New York Living Will Requirements

Introduction

Key Things to Know

1. 1

   New York courts, not the state legislature, are the reason a living will carries weight here at all. There is no living-will statute, so what you write is honored only if it meets the clear and convincing evidence standard New York's highest court set in Eichner v. Dillon and Matter of Storar (1981) and applied to feeding-tube decisions in Matter of Westchester County Medical Center on behalf of O'Connor (1988). It is still, in substance, your written statement of the medical treatment you want or want withheld if you cannot speak for yourself.

2. 2

   A living will is not a last will and testament. One states your medical treatment wishes while you are alive but unable to communicate, and the other distributes your property after you die, taking effect only at death.

3. 3

   Vague wishes have repeatedly failed New York's evidentiary standard. Courts have required proof that you held a firm and settled commitment to a specific choice under circumstances like the ones actually presented, not just a general wish to avoid being kept alive by machines.

4. 4

   Artificial nutrition and hydration needs its own specific statement. Even under New York's Health Care Proxy Law, an agent has no authority to withhold or withdraw tube feeding or IV hydration unless your wishes about it specifically are reasonably known.

5. 5

   New York has no pregnancy-exclusion clause. Nothing in the Health Care Proxy Law or the Family Health Care Decisions Act changes, suspends, or voids your stated wishes because you are pregnant.

6. 6

   No signature or witness rule is mandatory for a living will itself, since no statute creates one. Signing, dating, and using two adult witnesses unconnected to your care mirrors the safeguard the actual Health Care Proxy statute requires, and it helps your wishes hold up if they are ever challenged.

7. 7

   Your stated wishes are not formally revoked the way a Health Care Proxy is, since no statute made them a formal instrument in the first place. A later, clearer statement simply becomes the newer evidence of what you actually want, weighed the same clear-and-convincing way as anything else you have written or said, not a revocation event with its own procedure.

8. 8

   New York runs no state registry for living wills or health care proxies. Keep your signed statement somewhere your family, physician, and agent can actually find it.

9. 9

   Your own written wishes stay the operative fact even if you also complete a Health Care Proxy: New York's proxy statute specifically withholds an agent's authority over artificial nutrition and hydration until the agent reasonably knows what you wanted, so this declaration is what makes that authority usable, not a document rendered redundant by naming an agent.

New York Requirements for Living Will

• Health Care Proxy Law (New York Public Health Law Article 29-C, Sections 2980-2994)

  New York's only statutory advance-planning instrument for health care decisions is the Health Care Proxy, which lets a competent adult appoint an agent to make health care decisions if the adult later lacks capacity.

• Legal Authority for Living Wills (Eichner v. Dillon and Matter of Storar, 52 N.Y.2d 363 (1981); Matter of Westchester County Medical Center on behalf of O'Connor, 72 N.Y.2d 517 (1988))

  New York recognizes living wills as valid evidence of a person's healthcare wishes under common law only, since no statute authorizes them. The clear and convincing evidence standard originates in Eichner/Storar (1981) and was reaffirmed and applied specifically to artificial nutrition and hydration in the later O'Connor case (1988).

• Clear and Convincing Evidence Standard (Matter of Westchester County Medical Center on behalf of O'Connor, 72 N.Y.2d 517 (1988))

  New York requires clear and convincing evidence of a person's wishes regarding end-of-life care before those wishes will be given effect. A living will should state specific medical treatments the person would accept or refuse under specific circumstances, since general statements have repeatedly been found insufficient.

• Artificial Nutrition and Hydration (Matter of Westchester County Medical Center on behalf of O'Connor, 72 N.Y.2d 517 (1988); New York Public Health Law Section 2982)

  A living will must specifically address whether artificial nutrition and hydration should be withheld or withdrawn. The O'Connor case (1988) established this heightened evidentiary requirement in a case concerning the withdrawal of a feeding tube. Separately, Public Health Law Section 2982 denies a Health Care Proxy agent any authority over ANH unless the agent reasonably knows the principal's specific wishes about it.

