A health care proxy is an advance directive designed to allow the person of your choosing to make medical decisions on your behalf if you are unable to do so.

The estate planning attorneys at Pierro, Connor & Strauss also build into the proxy additional language sometimes referred to as a “living will,” which explains the type of treatment you would like to have or to have discontinued, should you be unable to speak for yourself.

This takes the onus off relatives who might otherwise have to struggle with these decisions.

Keep in mind that you cannot name your doctor as your health care agent as they cannot act as both your physician and proxy. The doctor is the person who determines whether you no longer have the capacity to make your own decisions and should have a copy of the health care proxy.

What a Health Care Proxy Can and Cannot Do

Your health care agent has only as much authority granted by state law and as you authorize. There are limitations.

For example, the individual named as your health care agent cannot decide that you should no longer receive artificial feeding and water unless your agent knows your wishes. The agent is also not responsible for your finances or medical bills.

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How to Select a Health Care Agent

The person you select must be comfortable making decisions about your health (with as many alternates as possible). You want someone who is reliable, shares your values and understands your health care needs and wishes. A spouse, adult child, sibling, or another family member may serve as a health care agent. You can also ask a trusted friend, ideally someone familiar with hospitals and medical procedures.

The person must be at least 18 years old and of sound mind. It is not necessarily the person with the most medical knowledge (such as a child who is a physician), but the person who is emotionally strong enough to carry out your wishes, even if there are family members who do not agree.

Discuss the role of health care agent with your candidate so he or she understands exactly what the position entails in case you cannot make crucial medical decisions for yourself. Can this individual handle the possibility of making a life-or-death decision? If you are satisfied that he or she can, name that person as your agent.

You should also name an alternate agent if the initial person cannot act as your agent. Remember that the need for your agent to act may come out of the blue, so you should try to have a successor in place if your original agent is unavailable.

Suppose I Don’t Have Anyone to Appoint?

There are people who do not have anyone in their lives whom they trust enough to name as a health care proxy. When that is the case, a Health Care Declaration becomes even more important because it can guide health care professionals should the person become incapacitated. It is our practice at Pierro, Connor & Strauss to consolidate the two tools in one “combined” instrument along with the HIPAA release section.

How to Update a Health Care Proxy

Health care proxies in New York are legally binding but not set in stone. You may change your views. Your choice of agent might change, or your appointed agent may later decline to take on this task for you.

Perhaps you realize this person is not the right choice for making potentially tough decisions. Fortunately, updating a proxy is straightforward with the guidance of an estate planning attorney. You can change your representative at any time by informing them in writing and signing a new document.

Why Do I Need Advance Directives?

None of us know the future. We can seem perfectly healthy one day and suffer a serious accident or illness the next. All of us are vulnerable to developing dementia or another incapacitating disease. Without advance directives, you are in danger of not just having your wishes ignored, but you could end up going through exactly the kind of treatment you wanted to avoid.

If you do not select a health care agent, your family members may disagree about the kind of treatment you should receive. At this difficult time, you do not want your loved ones arguing about your treatment.

By proactively executing advance directives you are avoiding confusion and potential conflicts for your family while making certain that your wishes for health care are carried out. And the possibility about who should be your court-appointed guardian.

Contact a New York Estate Planning Attorney

The New York estate planning lawyers at Pierro, Connor & Strauss will help you create a health care proxy to designate who can make medical decisions about your care if you are unable. Schedule a consultation today to discuss this – and other – critical estate planning documents.

Pierro, Connor & Strauss, LLC provides legal services to clients in the Capital Region including Albany, New York City, Long Island, Westchester, Hudson, Utica, Lake Placid, Clark, NJ, Fort Lee, NJ, Falmouth, MA and Clearwater, FL.


Contact us today for a consultation and we’ll be happy to help take the worry out of tomorrow so you can live today.