Health care proxy in New York: how it works and how to sign
The short answer
In New York, a medical power of attorney is called a health care proxy. You name a health care agent and sign in front of two adult witnesses. No notary is needed, and your agent can't be a witness. If you name nobody, a family member or close friend may decide from a list set by law.
If you were in the hospital and couldn't speak, who would talk to the doctor? In New York, the answer starts with one short document: the health care proxy.
This page explains how the proxy works, how to sign it, and what happens if you never fill one out. It is part of our guides to estate planning rules by state. Most states call this document a medical power of attorney; New York uses its own name.
What is a health care proxy in New York?
A health care proxy is the document. The person you name in it is your "health care agent" (PHL 2981). Your agent makes medical decisions for you if you can't make them yourself.
Your agent has to decide according to your wishes, including your religious and moral beliefs (PHL 2982). That makes your agent a fiduciary in the everyday sense: legally required to act in your interest and follow what you wrote.
The law even includes a sample form, titled "Health Care Proxy." Using it is optional, but it is a clear, simple place to start.
How do I sign a health care proxy in New York?
The signing rules are lighter than for a financial power of attorney. Here is the checklist (PHL 2981):
| Step | What New York requires |
|---|---|
| Who signs | You, as an adult, sign and date it |
| Witnesses | Two adult witnesses, who also sign |
| What witnesses state | That you appeared to sign willingly and free from duress |
| Notary | Not required |
| Who can't witness | The person you name as your agent |
That last line is the one to remember. Ask two other adults to witness, such as a neighbor and a friend, not the person you are naming.
Who can I name as my health care agent?
Almost any adult you trust. The statute adds a few limits (PHL 2981):
- An operator, administrator or employee of a hospital generally can't be named by a patient of that hospital. Relatives are an exception.
- Someone already serving as agent for ten people generally can't be named. Close family is an exception.
Beyond the rules, pick someone who will pick up the phone, stay calm in a hospital hallway, and follow your wishes even when they would choose differently. Our post on how to choose a medical power of attorney has a fuller list of questions. Name a backup too.
Does New York have a living will?
Not as a separate statute. New York has no law that creates a "living will" document the way it creates the health care proxy (PHL 2982).
Written wishes still matter a great deal, though. Two rules show why:
- Your agent follows your wishes. The law requires it, so the more you write down, the less your agent has to guess.
- Feeding tubes need your known wishes. Your agent can decide about artificial nutrition and hydration only if your wishes on that subject are reasonably known. Otherwise, your agent lacks that authority.
So say something about feeding tubes, in writing, and tell your agent. Our post on writing down your treatment preferences can help you put it into words. The national comparison in health care power of attorney vs living will explains how the two fit together.
Who decides if I never sign a health care proxy?
New York has a law for this, the Family Health Care Decisions Act. When an adult patient lacks capacity and has no health care agent, one person from the highest available group serves as surrogate, in this order (PHL 2994-d):
- A court-appointed guardian authorized to make health care decisions.
- A spouse (if not legally separated) or domestic partner.
- An adult son or daughter.
- A parent.
- An adult brother or sister.
- A close friend.
A person higher on the list may designate someone else on the list, as long as nobody in a higher group objects.
Can a close friend decide?
Yes, but only last, and only if nobody higher is reasonably available, willing and able. A "close friend" is anyone 18 or older who has kept in regular enough contact to know your activities, health and beliefs. They must give the attending doctor a signed statement saying so (PHL 2994-a).
That can be a cousin or a niece too, since relatives outside the higher groups count as close friends. "Domestic partner" is also defined broadly.
Where does this list apply?
The list applies to decisions in a hospital, which the law defines as a general hospital, a nursing home (a residential health care facility) or hospice. Hospice decisions are covered wherever they are made (PHL 2994-a, PHL 2994-b). It does not apply once you have a health care agent with authority.
Here is a typical case, a composite. Ruth is 71 and lives in Rochester. Her closest person is a friend from church who drives her to appointments. Without a proxy, that friend would come last, behind a brother in Arizona she rarely speaks to. With a proxy, Ruth simply names her friend.
That is the quiet power of the document. You decide, rather than the list. Other states use different lists; our default decision-maker laws by state shows how they compare.
What about earlier wishes I've already stated?
The Family Health Care Decisions Act gives weight to a patient's prior decision to withhold or withdraw life-sustaining treatment. It counts if you made it in writing. It also counts if you said it during a hospital stay in front of two adult witnesses, one of them a health or social services practitioner at the hospital. Providers must record it in your chart (PHL 2994-d).
Writing it down is simpler and clearer than relying on the second route.
Where does Kinly fit?
A Kinly membership includes a medical power of attorney written for your state, along with a will, a revocable trust and a financial power of attorney. Members choose who serves in each role and in what order. The team on call keeps your plan on file and can be reached 24/7 through the number on your membership card.
For money matters, New York uses a different document; see our New York power of attorney guide. For what happens to your estate, see New York probate and small estates.
Common questions
Does a New York health care proxy need a notary?
No. It needs your signature and date, plus two adult witnesses who sign and state that you signed willingly and free from duress (PHL 2981).
Can my health care agent be a witness?
No. The person you appoint as agent can't serve as one of the two witnesses. Choose two other adults.
Who makes medical decisions in New York if there is no health care proxy?
Under the Family Health Care Decisions Act, a surrogate is chosen from a list: a guardian, then a spouse or domestic partner, an adult child, a parent, an adult sibling, and last a close friend who signs a statement (PHL 2994-d). It applies in hospitals, nursing homes and hospice.
Can my agent decide about a feeding tube?
Only if your wishes about artificial nutrition and hydration are reasonably known. If they aren't, your agent lacks that authority (PHL 2982). Writing your wishes down solves this.
Sources
This page is general information, not legal or financial advice. Laws vary by state.