• Permanent Unconsciousness (Eichner v. Dillon, 52 N.Y.2d 363 (1981))

  New York case law recognizes permanent unconsciousness as a circumstance courts have addressed when family members sought to discontinue life-sustaining treatment based on a patient's previously expressed wishes. There is no statutory list of trigger conditions; this is case-law recognition only, not a codified provision.

• Revocation of Health Care Proxy and Written Wishes (New York Public Health Law Section 2985)

  Section 2985 lets a competent adult revoke a Health Care Proxy at any time, orally or in writing or by any other act evidencing intent to revoke, and confirms that separately creating written wishes or instructions about health care does not itself revoke an existing proxy unless it says so. A living will itself has no statutory revocation procedure, since no statute creates the document in the first place; a later statement inconsistent with an earlier one is simply additional evidence, not a formal revocation event.

• Witness Requirements (No Statutory Requirement for a Living Will; Best Practice Only)

  New York has no statutory witness requirement for a living will, because no statute creates the document. The state's only statutory witness requirement in this area applies to the separate Health Care Proxy, which requires two adult witnesses who are not the named agent. Using two adult witnesses unconnected to care for a written wishes statement as well is a recognized best practice that strengthens its evidentiary weight, not a legal mandate.

• No Statutory Pregnancy Clause (Public Health Law Articles 29-C and 29-CC)

  New York has no statutory pregnancy-exclusion clause.

• HIPAA Authorization (45 CFR Section 164.508)

  Federal HIPAA regulations govern how a health care agent can be authorized to access protected health information once the Health Care Proxy is in effect. This authorization supports the agent's role; it does not expand a person's own treatment-wishes statement.

• Organ Donation Wishes (New York Public Health Law Article 43, Sections 4300-4310)

  New York's Anatomical Gifts article lets a person authorize organ and tissue donation.

• 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.

• Family Health Care Decisions Act Interaction (New York Public Health Law Article 29-CC, Sections 2994-a to 2994-u)

  The Family Health Care Decisions Act supplies a family member or close friend as a surrogate decision-maker, in a statutory priority order, when a patient lacks capacity and has not appointed a health care agent and has not left evidence clear enough to control the decision directly.

• Orders Not to Resuscitate for Mental Hygiene Facility Residents (New York Public Health Law Article 29-B, Sections 2960-2979)

  Article 29-B is not a general do-not-resuscitate law for all New Yorkers. Article 29-B, titled 'Orders Not to Resuscitate for Residents of Mental Hygiene Facilities,' governs the specific process for that population. A living will's own general instructions about CPR and resuscitation are not governed by this article; they carry weight only under the common-law clear and convincing evidence standard described elsewhere on this page.

• Nonhospital Order Not to Resuscitate Management (New York Public Health Law Section 2994-dd)

  Section 2994-dd is titled Managing a nonhospital order not to resuscitate and governs recordkeeping, transfer notification, and periodic review for that specific type of order. This section is part of the framework that includes New York's Medical Orders for Life-Sustaining Treatment (MOLST) program.

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

  Federal law requires Medicare- and Medicaid-participating hospitals, nursing homes, and other facilities to inform patients in writing of their rights under New York law to make health care decisions, including stating their own treatment wishes.

• Health Care Proxy Facility-Resident Witness Rule for Mental Hygiene Facilities (New York Public Health Law Section 2981(2)(b)-(c))

  If the principal resides in a mental hygiene facility operated or licensed by the Office of Mental Health, at least one Health Care Proxy witness must be unaffiliated with the facility, and if the facility is also a hospital, at least one witness must be a qualified psychiatrist or psychiatric nurse practitioner. A parallel rule applies for residents of facilities operated or licensed by the Office for People With Developmental Disabilities: at least one witness must be unaffiliated with the facility, and at least one must be a qualifying physician, nurse practitioner, physician assistant, or clinical psychologist. It applies to the statutory Health Care Proxy, not to a living will, since New York has no living-will statute of its own.