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A Health Care Proxy Guide for New York

Wednesday, October 21, 2020

In the event that you’re unable to express your wishes when it comes to your healthcare decisions, you would need a healthcare proxy document that names someone else as your agent, or proxy.


You would essentially designate a power of attorney, or a healthcare surrogate, who would communicate on your behalf when it’s time to make care or treatment choices.


The purpose of having a healthcare proxy is to make sure that you get the type of treatment that you want even if you’re not able to communicate it yourself due to disability or a health condition.


In this article, we will discuss all you need to know about the health care proxy laws in the state of New York.


We will cover the following topics:


  • Details about a health care proxy
  • Who can be a proxy?
  • What power does a healthcare proxy have? 
  • How to formulate a healthcare proxy document in NY? 
  • How much does a healthcare proxy cost? 


And much more. 


Let’s get started.

What is a health care proxy?


If you (or a family member who is an older adult) become unable to make healthcare decisions, even if it is temporary, then you have to think about who will make vital health decisions on your behalf.


Once you decide who will officially represent your health interests, then you have to create a health care proxy document to appoint them as your medical agent.


As we explained before, they will essentially act as your power of attorney.


But let’s discuss a few reasons/scenarios where it might be ideal for you to have someone represent your personal interests and preferences.


Why you may need a health care proxy


Here are a few reasons why you should strongly consider having a healthcare proxy.


Guidance for medical providers


Your doctor (or other healthcare provider) may look to your family for guidance for vital decisions if they can’t communicate with you directly.


If there aren’t clear instructions or boundaries set by you, then it might create confusion all around. 


Your family might wonder what is the best course of action. Even though they want the best for you, they might be uncomfortable deciding on your behalf, especially on sensitive medical matters.


In such cases, your doctor might be required to provide your treatment that you might have preferred to refuse.


If you have a health proxy in place, then he or she can refuse such treatment on your behalf. 


More control over your healthcare decisions


With a health proxy, you can still maintain control over your health in the following ways.


  • You pick someone familiar with your choices and preferences, and you allow them to make decisions on your behalf.
  • Avoid confusion for medical providers because they have a clear understanding of who to consult if necessary.
  • Avoid unnecessary and harmful confusion/conflict by appointing a point man or woman.

Disagreements within your family


It is vital that you have a health care proxy in place if your family has different views when it comes to your medical decisions. 


At the end of the day, you have the final say on your health decisions, and that shouldn’t change whether you’re able to communicate or not.


When does the health proxy take effect in New York?


One of the common misconceptions some people have about appointing a healthcare proxy is when it takes effect.


Some fear that by signing a proxy they are giving up control over their health right away. 


And even though you obviously trust your proxy’s judgement, knowledge, and intentions, you most likely still want to retain full control as long as you’re able to do so.


The good news is that in most states, including New York, you don’t simply give up control as soon as you announce an official proxy.


As long as you’re capable of making your own decisions, your doctor will continue asking you for your decisions, even if you have a proxy.


The only time your health proxy comes into play is when your doctor determines that you’re no longer able to communicate your wishes and preference about your medical care.


However, as soon as you regain your ability to communicate, you’ll take over from your proxy immediately, and your agent will have no effect anymore.

What to consider when picking your health proxy agent?


It goes without saying that you must pick someone you trust as your health proxy, as they might get access to your medical records if necessary. We’ll get into more specifics about who you can pick below.


But first, let’s look at some other things you should consider, besides trust, when choosing the person you want representing your health interests.


Knowledge about your health preferences


The person you choose as your health proxy must be familiar with your medical conditions. 


They should have an idea about the care and treatments your doctors are recommending, and if you have any preferences and objections about any potential treatments.


Make sure your health proxy is familiar with the following.


  • Your general views and attitude regarding life, health, death, and the dying process
  • Your feelings towards care that promotes comfort (palliative care)
  • How you feel about life-sustaining care, like artificial nutrition, hydration, etc.
  • Your preferences about any treatments that may be needed while you’re unconscious
  • Your religious beliefs and how strongly you believe them
  • How you feel about medical providers, nurses, nursing homes, etc.


