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Frequently Asked Questions

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Can I complete a health care proxy?

All adults, 18 years of age or older, can appoint a health care agent and sign a form called a Health Care Proxy.

Do I need to hire a lawyer to complete my health care proxy?

No. You don’t need a lawyer to complete a health care proxy. To be legally valid, you must sign and date your health care proxy form in the presence of two adult witnesses. The witnesses must sign a statement in your health care proxy to confirm that you signed the document willingly and free from duress. Your health care agent and alternate agent cannot act as witnesses.

Does my health care proxy need to be notarized?

No. Your health care proxy does not need to be notarized. To be legally valid, you must sign and date your health care proxy form in the presence of two adult witnesses. The witnesses must sign a statement in your health care proxy to confirm that you signed the document willingly and free from duress. Your health care agent and alternate agent cannot act as witnesses.

Why should I complete a health care proxy?

If you become unable, even temporarily, to make medical decisions, someone else must decide for you. Physicians and other clinicians often look to family members for guidance. Family members may express what they think you would want related to a particular treatment and they may disagree.

Appointing the right health care agent, completing a health care proxy and having a conversation lets you control your medical treatment, achieve peace of mind, and assure your wishes are honored, by:

  • allowing your agent to make medical decisions on your behalf as you would want them decided
  • choosing one person to make medical decisions because you trust that person to make the best decisions based on your values, beliefs and what matters most to you
  • choosing one person to avoid conflict or confusion among family members and/or loved ones

You may also appoint an alternate health care agent to take over if your first choice cannot make decisions for you.

Why do I need to appoint a health care agent if I’m young and healthy?

Appointing a health care agent is a good idea for everyone 18 years of age and older. A health care agent can act on your behalf if you become even temporarily unable to make your own medical decisions due to acute illness or injury. This situation might occur if you are under general anesthesia or are in a become coma because of an accident.

When you are able to make your own medical decisions again, your health care agent will no longer be authorized to act and make medical decisions on your behalf.

In what type of situations might a health care agent be needed?

There are two situations in which a health care agent will be needed:

  • Temporary inability to make health care decisions – no matter what your age is. For example, you are having an outpatient surgical procedure and are under general anesthesia. Something unexpected happens and a medical decision needs to be made. If you have a health care agent, since you are temporarily unable to make your own decisions, the health care agent may make the medical decision. Once you become conscious again and have the ability to make medical decisions, the health care agent would no longer have any authority to act.
  • Permanent inability to make health care decisions – this would arise if you were comatose from a terminal illness, in a persistent vegetative state, suffered from an illness that left you unable to communicate or, if elderly, suffered from Alzheimer’s or other types of dementia. Under these circumstances you would obviously be unable to make your own medical decisions. If you have appointed a health care agent, your health care agent can be your voice and make your medical decisions according to your own wishes, or your best interests. If you don’t have a health care agent, a surrogate authorized under Family Health Care Decisions Act <<link to FHCDA under Ethics, Laws & Regulations/Advance Care Planning>> would have the authority to make medical decisions. You do not have control of who would be making medical decisions on your behalf.

Who can be a health care agent?

Anyone 18 years of age or older can be a health care agent. It is important to choose the right health care agent in order to be sure medical decisions are based on your values, beliefs and what matters most to you.

The person you are appointing as your agent or your alternate agent cannot sign as a witness on your Health Care Proxy form.

Can I list more than one alternate health care agent?

Yes, you may list as many as you would like. List in the order you want the alternate health care agent to take over if your first choice cannot make medical decisions for you. Each alternate agent should be able to serve as the right health care agent for you.

Are there any restrictions on who can be my health care agent?

Your health care agent cannot be:

  • An operator, administrator or employee of a health care facility in which you are a resident or patient, or to which you have applied for admission, at the time you sign your health care proxy, unless that person is a relative by blood, marriage or adoption
  • A physician, if that person also acts as your attending physician

What do I do if I have intellectual/developmental disabilities or I am a resident in a facility licensed or operated by the Office for People with Developmental Disabilities?

As with the general population, it is important to Initiate the advance care planning process for all people with intellectual/developmental disabilities (ID/DD) 18 years of age or older.

Special witnessing requirements exist for people with intellectual/developmental disabilities (ID/DD) and residents of facilities operated or licensed by the Office for People with Developmental Disabilities (OPWDD).

