What the rule says
New York's Health Care Proxy Act, codified at New York Public Health Law § 2980 et seq., establishes the Health Care Proxy as the standard document for designating an agent to make health care decisions on a principal's behalf when the principal lacks capacity.
The Health Care Proxy:
- Designates a primary agent and can name alternates - Becomes effective when the principal lacks capacity to make health care decisions - Authorizes the agent to make most health care decisions, including decisions about life-sustaining treatment - Continues in effect indefinitely unless revoked or modified
New York's framework is distinctive in keeping the health care proxy separate from the financial power of attorney. The Statutory Short Form Power of Attorney governs financial matters only and does not authorize health care decisions. A New Yorker who wants both an agent for finances and an agent for medical decisions must execute both a SSF POA and a Health Care Proxy.
Execution requirements
A valid New York Health Care Proxy must be:
- Signed by the principal in the presence of two adult witnesses, OR - If the principal cannot sign, signed by another adult at the principal's direction in the principal's presence and in the presence of two adult witnesses
The two witnesses cannot be the agent. There is no notarization requirement; witnessing alone is sufficient.
New York Public Health Law § 2981(7) provides a model form that, when followed, satisfies the statutory requirements. The form is widely available from hospitals, physicians, the New York State Department of Health, and other sources.
What the agent can decide
Under PHL § 2982, the health care agent has authority to make any and all health care decisions on the principal's behalf, subject to certain limits:
- The agent must follow the principal's wishes if known. If the principal expressed specific wishes about a particular treatment or category of care, the agent is bound to follow them. - The agent must act in the principal's best interest if wishes are unknown. When the principal's wishes about a specific decision are not known, the agent decides based on what would best serve the principal's interests. - Artificial nutrition and hydration are special. Under PHL § 2982(2), the agent's authority to direct withholding or withdrawing of artificial nutrition and hydration applies only if the agent has reasonable knowledge of the principal's wishes regarding these specific procedures. This is a New York-specific limitation; the agent cannot withdraw artificial nutrition and hydration based solely on a general best-interest determination. - Medical providers can object on conscience grounds. A specific physician or hospital can object to following the agent's direction on conscience grounds, but must facilitate transfer to another provider.
The artificial nutrition and hydration limitation is one reason many New Yorkers also execute a living will or include specific provisions in the Health Care Proxy addressing end-of-life preferences.
What happens without a Health Care Proxy
New York's Family Health Care Decisions Act (FHCDA), codified at PHL § 2994 et seq., establishes a surrogate-decision-maker hierarchy when no health care proxy has been executed:
1. A guardian of the patient with health care authority 2. The patient's spouse or domestic partner 3. A son or daughter of the patient who is at least 18 4. A parent of the patient 5. A brother or sister of the patient who is at least 18 6. A close friend of the patient
The FHCDA was enacted in 2010 to address the gap that previously existed for incapacitated New Yorkers without health care proxies. Before the FHCDA, family members had limited authority to make health care decisions for incapacitated patients without a proxy, and the law was uncertain about end-of-life decisions in particular.
Despite the FHCDA, an executed Health Care Proxy still provides clearer authority than relying on the surrogate hierarchy:
- No disputes about who the surrogate is. The proxy designates a specific agent; the FHCDA hierarchy can produce disputes. - Cleaner authority for end-of-life decisions. The proxy can include specific guidance about life-sustaining treatment. - Out-of-hierarchy chosen family. The proxy can name anyone the principal chooses; the FHCDA hierarchy is limited to enumerated relatives and close friends.
Coordination with living wills
New York does not have a comprehensive statutory living will form like Florida or California. Living wills are recognized through case law (notably the Court of Appeals' decisions in *In re Westchester County Medical Center (O'Connor)* and *In re Eichner*) and through provisions of the Health Care Proxy that can include specific instructions.
Many New Yorkers include a living-will-type statement of preferences within their Health Care Proxy form, addressing:
- Use or withdrawal of life-sustaining treatment in cases of terminal illness, persistent vegetative state, or other specified conditions - Specific treatments the principal does or does not want - Artificial nutrition and hydration preferences - Other end-of-life preferences
A standalone living will is not a fully recognized statutory document in New York, but a Health Care Proxy that includes specific instructions can serve a similar function.
What you can do about it
For New York residents:
- Execute a Health Care Proxy using the statutory form under PHL § 2981(7) or a substantially similar document. - Designate a primary agent and at least one alternate. A single agent who is unavailable at the moment of need leaves the proxy without an effective decision-maker. - Address artificial nutrition and hydration. If the principal has preferences about this specific treatment, the proxy should include them; otherwise the agent's authority is limited. - Discuss preferences with the agent. A written proxy is more effective when the agent has had explicit conversations about the principal's values and wishes. - Provide copies to the agent, primary physician, and key family members. - Update periodically. Major life events warrant review.
Who this affects most
The Health Care Proxy is most consequential for:
- New York adults who have not executed a proxy and rely on FHCDA surrogate authority - Patients facing major medical decisions where family members are divided - Anyone with strong preferences about artificial nutrition and hydration, given New York's specific limitations - LGBTQ+ individuals or others whose chosen family may not match the FHCDA hierarchy - Those with terminal or serious illness for whom end-of-life decisions are foreseeable
New York's keeps health care decision-making separate from financial decision-making. A complete advance care plan in New York requires both a Health Care Proxy and a Statutory Short Form Power of Attorney.