Health Care Proxy in New York

Due to age, illness or injury, people may suffer conditions that leave them physically or mentally incapacitated. Having an estate plan that includes advance directives gives voice to the wishes of those who cannot make decisions or speak for themselves. 

Among other advance directive documents, people may choose to name a health care proxy in their estate plans. 

What is a Health Care Proxy in New York?

According to the New York State Office of the Attorney General, a health care proxy is another person someone may name as his or her health care agent. If people cannot make medical choices for themselves, those named as their health care proxies may make medical treatment and care decisions on their behalf. In making such choices, health care proxies must adhere to the patient’s wishes and act in their best interests and in accordance with their moral and religious beliefs. 

Who Can Serve as a Health Care Proxy in New York?

When deciding whom to name as their health care proxies, people should choose someone they can trust. To serve as a health care agent in New York, the selected representatives must be at least 18 years old and mentally competent. People may name family members, spouses or partners, close friends or even lawyers to serve in this role. 

Why Should You Have a Health Care Proxy?

According to the National Institute on Aging, not all medical situations are foreseeable. Having a health care proxy to make decisions on their behalf allows people to ensure their voices are heard in the event of such circumstances. People may name health care proxies in addition to or in lieu of establishing a living will. When choosing a health care proxy, people may share their values with those they have selected, allowing them to make even unexpected decisions in accordance with their preferences. 

What If I Don’t Have a Health Care Proxy?

If you’re like most people, you’ve been thinking a lot lately about medical emergencies, about what would happen if you were suddenly hospitalized. There is no way to prepare emotionally for something like that, but there is a way to prepare legally: designate a Health Care Proxy to make medical decisions for you in case you can’t.

What happens if a patient can’t make these decisions but hasn’t planned for someone else to?

New York State has thought of that. The 2010 Family Health Care Decisions Act lays out the procedure by which surrogates can make medical decisions for patients who have not designated a Health Care Proxy.

Let’s go through it step by step.

The law applies to patients over 18 who are “incapacitated” — unable to make medical decisions. The patient’s physician has to determine that the patient is incapacitated, and another physician has to agree.

Once that determination is made, the hospital can designate a surrogate decision-maker. The law lists potential surrogates in order of priority: highest on the list is asked first. For most people, that means spouse or domestic partner. (For an adult previously determined to be incapacitated, first would be the official court-appointed guardian.) Then a child over 18, then a parent, then a sibling over 18, then a close friend or relative. (If none of these is available, a physician can act as surrogate.)

The selected person can refuse the responsibility, in which case the hospital continues down the list to the next eligible person, or the selected person can designate any other person on the list to act as surrogate.

But let’s say the person accepts. Then the hospital gives the surrogate access to any medical information necessary to consider the patient’s treatment options and make decisions.

There are some constraints on those decisions. The surrogate has to act according to the patient’s religious or moral beliefs or, if those aren’t known, then according to the patient’s “best interests.” What constitutes “best interests”? The law suggests considering “the dignity and uniqueness of every person; the possibility of preserving the patient’s life and preserving or improving the patient’s health; relief of the patient’s suffering; and any other concerns and values a person in the patient’s circumstances would wish to consider.”

If it comes down to withholding or withdrawing life-sustaining treatment, there are even more rules. First, the treatment has to be considered (officially by two physicians) to be an extraordinary burden to the patient. Given that, the patient has to be expected to die within six months (with or without treatment) or be permanently unconscious or the treatment would require inhumane levels of pain and suffering and the patient’s condition is incurable anyway.

Imagine being in the position of having to make these choices! Imagine having to trust someone else to choose for you!

Having a designated Health Care Proxy wouldn’t make such a terrible situation OK. But it would ensure that you–and not New York State–got to decide who made those decisions for you. It would save time, and reduce confusion and anguish for those who are taking care of you.

So while you’re stocking up on toilet paper and non-perishable foods, consider designating a Health Care Proxy as another way to prepare for the worst. An attorney can easily, quickly, and affordably walk you through the process. And while you’re at it, you can make sure your estate planning is up to date as well.

Call us at 518-456-0082 or email Attorneys Crystal R. Peck at or Ryan P. Bailey at and we’ll help. Chances are, you won’t need it. But at least you can take comfort in being a little more prepared for what might happen next.


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