When patients are not able to make their own health care decisions, who decides for them? In New York, you can appoint someone to make health care decisions for you if you lose decision-making capacity. The Health Care Proxy Law, which I authored several years ago, allows you to sign a “health care proxy” and name your “health care agent.” This simple form also allows you to include other wishes and instructions, including whether you want to be an organ and tissue donor.
Because many people never sign a health care proxy (and some do not have the capacity to do so), last year the legislature enacted another bill I authored, the Family Health Care Decisions Act (FHCDA). This new law empowers family members to make decisions in those difficult cases.
However, even with the new law, signing a health care proxy is still best. This brochure explains all about health care proxies and the FHCDA. It also contains an actual health care proxy form for you to fill out and discuss with your loved ones.
Richard N. Gottfried
What is a health care proxy?
The Health Care Proxy Law lets you appoint a competent adult to make decisions about your medical treatment in the event you lose the ability to decide for yourself – including decisions to remove or provide life-sustaining treatment. You can appoint a family member, a close friend, or anyone you choose.
You can give your health care agent as little or as much authority as you want to decide about all or only specific health care treatments. You may include your wishes or instructions if you choose to. You can also use your health care proxy to say whether you want your organs (or certain organs) to be donated if you die.
Hospitals, doctors and other health care providers must follow your agent’s decisions as if they were your own. Your agent must act according to your known wishes. If your wishes are not known, your agent must act in your best interests.
It is important to name a health care agent because we all face health conditions we do not expect. Your agent can decide how your wishes apply as your medical condition changes. Also, your choice of decision-maker might be different from the list in the Family Health Care Decisions Act (FHCDA).
If you expect to be in another state, you should see whether its law will accept a New York health care proxy.
Is a health care proxy the same as a living will?
No. A “living will” is just a written statement of your wishes or instructions about health care treatment. You may include this information in your health care proxy.
Why should I choose a health care agent?
If you become too sick to make health care decisions, someone must decide for you. The health care proxy lets you control your medical treatment by:
What decisions can my health care agent make?
Unless you limit your agent’s authority, he or she can make any treatment decisions you could make. Your agent can:
If you want your agent to be able to make decisions about artificial nutrition and hydration (nourishment and water by feeding tube and intravenous lines), he or she must be aware of your wishes about that. There is a section on the NYS health care proxy form (see inside) for this type of information.
What about organ donation?
Organ donation saves lives. To make it easier for people to say they want to be an organ donor, the law allows you to include your wishes about organ donation on your health care proxy. You may donate all your organs, only specific organs, or none. You may also say whether you want your organs to be used only for transplantation, or also for medical education or research.
How will my health care agent make decisions?
Your agent must follow your oral and written instructions, as well as your moral and religious beliefs, if they are known. You can put written instructions on the health care proxy form. If your wishes or beliefs are unknown, your agent is legally required to act in your best interest.
Even with the FHCDA, New Yorkers are encouraged to sign a health care proxy, which allows the person you appoint, called your health care agent, to make health care decisions if you later lose capacity to make those decisions.
Under the FHCDA, your surrogate’s role will be very similar to a health care agent. However, a surrogate only has authority to act if you are in a hospital or a nursing home or if the decision is about hospice care. A health care agent may make decisions wherever you are.
When would my agent make treatment decisions?
After your doctor decides you are unable to make your own health care decisions, your agent would step in and have authority to make decisions. As long as you can make decisions for yourself, you are in charge. Even if your agent has authority to act, you still have the legal right to speak up and reject your agent’s decision.
Who will obey my agent?
All hospitals, doctors and other health care facilities are legally required to follow your agent’s decisions. If a hospital objects to some treatment options (such as removing certain treatments) they must tell you or your agent in advance.
Who signs the proxy form?
You sign the form, along with two witnesses who are at least 18 years old. The agent or alternate agent can’t sign as a witness.
How can I appoint a health care agent?
All competent adults can appoint a health care agent by signing a form called a health care proxy. Talk about choosing an agent with your family and close friends. Discuss this form with your agent, doctor or health care professional before signing. This will help you understand decisions that may be made for you. If you select a doctor to be your health care agent, he or she may have to choose between acting as your agent or as your attending physician. A physician cannot do both at the same time.
You don’t need a lawyer, just two adult witnesses. You may use the form printed on the reverse side of this brochure.
For patients or residents of a hospital, nursing home or mental hygiene facility, special restrictions apply when naming someone as your agent who works for that facility. Ask the facility staff to explain those restrictions.
What if the person I appoint isn’t available or willing?
You can include an alternate agent in the event your health care agent isn’t available – or is unable or unwilling to act – when decisions must be made.
What if I change my mind about my agent or treatment instructions?
Just fill out a new form and destroy the old form. A health care proxy is valid indefinitely unless you revoke it. Also, if you choose to, you can set an expiration date or other conditions for it to expire. If your spouse is your agent – and you get divorced or legally separated – the proxy is automatically canceled, unless it says otherwise.
At any time – even if you lack capacity to make decisions – you have the legal right to overrule your agent’s decision.
Can my health care agent be sued for decisions made on my behalf?
No. Your agent will not be liable for treatment decisions made in good faith. Also, your agent cannot be required to pay for your health care costs.
Where should I keep my proxy?
Give a copy to your agent, doctor and other family members or close friends. Keep a copy with your important papers. You might want to put a note on your refrigerator telling who your agent is and where a copy of the proxy is. Also, below is a card you can cut out and carry in your wallet to help identify your health care wishes.
For help, visit: www.nyhealth.gov/forms/doh-1430.pdf.
Click here to print a health care proxy form.
Write the name, home address and telephone number of the person you are selecting as your agent.
If you want to appoint an alternate agent, write the name, home address and telephone number of the person you are selecting as your alternate agent.
Your Health Care Proxy will remain valid indefinitely unless you set an expiration date or condition for its expiration. This section is optional and should be filled in only if you want your Health Care Proxy to expire.
If you have special instructions for your agent, write them here. Also, if you wish to limit your agent’s authority in any way, you may say so here or discuss them with your health care agent. If you do not state any limitations, your agent will be allowed to make all health care decisions that you could have made, including the decision to consent to or refuse life-sustaining treatment.
If you want to give your agent broad authority, you may do so right on the form. Simply write: I have discussed my wishes with my health care agent and alternate and they know my wishes including those about artificial nutrition and hydration.
If you wish to make more specific instructions, you could say:
If I become terminally ill, I do/don’t want to receive the following types of treatments....
If I am in a coma or have little conscious understanding, with no hope of recovery, then I do/don’t want the following types of treatments:....
If I have brain damage or a brain disease that makes me unable to recognize people or speak and there is no hope that my condition will improve, I do/don’t want the following types of treatments:....
I have discussed with my agent my wishes about____________ and I want my agent to make all decisions about these measures.
Examples of medical treatments about which you may wish to give your agent special instructions are listed below. This is not a complete list:
You may state wishes or instructions about organ and/or tissue donation on this form. New York law does provide for certain individuals in order of priority to consent to an organ and/or tissue donation on your behalf: your health care agent, your decedent’s agent, your spouse, if you are not legally separated, or your domestic partner, a son or daughter 18 years of age or older, either of your parents, a brother or sister 18 years of age or older, a guardian appointed by a court prior to the donor’s death.
You must date and sign this Health Care Proxy form. If you are unable to sign yourself, you may direct someone else to sign in your presence. Be sure to include your address.
Two witnesses 18 years of age or older must sign this Health Care Proxy form. The person who is appointed your agent or alternate agent cannot sign as a witness.