HEALTH CARE PROXIES AND LIVING WILLS
Found in Public Health Law section 2980 et seq.

Summary by Linda W. Chodos, Esq.

1. A health care proxy permits a person, known as the “Principal” to appoint a third party, known as the “Agent”, to make medical decisions on behalf of the Principal. The Principal must be an adult (over 18 yrs, a parent, or married). The Agent cannot be the Principal's treating doctor or an employee of an institution where the Principal is residing; and no person can be an agent for ten or more other people.

2. A health care proxy gives you security and peace of mind, knowing that family members will not be needlessly burdened emotionally and financially if you become incapacitated. You should discuss your attitudes towards life and death and thoughts about illness with your Agent. You should advise your Agent what treatments you would want or would not want. Your Agent must be someone you trust and can talk with about life and death issues.

3. Before health care proxies came into being, someone had to be appointed as a guardian by the court in order to make health care decisions about an incapacitated person. This very costly procedure is still required if a person becomes incapacitated and has not designated a health care agent by executing a health care proxy.

4. The right to refuse treatment even if such refusal would result in death, has been confirmed by the U.S. Supreme Court, the New York State Court of Appeals and more recently, by legislation in New York State. However, having a health care proxy does not mean that you necessarily choose to refuse all treatment. The health care proxy expresses your specific wishes, whether they be for no extraordinary measures or for all measures to sustain life to be taken.

5. Your Agent can only make decisions if you are unable to do so and the appointment remains in effect until you either regain capacity, revoke the health care proxy, or die.

6. The execution of a health care proxy requires two witnesses who swear that you appear to be of sound mind.

7. You can only have one Agent making decisions at a time, but it is wise to appoint an alternate in case the Agent is not available or is also incapacitated.

8. The health care proxy applies to all medical treatments except nutrition or hydration (feeding tubes). These will not be withheld or withdrawn unless you have clearly made your wishes known to your Agent.

9. A living will is not the same as a health care proxy; instead, it is a statement about your wishes for certain treatments and it serves as evidence of these wishes.