.
3. Your agent will start making decisions for you ONLY when your doctor determines that you are not able to make healthcare decisions for yourself. That is, that you lack "the ability to understand and appreciate the nature and consequences of healthcare decisions." The physician must tell you orally and in writing that you lack competency. If you say you are still competent to make decisions, there is a presumption that you are competent, unless a court determines otherwise. The physician must continuously check to determine if you continue to lack capacity before complying with your agent's decisions. Thus, even though you have signed this document, as long as you are able to make healthcare decisions for yourself, you will have the right to do so, and your agent will have no power to object.
4. You may write in this document examples of the types of treatments that you would not desire and/or those treatments that you want to make sure you receive. The instructions may be used to limit the decision-making power of the agent. Your agent must follow your instructions when making decisions for you. Examples of medical treatments about which you may wish to give your agent special instructions are • artificial respiration • artificial nutrition and hydration (nourishment and water provided by feeding tube) • cardiopulmonary resuscitation (CPR) • antipsychotic medication • electric shock therapy • antibiotics • surgical procedures • dialysis • transplantation • blood transfusions • abortion • sterilization.
5. You do not need a lawyer to draft this document.
6. You may choose any adult (18 years of age or older), including a family member or close friend, to be your agent. If you select a doctor as your agent, he or she will have to choose between acting as your agent or as your attending doctor because a doctor cannot do both at the same time. Also, if you are a patient or resident of a hospital, nursing home, mental hygiene facility, or a psychiatric unit of a general hospital there are special restrictions about naming someone who works for that facility as your agent unless the employee is related to you by blood, marriage or adoption.
7. When appointing someone as your healthcare agent, make sure that he or she is willing to act as your agent. You should discuss your health care wishes and this document with your agent. Be sure to give him or her a signed copy. Your agent cannot be sued for healthcare decisions made in good faith.
8. If you have named your spouse as your healthcare agent or alternate and you later become divorced or legally separated, the appointment is automatically canceled. However, If you would like your former spouse to remain your agent, you may note this in your document and date it or complete a new one naming your former spouse.
9. To change the person you have chosen as your health care agent or to change any instructions or limitations you have included in the proxy, simply complete a new proxy that overrides the previous proxy. Or, you may indicate that your Health Care Proxy expires on a specified date or if certain events occur. Additionally, you may cancel the authority given to your agent by telling him or her or your health care provider orally or in writing. Otherwise, the Health Care Proxy will be valid indefinitely.
10. Appointing a healthcare agent is voluntary. No one can require you to appoint one.
11. You may express your wishes or instructions regarding organ and/or tissue donation in this document.
Frequently Asked Questions
Why should I choose a healthcare agent?
Appointing an agent lets you control your medical treatment by:
• allowing your agent to make health care decisions on your behalf as you would want them decided;
• choosing one person to make healthcare decisions because you think that person would make the best decisions;
• choosing one person to avoid conflict or confusion among family members and/or significant others.
How do I appoint a healthcare agent?
All competent adults, 18 years of age or older, can appoint a health care agent and alternative agent by creating a Health Care Proxy. You don’t need a lawyer or a notary, just two adult witnesses who also sign and give their names and addresses and state that the principal appeared to execute the Proxy willingly and free from duress. Note that your agent and alternate agent cannot sign as a witness.
Can I appoint more than one healthcare agent at the same time?
No. You may, however, appoint an alternative agent.
Should I appoint an alternate healthcare agent?
Yes. Your first choice as health care agent may not available, willing or able to act when needed.
Who should I pick to be my healthcare agent?
The person you pick should be someone you trust with your life. A healthcare agent needs to be sophisticated enough to navigate the healthcare system. Healthcare institutions are often large bureaucracies. It sometimes takes significant time and effort to make sure that the right level of care is being provided to a patient. In addition, a healthcare agent needs to have the strength of character to make difficult decisions. Sometimes deciding what form of healthcare to provide to a person is not an easy choice. It requires someone to objectively assess the risks and benefits. For example, not everyone has the ability to tell a physician to stop providing care to a loved one even if they know with certainty that termination of life support is what the loved one would want. Moreover, a healthcare agent needs to have the persistence to obtain accurate information. It is especially important with regard to end of life decisions. Is the prognosis of the physician is correct? Is it appropriate to forego possible advances in medical technology that at least, theoretically, could occur in the near future. A healthcare agent needs to be able to evaluate information provided by health care professionals and obtain second opinions when necessary. Finally, if possible, you should choose as your healthcare agent a person who lives nearby or can quickly travel to your location. That way, your agent can meet with your health care professionals if necessary.
