A health care proxy is a legal document that designates another person (your “health care agent”) to make medical decisions on your behalf if you lose the capacity to make them yourself. In New York, the health care proxy is governed by Public Health Law Article 29-C (Sections 2980 through 2994).
Without a health care proxy, no one has automatic legal authority to make medical decisions for an incapacitated adult. Not a spouse, not a parent, not an adult child. Hospital staff may consult family members, but the family has no binding decision-making power without either a health care proxy or a court-appointed guardian.
Execution Requirements
Under Public Health Law Section 2981, a valid health care proxy must meet the following requirements:
In writing. The proxy must be a written document.
Signed and dated by the principal. The person creating the proxy must sign it (or direct another person to sign on his or her behalf).
Witnessed by two adults. Two witnesses must sign the proxy, confirming that the principal appeared to execute the document willingly and free from duress. The agent cannot serve as a witness.
No notarization required. Unlike a power of attorney, a health care proxy does not need to be notarized.
The proxy takes effect only when a physician determines that the principal has lost capacity to make medical decisions. It does not take effect simply because the principal is hospitalized or ill; the principal must actually lack decision-making capacity.
Who Can Serve as Agent
Any competent adult can serve as a health care agent, with one exception: an operator, administrator, or employee of a hospital or residential health care facility where the principal is a patient or resident generally cannot serve as the health care agent, unless that person is related to the principal by blood, marriage, or adoption.
The principal should name a successor agent in case the primary agent is unavailable or unable to serve.
What the Agent Can Decide
The health care agent has authority to make any medical decision that the principal could have made, including decisions about surgery, medication, diagnostic tests, nursing care, and end-of-life treatment.
The agent must make decisions consistent with the principal’s known wishes. If the principal’s wishes are not known, the agent must act in the principal’s best interest. This is why it is important to discuss your health care preferences with your agent before you need the proxy to take effect.
End-of-Life Decisions
A health care agent can consent to the withdrawal or withholding of life-sustaining treatment, including artificial nutrition and hydration, if the agent reasonably concludes that the principal would have wanted that decision under the circumstances, or if the treatment would be an extraordinary burden given the principal’s condition.
Under Public Health Law Section 2982(2), the agent cannot make decisions about life-sustaining treatment unless the agent has “reasonable knowledge” of the principal’s wishes regarding such treatment. This knowledge can come from conversations with the principal, written instructions in the proxy or a separate document, or the principal’s religious or moral convictions.
This is the strongest argument for combining a health care proxy with a living will.
Health Care Proxy vs. Living Will
A health care proxy and a living will serve different functions.
A health care proxy appoints a person to make real-time medical decisions. The agent can respond to circumstances as they develop, consult with physicians, weigh options, and make judgment calls. The proxy is flexible because the agent makes decisions in context.
A living will is a written statement of the principal’s wishes regarding end-of-life treatment. It addresses specific scenarios: whether the principal wants life support if terminally ill, whether artificial nutrition should be continued if there is no hope of recovery, and similar decisions. A living will provides guidance, but it cannot anticipate every scenario.
New York does not have a living will statute, but living wills are recognized and enforceable under New York common law. Most estate planning attorneys recommend executing both: the health care proxy names the person, and the living will gives that person direction.
Revocation
A health care proxy can be revoked at any time, by any method that communicates the principal’s intent to revoke. This includes a written revocation, an oral statement to the agent or a health care provider, or the execution of a new health care proxy (which automatically revokes any prior proxy).
Special Considerations for Married Couples
Although New York law does not require spouses to name each other as health care agents, most married couples do. The important planning step is to name a successor agent in case the spouse is also incapacitated or unavailable. Adult children, siblings, or close friends are common successor choices.
Couples should also discuss their wishes with each other in detail. The agent’s legal obligation is to follow the principal’s wishes, not to impose the agent’s own preferences. These conversations, while difficult, are the most important part of health care proxy planning.
HIPAA Authorization
A health care proxy does not automatically grant the agent access to the principal’s medical records. Federal privacy law (HIPAA) may require a separate authorization for the agent to access medical information. Most estate planning attorneys include a HIPAA authorization as part of the health care proxy package, or as a standalone document.
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