How will my health care agent know what to do?

It is impossible to predict the future and every possible scenario. For that reason, a discussion on what matters most and makes life worth living is critical.  Your health care agent will need to work with your doctor and make a decision based on whether a specific routine medical, palliative or life-sustaining treatment will work or not. It is vital to recognize the benefits (how it might be helpful) and burdens (how it might be harmful) of a specific treatment, including life-sustaining treatment, based on your health status and prognosis at the time when a medical decision needs to be made.  If life-sustaining treatment is used and there is hope of getting better, it is crucial to know what life will be like afterwards.  Sharing your personal values, beliefs and goals for care will help determine what is acceptable to you and can guide the health care agent in making medical decisions.

Because serving as a health care agent is a major responsibility for the person you appoint as your health care agent, you should have a discussion with the person about what types of treatments you would or would not want under different types of circumstances, such as:

  • whether you would want life support initiated/continued/removed if you are in a permanent coma
  • whether you would want treatments initiated/continued/removed if you have a terminal illness
  • whether you would want artificial hydration and nutrition initiated/continued/removed and under what types of circumstances

What if my health care agent is not available when medical decisions must be made?

You may appoint an alternate agent to decide for you if your health care agent is unavailable, unable or unwilling to act when decisions must be made. Otherwise, your doctor and other clinicians will make medical decisions for you that follow instructions you gave while you were still able to do so. Any instructions that you write on your Health Care Proxy form will guide your doctor and other clinicians under these circumstances.

Do I need to add personal instructions to my New York Health Care Proxy?

You do not need to add personal instructions to your Health Care Proxy, except regarding artificial hydration and nutrition. One of the strongest reasons for naming a health care agent is to have someone who can respond flexibly to changes in your medical situation. Adding personal instructions to the New York Health Care Proxy may unintentionally restrict your health care agent’s power to act in your best interest.

When would my health care agent begin to make medical decisions for me?

Your health care agent would begin to make medical decisions after your doctor decides that you are not able to make your own health care decisions. As long as you are able to make medical decisions for yourself, you will have the right to do so.

What medical decisions can my health care agent make?

Unless you limit your health care agent’s authority, your agent will be able to make any medical decision that you could have made if you were able to decide for yourself. Your agent can agree that you should receive treatment, choose among different treatments and decide that treatments should not be provided, in accordance with your wishes and interests. However, your agent can only make decisions about artificial hydration and nutrition (fluid and food provided by intravenous line or feeding tube) if he or she knows your wishes from what you have said or what you have written.

The Health Care Proxy form does not give your agent the power to make nonmedical decisions for you, such as financial decisions.

How will my health care agent make medical decisions?

Your agent is required to make medical decisions that are patient-centered, according to your wishes, religious and moral beliefs and what is in your best interest, not theirs.

Who will pay attention to my health care agent?

All hospitals, nursing homes, doctors and other health care providers are legally required to provide your health care agent with the same information that would be provided to you and to honor the decisions by your agent as if they were made by you. If a hospital or nursing home objects to some treatment options (such as removing certain treatment) they must tell you or your agent before or upon admission, if reasonably possible.

How can I be sure that my health care proxy will be honored?

To be legally valid, you must sign and date your health care proxy form in the presence of two adult witnesses. The witnesses must sign a statement in your health care proxy to confirm that you signed the document willingly and free from duress. Your health care agent and alternate agent cannot act as witnesses.

What should I do after my health care proxy form is signed?

Be sure your health care proxy is accessible. Conversations change lives. Review and update your health care proxy on a regular basis. Be sure to have ongoing discussions with your health care agent, alternate health care agent, family, loved ones, doctor(s) and medical team.

What if I change my mind?

It is easy to cancel your health care proxy, to change the person you have chosen as your health care agent or to change any instructions or limitations you have included on the form. Simply fill out a new form. An updated form voids any previous forms.

You may cancel the authority given to your agent by telling him or her or your health care provider orally or in writing. Once informed, your physician must record the revocation in your medical record and notify your spokesperson and any medical staff responsible for your care.

In addition, you may indicate that your health care proxy expires on a specified date or if certain events occur. Otherwise, the health care proxy will be valid indefinitely.