If you’re going to trust someone to be your proxy, it might be a good idea to discuss these things with them, and maybe even get their input. 


And, of course, you should definitely consult with your doctor before making your final wishes known to your proxy. 


You should have a clear understanding of the options that are available to you, and the potential health consequences of the choices you make. That way you can make sure that you’re making an educated decision.


Willingness to respect your wishes


While you should definitely consult with your doctors and your loved ones about your treatment options, preferences, and potential consequences, ultimately the choice remains yours.


And you should pick a proxy who will be willing to stick to your wishes. They must be willing to honor your wishes even if it goes against their own opinions of what is best for you.


Logistics


Another thing to consider is logistics. How far does your proxy live from you, and your doctors, nurses, and other relevant parties. 


Are they going to be readily and promptly available if there is a time-sensitive issue that needs their presence?


For example, if you live in New York, and your proxy lives in Seattle, that might cause some problems if decisions need to be made in a hurry. Ideally, you’d want someone who lives close by, and is already familiar with your health conditions and medical providers.


Distance doesn’t need to be a deal breaker, but be sure that your proxy understands that they might need to book a flight on short notice if the situation arises.


Who can be a proxy?


You can pick anyone above the age of 18 to be your health proxy.


It could be a family member, a relative, a close friend, or really, any person above 18 you think would be right. 


Of course, be sure to discuss with them and check that they are willing to be your proxy. Also, take into consideration all the things we mentioned in the previous section.


Spouse as health proxy


You can certainly name your spouse as your health proxy.


But there’s one thing to keep in mind in the event that you later become divorced or legally separated.


Once you’re divorced/separated, by default, your ex-spouse can no longer remain your agent. 


If you’d like them to continue to act as your health proxy even if you get divorced/separated, then you must note that on the proxy form. 


Otherwise, you can complete a new form and name your previous partner as your proxy after you separate.

Can my doctor be my proxy?


Since you can pick anyone who is willing and above the age of 18, you can technically choose your doctor as your health proxy.


But in that case, if needed, your doctor will have to choose between acting either as your doctor or as your proxy. He or she cannot act as both at the same time.


For example, if your doctor has a medical opinion about a treatment, but knows you don’t approve of it, then as your proxy, your doctor will have to overrule his own opinion.


So, it’s certainly possible to have your doctor as a proxy, but keep in mind that it may potentially cause an issue if your wishes are contrary to his/her medical opinion.


If you’re living in a long term care facility, like a nursing home, there are restrictions about naming people within the facility as your proxy. Ask the staff in your specific facility about any restrictions that may apply.


Another thing to note is that your proxy can’t be one of your witnesses on the official proxy form (link below).


Health proxy document witness


The health proxy form in New York has a section where you must have two witnesses attest to the fact that everyone involved (you and the proxy) was of sound mind when the document was created and signed.


The witnesses must also be above the age of 18, and they have to be separate from the proxy, or the alternate proxy (more on that below).


Can you have 2 health care proxies? 


You may not have two separate health proxies. That would have the potential to create all sorts of confusions and conflicts between the two separate agents.


But what you can do is to name an alternate proxy. This person will act as your agent if, for some reason, the primary proxy isn’t available when needed.


We recommend you follow the same steps with your alternate proxy as your primary one. 


So, make sure they’re willing to stick to your wishes, they’re aware of your views and preferences, and that they can be available on a relatively short notice.


What power does a healthcare proxy have? 


As we explained before, a health proxy has the power to speak on your behalf only when you’re unable to do so yourself. 


And typically, a doctor has to determine that you’re not capable of speaking for yourself before the power of the proxy takes effect.


But when they do speak for you, they can do the following:


  • Refuse or accept treatment options from your medical providers.
  • Serve as the point person for medical providers and family members to avoid any conflict/confusion.
  • The power to consent to organ donations on your behalf (over other family members), if you don't make your wishes clear on the health proxy form.


