Health Care Proxy

A health care proxy lets you name a trusted person or persons to make health care decisions for you should you become temporarily or permanently unable to think for yourself for any reason, such as dementia, a stroke or a head injury. The person you empower with this decision-making responsibility is called your “agent.” We recommend that you also name a “successor agent” or “alternate agent” who can fulfill this responsibility if your primary agent is unavailable or cannot be contacted quickly enough in case of an emergency.

Your agent can then step into your shoes and make decisions about your care, such as which doctor, treatment or hospital is best for you. Upon your instruction, the agent is also empowered to make the important decision to stop life-extending treatments if there is no hope for your recovery. Under New York Health Care Proxy Law, any competent person age 18 or older (or if you are under 18, married, or you have a child), may make a health care proxy.

Some benefits of having a health care proxy:

• In an emergency, your trusted agent will know what your wishes are when making urgent decisions about whether you should undergo a risky surgery or other treatment decisions. Your agent will also know whether you would want heroic measures to keep you alive if there is no hope for you to be yourself again.
• You can avoid family disagreements. If you do not have an agent named, your doctors may not know which family members to listen to if they disagree about your care and whether to stop heroic medical procedures when there is no hope. Without an agent named, the only way for family to resolve disputes may be to go to court.

A health care proxy starts operating when an attending physician determines that you lack mental capacity to make health care decisions. This means 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 is not always final:

• The physician must tell 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. If you regain awareness, then you will resume decision making over your own care.

Make sure your agent is provided a duplicate original of your health care proxy and knows of any specific wishes with regard to your care. Unlike wills, you can do several duplicate original health care proxies so that your agent(s), successor agent(s) and others close to you will be able to find it in an emergency.

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

• By making another health care proxy that specifically supersedes or overrides the previous proxy;

• By telling the agent orally or in writing that you revoked the health care proxy; or

• By doing some other act that shows you want to revoke the health care proxy. This can mean physically destroying the proxy or telling those around you, including your doctor, that you have revoked your health care proxy.

Legal Editor: David A. Caraway, March 2015 (updated August 2020)