New York Living Wills & Health Care Proxies: What You Need to Know

Creating a New York health care proxy and living will is an important estate planning step.

Why do you need a living will and power of attorney for health care (called a health care proxy in New York)?

If you become unable to direct your own medical care because of illness, an accident, or advanced age, the right legal documents are your lifeline. When you don't write down your wishes about the kinds of medical treatment you want and name someone you trust to oversee your care, these important matters can be placed in the hands of estranged family members, doctors, or sometimes even judges, who may know very little about what you would prefer.

What are health care forms called in New York?

There are two basic kinds of health care documents that everyone should make. First, you'll need a document naming a trusted person to direct your health care if you are unable to do so yourself. This document is commonly called a power of attorney. In New York, the official name for this form is a health care proxy.

Second, you should make a document setting out the types of medical treatment you would or would not like to receive in certain situations. This document is usually known as a living will. New York doesn't have a statute authorizing living wills, but state case law gives you the right to make one.

Who makes health care decisions for me in New York?

In New York, the person you name to make decisions for you is called your agent. Most people name a spouse, partner, relative, or close friend as their agent. Under New York law, your agent may not be:

  • under the age of 18, unless he or she is the parent of a child, or married
  • your attending physician
  • presently appointed health care representative for ten or more other people, unless he or she is your spouse, child, parent, brother, sister or grandparent, or
  • an operator, administrator or employee of a hospital if, at the time of the appointment, you are a patient or resident of, or have applied for admission to, such hospital.

These restrictions don't apply to:

  • an operator, administrator, or employee of a hospital who is related to you by blood, marriage or adoption, or
  • a physician who is not your attending physician, except that no physician affiliated with a mental hygiene facility or a psychiatric unit of a general hospital may serve as agent for you if you are living in or being treated by such facility or unit unless the physician is related to you by blood, marriage or adoption.

What else do I need to know about choosing an agent in New York?

When choosing your agent, the most crucial criteria are trustworthiness and dependability. You might also want to choose someone you think will be good at asserting your health care wishes if others argue against them -- that is, someone who is persistent or calm under pressure.

While you need not name someone who lives in New York, the person you name should at least be willing and able to travel to your bedside if necessary.

Your agent will begin to make health care decisions for you when you lack the capacity to do so. For more information, see Nolo's article Living Wills and Powers of Attorney for Health Care: How They Work.

Do I need a lawyer to make health care documents in New York?

You usually don't need a lawyer to prepare documents directing your health care. In fact, state governments have designed these forms for people to complete on their own by filling in the blanks. You can find the health care forms you need for New York in Nolo's Quicken WillMaker Plus software. The software includes detailed instructions for completing your documents and meets all New York legal requirements.

For more on New York estate planning issues, see our section on New York Estate Planning.

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