Having a health care proxy (as well has a durable power of attorney) in place is particularly important for people who are beginning to show signs of dementia, Alzheimer’s Disease or who suffer severe brain injury due to stroke or other trauma. People in the early stages of dementia/Alzheimer’s most likely still have the capacity to execute a power of attorney. As dementia/Alzheimer’s progresses, the patient becomes increasingly unable to care for himself. Making appropriate legal arrangements before incapacity allows the individual to participate in the decision-making process and to retain a sense of control in life. Not having these arrangements means that others will make decisions for you. That can include having a guardian appointed for you after a guardianship proceeding in a New York court.

Under the New York Health Care Proxy Law, any person over the age of 18 (or if under 18, a person who is married or the parent of at least one child), may make a health care proxy. The proxy law presumes you are competent for these matters unless you have been declared otherwise by a judge or if a guardian has been lawfully appointed to oversee healthcare decisions for you.

• If you become incapacitated suddenly, someone you trust and who knows what you want will already be in place to make urgent decisions that may save your life or, in the case you have instructed otherwise, avoid drawn out treatment you don’t want.
• You can avoid family discord: If you think various family members will disagree about what health care decisions to make for you, you can appoint a particular family member or a friend you trust to unburden the rest of the family and avoid disputes.

Your health care proxy activates when an attending physician determines that you lack capacity to make health care decisions—that is, that you lack “the ability to understand and appreciate the nature and consequences of health care decisions,” and are unable to reach an informed decision about health care treatment options, including the benefits, risks, and alternatives of each option. Note that the physician’s initial decision isn’t always final:

The physician must inform you orally and in writing of the decision that you lack competency. If you say you are still competent to make decisions, there is a presumption that you are competent, unless a court determines otherwise;

The physician must continuously check to determine if you continue to lack capacity before complying with your agent’s decisions on matters that were not part of the initial determination that you lacked capacity.

Note that it is important to make sure your agent knows you have made the health care proxy; a proxy is useless if the agent is unaware of it and/or cannot demonstrate to health care providers that you have appointed an agent. You should give your agent a copy of the proxy.

As long as you are competent, you may revoke your health care proxy in any of the following ways:

• By executing a subsequent proxy;
• By notifying the agent orally or in writing that you have revoked the proxy; or
• By engaging in any other act that indicates your intent to revoke the proxy. This can include tearing or burning the proxy or telling everyone you know, including your doctor, that you have revoked your health care proxy.

• Consider who you trust enough to name as your agent and make sure that person is willing to undertake the responsibility.
• A good health care proxy form is available at the New York State Department of Health website. This is an important form, and if you don’t otherwise need to see a lawyer about estate planning, you can fill one out and sign it in front of witnesses.
• If you have other estate planning needs to complete along with the health care proxy, get in touch with an experienced estate planning or elder law lawyer.