Healthcare Proxy in New York

Understanding the Importance of Healthcare Proxies in New York

A healthcare proxy is one of the most essential components of an effective estate plan. As we age or deal with illness, it is natural to think about how you can manage your healthcare decisions if you become incapacitated.

But healthcare proxies are not only for the elderly or for people diagnosed with serious illnesses. Sudden accidental injuries can also strike young adults. A healthcare proxy enables you to designate a trusted individual to communicate your healthcare decisions to healthcare providers if you cannot make or communicate those decisions yourself.

This blog post explains how a healthcare proxy works, how it is created according to New York law, and what happens when someone becomes incapacitated without having created a healthcare proxy.

What Is a Healthcare Proxy in New York?

A healthcare proxy is a legal document recognized under New York law that allows a person to authorize another individual to act on their behalf regarding healthcare decisions if they are unable to do so. Conveying this power to another person (the healthcare agent or proxy) is a significant act that must be considered carefully.

A healthcare proxy can be drafted with terms specifying the particular care or treatment that you want to be provided. You may also direct that certain treatments or procedures are not performed. The individual who you designate to act as your agent in the event that you are incapable of acting or speaking for yourself will be bound to follow the instructions that you specified.  

However, there is no requirement that specific instructions be included in the proxy. Instead, the proxy may entrust your healthcare agent to use their own judgment about what medical treatment or procedures are in your best interest.

Creating a Valid Healthcare Proxy Under New York Law

Article 29-C of New York’s Public Health Law (PHL) provides the detailed manner in which a healthcare proxy must be created.

Every adult is presumed to be competent to appoint a healthcare agent by executing a healthcare proxy unless they were adjudged incompetent or a guardian was appointed for them by the Surrogate’s Court.

The law requires strict compliance with the specific procedures that must be followed to create a valid healthcare proxy:

  • A Competent adult must execute a healthcare proxy in the presence of two adult witnesses,
  • Both witnesses must also sign the proxy,
  • Neither witness can be the person named as the healthcare agent,
  • The witnesses shall state that the principal was present and appeared to execute the proxy freely, of sound mind, and without duress,
  • A third person may sign the proxy for the adult if they are unable to do so, if the adult so directs and the third person signs in the presence of the adult.

The law provides a method for adults residing in mental hygiene facilities and mental hospitals to sign healthcare proxies while assuring that at least one of the two witnesses must be a healthcare professional or a person not affiliated with the institution.

Protection of Long-Term Care Residents and Those Applying for Admission

Healthcare proxies convey significant power to the healthcare agent who exercises  control over the principal’s treatment and the facility where they receive treatment. For this reason, New York law prohibits any person from being named a healthcare agent who is, at the time of the signing of the proxy instrument, an administrator, operator, or employee of a healthcare facility where the principal resides, or  where the principal is applying for admission.

This restriction prevents those who would profit from the person designating them as their healthcare agent. An exception to the rule applies when the administrator, operator, or employee is a relative of the person executing the healthcare proxy.

Duration of a Healthcare Proxy in New York

A healthcare proxy can be drafted with an indefinite duration, or it may be limited to a specific time frame, or the occurrence of some precondition. For example, if someone is planning to undergo a serious surgical procedure, they may use a limited healthcare proxy to name an agent to make decisions about their medical treatment for a specific number of months. The proxy can also be drafted to become effective only upon the occurrence of a condition, such as when a doctor declares the principal to be incapacitated.

Healthcare Proxy NY
If no family member is available or willing to assume the next of kin role, medical professionals cannot provide nonemergency medical treatment without the consent of a responsible party.

Any healthcare proxy may be revoked by its principal at any time. If the proxy has been distributed to care providers, the revocation must also be provided to those same providers to alert them that the agent is no longer authorized to offer or withhold consent for treatment, or to propose a form of care or treatment on behalf of the principal.

What Happens When Someone Becomes Incapacitated without a Healthcare Proxy?

If you become incapacitated through illness or an accidental injury without a healthcare proxy in place, healthcare providers and hospitals will seek consent from your next of kin. However, if no family member is available or willing to assume that role, medical professionals cannot provide nonemergency medical treatment without the consent of a responsible party.  

The New York Surrogate’s Court may need to appoint a guardian – a very expensive and cumbersome process – to make decisions about your healthcare without knowing you, what care you prefer to receive, or the care you would refuse.

Consult with an Experienced Healthcare Proxy and Estate Planning Attorney Today

It’s impossible to predict when someone will become incapacitated. Young adults and elders can be stricken without warning and left unable to make decisions or communicate their preferences about the healthcare they receive.

The estate planning and elder law attorneys at Ely J. Rosenzveig & Associates have been guiding individuals and families through the process of creating healthcare proxies, living wills, trusts, and other estate planning strategies for decades. Their trusted advice and professional document preparation deliver the control and peace of mind that their clients want for their families and themselves.

If you need more information about a healthcare proxy or another topic involving New York estate planning, or elder and special needs law, contact Ely J. Rosenzveig & Associates.

New York’s Estate Planning and Elder Law Attorneys

Ely J. Rosenzveig & Associates
Call 1.914.816.2900 or email us at: [email protected]

Ely J Rosenzveig
Ely Rosenzveig

Ely J. Rosenzveig practices principally in the fields of elder law, trusts & estates, tax planning, employment law, and mediation. He has extensive experience in federal and New York State tax law, and has successfully represented a wide range of clients on FBAR & FATCA compliance issues. Ely also practices employment law, with a particular emphasis on age and disability discrimination, negotiating compensation agreements, and severance issues. With his extensive background in the law, his experience as a congregational rabbi, and his specialized training in Mediation at Harvard Law School, Ely is also available as a professional mediator to help facilitate optimal solutions in matters ranging from family and estate disputes to multi-party commercial issues.

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