Reviewed by Natasha H. Applewhite, Esq.
Key Takeaways
- New York calls this a health care proxy, separate from a financial power of attorney.
- Two adult witnesses are required. A notary is not.
- Write down your wishes about feeding tubes, or your agent cannot decide about them.
- Your agent has no authority until a doctor says you have lost capacity.
Unfortunately, the future is full of uncertainties that make it scary to think about. However, it’s essential to take the time to plan for what could happen. For example, you likely know you should have a will created. You may not have considered what happens if you cannot make medical decisions for yourself. Taking the time to establish a medical power of attorney is vital to protecting your best interests. If you’re unfamiliar with the process of appointing a power of attorney, you’ll want to keep reading to discover how a Long Island estate planning lawyer can assist you with this.
What Is a Medical Power of Attorney?
When you grant someone medical power of attorney, also referred to as a health care proxy in New York, you allow them to make medical decisions on your behalf if you are unable to do so. For example, if you are injured and in a coma, have a stroke and can no longer communicate, or have a degenerative disease in which you cannot understand your decisions, the power of attorney allows a person you choose to make these decisions.
The New York term is worth using because the document has its own statute. A health care proxy is created under Public Health Law Article 29-C, and the person you name is your health care agent.
It is necessary to carefully consider who you would like to serve as your agent. For example, if your child is a nurse or doctor, you may feel it’s in your best interest to appoint them to this role as they have healthcare knowledge. Regardless of who you choose, it’s also important to understand that you should thoroughly discuss your wishes with the agent. This is vital, as they should know what treatment options you’d like, what your end-of-life care should look like, and any medications you do not want to have.
This Is Not the Same as a Financial Power of Attorney
It’s important to understand that these are two separate documents that serve two separate functions, and having one does not provide the other. Financial powers of attorney handle money, property, bank accounts, taxes, bills, and other finances. Healthcare powers of attorney, on the other hand, exclusively handle making medical decisions. Most people need both forms of POA, and often appoint two separate individuals for these roles.
Without One, Your Family May Not Be Who Decides
In the event you are unable to communicate your wishes, and no one is named, doctors will rely on your legal next of kin. This could mean an estranged sibling or spouse whom you are separated from is responsible for making this decision on your behalf.
How Do I Appoint Someone for this Role?
If you have decided what kind of care you’d like to receive and who you would like to act as your agent, you must go through the proper channels to ensure your decision is legally binding. You should enlist the assistance of an attorney to ensure the forms are filled out and filed properly.
To grant this authority, you must complete the proper forms. You must also have two witnesses, both of whom are over 18 and neither of whom is your appointed and alternate agents, to sign the document. Once complete, you should make copies to hand to your agent, alternate proxy, and doctor. Be sure to store the original copy of the document in a safe location like a fireproof lockbox or with your attorney.
There are two important misconceptions when appointing a medical power of attorney in New York. First and foremost, you do not need to have the document notarized. The only requirement is that you have two adult witnesses present when signing the document. Additionally, as of 2020, §2981(2-a) allows witnesses via audio-video technology, so long as they can interact with you directly, present photo identification if they are not already known to you, and receive a legible copy of the signed proxy within twenty-four hours. This matters if the people you trust most live in a different location.
Say What You Want About Feeding Tubes and IV Fluids
This is the one part of a New York proxy that most people miss, and it is the part that matters most when it matters at all.
Under Public Health Law § 2982, your agent generally decides according to your wishes, and where your wishes are unknown, according to your best interests. Artificial nutrition and hydration are the exception. If your wishes on that subject are not reasonably known and cannot be determined with reasonable diligence, your agent has no authority over those measures at all. They cannot fall back on a best-interests judgment the way they can for every other decision.
The statutory proxy form does carry a note warning about this matter, and allows space to dictate your wishes. Use it, or clearly state it in a living will. However, at minimum, you should have a direct conversation with your agent about your wishes. A proxy that does not say anything on this point will render your agent powerless at a time when your loved ones are facing an incredibly difficult decision.
A Living Will Is a Separate Document
New York does not have a living will statute, which comes as a surprise to most. What the state provides by statute is the proxy and the ability to name who will make your decisions. A living will, which allows you to record your wishes, is recognized by New York but not governed by any statute here. As such, the two work in conjunction. The proxy appoints someone to make your decisions, and the living will tells them and your providers what you would have chosen if you were able to do so.
When the Proxy Takes Effect
Appointing a healthcare proxy does not impact who makes your healthcare decisions today. Your agent will only have authority when your attending physician determines that you have lost the ability to make healthcare decisions. Until that determination is made, you retain the right to make your own medical decisions, regardless of how strongly anyone feels about the matter.
Contact an Experienced Estate Planning Attorney Today
Though there are many uncertainties in the future, one thing you can do to help provide peace of mind is to create a medical power of attorney. At Barrows Levy PLLC, our dedicated estate planning team has the experience you need to help you through this process. Contact us today to learn more about how we can assist you.