How to become a healthcare proxy in NY?


As long as you’re above the age of 18, you’re eligible to serve as someone’s health proxy in New York.


In many cases,, you’ll find that a family member or a loved one may not even know about a health proxy.


And it's not only older adults or those with severe medical conditions that should consider a health proxy.


Young and healthy people should have health agents as well. 


While we never expect unfortunate incidents or accidents, you never know what can happen. And it’s always a good idea to assume control of your health decisions through a proxy in the event you’re unable to express them yourself.


With that in mind, if there is someone who you would live to be a proxy for, you can do the following.


  1. Bring it up to them and explain what a proxy is.
  2. Be sure they understand you will only have the power to make decisions if they are unable to do so.
  3. Discuss in detail all the things you need to know about them as their health proxy.
  4. Have them fill out the form.


While you’re at it, it might be a good idea to find a proxy for yourself as well, if you haven't already done so.

How do I write a healthcare proxy in NY? 


The good news is that you don’t have to do a whole lot of work to complete a health proxy document in New York.


All you need to do is download the PDF form and fill it out. Then you need to have the witnesses sign the document also. 


There are only a few parts to the form, as follows:


  1. Your proxy’s name, address, and other info.
  2. Your alternate proxy in the event the primary agent is unavailable.
  3. Your declaration of the proxy expiration date, or no expiration date.
  4. Optional limitations to your proxy’s decision making powers
  5. Your name and other vital information
  6. Optional organ/tissue donation instructions
  7. Witness section


The form is quite self-explanatory and there are detailed instructions included in the PDF.


If you still have questions, feel free to reach out to the NY Dept. of Health, and someone will assist you.


Making your wishes clear to your proxy


It is vital that your agent knows about your wishes when it comes to certain types of treatments to a reasonable level.


For example, if it is sensitive treatment like artificial nutrition and hydration, like through a feeding tube or IV line.


If your proxy is not reasonably confident about your wishes and views regarding such topics, then he or she might not be allowed to consent or refuse treatment on your behalf. 


Use the form to clarify as many details as possible about your preferences. Communicate them verbally to your proxy, or consider making a separate list for them.


If you’re not sure where to begin or what sort of treatment options may come up, you can schedule an appointment with your doctor.


Let him or her know that you’re trying to prepare a health proxy document and that you want to know what sort of situations may arise where someone could have to make a decision on your behalf.


Organ and tissue donation


There is a section in the proxy form where you can specify if you want to donate your organs or not. You can also specify certain organs that you’re willing to donate, and not the others.


If you don’t specify anything, then your proxy can consent/refuse donation on your behalf.



Does a healthcare proxy need to be notarized in New York? 


No, there is no specific need to notarize your health proxy document. 


But you can ask your attorney if he or she recommends that you get the document notarized for any reason, and you can follow their instructions. 

Do you need a lawyer for a health care proxy? 


You do not need a lawyer to complete a health proxy form in New York. 


You just need to find someone above the age of 18 who is willing to be your proxy, fill out the health proxy form in New York, and find two witnesses (above 18) who can attest to the fact that everyone was of sound mind when the form was filled out and signed.


That being said, if you already have an attorney who is handling your affairs (like your will and power of attorney, for example), then it might be a good idea to ask them to help you with your health proxy as well.


That way, they can coordinate to make sure that everyone (financial power of attorney, health proxy, etc.) is on the same page and everything works smoothly.

How much does a healthcare proxy cost? 


If you fill out the form yourself, then there should be no cost for the health proxy. 


But if you do decide that you want your attorney involved in the process, then it would cost you whatever your attorney bills you for the time spent working on it.


But stil, there is no cost specifically for the health proxy form in New York.



List of resources or groups that can help you set up health care proxy in NY 


Health proxy form PDF with instructions


Health proxy information courtesy of the New York State Senate


New York Dept of Health Proxy Information

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