Health care proxy requirements in New York

Which document this is

New York does not have a living will statute. The only advance directive created by state law is the Health Care Proxy, a document that lets you name a health care agent to make medical decisions if you cannot make or communicate them yourself. If you also want to write down your own treatment wishes, such as whether you want to be kept on a ventilator, the proxy is where they belong: the statute says a health care proxy may include the principal’s wishes or instructions about health care, and the model proxy printed in the law leaves a blank for exactly that. What New York does not give those wishes is a statute of their own. Their weight comes from elsewhere: courts treat a person’s own clear statement of their wishes, written or spoken, as evidence of what they wanted, under a standard the New York Court of Appeals set in 1988. The stronger and more specific that evidence, the more weight it carries.

Practically, most people write their instructions into the proxy itself or attach a page to it. Either way the instructions are not a separate legal document with their own signing rules, and writing them does not cancel the proxy; the proxy is what New York law actually governs, so that is where the signing rules below apply. If you have no proxy and nothing that counts as clear evidence of your wishes, New York’s Family Health Care Decisions Act lets your family, in a set order, decide for you instead. Myend’s free Healthcare Directive builds both pieces, the proxy and your written wishes, into one document.

Who can make a health care proxy in New York

You need to be at least 18, or you qualify earlier if you are married or are the parent of a child. Beyond the age line, New York asks that you understand what you are signing: what a health care agent does, and that you are choosing one for yourself. That is a practical judgment your witnesses, and later your agent and your doctors, can make. It is not a formal medical exam.

New York’s proxy law calls you the principal once you sign, the term you will see printed on the document itself and in the citations on this page. Your agent only has authority over decisions you would otherwise make for yourself; naming one does not hand over control while you are able to speak for yourself.

Signing your Health Care Proxy

1. 1You sign

   You sign and date the proxy, or direct someone else to sign it for you in your presence.

2. 2Two witnesses sign

   Two adult witnesses watch you sign and then sign it themselves. The person you are naming as your agent cannot be one of them.

3. 3No notary needed

   New York does not ask for a notary. Two witnesses are what make the proxy valid.

Two rules narrow who can witness. If you live in a psychiatric facility operated or licensed by the Office of Mental Health, at least one witness has to be unconnected to that facility, and if the facility is also a hospital, at least one witness has to be a qualified psychiatrist or psychiatric nurse practitioner. If you live in a facility for people with developmental disabilities, one witness has to be unconnected to it and the other has to be a physician, nurse practitioner, physician assistant, or clinical psychologist who meets specific criteria. Neither rule applies to most signers.

New York also allows remote witnessing over live audio-video, for either or both witnesses, if you show valid photo identification on the call, the witness can see and interact with you directly, and the witness signs and sends back a legible copy within 24 hours. Your written instructions, if you attach any, do not carry their own witness requirement under New York law; signing them in front of the same two witnesses is simply good practice.

Naming your health care agent

Almost any competent adult you trust can be your agent. New York rules out three groups. An operator, administrator, or employee of a hospital where you are currently a patient, a resident, or an applicant for admission cannot be your agent, unless that person is your relative by blood, marriage, or adoption. Read “hospital” broadly here: New York’s definition takes in nursing homes, hospices and mental hygiene facilities as well as general hospitals. A physician, physician assistant, or nurse practitioner cannot serve as your agent and also act as your treating practitioner once the proxy takes effect. And a person already acting as health care agent for ten or more other people cannot take you on as an eleventh, unless they are your spouse, child, parent, sibling, or grandparent. That last rule targets professional guardians who collect appointments; ordinary family and friends are never affected by it.

Your agent can make the health care decisions you would otherwise make yourself, once you cannot: consenting to or refusing treatment and choosing among reasonable options, following your wishes where they are known and your best interests where they are not.

So tell your agent what matters to you before you need them to act, and put the feeding-tube question in writing. New York gives the agent authority, not a script.