If you choose your spouse as your health care agent or as your alternate, and you get divorced or legally separated, the appointment is automatically cancelled. However, if you would like your former spouse to remain your agent, you may note this on your current form and date it or complete a new form naming your former spouse.

Is a health care proxy the same as a living will?

No. A living will is a document that provides specific instructions about health care decisions. You may put such instructions on your Health Care Proxy form. The Health Care Proxy allows you to choose someone you trust to make health care decisions on your behalf. Unlike a living will, a Health Care Proxy does not require that you decide in advance decisions that may arise. Instead, your health care agent can interpret your wishes as medical circumstances change and can make decisions you could not have known would have to be made

Do I need to complete both a health care proxy and living will?

The most important advance directive to complete is the health care proxy. Completing both documents helps to ensure that you receive the medical care you desire, especially if you are unable to choose a health care agent.

Most importantly, you should continue to have ongoing discussions with your health care agent to be sure that person knows your values, beliefs, goals for care and wishes and can speak on your behalf regardless of what your circumstances may be.

In addition, it is beneficial to have completed both documents in case you suffer an injury, or acute medical episode, while traveling and are unable to make decisions for yourself. Completing both documents increases the likelihood that at least one of the documents will be legally recognized in another state.

How do I make sure that my living will is going to be honored?

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 helps 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. Indicate the presence of your living will under the optional instructions section of the New York health care proxy form.

Can I add personal instructions to my Living Will?

Yes. Personal instructions may be added to the section titled “Other Directions.” If there are specific treatments you wish to refuse that are not already listed on the document, you may list them here. Also, instructions such as “I want maximum pain medications, even if it hastens my death,” “I do not want to be placed in a nursing home,” or “I want to die at home” can be added to this section. If you have appointed a health care agent, it is a good idea to include a statement such as, “Any questions about how to interpret or when to apply my Living Will are to be decided by my health care agent.’”

What are life-sustaining treatment such as cardiopulmonary resuscitation (CPR), mechanical ventilation, and artificial hydration and nutrition?

There are many types of life-sustaining treatment, such as cardiopulmonary resuscitation, intubation and mechanical ventilation, IV fluids, feeding tubes, antibiotics, dialysis, blood transfusions, and hospitalization.

Your health care agent will need to work with your doctor and make a medical decision based on whether a specific life-sustaining treatment will work or not. It is vital to recognize the benefits (how it might be helpful) and burdens (how it might be harmful) of a specific life-sustaining treatment, based on your health status and prognosis at the time when a medical decision needs to be made.  If life-sustaining treatment is used and there is hope of getting better, it is crucial to know what life will be like afterwards.  Sharing your personal values, beliefs and goals for care will help determine what is acceptable to you and can guide the health care agent in making medical decisions.

If I spend extended periods of time in another state, will my New York advance directives be honored in that state?

Each state has its own laws governing advance care planning and the use of health care proxy forms and living wills. In some states, the forms are combined.  In other states, the equivalent of the health care proxy is known as a power of attorney for health care.

Therefore, it is important that you investigate that state’s laws on Advance Care Planning. You may want to begin by going to the web site of the Department of Health of that particular state or visit CaringInfo, a website created by the National Hospice and Palliative Care Organization (NHPCO).

May I use the Health Care Proxy form to express my wishes about organ and/or tissue donation?

Yes. Use the optional organ and tissue donation section on the Health Care Proxy form and be sure to have the section witnessed by two people. You may specify that your organs and/or tissues be used for transplantation, research or educational purposes. Any limitation(s) associated with your wishes should be noted in this section of the proxy. Failure to include your wishes and instructions on your Health Care Proxy form will not be taken to mean that you do not want to be an organ and/or tissue donor.

Can my health care agent make decisions for me about organ and/or tissue donation?

Yes. As of August 26, 2009, your health care agent is authorized to make decisions after your death, but only those regarding organ and/or tissue donation. Your health care agent must make such decisions as noted on your Health Care Proxy form.

Who can consent to a donation if I choose not to state my wishes at this time?

It is important to note your wishes about organ and/or tissue donation to your health care agent, the person designated as your decedent’s agent, if one has been appointed, and your family members. New York Law provides a list of individuals who are authorized to consent to organ and/or tissue donation on your behalf.

They are listed in order of priority:

  • 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
  • another person authorized to dispose of the body

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