New York Healthcare Power of Attorney Requirements

Introduction

Key Things to Know

1. 1

   Generally, the only people barred from witnessing your Health Care Proxy are the agent and alternate agent you name in it. However, special witness qualifications apply if you reside in a mental hygiene facility operated by the Office of Mental Health or the Office for People With Developmental Disabilities. This document lets you (the principal) name a trusted adult (the agent) to make health care decisions for you if you become unable to make them yourself.

2. 2

   Your agent's authority does not start the moment you sign. It begins only after your attending practitioner determines, in writing and to a reasonable degree of medical certainty, that you lack capacity to make your own health care decisions (Public Health Law Section 2983).

3. 3

   Unless you limit it in the document, your agent can make any and all health care decisions for you, including consenting to, refusing, or withdrawing treatment, and reviewing your medical records.

4. 4

   Your agent cannot decide about artificial nutrition and hydration, meaning a feeding tube or intravenous line, unless your agent reasonably knows your wishes about that specific measure (Section 2982).

5. 5

   You must sign in front of two adult witnesses. Your named agent and alternate agent cannot serve as a witness, and New York does not offer a notary alternative to witnessing (Section 2981).

6. 6

   If you live in a facility operated or licensed by the Office of Mental Health or the Office for People With Developmental Disabilities, additional witness qualifications apply beyond the general two-witness rule.

7. 7

   You can revoke the document at any time by telling your agent or a health care provider, orally or in writing, or by signing a later proxy.

8. 8

   If you name your spouse as agent and later divorce or legally separate, their authority ends automatically unless your document states otherwise.

9. 9

   New York has no central state registry for Health Care Proxies. Keep the signed original and give copies to your agent, your doctor, your attorney, and any alternate agent.

10. 10

    This is a different document from New York's Statutory Short Form Power of Attorney, which covers property and financial decisions, not health care.

New York Requirements for Healthcare Power of Attorney

• Statutory Authority (New York Public Health Law Article 29-C)

  The Health Care Proxy must comply with New York Public Health Law Article 29-C, which establishes the legal framework for health care agents and proxies in the state.

• Principal Capacity (New York Public Health Law Section 2981)

  The principal must be a competent adult, 18 years of age or older, with the capacity to understand and execute the document at the time of signing.

• Agent Qualifications (New York Public Health Law Section 2981(3))

  The health care agent must be 18 years of age or older. An operator, administrator, or employee of a hospital where the principal is currently a patient, resident, or applicant generally cannot serve as agent, and certain health care providers directly involved in the principal's care face additional restrictions, unless related to the principal by blood, marriage, or adoption.

• Alternate Agent Designation (New York Public Health Law Section 2981(6))

  The principal may designate an alternate agent to serve if the attending practitioner determines the primary agent is not reasonably available, willing, and competent to serve, or if the primary agent becomes disqualified under the statute's restrictions, or under conditions stated in the proxy itself. Once the primary agent again becomes available and willing to serve, the alternate's authority ends and the primary agent's authority resumes.

• Execution Requirements (New York Public Health Law Section 2981(2))

  The Health Care Proxy must be signed and dated by the principal in the presence of two adult witnesses, who must also sign the document. The witnesses cannot be the designated health care agent or alternate agent, and no notary is required. Remote audio-video witnessing is permitted under specific statutory conditions, and residents of facilities operated or licensed by the Office of Mental Health or the Office for People With Developmental Disabilities are subject to additional special witness qualifications beyond the general two-witness rule.

• Agent Authority Scope (New York Public Health Law Section 2982(1))

  The statute grants the agent authority to make any and all health care decisions on the principal's behalf that the principal could make, subject to any express limitations stated in the document itself.

• Agent Standard of Care (New York Public Health Law Section 2982(2))

  The health care agent must make decisions in accordance with the principal's wishes, including religious and moral beliefs, if reasonably known, or otherwise in accordance with the principal's best interests.

• Life-Sustaining Treatment Decisions (New York Public Health Law Section 2982(2)(b))

  For an agent to make decisions regarding artificial nutrition and hydration, meaning nourishment and water provided by a feeding tube or intravenous line, the principal's wishes about that specific measure must be reasonably known to the agent. If the principal's wishes are not reasonably known and cannot with reasonable diligence be ascertained, the agent does not have authority to decide on artificial nutrition and hydration.

• HIPAA Compliance (45 CFR Section 164.502(g))

  Federal HIPAA regulations govern how the agent can be authorized to access the principal's protected health information once the document is in effect.

• Revocation Provisions (New York Public Health Law Section 2985)

  The principal may revoke the Health Care Proxy at any time by notifying the agent or a health care provider, orally or in writing, or by any other act evidencing a specific intent to revoke, or by executing a later Health Care Proxy, which automatically revokes an earlier one. If the agent is the principal's spouse, the agent's authority ends automatically if the marriage is dissolved or the couple legally separates, unless the proxy states otherwise. A provider notified of a revocation must immediately record it in the principal's medical record and notify the agent and other current care staff.

• Effective Period (New York Public Health Law Section 2983)

  The Health Care Proxy document is effective indefinitely from execution unless the principal sets an expiration date or condition, or revokes it, but the agent's authority to actually make decisions may be exercised only after the attending practitioner determines, to a reasonable degree of medical certainty and in writing, that the principal lacks capacity to make health care decisions. For decisions to withhold or withdraw life-sustaining treatment, the attending practitioner must additionally consult another physician, physician assistant, or nurse practitioner to confirm the determination.

• Provider Obligations (New York Public Health Law Section 2984)

  Health care providers must comply with decisions made by the agent in good faith to the same extent as if made by the principal, subject to limited exceptions for a provider's or a private hospital's religious or moral objections, which require prompt notice and arrangement for transfer to a willing provider or facility.

• Determination of Incapacity (New York Public Health Law Section 2983)

  Incapacity is determined by the principal's attending practitioner, who must find, to a reasonable degree of medical certainty and in writing documented in the medical record, that the principal lacks capacity to make health care decisions, including the cause, nature, extent, and probable duration of the incapacity. For decisions to withhold or withdraw life-sustaining treatment, a second physician, physician assistant, or nurse practitioner must confirm the determination, with a qualified psychiatrist required if the principal has a mental illness. If the principal objects to the incapacity determination or to the agent's decision, the principal's objection prevails unless a court determines the principal lacks capacity.

• Organ Donation Authorization (New York Public Health Law Article 43)

  Under New York's Anatomical Gift Act, a principal may use the Health Care Proxy form's optional section to state wishes about organ, eye, and tissue donation, and since August 26, 2009, the health care agent is authorized to make organ, eye, and tissue donation decisions on the principal's behalf after death if the principal has not already stated a preference.

• Patient Self-Determination Act Compliance (42 U.S.C. Section 1395cc(f))

  Facilities that participate in Medicare and Medicaid must inform patients of their rights under state law to make advance directives, including a Health Care Proxy, and must acknowledge those rights, including the right to accept or refuse medical treatment.

• Out-of-State Recognition (New York Public Health Law Section 2990)

  A health care proxy or similar instrument validly executed in another state or jurisdiction, in compliance with that jurisdiction's law, is considered validly executed for purposes of New York's Health Care Proxy law.

• Liability Protection (New York Public Health Law Section 2986)

  Health care providers are protected from criminal and civil liability for honoring, in good faith, a health care decision made by an agent, and an agent is likewise protected from criminal and civil liability for making a health care decision in good faith under the proxy.