When your proxy takes effect

A health care proxy sits unused while you can make your own decisions. Your agent’s authority starts when your attending practitioner, the physician, physician assistant or nurse practitioner with primary responsibility for your care, determines that you lack the capacity to make health care decisions. That determination has to be in writing, has to give the cause, nature, extent and probable duration of the incapacity, and goes into your medical record. Before anyone withholds or withdraws life-sustaining treatment on your agent’s say-so, a second physician, physician assistant or nurse practitioner has to be consulted to confirm the finding, and that consultation goes in the record too. A physician who is also your agent cannot be the one who makes the call. Until all that happens, you keep deciding for yourself; your agent has no say.

Changing or cancelling your proxy

You can revoke a health care proxy at any time, and New York does not ask for a form to do it. Telling your agent or a health care provider, in person or in writing, is enough. So is any other act that clearly shows you mean to cancel it, such as tearing it up, or simply signing a new proxy, which replaces the old one automatically. If you named your spouse as agent and later divorce or legally separate, that appointment ends on its own unless your proxy specifically says otherwise. Once your provider knows about a revocation, they are required to note it in your record and let your agent and staff know.

Making sure it can be found

New York generally has no statewide registry for health care proxies, unlike the separate eMOLST system, which stores medical orders rather than proxies (more on that difference below). With no state office to file it with, getting your proxy in front of the right people falls on you. Give a signed copy to your agent, your backup agent if you named one, your primary doctor, and any hospital where you are likely to be treated.

Keep the original somewhere your agent can reach quickly, not locked away where only you know the combination. Tell the rest of your family that the proxy exists and who you named, even if you did not give them a copy, so nobody is caught off guard in an emergency room. A card in your wallet naming your agent and saying where the original is kept covers the moment a signed copy is not immediately at hand.

This is not a MOLST

New York’s medical-orders program is generally known as MOLST, Medical Orders for Life-Sustaining Treatment. A MOLST is a different kind of document: a signed medical order from your doctor or nurse practitioner, based on a conversation with you, that tells emergency responders and hospital staff exactly what to do in the moment, things like whether to attempt resuscitation. A Health Care Proxy is not a medical order and is not signed by a clinician. It names the person who speaks for you and, together with your own written wishes, guides what that person decides.

A MOLST usually comes later, when you are already living with a serious or advanced illness and your care team wants your wishes turned into standing orders that follow you between the hospital, a nursing facility, and home. A Health Care Proxy is worth having much earlier than that: it is the document that names who speaks for you if something unexpected happens at any age, not only at the end of a long illness.

Myend does not produce a MOLST. A MOLST has to come from a conversation with your own doctor, because it is a medical order, not a personal planning document. What Myend prepares is your Health Care Proxy and your written wishes, the pieces you control yourself, ready for the two-witness signing above.

What is different about New York

New York never wrote a living will law. It wrote a proxy law instead, and left your own words to make their case in court.

Most states pair a living will with a health care proxy in one statute, or at least give the living will its own signing rules. New York only did the second part. The Health Care Proxy is real law, with real signing requirements. A living will here is something you write yourself, on your own paper, and its power comes not from a statute but from a 1988 case, In re Westchester County Medical Center ex rel. O’Connor, which set a high bar: your own wishes govern only if there is clear and convincing evidence of what they were. Vague or secondhand recollections do not meet that bar; a written statement, especially one signed and witnessed, comes much closer.

New York also caps how many people one paid agent can serve. Past ten principals at once, a person can only take on new ones if they are family: a spouse, child, parent, sibling, or grandparent. And if you never name an agent and leave nothing that counts as clear evidence, New York’s Family Health Care Decisions Act steps in with a fixed order of family members who decide for you instead, starting with a spouse or domestic partner. The proxy is the one piece of this system you get to choose yourself; skipping it means handing that choice to the order the law sets.

Common questions

Sources and review