Health Care Proxy in New York: The State Form, Who Can Sign, and Who Decides Without One

What a health care proxy does in New York

A health care proxy is a legal document, created under New York’s Health Care Proxy Law, that appoints someone you trust to make health care decisions for you if you lose the ability to make them yourself. The state’s instructions say hospitals, doctors and other providers must follow your agent’s decisions as if they were your own and must give your agent the same information they would give you.

Three rules shape how it works:

• It starts only when you cannot decide. Your agent begins making decisions after your doctor determines that you are not able to make health care decisions. As long as you can decide, you do, and treatment cannot be given or stopped over your objection.
• It can be as broad or narrow as you want. Without limits, your agent can make any health care decision you could make, including about life-sustaining treatment. You can restrict it or give instructions the agent must follow.
• It is about health care only. The state form says it does not give your agent power over non-health decisions such as finances.

The proxy also matters when you are young and healthy. The state’s own example is a temporary loss of capacity, such as general anesthesia or an accident.

The New York health care proxy form, section by section

The Department of Health publishes the form as publication 1430, current version 8/22, as a fillable PDF with instructions. You do not have to use it; any document that meets the law works, but this one is accepted everywhere and free.

The state also posts the form in Spanish, Chinese, Haitian Creole, Italian, Korean, Russian, Yiddish, Polish, French, Bengali, Arabic and Urdu. A hospital can give you one too: the Patients’ Bill of Rights says so in its organ donation right.

Who can be your agent, and who can witness

The agent. Any adult 18 or older, including a family member or close friend. Two restrictions from the state’s instructions:

• A doctor you name as agent must choose between acting as your agent and acting as your attending doctor, because a doctor cannot do both at the same time.
• If you are a patient or resident of a hospital, nursing home or mental hygiene facility, there are special restrictions on naming someone who works there. Ask the facility to explain them before you sign.

The witnesses. Two adults, 18 or older, who sign that you appeared to be of sound mind and acting of your own free will. Your agent and your alternate cannot be witnesses. A neighbor and a coworker work; your agent’s spouse is a weaker choice if the decision is ever disputed.

Talk first. The state’s instructions say to discuss it with the person before naming them, make sure they are willing, and give them a signed copy. Your agent cannot be sued for decisions made in good faith and is not liable for the cost of your care because of being your agent.

The feeding tube rule, and the sentence to write

This is the most common gap in New York proxies. The form says that in order for your agent to make decisions about artificial nutrition and hydration (nourishment and water through a feeding tube or intravenous line), your agent must reasonably know your wishes. If they do not, they cannot refuse or consent to those measures for you.

You can tell your agent, but writing it removes doubt. The state’s instructions offer sample language for section (4):

“I have discussed my wishes with my health care agent and alternate and they know my wishes including those about artificial nutrition and hydration.”

Or more specific instructions, using the form’s own framing: what you do or do not want if you become terminally ill, if you are in a coma with no hope of recovery, or if brain damage leaves you unable to recognize people or speak with no hope of improvement. The state lists treatments people often address, including CPR, artificial respiration, dialysis, antibiotics, blood transfusions and surgery.

If your agent does not know your wishes on something else, the law requires the agent to act in your best interest.

Without a proxy: the Family Health Care Decisions Act

If you have no health care agent and cannot decide, New York’s Family Health Care Decisions Act (Public Health Law Article 29-CC) lets a surrogate decide for care in a hospital and for hospice care. The attending practitioner must first make reasonable efforts to find out whether you appointed an agent; a valid proxy takes priority over any surrogate.

The surrogate is chosen from this list, in this order, under Public Health Law section 2994-d:

The surrogate must decide based on your known wishes, including religious and moral beliefs, and on your best interests if those wishes are unknown. Decisions to withhold or withdraw life-sustaining treatment need more: for example, an illness expected to cause death within six months or permanent unconsciousness, confirmed by your attending practitioner with an independent concurrence.

Proxy or surrogate: why the order matters

The surrogate list is a default, and defaults fit some families badly. An unmarried partner who is not a registered domestic partner, a close friend you trust over a sibling, or a parent you would not want deciding are all reasons to sign a proxy now rather than leave it to the order in the statute.

Changing, cancelling and storing the form

You can cancel the proxy by telling your agent or your health care provider, orally or in writing, or replace it by signing a new form. If you name your spouse and later divorce or legally separate, that appointment is cancelled automatically unless you state otherwise on the form.

Where to keep it, per the state: give copies to your agent, your doctor, your attorney and anyone else you want; keep one in your wallet or with important papers, not in a safe deposit box; and bring a copy whenever you are admitted to a hospital, even for minor or outpatient surgery.