In addition to Wills and Trusts which cover scenarios when they pass away, clients should also focus on documents needed while they are alive. Health care documents are vital documents which cover making medical decisions. New York has a Health Care Proxy statute (Article 29-C of the New York Public Health Law (“PHL”)) which allows a client to designate someone as health care agent to act for him or her in connection with specified medical treatment and the decisions described, if the client is unable to act. The attending physician must make a determination that the “principal lacks capacity to make health care decisions.” PHL §2981(4). Such decision must be made in writing “to a reasonable degree of medical certainty” and when the decision must be made to withdraw or withhold life sustaining treatment, the physician must first consult with a second doctor. PHL §2983(1)(a). In order to ensure that the agent can make medical decisions such as to which hospital an ambulance should transport the principal, the Health Care Proxy can contain language authorizing the agent to do so. Without such language, the emergency responders will not be required to honor the agent’s authority to make such designation.

The client is naming an agent to make substituted health care decisions. These issues can cover medications, treatments, therapy, choosing doctors and any other issue connected with the client’s medical care. The Proxy must be signed and dated by the principal in the presence of at least two witnesses who are not named in the form and they shall state “that the principal appeared to execute the proxy willingly and free from duress.” (PHL §2981(2)(a)). No notarization is required. Good practice is for the client to also designate an alternate health care agent to act if the primary health care agent is unable to serve. PHL §2981(6)(a).

Having a Health Care Proxy is preferred, but there is some relief to knowing that even if the person does not have this crucial document, medical decisions can be made.

The statute also provides that one cannot name more than one agent at a time. One can imagine the scenario where two or more agents were named and they give conflicting advice to the doctor. The client can add precatory language that the principal desires that the agent consult with other named individuals before making decisions. We do not recommend requiring that the agent consult with others because such a requirement may prove impractical to honor and providing proof that the agent did in fact consult with these other named individuals may also prove to be difficult.

The requirements for the form and a sample form can be found at PHL §2981(5). New York does not require that the principal use this statutory form but New York does provide that the Health Care Proxy cannot be part of the Power of Attorney. PHL §2981(5)(e). Out of state forms are also valid in New York so long as the form was validly executed in the other jurisdiction. PHL §2990. The benefit to using the New York statutory form is that doctors and hospitals will be more familiar with the form and therefore, may be quicker to honor it.

The Family Health Care Decisions Act (FHCDA) can be found at PHL Article 29-CC and was added to the PHL effective June 1, 2010 to provide decision making ability when the client has no Health Care Proxy. This provision allows family members or friends to make health care decisions for an incapacitated person without a Health Care Proxy when such person is in a hospital or residential health care facility. FHCDA at PHL §2994-d(1) provides the order for people to act which may not conform to what a client would have chosen if the client had prepared a Health Care Proxy. Having a Health Care Proxy is preferred, but there is some relief to knowing that even if the person does not have this crucial document, medical decisions can be made.

Leslie Levin - New York Estate Lawyer - Non-Profit Attorney
Special Counsel
914 761 1300 Email
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