Advance Directives

There are two types of advance directives in New York that protect your right to request treatments you want and to refuse medical treatments you do not want in case you lose the ability to make medical decisions yourself.

The New York Health Care Proxy

• The health care proxy (also available in Spanish) is a legal form that gives the person you choose as your health care agent the authority to make all health care decisions for you, including the decision to remove or provide life-sustaining treatment, unless you say otherwise in this form. “Health care” means any treatment, service or procedure to diagnose or treat your physical or mental condition.
• Unless your agent reasonably knows your wishes about artificial hydration and nutrition (water and nourishment provided by an intravenous line or feeding tube), he or she will not be allowed to refuse or consent to those measures for you. Include the statement, “My agent does know my wishes about artificial hydration and nutrition.” in your health care proxy.
• Your health care proxy must be signed and dated in the presence of two witnesses.
• Your health care agent will start making decisions for you when your doctor or nurse practitioner determines that you are not able to make health care decisions for yourself. Beginning June 17, 2020, physician assistants will also have authority to empower a health care proxy.
• Even though you have signed this form, you have the right to make health care decisions for yourself as long as you are able to do so, and treatment cannot be given to you or stopped if you object. Your health care agent does not have any power to object or make decisions as long as you have the ability to do so.

The New York Living Will

• The living will (also available in Spanish) is an advance directive that lets you state your wishes about medical care in the event that you develop an irreversible condition that prevents you from making your own medical decisions.
• The living will becomes effective if you become terminally ill, permanently unconscious or minimally conscious due to brain damage and will never regain the ability to make decisions.
• Persons who want to indicate under what set of circumstances they favor or object to receiving any specific treatments use the living will.
• Unlike most states, New York does not have a specific law recognizing living wills but relies upon “clear and convincing evidence” of your wishes. Documenting your wishes in a Living Will may help to show the required level of “clear and convincing evidence.”
• You should follow the witnessing procedures established in the Health Care Proxy Act and sign your Living Will in the presence of two adult witnesses.

Key Points

• You do not need to notarize your New York health care proxy or living will.
• You do not need a lawyer to fill out these forms.
• These documents will be legally binding only if the person completing them is a competent adult (at least 18 years of age); the documents are properly signed, witnessed and dated; and the documents are available when needed.

Other States

• CaringInfo provides free advance directives and instructions for each state.