If you could no longer speak for yourself in a hospital room, who would the doctors turn to, and how would they know what you actually wanted? That single question is the reason two very different documents exist in New York law, and I find that most clients use the terms “health care proxy” and “living will” interchangeably, when in fact they do two very different jobs.
A health care proxy is a document authorized by New York’s Public Health Law Article 29-C, and its purpose is simple: it lets you appoint a person, called a health care agent, to make medical decisions on your behalf the moment you lose the capacity to make them yourself. You can review the statute directly on the New York State Senate’s website. The proxy does not tell your agent what to decide. It tells the hospital who is allowed to decide. To be valid, you must sign it while of sound mind, in front of two adult witnesses, and I always recommend naming a backup agent in case your first choice is unreachable when the moment actually arrives.
A living will works differently, and here is where I see the most confusion. New York has no statute governing living wills at all. Instead, their authority comes from the Court of Appeals decision in the Matter of O’Connor, which held that a person’s end-of-life wishes are enforceable so long as they are proven by clear and convincing evidence. A living will is your own written statement, made while competent, describing which treatments you would want, or refuse, if you became terminally ill or permanently unconscious. It names no agent. It simply speaks for you directly.
I advise nearly every client to execute both documents together, not one or the other. The proxy gives your agent legal authority to act, and the living will gives that agent, along with your doctors and your family, clear evidence of what you actually wanted, which prevents the kind of guessing and disagreement I have seen tear families apart in intensive care waiting rooms. Without a proxy, New York’s Family Health Care Decisions Act steps in and assigns a surrogate from a fixed legal order, starting with a spouse, which may not reflect your actual wishes at all.
Neither document requires a courtroom, and both can be updated any time your circumstances change. That is why I recommend addressing this now, while you are healthy enough to think clearly about it, rather than leaving the decision to a hospital’s default rules.
If you want to make sure your medical wishes and choice of decision-maker are properly documented and legally protected, contact us today at (347) 766-2685 for a free phone consultation.
Contributed by Dan Rose, a local business writer specializing in Advance Directive and Health Care Planning services in New York City.