What decisions can my healthcare agent make?
Unless you limit your health care agent’s authority, your agent will be able to make any health care decision that you could have made if you were able to decide for yourself. Your agent can agree that you should receive treatment, choose among different treatments and decide that treatments should not be provided, in accordance with your wishes and interests. The Health Care Proxy does not give your agent the power to make non-health care decisions for you, such as financial decisions.
How will my healthcare agent make decisions?
Your agent must follow your wishes, as well as your moral and religious beliefs. You may write instructions in your Health Care Proxy or simply discuss them with your agent.
How will my healthcare agent know my wishes?
Have an honest discussion about your wishes with your healthcare agent. If your agent does not know your wishes or beliefs, your agent is legally required to act in your best interest. Because this is a major responsibility for the person you appoint as your healthcare agent, you should have a discussion with the person about what types of treatments you would or would not want under different types of circumstances, such as:
• whether you would want life support initiated/ continued/removed if you are in a permanent coma;
• whether you would want treatments initiated/ continued/removed if you have a terminal illness;
• whether you would want artificial nutrition and hydration initiated/withheld or continued or withdrawn and under what types of circumstances.
Can my healthcare agent overrule my wishes or prior treatment instructions?
No. Your agent is obligated to make decisions based on your wishes. If you clearly expressed particular wishes, or gave particular treatment instructions, your agent has a duty to follow those wishes or instructions unless he or she has a good faith basis for believing that your wishes changed or do not apply to the circumstances.
What if family disagreements occur?
You can avoid family disagreements. If you do not have an agent named, your doctors may not know which family members to listen to if they disagree about your care and whether and when to stop heroic medical procedures. Without an agent named, the only way for family to resolve disputes may be to go to court.
Can my healthcare agent be legally liable for decisions made on my behalf?
No. Your healthcare agent will not be liable for health care decisions made in good faith on your behalf. Also, he or she cannot be held liable for costs of your care, just because he or she is your agent.
Is a Health Care Proxy the same as a living will?
No. The Health Care Proxy allows you to choose someone you trust to make healthcare decisions on your behalf. A living will is a document that provides specific instructions about healthcare decisions. (although you may put such instructions in your Health Care Proxy). A Health Care Proxy, unlike a living will, does not require that you know in advance all the decisions that may arise. Instead, your healthcare agent can interpret your wishes as medical circumstances change and can make decisions you could not have known would have to be made.
May I use the Health Care Proxy to express my wishes about organ and/or tissue donation?
Yes. You may specify that your organs and/or tissues be used for transplantation, research or educational purposes. Any limitation(s) associated with your wishes should be noted in the proxy. Failure to include your wishes and instructions in your Health Care Proxy will NOT be taken to mean that you do not want to be an organ and/ or tissue donor.
Can my health care agent make decisions
for me about organ and/or tissue donation?
Yes. As of August 26, 2009, your health care agent is authorized to make decisions after your death, but only those regarding organ and/or tissue donation. Your health care agent must make such decisions as noted on your Health Care Proxy.
Who can consent to a donation if I choose
not to state my wishes at this time?
It is important to note your wishes about organ and/or tissue donation to your health care agent, the person designated as your decedent’s agent, if one has been appointed, and your family members. New York Law provides a list of individuals who are authorized to consent to organ and/or tissue donation on your behalf. They are listed in order of priority: your healthcare agent; your decedent’s agent; your spouse, if you are not legally separated, or your domestic partner; a son or daughter 18 years of age or older; either of your parents; a brother or sister 18 years of age or older; or a guardian appointed by a court prior to the donor’s death.
I have a Power of Attorney. Do I still need a Healthcare Proxy?
Yes. New York law requires separate documents for the Health Care Proxy and Durable Power of Attorney. However, the agent appointed by you in your Power of Attorney may, but need not be, the person who is the Agent in your Health Care Proxy.
Are other documents helpful to ensure your wishes are carried out?
Yes. You should consider having a Durable Power of Attorney for financial management so that your agent has power to provide funding for medical care and treatment. The agent appointed may, but need not be, the person who is the health care agent in your Proxy.
What should I do with my Health Care Proxy after it is signed?
Keep an original for yourself. Give a duplicate original to your agent, your doctor, your attorney and any other family members or close friends. Bring a copy with you if you are admitted to a hospital, rehabilitation hospital, or nursing home.